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

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8 Introduction This chapter summarizes relevant findings from a review of documents related to implemen- tation of the final rule. No directly relevant previous research was identified about this topic (perhaps because the final rule went into effect less than three years before this literature review was conducted). Findings in the literature were predominantly from the United States Depart- ment of Transportation (U.S. DOT) final rule, Federal Transit Administration (FTA) guidance, and FTA complaint Letters of Finding, with a few additional publications identified. A search of literature addressing reasonable modifications was conducted through the following: • The U.S. DOT final rule and rulemaking documents themselves; • A review of previous Transit Cooperative Research Program (TCRP) reports; • A search of the Transportation Research Board (TRB) Transportation Research Information Documentation (TRID) database; • A search of the website of the FTA with review of the FTA Americans with Disabilities Act (ADA) guidance, ADA compliance review reports, and ADA complaint Letters of Finding posted in the Civil Rights/ADA section of the website; • A review of FTA redacted Letters of Finding regarding complaints related to reasonable modification requests; • A search of the websites of the American Public Transportation Association (APTA), Community Transportation Association of America (CTAA), Disability Rights Education and Defense Fund (DREDF), National Council on Disability (NCD), and National Council on Independent Living (NCIL); and • A search of websites of FTA-funded technical assistance centers, such as the National Aging and Disability Transportation Center (NADTC) which maintains the publications of the former FTA-funded Project ACTION. The remainder of this chapter is organized in the following sections: • A summary of U.S. DOT documents; • A summary of FTA documents; and • A summary of other relevant documents with content related to reasonable modification identified through the literature search. U.S. DOT Documents The 2015 Final Rule on Reasonable Modification— Federal Register Notice On March 13, 2015, U.S. DOT published a notice in the Federal Register of the final rule on reasonable modification to be codified within both 49 C.F.R. Part 27 (Nondiscrimination on C H A P T E R 2 Review of Primary Sources and Related Documents

Review of Primary Sources and Related Documents 9 the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance) and 49 C.F.R. Part 37 (Transportation Services for Individuals with Disabilities). Links to the March 13, 2015, Federal Register notice, as well as other electronic versions of documents cited in this chapter, are provided at the end of the chapter. The prefatory language from the Federal Register notice is attached to this synthesis as Appendix B. Language of the Final Rule The March 13, 2015, final rule revised or added the following paragraphs and sections in 49 C.F.R. Part 27 and 49 C.F.R. Part 37: • 49 C.F.R. § 27.7 Discrimination prohibited (e); Reasonable accommodations [new paragraph] • 49 C.F.R. § 27.13 Designation of responsible employee and adoption of complaint procedures [revised paragraph] • 49 C.F.R. § 37.3 Definitions. Origin-to-destination service [new definition] • 49 C.F.R. § 37.5 Nondiscrimination (h) [revised paragraph] • 49 C.F.R. § 37.5 Nondiscrimination (i) [new paragraph] • 49 C.F.R. § 37.17 Designation of responsible employee and adoption of complaint procedures [new section] • 49 C.F.R. § 37.169 Process to be used by public entities providing designated public transpor- tation service in considering requests for reasonable modification [new section] • Appendix E to Part 37—Reasonable Modification Requests [new appendix] The final rule, as of June 15, 2018, is included in this synthesis as Appendix C. The U.S. DOT explanation of reasonable modification requests, 49 C.F.R. Part 37 Appendix E (hence- forth referred to as Appendix E to Part 37), as of June 15, 2018, is included in this synthesis as Appendix D. Summary of the Federal Register Notice In addition to the new and revised regulation language under 49 C.F.R. Part 27 and 49 C.F.R. Part 37 and the new Appendix E to Part 37, the Federal Register notice contains an executive summary, a description of the rulemaking process, a summary of comments posted to the docket on the proposed rule, U.S. DOT response to comments, a discussion of provisions of the final rule, and regulatory analyses and notices. This prefatory language is included as Appendix B in this synthesis. As described in the executive summary of the Federal Register, the reasonable modifica- tion rule closed a gap in the existing rules to include a broad, basic principle of the ADA and Section 504 of the Rehabilitation Act: Reasonable modification/accommodation requirements are a fundamental tenet of disability non- discrimination law—for example, they are an existing requirement for recipients of federal assistance and are contained in the U.S. Department of Justice’s (DOJ) ADA rules for public and private entities, the U.S. Department of Transportation’s (DOT) ADA rules for passenger vessels, and DOT rules under the Air Carrier Access Act. In addition, section 504 has long been interpreted by the courts to require recipients of federal financial assistance—virtually all public transportation entities subject to this final rule—to provide reasonable accommodations by making changes to policies, practices, and procedures if needed by an individual with a disability to enable him or her to participate in the recipient’s program or activity, unless providing such accommodations are an undue financial and administrative burden or constitute a fundamental alteration of the program or activity. [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. pts. 27, 37)] The executive summary states that compliance with the rule is not expected to result in signifi- cant cost increases beyond what transit agencies (at least those transit agencies that are federal

10 Implementing the U.S. DOT Reasonable Modification Rule funding recipients) have already been required to do (Transportation for Individuals with Dis- abilities; Reasonable Modification of Policies and Practices, 2015). The Federal Register notice noted that over 300 comments to the docket were made on the reasonable modification provisions of the Notice of Proposed Rulemaking (NPRM) and sum- marized the major themes in comments from the transit industry in opposition to the proposed rule. The expressed concerns ranged from the anticipated burden of making many case-by-case decisions, to being forced to effectively eliminate the option of providing curb-to-curb para- transit service, to significantly raising the per-trip cost of providing paratransit service. Safety issues were raised regarding driver assistance from curb to door. (Transportation for Individuals with Disabilities; Reasonable Modification of Policies and Practices, 2015). A 2010 letter to the docket from the APTA, representing more than 1,500 member organiza- tions, including public transit systems, stated, Implementation of just one aspect of reasonable modification, door-to-door service, would add sub- stantial costs for many transit agencies by limiting agencies’ ability to employ shared rides. Drivers cannot be expected to routinely leave running vehicles with other riders, even for short periods without risking injury to those other riders or theft of paratransit vehicles. A driver assisting a rider to his door would not be able to safely respond to an incident at the vehicle without abandoning the client in his or her immediate care. The alternative, turning off the vehicle with other passengers on board, is equally unacceptable. Even assuming the most flexible interpretation by FTA, consistent door-to-door service cannot be provided without additional costs. (American Public Transportation Association 2010) In the context of fixed-route bus operations, there were concerns about the operational and safety impacts of making stops other than at designated locations. Comments from the disability community were “virtually unanimous in supporting the pro- posal,” with examples provided in the summary of situations in which reasonable modifications would make transit services more accessible. The full summary of comments and the U.S. DOT responses can be found on pages 13,255 to 13,258 of the March 13, 2015, Federal Register notice of the final rule. As summarized in the Federal Register notice, the provisions of the final rule require public transportation entities to “modify policies, practices, procedures that are needed to ensure access to programs, benefits, and services.” This applies to public entities providing designated public transportation, including fixed route, demand response, and complementary paratransit service. Transportation agencies are expected to “implement their own processes for making decisions on and providing reasonable modifications to their policies and practices.” This can be achieved as part of the ADA paratransit eligibility determination process, in response to customer service inquiries, and/or through the entity’s complaint process, as long as existing procedures conform to the reasonable modification rule requirements. These include the following: • Making information about the process, and how to use it, readily available to the public— including individuals with disabilities—through the same means the transit agency uses to inform customers about bus and paratransit services, and by accessible means; • Providing an accessible means for requesting a reasonable modification/accommodation in advance, without the need to use the words “reasonable modification”; and • Providing for situations in which an advance request and determination is not feasible (ad hoc requests, such as those that might be needed when a bus stop is blocked by snow). Requested modifications do not need to be provided when “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.” U.S. DOT notes that “under our section 504 regulations at part 27, there is an undue

