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

DOT Response to Comments

Reasonable modification is a central concept of disability nondiscrimination law, based on the principle that it is essential for entities to consider individuals with disabilities as individuals, not simply as members of a category. The concept recognizes that entities may have general policies, legitimate on their face, that prevent nondiscriminatory access to entities' service, programs, or facilities by some individuals with disabilities under some circumstances. The concept calls on entities to make individual exceptions to these general policies, where needed to provide meaningful, nondiscriminatory access to services, programs, or facilities, unless making such an exception would require a fundamental alteration of an entity's programs.

Reasonable modification requirements are part of existing requirements for recipients of Federal financial assistance, DOJ ADA rules for public and private entities, DOT ADA rules for passenger vessels, and DOT rules under the Air Carrier Access Act. In none of these contexts has the existence of a reasonable modification requirement created a significant obstacle to the conduct of the wide variety of public and private functions covered by these rules. Nor has it led to noticeable increases in costs. At this point, surface transportation entities are the only class of entities not explicitly covered by an ADA regulatory reasonable modification requirement. Having reviewed the comments to this rulemaking, the Department has concluded that commenters failed to make a persuasive case that there is legal justification for public transportation entities to be treated differently than other transportation entities. Further, per the analysis above, section 504 requires entities receiving Federal financial assistance to make reasonable accommodations to policies and practices when necessary to provide nondiscriminatory access to services. This existing requirement applies to nearly all public transportation entities.

As stated in the NPRM, DOT recognizes that not all requests by individuals with disabilities for modifications of transportation provider policies are, in fact, reasonable. The NPRM recognized three types of modifications that would not create an obligation for a transportation provider to agree with a request: (1) Those that would fundamentally alter the provider's program, (2) those that would create a direct threat, as defined in 49 CFR 37.3, as a significant risk to the health or safety of others, and (3) those that are not necessary to enable an individual to receive the provider's services. The NPRM provided some examples of modifications that should be or need not be granted. Commenters from both the disability community and the transit industry provided a vastly larger set of examples of modifications that they had encountered or believed either should or should not be granted.

To respond to commenters' concerns that, given the wide variety of requests that can be made, it is too difficult to make the judgment calls involved, the Department has created an Appendix E to its ADA regulation that lists examples of types of requests that we believe, in most cases, either will be reasonable or not. This guidance recognizes that, given the wide variety of circumstances with which transportation entities and passengers deal, there may be some generally reasonable requests that could justly be denied in some circumstances, and some requests that generally need not be granted that should be granted in other circumstances. In addition, we recognize that no list of potential requests can ever be completely comprehensive, since the possible situations that can arise are far more varied than can be set down in any document. That said, we hope that this Appendix will successfully guide transportation entities' actions in a substantial majority of the kinds of situations commenters have called to our attention, substantially reducing the number of situations in which from-scratch judgment calls would need to be made, and will provide an understandable framework for transportation entities' thinking about specific requests not listed. Of course, as the Department learns of situations not covered in the Appendix, we may add to it.

The Department wants again to make clear that, as stated in the preamble to the last rulemaking:

[the] September 2005 guidance concerning origin-to-destination service remains the Department's interpretation of the obligations of ADA complementary paratransit providers under existing regulations. As with other interpretations of regulatory provisions, the Department will rely on this interpretation in implementing and enforcing the origin-to-destination requirement of part 37. 76 FR 57924, 57934 (Sept. 19, 2011).

Thus, achieving the objective of providing origin-to-destination service does not require entities to make door-to-door service their basic mode of service provision. It remains entirely consistent with the Department's ADA rule to provide ADA complementary paratransit in a curb-to-curb mode. When a paratransit operator does so, however, it would need to make exceptions to its normal curb-to-curb policy where a passenger with a disability makes a request for assistance beyond curb-to-curb service that is needed to provide access to the service and does not result in a fundamental alteration or direct threat to the health or safety of others. Given the large number of comments on this issue, and to further clarify the Department's position on this, we have added a definition of “origin-to-destination” in part 37.

As commenters noted, a significant number of paratransit operators already follow an origin-to-destination policy that addresses the needs of passengers that require assistance beyond the curb in order to use the paratransit service. This fact necessarily means that these providers can and do handle individual requests successfully. When a significant number of complementary paratransit systems already do essentially what this rule requires, or more, it is difficult to argue that it cannot be done without encountering insuperable problems.

To respond to commenters' concerns about an asserted onerous review process of requested modifications, the Department has removed the requirement that a response to a request be in writing, and is amending the complaint procedure in 49 CFR 27.13, and then mirroring that provision in a new section 37.17, to ensure it applies not just to recipients of Federal funds but to all designated public transportation entities. A person who is denied a modification may file a complaint with the entity, but the process would be the same as with any other complaint, so no separate complaint procedure is listed in 37.169.

With respect to fixed route bus service, the Department's position—elaborated upon in Appendix E—is that transportation providers are not required to stop at nondesignated locations. That is, a bus operator would not have to stop and pick up a person who is trying to flag down the bus from a location unrelated to or not in proximity to a designated stop, regardless of whether or not that person has a disability. On the other hand, if a person with a disability is near a bus stop, but cannot get to the precise location of the bus stop sign (e.g., because there is not an accessible path of travel to that precise location) or cannot readily access the bus from the precise location of the bus stop sign (e.g., because of construction, snow, or a hazard that makes getting onto the lift from the area of the bus stop sign too difficult or dangerous), then it is consistent both with the principle of reasonable modification and with common sense to pick up that passenger a modest distance from the bus stop sign. Doing so would not fundamentally alter the service or cause significant delays or degradation of service.

