49 CFR Parts 27 and 37: Transportation for Individuals With Disabilities; Reasonable Modification of Policies and Practices - Preamble

Comments to the NPRM

The Department received over 300 comments on the reasonable modification provisions of the NPRM. These comments were received during the original comment period, a public meeting held in August 2010, and a reopened comment period at the time of that meeting. The comments were polarized, with almost all disability community commenters favoring the proposal and almost all transit industry commenters opposing it.

The major themes in transit industry comments opposing the proposal were the following. Many transit industry commenters opposed the application of the concept of reasonable modification to transportation, and a few commenters argued that it was not the job of transit entities to surmount barriers existing in communities. Many transit commenters said that the rule would force them to make too many individual, case-by-case decisions, making program administration burdensome, leading to pressure to take unreasonable actions, creating the potential for litigation, and making service slower and less reliable. Some of these commenters also objected to the proposal that the head of an entity, or his designee, would be required to make the decision that a requested modification was a fundamental alteration or would result in an undue burden, and provide a written decision to the requestor, stating this requirement would take substantial staff time to complete. Many commenters provided examples or, in some cases, extensive lists, of the kinds of modifications they had been asked or might be asked to make, many of which they believed were unreasonable. A number of commenters said the rule would force paratransit operators to operate in a door-to-door mode, eliminating, as a practical matter, the curb-to-curb service option. A major comment from many transit industry sources was that reasonable modification would unreasonably raise the costs of providing paratransit. Per-trip costs would rise, various commenters said, because of increased dwell time at stops, the need for additional personnel (e.g., an extra staff person on vehicles to assist passengers), increased insurance costs, lower service productivity, increased need for training, or preventing providers from charging fees for what they would otherwise view as premium service. Some of these commenters attached numbers to their predictions of increased costs (e.g., the costs of paratransit would rise from 22-50 percent, nationwide costs would rise by $1.89-2.7 billion), though, with few exceptions, these numbers appeared to be based on extrapolations premised on assumptions about the requirements of the NPRM that were contrary to the language of the NPRM's regulatory text and preamble or on no analysis at all.

Commenters opposed to the proposal also raised safety issues, again principally in the context of paratransit. Making some reasonable modifications would force drivers to leave vehicles, commenters said. This could result in other passengers being left alone, which could expose them to hazards. Drivers leaving a vehicle would have to turn off the vehicle's engine, resulting in no air conditioning or heating for other passengers in the time the driver was outside the vehicle. The driver could be exposed to injury outside the vehicle (e.g., from a trip and fall).

A smaller number of commenters also expressed concern about the application of the reasonable modification concept to fixed route bus service. Some commenters said that the idea of buses stopping at other than a designated bus stop was generally unsafe and burdensome, could cause delays, and impair the clarity of service. A number of these commenters appeared to believe that the NPRM could require transit entities to stop anywhere along a route where a person with a disability was flagging a bus down, which they said would be a particularly burdensome practice.

Commenters also made legal arguments against the proposal. Some commenters supported the approach taken by the court in Melton. Others said that the Department lacks statutory authority under the ADA to require reasonable modification or that reasonably modifying paratransit policies and practices would force entities to exceed the “comparable” service requirements of the statute. Some of these commenters said that the proposal would push entities too far in the direction of providing individualized, human service-type transportation, rather than mass transit. A number of commenters also said that it was good policy to maintain local option for entities in terms of the service they provide. Others argued that the proposed action was inconsistent with statutes or Executive Orders related to unfunded mandates and Federalism.

A variety of commenters—in both the disability community and transportation industry—noted that a significant number of paratransit operators already either provide door-to-door service as their basic mode of service (some commenters said as many as 50 percent of paratransit operators provide door-to-door service) or follow what, in effect, is curb-to-curb with reasonable modification approach for paratransit, or allowed fixed route buses flexibility in terms of where they stop. Some of these commenters said that transit operators imposed conditions on the kind of modifications that could be made (e.g., drivers could only leave the vehicle for a limited time or distance).

In some cases, commenters said, while they use their discretion to make the kinds of modifications the NPRM proposed, they wanted these actions to remain discretionary, rather than being the subject of a Federal mandate. A smaller number of commenters asked for additional guidance on expectations under a reasonable modification rule or for clarification of an enforcement mechanism for the proposed requirement.

Disability community commenters were virtually unanimous in supporting the proposal, saying that curb-to-curb paratransit service was often inadequate for some people with disabilities, who, in some circumstances, could not make use of ADA-mandated paratransit service. For example, medical oxygen users should not have to use part of their supply waiting at the curb for a vehicle; blind passengers may need wayfinding assistance to get to or from a vehicle; or bad weather may make passage to or from a vehicle unduly difficult for wheelchair users. Some disability community commenters supported the inclusion in the rule of various other provisions of the DOJ ADA regulations (e.g., with respect to auxiliary aids and services).