Review of Primary Sources and Related Documents 11 financial and administrative burden defense, which is not relevant to our ADA regulations at part 37” (Transportation for Individuals with Disabilities; Reasonable Modification of Policies and Practices, 2015). However, in cases where a requested modification is justifiably denied, “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).” As stated in § 37.169 (e), “In any case in which a public entity denies a request for a reasonable modification, the entity shall take, to the maximum extent possible, any other actions (that would not result in a direct threat or fundamental alteration) to ensure that the individual with a disability receives the services or benefit provided by the entity” (49 C.F.R. § 37.169). The final rule went into effect July 13, 2015, by which time transit agencies were required to have implemented their own reasonable modification policy and procedures. The final rule added a definition to 49 C.F.R. Part 37: origin-to-destination service, requiring that “When an ADA paratransit operator chooses curb-to-curb as its primary means of provid- ing service, it must provide assistance to those passengers who need assistance beyond the curb in order to use the service unless such assistance would result in a fundamental alteration or direct threat” (49 C.F.R. § 37.3). The final rule also added a new Appendix E to Part 37, which provides guidance through the use of examples of requests for reasonable modification in 27 types of situations and includes guidance on when denying such requests could generally be permissible and when they must be accommodated. Appendix E to Part 37 As noted earlier, Appendix E to Part 37 provides examples of common requests for reason- able modifications. Appendix E to Part 37 is U.S. DOT guidance and the official position of U.S. DOT. The language of Appendix E to Part 37, as excerpted from the e-CFR, is included as Appendix D to this synthesis report. As stated in Appendix E to Part 37, these examples are “neither exhaustive nor exclusive” and “reasonable modification applies to an entities’ own policies and practices, and not regulatory requirements.” The consultant summarized the guidance examples presented in Appendix E to Part 37 in a table and a bulleted list attached as Appendix E to this synthesis report. It must be stressed that the contents of Appendix E of this synthesis are not intended to be guidance and should not be construed as legal interpretation. Instead, they are intended to summarize the U.S. DOT guidance based on the contents of Appendix E to Part 37. Appendix D to Part 37 Although not modified by the final rule on reasonable modification, it is important to men- tion Appendix D to Part 37—Construction and Interpretation of Provisions of 49 C.F.R. Part 37— as U.S. DOT guidance on all sections of 49 C.F.R. Part 37. Under the discussion of Section 37.129 Types of Service (for ADA complementary paratransit), Appendix D states, “The local planning process should decide whether, or in what circumstances, this service is to be provided as door- to-door or curb-to-curb service.” Notice of Proposed Rulemaking (2006) On February 27, 2006, U.S. DOT published its proposed rule on reasonable modifications as well as proposed changes to other ADA-related subjects; the changes to ADA-related sub- jects were finalized on September 19, 2011.

12 Implementing the U.S. DOT Reasonable Modification Rule The initial comment period on the NPRM ended April 28, 2006, for the proposed amend- ments to the ADA and related rules. The comment period was extended to July 28, 2006. A public meeting on the rulemaking was held on August 20, 2010, and the comment period was reopened briefly from August 19 through August 25. As noted earlier, over 300 comments to the docket were made on the reasonable modification provisions of the NPRM. A summary of comments and the U.S. DOT responses was included in the March 13, 2015, Federal Register notice of the final rule. A link to the complete list of comments to the docket is provided at the end of this chapter. Department of Transportation Disability Law Guidance— Origin-to-Destination Service (2005) A decade before the 2015 final rule on reasonable modification more clearly defined the obli- gation of ADA paratransit providers to provide door-to-door assistance to riders that need it, the U.S. DOT issued disability law guidance regarding origin-to-destination service on the FTA website. The 2005 “Origin-to-Destination Service” guidance stated that, although the general paratransit operating policy can be curb-to-curb, to meet the origin-to-destination requirement in the existing regulation, “service may need to be provided to some individuals or at some locations in a way that goes beyond curb-to-curb service” (U.S. Department of Transportation, “Origin-to-Destination Service,” 2005). Federal Transit Administration Documents ADA Circular In October 2015, the FTA published a new Circular 4710.1—Americans with Disabilities Act (ADA): Guidance, effective November 4, 2015. The ADA circular addresses the requirement to make reasonable modifications in its second chapter, quoting the final rule and providing several examples from Appendix E to Part 37. Origin-to-destination service is addressed in the eighth chapter and provides relevant examples from Appendix E to Part 37. Training on the New Rule A June 2015 slide presentation on the reasonable