While it is understandable that commenters opposed to reasonable modification would support the outcome of Melton and cases that followed, it is important to understand that the reasoning of these cases is based largely on the proposition that, in the absence of a DOT ADA regulation, transportation entities could not be required to make reasonable modifications on the basis of DOJ requirements, standing alone. This final rule will fill the regulatory gap that Melton identified. While Melton stated that there was a gap in coverage with respect to public transportation and paratransit, as § 37.5(f) notes, private entities that were engaged in the business of providing private transportation services have always been obligated to provide reasonable modifications under title III of the ADA. Further, as stated above, reasonable accommodation is a requirement under section 504 of the Rehabilitation Act of 1973.

We do not agree with commenters who asserted that reasonable modification goes beyond the concept of comparable complementary paratransit found in the ADA, going too far in the direction of individualized, human services transportation, rather than mass transit. To the contrary, complementary paratransit remains a shared-ride service that must meet regulatory service criteria. Nothing in this final rule changes that. What the final rule does make clear is that in providing complementary paratransit service, transit authorities must take reasonable steps, even if case-by-case exceptions to general procedures, to make sure that eligible passengers can actually get to the service and use it for its intended purpose. ADA complementary paratransit remains a safety net for individuals with disabilities who cannot use accessible fixed route service. Adhering rigidly to policies that deny access to this safety net is inconsistent with the nondiscrimination obligations of transportation entities. Because transportation entities would not be required to make any modifications to their general policies that would fundamentally alter their service, the basic safety net nature of complementary paratransit service remains unchanged.

By the terms of the Unfunded Mandates Reform Act of 1995, as amended, requirements to comply with nondiscrimination laws, including those pertaining to disability, are not unfunded mandates subject to the provisions of the Act. 2 U.S.C. 1503. As a practical matter, for the vast majority of transportation entities subject to the DOT ADA regulation who receive FTA or other DOT financial assistance, compliance with any DOT regulations is, to a significant degree, a funded mandate. For both these reasons, comments suggesting that the proposal would impose an unfunded mandate were incorrect.

With respect to federalism, State and local governments were consulted about the rule, both by means of the opportunity to comment on the NPRM and a public meeting. Transportation authorities—many of which are likely to be State and local entities—did participate extensively in the rulemaking process, as the docket amply demonstrates. As stated previously, transportation industry commenters prefer to use their discretion to make the kinds of modifications the NPRM proposed, rather than being subject to a Federal mandate. These entities continue to have the discretion to grant or deny requests for reasonable modification, albeit in the context of Appendix E.

The effects of the final rule on fixed route service are quite modest, and comments did not assert the contrary. The issue of the cost impact of the reasonable modification focused almost exclusively on ADA complementary paratransit. There was little in the way of allegations that making exceptions to usual policies would increase costs in fixed route service.

In looking at the allegations of cost increases on ADA complementary paratransit, the Department stresses that all recipients of Federal financial assistance—which includes public transportation entities of complementary paratransit service—are already required to modify policies, practices, and procedures if needed by an individual with a disability to enable him or her to participate in the recipient's programs or activities, and this principle has been applied by Federal agencies and the courts accordingly. However, to provide commenters with a fuller response to their comments, the Department would further make three primary points. First, based on statements on transportation provider Web sites and other information, one-half to two-thirds of transit authorities already provide either door-to-door service as their basic mode of service or provide what amounts to curb-to-curb service with assistance beyond the curb as necessary in order to enable the passenger to use the service. The rule would not require any change in behavior, or any increase in costs, for these entities. Second, the effect of providing paratransit service in a door-to-door, or curb-to-curb, with reasonable modification, mode on per-trip costs is minimal. In situations where arrangements for reasonable modification are made in advance, which would be a significant portion of all paratransit modification requests, per-trip costs could even be slightly lower. The concerns expressed by commenters that per-trip costs would escalate markedly appear not to be supported by the data. Third, there could be cost increases, compared to current behavior, for paratransit operators that do not comply with existing origin-to-destination requirements of the rule. Suppressing paratransit ridership by preventing eligible individuals from using the service or making the use of the service inconvenient saves money for entities. Conversely, making service more usable, and hence more attractive, could increase usage. Because of the operating cost-intensive nature of paratransit service, providing service to more people tends to increase costs. The Department estimated that increased costs from increased ridership stemming from improved service could amount to $55 million per year nationwide for those public transportation entities who are not in compliance with the current DOT origin-to-destination regulations.

This estimate would be at the upper end of the range of possible ridership-generated cost increases, since it is not clear that transportation entities with a strict curb-to-curb policy never provide modifications to their service. Analysts made the assumption that transportation agencies with curb-to-curb policies did not make modifications when modifications were not mentioned on the entities' Web sites. Disability community commenters suggested that, as a practical matter, transportation entities often provide what amounts to modifications even if their formal policies do not call for doing so.

In addition, it should be emphasized that transportation entities who comply with the existing rule's origin-to-destination requirement will not encounter ridership-related cost increases. In an important sense, any paratransit operation that sees an increase in ridership when this rule goes into effect are experiencing increased costs at this time because of their unwillingness to comply with existing requirements over the past several years.