Implementing the U.S. DOT Reasonable Modification Rule (2019)

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1 This synthesis provides an overview of the current state of practice regarding the experi- ences of transit agencies as they have responded to the U.S. Department of Transportation (DOT) regulation to make reasonable modification of policies and practices to ensure acces- sibility to people with disabilities. Under the U.S. DOT regulations for implementing the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973 (49 C.F.R. Parts 37 and 27), transportation service providers and recipients of federal funding are required to ensure their services do not discriminate against people with disabilities. In 2015, the U.S. DOT amended 49 C.F.R. Parts 27 and 37 to require transportation entities to make “reasonable modifications/accommodations to policies, practices, and procedures to avoid discrimina- tion and ensure that their programs are accessible to individuals with disabilities.” Effective July 13, 2015, 49 C.F.R. §37.169 of this final rule requires that public entity transit providers develop their own processes for making decisions and for providing reasonable modifica- tions to their policies and practices. These include notifying the public how to request a modification and providing a means that is accessible and usable by individuals with dis- abilities to request a modification. In considering requests for reasonable modifications, transit agencies are only allowed to deny requests on one or more of the following bases, as stated in the final rule: • Granting the request would fundamentally alter the nature of the entity’s services, pro- grams, or activities [49 C.F.R. § 27.7(e), § 37.169(c)]; • Granting the request would create a direct threat to the health or safety of others [49 C.F.R. § 37.169(c)]; • 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 [49 C.F.R. § 37.169(c)]; or • For recipients of FTA assistance, the recipient can demonstrate that making the modifica- tion would result in an undue financial and administrative burden [49 C.F.R. § 27.7(e)]. The U.S. DOT provided guidance to help public transit agencies with determining whether to grant a requested modification through a series of examples presented in Appendix E to Part 37 of 49 C.F.R. In the event of a request denial, a public entity must, to the maximum extent feasible, take other actions to “ensure that the individual with a disability receives the services or benefit provided by the entity” [49 C.F.R. § 37.169(e)]. The synthesis was conducted through three major tasks, including a review of relevant lit- erature, an online survey of public transit agencies, and development of case examples based on interviews with six of those public transit agencies. Practices in fixed-route transit, ADA S U M M A R Y Implementing the U.S. DOT Reasonable Modification Rule

2 Implementing the U.S. DOT Reasonable Modification Rule complementary paratransit, and other demand response transit services were addressed. The study identifies new policies developed, actual requests for modifications, responses to these requests, and ideas for improving the process. The review of the literature was primarily a review of documents from the U.S. DOT and the Federal Transit Administration (FTA). No previously published research was identified on this topic. The U.S. DOT final rule, including the guidance examples in Appendix E to 49 C.F.R. Part 37, was the most important source reviewed for this synthesis. Appendix D to 49 C.F.R. Part 37 also provides important guidance to transit industry practitioners. The synthesis survey was emailed to 64 transit agencies representing a wide range of orga- nizations, service areas, and service modes. Forty-three transit agencies submitted a survey response, which revealed the following: • Each of the agencies that responded has either a formal or informal policy or procedure for addressing reasonable modification requests; • Transit agencies are informing staff, contract staff, customers, and potential customers about their reasonable modification policy and procedure through a variety of approaches; • Customers can submit requests through numerous means, and most transit agencies ask that requests be submitted in advance; • Requests received in advance may be evaluated by a single individual at some transit agencies and by multiple individuals at others; • Vehicle operators are empowered to make decisions at the time of service at a majority of transit agencies, with the rest requiring that the operator ask dispatch, a supervisor, or a manager; • Eighteen respondents indicated that they have experienced “no known challenges to date” in implementing reasonable modification, and thirteen respondents indicated that they have experienced multiple types of challenges; and • Nine respondents indicated that their agency is able to meet more transportation needs as a result of implementing reasonable modifications; six respondents reported that some ADA paratransit riders shifted some of their travel to fixed route as a result of reasonable modifications on fixed-route service; and twenty-two respondents indicated that they had experienced no known benefits to date. Requests for reasonable modifications are not consistently documented, particularly for requests made at the time of service (“ad hoc” requests). However, as reported within the case examples, for some transit agencies, reasonable modification requests may be embed- ded within other general customer service request documentation and not singled out as reasonable modification requests. Through a review of relevant redacted FTA Letters of Finding available at the time of this study, it appears that requests for a specific type of vehicle are the most frequent type of modification requested that result in a complaint to the FTA. Likewise, requests for spe- cific vehicle types are the most frequent types of requests reported in the survey responses as well as some of the case examples. Based on the survey responses and case examples, it appears that most of the responding agencies consider this type of request to be a funda- mental alteration of service. Only one agency noted that they try to accommodate this type of request when they can (although they do not guarantee that the customer will be served with their preferred type of vehicle). Although implementation issues were raised through the survey responses and case examples, almost half of the survey responses indicated that their transit agency had not experienced challenges in implementing their reasonable modification policy/process, while others experienced multiple types of challenges. Eight of the transit agencies surveyed

Summary 3 reported that time involved in processing requests is a challenge. Some have experienced difficulty in evaluating whether or not a requested modification would constitute a funda- mental alteration of service (this was the most frequent response, for more that one-quarter of the respondents) or a direct threat to the health and safety of others, or whether, without the requested modification, the individual with a disability is able to use the transit system’s services, programs, or activities for their intended purpose. Because the circumstance for each request is highly individualized, depending on the nature of each person’s disability, the circumstance of each trip origin and destination, and the regular transit operating poli- cies, each request must be reviewed on a case-by-case basis, and “one size fits all” guidance may not be possible for many types of requests. The case-by-case nature of considering reasonable modification requests can also present a challenge in perceptions of arbitrariness or subjectivity in the decision making. The six case examples reported the following as useful elements in their approach to con- sidering requests for reasonable modification: • Taking a proactive approach for identifying needs for reasonable modifications (including the paratransit eligibility process) as well as reviewing complaints, incident reports, and ad hoc requests; • Using a decision tree to evaluate requests; • Reaching out to other organizations in the community to help with work-arounds; • Collaborating with other organizations to educate their customers about the reasonable modification policy; • Educating staff on how to make routine decisions; • Consulting with other people in the transit agency to help evaluate the request, including operations and legal when needed; • Ensuring that approved requests are on the driver’s manifest; • Building extra time into the driver’s schedule for requests that need additional time; • Providing a method for operators to communicate ad hoc requests; and • Reviewing requests on a regular basis to determine if changes to policies may be warranted. Having concluded this synthesis, suggestions for further research include the following: • Identification of best practices in documentation of reasonable modification requests, particularly ad hoc requests; • Identification of best practices in determining whether or not a requested modification would constitute a fundamental alteration of service or a direct threat to the health and safety of others; • Identification of best practices in determining whether or not, without the requested modification, the individual with a disability could use the transit system service; and • Legal research on reasonable modification and/or implementation of origin-to-destination paratransit service case law. Overall, we found that the transit agencies that responded to the survey have imple- mented reasonable modification policies and practices, with inconsistent documentation practices (although it should be noted that the final rule does not require documentation of requested modifications). Some transit agencies reported challenges in implementa- tion. However, nearly half of the respondents did not experience challenges, and a sig- nificant portion of respondents have experienced benefits as a result of implementing reasonable modification practices, such as meeting more transportation needs and the shifting of some ADA paratransit trips to fixed route.