modification rule, posted on the FTA website, summarizes the rule and includes two additional definitions that are not part of the published rule: • Reasonable is defined as “fair and sensible; not extreme or excessive; possessing sound judg- ment”; and • Fundamental alteration is defined as “a change so significant that it alters the nature of the service.” (Day 2015) Letters of Finding This report covers reviews of relevant redacted Letters of Finding that were found on the FTA website or provided by the FTA. As stated on the FTA website, “Letters of Finding are issued as the result of investigation, analysis, and determination of complaints received by the FTA Office of Civil Rights. These documents are administratively determined and are not precedential in nature. Generally, Letters of Finding, which are normally addressed to a specific individual or entity, set forth the agency’s determination regarding an issue involving a specific

Review of Primary Sources and Related Documents 13 factual situation. Such letters may be helpful to others when dealing with the same issue involv- ing similar facts” (Federal Transit Administration, “Complaint Letters of Finding According to Subject,” 2016). Redacted Letters of Finding can be obtained through a Freedom of Infor- mation Act (FOIA) request. Several of the redacted letters are currently available on the FTA website at the link provided at the end of this chapter. A summary of the relevant topics in the letters reviewed appears in the following categorized, bulleted list. It should be stressed that this summary, as prepared by the synthesis consultant, does not include all the facts in each complaint but is intended to briefly recap the types of rea- sonable modification of policy complaints that have been filed with the FTA. The summaries of the Letters of Finding are grouped under categories that correlate with the examples provided in Appendix E to Part 37. In a number of the letters, multiple examples applied. Obstructions (Example 4) • A passenger who uses a wheelchair alleged that, among other things, a bus operator would not stop for him where he waited about 50 feet from the designated stop (a bus shelter) because the sidewalk to access the shelter lacked a curb cut. Although he tried to wave down the bus operator to pick him up, the operator instead pointed to the bus shelter and drove away. The FTA Letter of Finding noted that this complaint represented an isolated incident rather than a “pattern or practice,” and emphasized that the transit agency “must ensure its operators are prepared to pull up a reasonable distance from an obstructed bus stop,” referencing Example 4 in Appendix E to Part 37 (FTA complaint number 16-0048; letter dated Feb. 8, 2016). • A passenger with a disability complained that a bus driver would not deploy the lift in the dirt to allow the passenger to board. The FTA Letter of Finding noted FTA’s enforcement priority on “pattern or practice” of compliance requirements, lift deployment requirements in 49 C.F.R. § 37.167(g), and the relevant example in Appendix E to Part 37 (Example 4). The complaint was in reference to a single occurrence, and the letter stated, “If the situa- tion occurs again, you may ask the driver to move the vehicle up a few feet to an area where the lift could deploy if possible.” It also stated, “In the future, we suggest that you first file complaints regarding service issues with your local agency. . . . As [the transit agency] is more familiar with the local rules and transit operations, its staff would be in a better position to assist you and to follow up immediately with the driver involved as appropriate. By copying [the transit agency] on this letter, we are advising it to take steps, as appropriate, to ensure that its policies, procedures, and bus driver training and instructional material regarding lift use are consistent with the DOT ADA regulations explained above.” The letter identified “one potential deficiency in [the transit agency]’s implementation of the ADA pertaining to the local complaint process requirement” and asked the transit agency to submit “infor- mation substantiating that it has now implemented a disability-related complaint process incorporating all of the elements of 49 C.F.R. §37.17” (FTA complaint number 17-0169; letter dated Apr. 5, 2017). Origin-to-Destination Paratransit Service—General Assistance to the Door • A passenger who is blind needed assistance beyond the curb. She alleged that the transit system informed the passenger that “she would need an attendant because the city provides curb-to-curb service.” The city indicated “that it does provide ‘further accommodations’ to individuals who require service beyond the curb. In [the complainant’s] case, however, her accommodation was apparently denied because, according to the letter, she ‘did not convey to the city that she did not have, at times, the services of an attendant.’” The FTA Letter of Finding stated, “The fact that the complainant may have access to her own attendant is irrel- evant. The city is obligated to provide door-to-door assistance to paratransit-eligible riders consistent with the origin-to-destination requirement in 49 C.F.R. §37.129(a). An agency

