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

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4 This chapter provides background information on the U.S. Department of Transportation (U.S. DOT) final rule on reasonable modification of policy and introduces the synthesis topic. It also presents the objectives, describes the research methodology including the survey of transit agencies and case study examples, and presents the organization of the report. Background 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), trans- portation 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 discrimination and ensure that their programs are accessible to individuals with disabili- ties” [Transportation for Individuals with Disabilities; Reasonable Modification of Policies and Practices, 80 Fed. Reg. 13,253 (Mar. 13, 2015) (to be codified at 49 C.F.R. Parts 27, 37)]. Effective July 13, 2015, 49 C.F.R. § 37.169 of this final rule required that transit providers develop their own processes for making decisions and providing reasonable modifications to their policies and practices, including notifying the public how to request a modification and providing a means that is accessible to and usable by individuals with disabilities 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: (1) Granting the request would fundamentally alter the nature of the entity’s services, programs, or activities; (2) Granting the request would create a direct threat to the health or safety of others; (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. [49 C.F.R. § 37.169(c)] For recipients of federal financial assistance, as stated in the final rule, “a recipient shall make reasonable accommodations in policies, practices, or procedures when such accom- modations are necessary to avoid discrimination on the basis of disability unless the recipient can demonstrate that making the accommodations would fundamentally alter the nature of the service, program, or activity or result in an undue financial and administrative burden” [49 C.F.R. § 27.7(e)]. C H A P T E R 1 Introduction and Background

Introduction and Background 5 The U.S. DOT provided guidance to help public entities with determining whether to grant a requested modification through a series of examples in Appendix E to Part 37 of 49 C.F.R. As stated in the appendix: A. This appendix explains the Department’s interpretation of §§37.5(i) and 37.169. It is intended to be used as the official position of the Department concerning the meaning and implementation of these provisions. The Department also issues guidance by other means, as provided in §37.15. The Department also may update this appendix periodically, provided in response to inquiries about specific situations that are of general relevance or interest. B. The Department’s ADA regulations contain numerous requirements concerning fixed route, complementary paratransit, and other types of transportation service. Transportation enti- ties necessarily formulate policies and practices to meet these requirements (e.g., providing fixed route bus service that people with disabilities can use to move among stops on the sys- tem, providing complementary paratransit service that gets eligible riders from their point of origin to their point of destination). There may be certain situations, however, in which the otherwise reasonable policies and practices of entities do not suffice to achieve the regula- tion’s objectives. Implementing a fixed route bus policy in the normal way may not allow a passenger with a disability to access and use the system at a particular location. Implement- ing a paratransit policy in the usual way may not allow a rider to get from his or her origin to his or her destination. In these situations, subject to the limitations discussed below, the transportation provider must make reasonable modifications of its service in order to com- ply with the underlying requirements of the rule. These underlying provisions tell entities the end they must achieve; the reasonable modification provision tells entities how to achieve that end in situations in which normal policies and practices do not succeed in doing so. C. As noted above, the responsibility of entities to make requested reasonable modifications is not without some limitations. There are four classes of situations in which a request may legitimately be denied. The first is where granting the request would fundamentally alter the entity’s services, programs, or activities. The second is where granting the request would cre- ate a direct threat to the health or safety of others. The third is where 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. The fourth, which applies only to recipients of federal financial assistance, is where granting the request would cause an undue financial and admin- istrative burden. In the examples that follow, these limitations are taken into account. D. The examples included in this appendix are neither exhaustive nor exclusive. Transporta- tion entities may need to make determinations about requests for reasonable modification that are not described in this appendix. Importantly, reasonable modification applies to an entities’ own policies and practices, and not regulatory requirements contained in 49 C.F.R. Parts 27, 37, 38, and 39, such as complementary paratransit service going beyond 3/4 mile of the fixed route, providing same-day complementary paratransit service, etc. (49 C.F.R. Part 37 app. E) 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)]. A more detailed presentation of the final rule is provided in Chapter 2 of this synthesis. Objective This synthesis is intended to provide an overview of the current state of practice regarding the experiences of transit agencies as they have responded to the U.S. DOT regulation to make rea- sonable modifications to ensure accessibility to people with disabilities. Practices in fixed-route

6 Implementing the U.S. DOT Reasonable Modification Rule transit, ADA complementary paratransit, and demand response transit services are addressed. The study seeks to identify new policies developed, actual requests for modifications, responses to these requests, and ideas for improving the process. Methodology This 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. These tasks were conducted over the course of four months (spanning December 2017 through early April 2018) and involved significant input from panel members. The Survey The objective of the survey was to gather information on how transit agencies are addressing the requirement to make reasonable modifications, what challenges transit agencies are facing in doing so, and “lessons learned” that can be shared with other public transit agencies. Survey questions were drafted, reviewed by the synthesis panel, and revised based on panel comments. The questions were then prepared as an online survey tool and the survey pretested with the panel members, which included three transit agencies. The final survey instrument is provided in Appendix A. Sixty-four transit agencies were selected to receive the survey, aiming for a broad range of organizations, service modes, and operating environments, from very rural to the largest cities in the United States. Contact information for each organization was identified through a search of each entity’s website, the membership directory of the American Public Transportation Asso- ciation (APTA), and in some cases through suggestions from panel members, colleagues of the consultant, and inquiries through the transit agency’s website. The panel reviewed the initially proposed list and provided suggestions for additional agencies to survey. The consultant sent an email introducing the study and providing a link to the survey to each of the 64 transit agencies. Emails that bounced back were researched and re-sent to an updated contact. About a week before the submission deadline, reminder emails were sent to those who had not yet responded. Panel members assisted in reaching out to several unresponsive organi- zations following the deadline. The consultant also sent a third email to unresponsive organiza- tions and in some cases a follow-up phone call was made. Ultimately, information was obtained for 43 of the 64 transit agencies that were surveyed. The Case Examples With panel input, six transit agencies were selected as case examples representing a wide range of system sizes, operating environments, and organizational structures. Interviews conducted with each of the six selected transit agencies provide detailed descriptions of how those agencies have implemented reasonable modification policies and procedures and the impact this had on their operations. Challenges that were identified and lessons learned are indicated in the case examples. The six case examples range from a two-bus general public transit system in rural Alaska to the Chicago Transit Authority, with transit agency sizes and cities in between. A com- mon element across all six examples is that each transit system has a customer-centric approach. This approach may have pre-empted many requests for reasonable modification simply because these transit agencies were already providing a high level of passenger assistance.

Introduction and Background 7 Organization of the Report This synthesis report is organized in five chapters: • Chapter 1—this chapter—provides an introduction to the report, methodology, and back- ground information on the topic. • Chapter 2 presents the document review. The consultant identified no previous research on this topic and reviewed the primary documents including the U.S. DOT Final Rule and other rulemaking documents, FTA guidance on implementing the final rule, and relevant FTA Letters of Finding. • Chapter 3 provides results of the online survey of transit agencies. The chapter summarizes the major findings. An appendix provides a full summary of the responses. • Chapter 4 presents six case examples of transit systems’ experiences implementing the reason- able modification final rule. The case examples were selected to represent a range of service types, system sizes, organizational structures, and operating environments. • Chapter 5 provides conclusions and suggestions for further research on this topic.