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

Provisions of the Final Rule

In amendments to 49 CFR part 27 (the Department's section 504 rule) and part 37 (the Department's ADA rule for most surface transportation), the Department is incorporating specific requirements to clarify that public transportation entities are required to modify policies, practices, procedures that are needed to ensure access to programs, benefits, and services.

With regard to the Department's section 504 rule at 49 CFR part 27, we are revising the regulation to specifically incorporate the preexisting reasonable accommodation requirement recognized by the U.S. Supreme Court (see, e.g., Choate and Davis). The revised section 27.7 will clarify that recipients of Federal financial assistance are required to provide reasonable accommodations to policies, practices, or procedures when the accommodations are necessary to avoid discrimination on the basis of disability unless making the modifications (1) would fundamentally alter the nature of the service, program, or activity, or (2) would result in undue financial and administrative burdens.

With regard to the Department's ADA regulations in part 37, we are revising the regulation to further clarify this requirement and to fill in the gap identified by the courts. Under our revised part 37 regulations, public transportation entities may deny requests for modifications to their policies and practices on one or more of the following grounds: Making the modifications (1) would fundamentally alter the nature of the service, program, or activity, (2) would result in a direct threat to the health or safety of others, or (3) without the requested modification, the individual with a disability is able to fully use the entity's services, programs, or activities for their intended purpose. Please note that under our section 504 regulations at part 27, there is an undue financial and administrative burden defense, which is not relevant to our ADA regulations at part 37.

This final rule revises section 37.169, which focuses on the reasonable modification obligations of public entities providing designated public transportation, including fixed route, demand-responsive, and complementary paratransit service. The key requirement of the section is that these types of transportation entities implement their own processes for making decisions on and providing reasonable modifications to their policies and practices. In many cases, agencies are handling requests for modifications during the paratransit eligibility process, customer service inquiries, and through the long-existing requirement in the Department's section 504 rule for a complaint process. Entities will need to review existing procedures and conform them to the new rule as needed. The Department is not requiring that the process be approved by DOT, and the shape of the process is up to the transportation provider, but it must meet certain basic criteria. The DOT can, however, review an entity's process as part of normal program oversight, including compliance reviews and complaint investigations.

First, the entity must make information about the process, and how to use it, readily available to the public, including individuals with disabilities. For example, if a transportation provider uses printed media and a Web site to inform customers about bus and paratransit services, then it must use these means to inform people about the reasonable modification process. Of course, like all communications, this information must be provided by means accessible to individuals with disabilities.^[1]

Second, the process must provide an accessible means by which individuals with disabilities can request a reasonable modification/accommodation. Whenever feasible, requests for modifications should be made in advance. This is particularly appropriate where a permanent or long-term condition or barrier is the basis for the request (e.g., difficulty in access to a paratransit vehicle from the passenger's residence; the need to eat a snack on a rail car to maintain a diabetic's blood sugar levels; lack of an accessible path of travel to a bus stop, resulting in a request to have the bus stop a short distance from the bus stop location). In the paratransit context, it may often be possible to consider requests of this kind in conjunction with the eligibility process. The request from the individual with a disability should be as specific as possible and include information on why the requested modification is needed in order to allow the individual to use the transportation provider's services.

Third, the process must also provide for those situations in which an advance request and determination is not feasible. The Department recognizes that these situations are likely to be more difficult to handle than advance requests, but responding to them is necessary. For example, a passenger who uses a wheelchair may be able to board a bus at a bus stop near his residence but may be unable to disembark due to a parked car or utility repair blocking the bus boarding and alighting area at the stop near his destination. In such a situation, the transit vehicle operator would have the front-line responsibility for deciding whether to grant the on-the-spot request, though it would be consistent with the rule for the operator to call his or her supervisor for guidance on how to proceed.

Further, section 37.169 states three grounds on which a transportation provider could deny a requested modification. These grounds apply both to advance requests and on-the-spot requests. The first ground is that the request would result in a fundamental alteration of the provider's services (e.g., a request for a dedicated vehicle in paratransit service, a request for a fixed route bus to deviate from its normal route to pick up someone). The second ground is that fulfilling a request for a modification would create a direct threat to the health or safety of others (e.g., a request that would require a driver to engage in a highly hazardous activity in order to assist a passenger, such as having to park a vehicle for a prolonged period of time in a no-parking zone on a high-speed, high-volume highway that would expose the vehicle to a heightened probability of being involved in a crash). Third, the requested modification would not be necessary to permit the passenger to use the entity's services for their intended purpose in a nondiscriminatory fashion (e.g., the modification might make transportation more convenient for the passenger, who could nevertheless use the service successfully to get where he or she is going without the modification). Appendix E provides additional examples of requested modifications that transportation entities usually would not be required to grant for one or more of these reasons.

Where a transportation provider has a sound basis, under this section, for denying a reasonable modification request, the entity would still need to do all it could to enable the requester to receive the services and benefits it provides (e.g., a different work-around to avoid an obstacle to transportation from the one requested by the passenger). Transportation agencies that are Federal recipients are required to have a complaint process in place. The Department has added a new section 37.17 that extends the changes made to 49 CFR 27.13 to all public and private entities that provide transportation services, regardless of whether the entity receives Federal funds.

By requiring entities to implement a local reasonable modification process, the Department intends decisions on individual requests for modification to be addressed at the local level. The Department does not intend to use its complaint process to resolve disagreements between transportation entities and individuals with disabilities about whether a particular modification request should have been granted. However, if an entity does not have the required process, it is not being operated properly (e.g., the process is inaccessible to people with disabilities, does not respond to communications from prospective complainants), it is not being operated in good faith (e.g., virtually all complaints are routinely rejected, regardless of their merits), or in any particular case raising a Federal interest, DOT agencies may intervene and take enforcement action.