14 Implementing the U.S. DOT Reasonable Modification Rule cannot pass off its responsibilities to individual riders or those accompanying them. This sit- uation would be analogous to an agency requiring a customer who uses a wheelchair to travel with an attendant to operate the bus lift or securement system; or requiring a blind customer to have his own attendant to announce stops on fixed route. The city’s actions not only vio- late the origin-to-destination requirement but also the basic nondiscrimination provision in 49 C.F.R. §37.5(e) prohibiting an agency from requiring an individual with a disability to be accompanied by an attendant in order to use the service.” The FTA found the city in violation of “49 C.F.R. §§37.129(a) and 37.5(e) due to its failure to ensure the complainant has origin-to-destination service and its insistence that she use her own attendant to provide assistance beyond the curb” (FTA complaint number 16-0093; letter dated Mar. 25, 2016). Origin-to-Destination Paratransit Service—Opening Building Doors (Example 16) and Five-Minute Warning or Notification of Arrival Calls (Example 26) • A passenger with a disability requested that a transit system modify its curb-to-curb/door-to- door policy on an individual basis to provide her with door-through-door service. The FTA Letter of Finding stated that “the DOT has already opined that door-through-door transpor- tation need not be provided.” The passenger indicated a request for notification that a para- transit vehicle has arrived. The FTA Letter of Finding noted that the transit system “does not yet have a system in place for providing a ‘5-minute warning’ for vehicle arrival,” referencing Example 26 in Appendix E to Part 37. The letter states, “While we agree that the notification system you mention will benefit paratransit customers, ultimately the notification approach an agency takes is a locally developed one. According to [the transit system], for your service its drivers are ringing the door bell, knocking on the door, or approaching you at the curb or at the alternate ‘service point’ that [the transit system] has communicated to you, depending upon the specific location, and notifying you that the vehicle has arrived. If the driver assis- tance or notification of vehicle arrival is insufficient to allow you to take paratransit, you must communicate your concerns to [the transit system]” (FTA complaint number 16-0152; letter dated Aug. 29, 2016). • A passenger who is blind, who cannot stand for long periods of time, requested that the transit system notify them that the vehicle has arrived, either by paratransit drivers using an external phone system at the individual’s apartment (used to announce visitors) or by dispatch calling the individual when the vehicle is close to the apartment building. The FTA Letter of Finding referenced Examples 16 and 26 in Appendix E to Part 37 and stated that the transit system “is not obligated under the ADA to require its personnel to cross the exterior door threshold, enter your apartment building and call you from the lobby. [The transit system]’s written response to FTA signaled that you may have had this expectation.” The paratransit provider, which provides door-to-door service, offered to call the individual when the vehicle arrived and wait for five minutes after placing the call. The paratransit provider also asked the pas- senger to call their call center in the event that the passenger did not receive a vehicle arrival notification call. The letter stated, “Based on the actions taken by [the transit agency], we are taking no further action and closing your complaint as of the date of this letter” (FTA com- plaint number 16-0481; letter dated Jan. 9, 2017). Origin-to-Destination Paratransit Service—Exposing Vehicle to Hazards (Example 17) and Hard-to-Maneuver Stops (Example 18) • A passenger with a disability complained that a transit system’s paratransit service refused to serve the individual’s residence due to issues related to backing out of a parking lot—which the passenger stated was “without merit”—and that the alternative location was not reason- able or safe. Following an FTA information request to the transit agency, the transit agency

Review of Primary Sources and Related Documents 15 reevaluated its assessment of the situation and reinstated service to the residence (FTA com- plaint number 17-0032; letter dated July 6, 2017). • A passenger with a disability complained, among other things, that an ADA paratransit pro- vider required them to travel to their housing complex’s leasing office rather than being picked up at the individual’s apartment. The FTA Letter of Finding included the following excerpts of the paratransit service guide: “Drivers will not go to doors that are more than 75 feet from the vehicle, and the driver must be able to maintain sight of the vehicle at all times. Drivers must be able to find a safe place to park; the parked vehicle must not block or impede traffic.” The letter also stated that the transit system determined that the individual “would be picked up at the leasing office after at least three separate reports that drivers were unable to get out of a circle drive near your