49 CFR Parts 37 and 38 -- Transportation for Individuals With Disabilities at Intercity, Commuter, and High Speed Passenger Railroad Station Platforms; Miscellaneous Amendments, Preamble

Definition of “Direct Threat”

NPRM

The definition of “direct threat” has long been a key provision of this and other disability nondiscrimination regulations. “Direct threat” has been the Department's primary reference point in deciding several issues in which there has been tension between the safety concerns of transportation providers and the rights of persons with disabilities to access public transportation, such as prohibitions on wheelchair users being able to use certain bus stops, use of lifts by standees, and carriage of three-wheeled scooters that are not easily secured by existing bus securement devices. A key element of the concept is that, to justify a limitation on individuals with disabilities, there must be a significant threat to others—as distinct from to the individual with a disability—that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services. The NPRM indicated that the Department intended to add a definition of direct threat to 49 CFR 37.3 that would track the definition in DOJ's regulation, which defines direct threat in terms of a threat to the health and safety of others.

Comments

Disability community commenters favored retaining the requirement that a direct threat can only be a threat to the health or safety of others. A number of transportation industry commenters, however, believed that the definition should be modified to permit consideration of threats to the safety of the disabled person him- or herself. Both in the interest of protecting passengers with disabilities from potential harm and of protecting the transit authority from potential liability, these commenters believed that transportation providers should be able to impose certain restrictions on the transportation of some passengers with disabilities if there was danger to the passengers themselves. One example that some commenters cited was a paratransit passenger with dementia who, once dropped off at his or her destination, could become disoriented and wander off if no one at the destination was present to take care of him or her.

DOT Response

The Department has determined that in the transportation context the appropriate definition of direct threat is one that only considers safety threats to others. This approach is consistent with DOJ's regulations. Therefore, we will define direct threat as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services” and add this definition to our regulation.

We recognize that the situation of paratransit service to a person with dementia or another severe cognitive impairment presents unique problems. The primary risk (e.g., of becoming disoriented and wandering away) is to the passenger, rather than to others, but, in the absence of a personal care attendant or a contact with someone at the destination point, the risk to the safety, or even the life, of the passenger could be very high. This is an issue that should be addressed during the application process and eligibility interview. At that time, the paratransit provider, the applicant, and the person responsible for the applicant's well-being should discuss the parameters of paratransit service, the paratransit agency's policies regarding attended transfers, and the procedures that will be followed in the event that there is no one available to meet the applicant when the vehicle arrives.

The Department has added language to Appendix D of part 37 to make it clear that the concept of “direct threat” in this rule is intended to be interpreted consistently with the same term in DOJ rules.

Other Definitions

The DOJ published, on September 15, 2010, new ADA Title II and Title III regulations (75 FR 56164). These rules define certain terms, such as “disability,” “auxiliary aids” and “service animals,” differently from the existing definitions in part 37. Generally, these definitional differences are at the level of detail and wording, and the definitions are not vastly different in concept. The Department will consider whether, in the future, to propose changes to part 37 to parallel the new DOJ definitions. Meanwhile, the existing DOT definitions continue in effect. Regulated entities should not change policies based on the DOJ rules, since it is the DOT rules that apply to them.