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

The Reasonable Modification NPRM

Through amendments to the Department's ADA regulations at 49 CFR 37.5 and 37.169, the NPRM proposed that transportation entities, including, but not limited to, public transportation entities required to provide complementary paratransit service, must make reasonable modifications to their policies and practices to avoid discrimination on the basis of disability and ensure program accessibility. Making reasonable modifications to policies and practices is a fundamental tenet of disability nondiscrimination law, reflected in a number of DOT (e.g., 49 CFR 27.11(c)(3), 14 CFR 382.7(c)) and DOJ (e.g., 28 CFR 35.130(b)(7)) regulations. Moreover, since at least 1979, section 504 has been interpreted to require recipients of Federal financial assistance to provide reasonable accommodations to program beneficiaries. See, e.g., Alexander v. Choate, 469 U.S. 287 (1985); Southeastern Community College v. Davis, 442 U.S. 397 (1979). In accordance with these decisions of the U.S. Supreme Court (e.g., Choate and Davis), the obligation to modify policies, practices, and procedures is a longstanding obligation under section 504, and the U.S. Department of Justice, which has coordination authority for section 504 pursuant to Executive Order 12250, is in agreement with this interpretation.

However, as the NPRM explained, DOT's ADA regulations do not include language specifically requiring regulated parties to make reasonable modifications to policies and practices. The Department, when drafting 49 CFR part 37, intended that § 37.21(c) would incorporate the DOJ provisions on this subject, by saying the following:

Entities to which this part applies also may be subject to ADA regulations of the Department of Justice (28 CFR parts 35 or 36, as applicable). The provisions of this part shall be interpreted in a manner that will make them consistent with applicable Department of Justice regulations.

Under this language, provisions of the DOJ regulations concerning reasonable modifications of policies and practices applicable to public entities, such as 28 CFR 35.130(b)(7), could apply to public entities regulated by DOT, while provisions of DOJ regulations on this subject applicable to private entities (e.g., 28 CFR 36.302) could apply to private entities regulated by DOT. A 1997 court decision appeared to share the Department's intention regarding the relationship between DOT and DOJ requirements (Burkhart v. Washington Area Metropolitan Transit Authority, 112 F.3d 1207 (D.C. Cir. 1997)).

However, more recent cases that addressed the issue directly held that, in the absence of a DOT regulation explicitly requiring transportation entities to make reasonable modifications, transportation entities were not obligated to make such modifications under the ADA. The leading case on this issue was Melton v. Dallas Area Rapid Transit (DART), 391 F.3d 669 (5th Cir. 2004); cert. denied 125 S. Ct. 2273 (2005). In this case, the court upheld DART's refusal to pick up a paratransit passenger with a disability in a public alley behind his house, rather than in front of his house (where a steep slope allegedly precluded access by the passenger to DART vehicles). The DART argued that paratransit operations are not covered by DOJ regulations. “Instead,” as the court summarized DART's argument, “paratransit services are subject only to Department of Transportation regulations found in 49 CFR part 37. The Department of Transportation regulations contain no analogous provision requiring reasonable modification to be made to paratransit services to avoid discrimination.” 391 F.3d at 673.

The court essentially adopted DART's argument, noting that the permissive language of § 37.21(c) (“may be subject”) did not impose coverage under provisions of DOJ regulations which, by their own terms, provided that public transportation programs were “not subject to the requirements of [28 CFR part 35].” See 391 F.3d at 675. “It is undisputed,” the court concluded that the Secretary of Transportation has been directed by statute to issue regulations relating specifically to paratransit transportation. Furthermore, even if the Secretary only has the authority to promulgate regulations relating directly to transportation, the reasonable modification requested by the Meltons relates specifically to the operation of DART's service and is, therefore, exempt from the [DOJ] regulations in 28 CFR Part 35.

Id. Two other cases, Boose v. Tri-County Metropolitan Transportation District of Oregon, 587 F.3d 997 (9th Cir. 2009) and Abrahams v. MTA Long Island Bus, 644 F.3d 110 (2d Cir. 2011), subsequently agreed with Melton.

Because the Department believed that, as in all other areas of disability nondiscrimination law, making reasonable modifications to policies and practices is a crucial element of nondiscriminatory and accessible service to people with disabilities, we proposed to fill the gap the courts had identified in our regulations. Consequently, the 2006 NPRM proposed amending the DOT rules to require that transportation entities, both fixed route and paratransit, make reasonable modifications in the provisions of their services when doing so is necessary to avoid discrimination or to provide program accessibility to services.

In § 37.5, the general nondiscrimination section of the ADA rule, the Department proposed to add a paragraph requiring all public entities providing designated public transportation to make reasonable modifications to policies and practices where needed to avoid discrimination on the basis of disability or to provide program accessibility to services. The language was based on DOJ's requirements and, like the DOJ regulation, would not require a modification if doing so would fundamentally alter the nature of the entity's service.

The NPRM also proposed to place parallel language in a revised § 37.169, replacing an obsolete provision related to over-the-road buses. Under the proposal, in order to deny a request for a modification, the head of a public entity providing designated public transportation services would have had to make a written determination that a needed reasonable modification created a fundamental alteration or undue burden. The entity would not have been required to seek DOT approval for the determination, but DOT could review the entity's action (e.g., in the context of a complaint investigation or compliance review) as part of a determination about whether the entity had discriminated against persons with disabilities. In the case where the entity determined that a requested modification created a fundamental alteration or undue burden, the entity would be obligated to seek an alternative solution that would not create such an undue burden or fundamental alteration.

The ADA and part 37 contain numerous provisions requiring transportation entities to ensure that persons with disabilities can access and use transportation services on a nondiscriminatory basis. Some of these provisions relate to the acquisition of vehicles or the construction or alteration of transportation facilities. Others concern the provision of service by public and private entities, in modes ranging from public demand-responsive service for the general public to private over-the-road buses. Still others concern the provision of complementary paratransit service.

In all of these cases, public transportation entities are likely to put policies and procedures in place to carry out applicable requirements. In order to achieve the objectives of the underlying requirements in certain individual cases, entities may need to depart from these otherwise acceptable policies. This final rule concerns the scope of situations in which such departures—i.e., reasonable modifications—are essential. The underlying provisions of the rule describe the “bottom line” of what transportation entities must achieve. This reasonable modification rule describes how transportation entities get to that “bottom line” in individual situations where entities' normal procedures do not achieve the intended result.

As comments to the NPRM made clear, an important concern of transportation entities is that the DOT final rule makes it possible to understand clearly what modifications are expected; in other words, which requested modifications would be “reasonable” and which would not. For example, in the fixed route context, we believe that stopping a bus a short distance from a bus stop sign to allow a wheelchair user to avoid an obstacle to boarding using a lift (e.g., a utility repair, a snowdrift) would generally be reasonable. Establishing a “flag stop” policy that allowed a passenger to board a bus anywhere, without regard to bus stop locations, would not. In the complementary paratransit context, the Department would expect, in many circumstances, that drivers would provide assistance outside a vehicle where needed to overcome an obstacle, but drivers would not have to provide personal services that extend beyond the doorway into a building to assist a passenger. Appendix E to this final rule addresses issues of this kind in greater detail.

In addition to the “modification of policies” language from the DOJ ADA rules, there are other features of those rules that are not presently incorporated in the DOT ADA rules (e.g., pertaining to auxiliary aids and services). The NPRM sought comment on whether it would be useful to incorporate any additional provisions from the DOJ rules into Part 37.