building. During one of the three incidents (on May 6, 2015), the driver had to make three backing attempts out of the drive, after the vehicle got stuck in it. These attempts put the public, the driver, and onboard passengers at risk of injury, and the vehicle at risk of damage.” The letter also stated, “If conditions at your apartment complex are such that there are other spaces for the driver to park and maintain visual contact with the vehicle, and/or if you or staff at your apartment complex can identify another exterior door (other than the one at the leasing office) we suggest that you work with [the transit system]” (FTA complaint number 15-0241; letter dated Jan. 6, 2016). • A family member of a passenger with a disability complained that the transit system would only provide curb-to curb ADA paratransit service (instead of door-to-door service) due to the condition of a small bridge on the family’s property that the vehicles must cross to reach the door, along with an 800-foot driveway and a hill that is difficult to navigate in bad weather. The FTA Letter of Finding referenced Examples 17 and 18 in Appendix E to Part 37. It described the transit system’s concerns regarding the narrowness and insufficient side guards of the bridge; the driveway’s mix of dirt, gravel, and broken pavement; the steep incline to the house; and the impossibility of backing down the driveway. Potential access via a second driveway was explored but found infeasible due to its close proximity to a ditch and the sharp left turn going up the hill to the house. The FTA agreed with the transit system (FTA complaint number 16-0261; letter dated Nov. 8, 2016). Oversized Wheelchair—Boarding Separately from Wheelchair (Example 8) and Personal Care Attendant (PCA) (Example 12) • A passenger requested that a driver operate his power wheelchair so that the passenger could board a vehicle separate from his wheelchair. The occupied weight of the wheelchair exceeded the 600-pound design load of the vehicle’s lift/ramp. The FTA Letter of Finding stated, “Pro- viding assistance with a power wheelchair falls under the category of attendant-type services, which are not required under DOT regulations. Moreover, it would be unreasonable to expect a driver to know how to operate each rider’s powered mobility device. While placing a power wheelchair in freewheeling mode may not be difficult, controlling it is a different matter; not only does the weight make it difficult to maneuver, but disengaging the motors also dis- engages the brakes” (FTA complaint number 10-0172; letter dated Apr. 29, 2010). • A passenger with a disability complained that following the ADA paratransit recertification process the transit agency sent a letter stating they could not transport the individual “as doing so would result in a fundamental alteration of its service.” The passenger’s new wheelchair when occupied exceeded the 800-pound design load of the wheelchair ramp. At the functional evaluation, in order to board separately from the wheelchair, the passenger appeared to need a personal care attendant (PCA) (not present at the evaluation), who could assist in putting the power chair on the lift and aid the passenger in getting in and out of the wheelchair, walking on the ramp, and taking a seat on the vehicle. The FTA Letter of Finding cited Examples 8, 12, and 27 in Appendix E to Part 37 as well as the relevant vehicle design specifications in

16 Implementing the U.S. DOT Reasonable Modification Rule 49 C.F.R. Part 38. The transit agency agreed to assess the individual’s ability to travel without a PCA after the individual acquired a new wheeled walker. The letter stated that FTA is “not in a position to retroactively verify what transpired during your July 28, 2016 paratransit recertification appointment. The information reviewed, however, does not support a finding that [the transit agency] has violated provisions of the DOT ADA regulations regarding your complaint allegations. . . . As your stated wish is to demonstrate to [the transit agency] that providing service to you at this time will not amount to a fundamental alteration of its ADA complementary paratransit service and since [the transit agency] has agreed to assess your ability to get on and off its vehicles using your new walker, we suggest that you contact [the transit agency] to schedule the offered appointment. For the reasons above, we are taking no further action and are closing your complaint as of the date of this letter” (FTA complaint number 17-0033; letter dated Feb. 10, 2017). • A passenger with a disability complained that a transit system denied the individual service (on what appears to be dial-a-ride service) due to his use of a wheelchair that the individual alleged was below 600 pounds when occupied. The FTA Letter of Finding stated, “Based upon the specifications and the information you provided on your weight, the weight of your device while you are seated in it appears to exceed 600 pounds. Your weight and the published weight of your wheelchair base and batteries alone appear to be at least either 669 or 714 pounds, depending upon whether you use two Group 24 batteries or four NF-22 batteries. Since your supplemental correspondence did not include the weight of your seat- ing package and any accessories that may be mounted to your wheelchair, FTA was unable to determine the precise combined weight of your mobility device when you are seated in it.” The letter also stated that the transit system reported that “while [redacted] was on the ramp, it appeared structurally unsafe and bowed in the middle underneath him due to the size of [redacted] and the mobility device. Furthermore, the mobility device occu- pied so much of the breadth of the ramp that there were concerns that [redacted] would fall.” The letter further stated that the transit agency “further reported that the lifts and ramp devices on the vehicles sent to serve you on these dates exceeded the minimum design load requirement and ‘Yet when [redacted] used the devices, both performed in such a way that indicated that the combined weight of [redacted] and the mobility device exceeded the capacity of the devices’” (FTA complaint number 15-0086; letter dated Apr. 27, 2015). The customer submitted a follow-up complaint. The FTA Letter of Finding stated that “your cur- rent complaint contains no information to suggest a change in your circumstances (your use of a lighter wheelchair or mobility aid, for example).” The letter noted several examples in Appendix E to Part 37 (Examples 9, 12, and 27) and stated that the transit system’s previous efforts to accommodate the individual, including changing the vehicle and sending two staff members to assist the individual “exceed the requirements of the DOT ADA regulations and amounted to fundamental alterations of its service” (FTA complaint number 17-0170; letter dated Mar. 13, 2017). Shared-Ride Service—Dedicated Vehicles or Special Equipment in a Vehicle (Example 9) • A passenger with a disability requested sedan service as opposed to van service operated by the transit system’s paratransit contractor. The FTA Letter of Finding stated that “the DOT ADA regulations do not require ADA complementary paratransit providers to supply sedan service.” The letter stated the requirement to provide accessible vehicles (e.g., lift/ramp equipped) for those customers that need them, and note that “a sedan does not fall into the category of an ‘accessible vehicle.’” The FTA stated that it could take no further action and closed the complaint with the letter (FTA complaint number 15-0146; letter dated May 4, 2015).

Review of Primary Sources and Related Documents 17 • A passenger who uses a wheelchair requested a larger bus instead of an accessible minivan because of steep minivan ramps and difficulty maneuvering inside the vehicle. The FTA Letter of Finding stated, “While we understand that you prefer a different vehicle, the information provided indicates that you are able to use the minivans. There is no requirement that the transit provider dispatch a particular vehicle that a customer favors or finds easier to board or exit, only that it send an accessible vehicle meeting 49 C.F.R. Part 38 specifications when needed.” The FTA closed the complaint with the letter (FTA complaint number 14-0168; letter dated July 29, 2014). • A passenger with a disability requested a diesel-free vehicle because of their asthma. The FTA Letter of Finding noted the requirements in the regulations to provide accessible vehicles, referred to Appendix E to Part 37, Example 9, and stated, “Your request for a vehicle that uses a certain type of fuel, in your case gas as opposed to diesel, would be considered requesting a specific type of vehicle. Therefore, [the transit agency] is not required to provide you with a diesel-free vehicle.” With this letter, the FTA concluded the processing of the complaint (FTA complaint number 16-0041; letter dated Dec. 8, 2015). • A passenger with a disability requested that a paratransit provider turn off one of the two air conditioning units on the vehicle because they have multiple disabilities which are exacer- bated by air blowing on them. The FTA Letter of Finding stated that “ADA complementary paratransit is by nature a shared-ride service. There is no requirement in the DOT ADA regu- lations at Part 38 for air conditioning. . . . Nor is there a requirement for a paratransit operator to maintain a particular vehicle temperature to meet the needs of any one paratransit-eligible rider. Such requests appear inconsistent with the nature of shared-ride service and may rise to the level of a fundamental alteration of the service. The temperature on any particular vehicle may fluctuate based on vehicle size and other conditions.” The FTA concluded the processing of the complaint with the letter (FTA complaint number 16-0259; letter dated Jul. 11, 2016). • A passenger with a disability requested a specific vehicle type with sufficient area for the indi- vidual’s service dog to occupy the space in front of them because, on other types of vehicles used by the transit agency, the dog must sit in the aisle and the passenger must hold his harness the entire time to prevent him from sliding to the front. The FTA Letter of Finding referenced Example 9 in Appendix E to Part 37 and stated that “DOT views meeting these requests as ‘involving a fundamental alteration of the provider’s service.’” The letter stated that no specific requirements of the DOT ADA regulations had been violated, and FTA closed the complaint (FTA complaint number 16-0497; letter dated Sep. 9, 2016). • A passenger with a disability requested that the transit system guarantee to “dispatch a ‘taxi or another vehicle that provides a smooth ride’” because due to “her connective tissue dis- order, she bruises when she bumps against the vehicle seats” of the standard vehicles used by the transit, and “the swaying, shaking, and bouncing motions she experiences while on these vehicles trigger nausea and painful tinnitus.” The FTA Letter of Finding stated, “ADA complementary paratransit is by nature a shared-ride service. There is no requirement in the DOT ADA regulations at Part 38 for a smooth ride. Instead, Part 38 includes the design specifications that transportation vehicles must meet to be considered accessible under the ADA. . . . Nor is there a requirement for a paratransit operator to guarantee a particular ride quality on a particular vehicle to meet the needs of any one paratransit-eligible rider. Such requests appear inconsistent with the nature of shared-ride service and may rise to the level of a fundamental alteration of the service. The ride quality on any particular vehicle may fluctuate based on road conditions and the actions of other drivers, among other factors.” It also referenced Example 9 in Appendix E. The FTA concluded the processing of the com- plaint with the letter (FTA complaint number 16-0502; letter dated Sep. 15, 2016). • A passenger with a disability complained that the transit system sometimes dispatches a van rather than a sedan, even though she has a doctor’s letter for medical necessity for “sedan-only

18 Implementing the U.S. DOT Reasonable Modification Rule transportation.” The FTA Letter of Finding cites the requirement to dispatch an accessible vehicle when needed and Example 9 in Appendix E. The letter stated that “we have deter- mined that no specific requirements of the DOT ADA regulations have been violated” and “we are closing your complaint as of the date of this letter and taking no further action” (FTA complaint number 16-0544; letter dated Oct. 27, 2016). • A passenger with a disability complained that the transit system no longer provided the indi- vidual with service in a minivan or allowed the individual to secure his/her wheelchair in a side- facing manner. The individual also requested “permission to grab the handle on the back of the paratransit vehicle operator’s seat for further stability or, if that is not available, the driver’s armrest.” The Letter of Finding stated, “FTA has undertaken a thorough review of the docu- mentation regarding side-facing securements in transit vehicles, and finds that even if you had demonstrated unambiguously that the modification was necessary, in this unique case signifi- cant evidence exists that the risks of side-facing securement are real, and transportation experts agree that forward- or rearward-facing orientation is the safest means of transporting pas- sengers who use wheelchairs.” It also stated that requiring the transit agency to send a specific type of vehicle “would constitute a fundamental alteration of service” and “that a passenger holding the driver’s armrest or the handle on the back of the driver’s seat could interfere with the driver’s ability to control the vehicle safely, thus potentially creating . . . a direct threat.” The letter stated that the FTA declined to require the transit system to secure the passenger in a side-facing orientation. The FTA did not require the transit system to send a specific type of paratransit vehicle. With the letter, the FTA concluded its processing of the complaint (FTA complaint number 08-0106; letter dated Aug. 14, 2008). Shared-Ride Service—Other • A passenger’s parent requested that the ADA paratransit provider ensure that their son, who “is ‘deaf-blind and autistic, and has severe anxiety that causes behavioral problems,’” is the first passenger dropped off by the paratransit van since he becomes anxious when on the vehicle for a long time. The FTA Letter of Finding stated, “As with any form of public transit, ADA complementary paratransit is by nature a shared-ride service. There is no requirement in the DOT ADA regulations for a paratransit operator to drop off riders in a particular order. Routing of vehicles is strictly a local operational decision. Instead, the DOT ADA regulations at 49 C.F.R. §37.131(f) prohibit a paratransit operator from engaging in any operational pat- tern or practice that significantly limits the availability of service to ADA paratransit-eligible persons, including expressly ‘substantial numbers of trips with excessive trip lengths.’ It is important to understand that ‘excessive’ is in comparison to the time required to make a similar trip using the fixed-route system.” With this letter, the FTA concluded the processing of the complaint (FTA complaint number 16-0353; letter dated June 21, 2016). Multiple Issues • A person requested that a general public demand response transit system enter the person’s gated community to provide door-to-door service for a family member with a disability. The FTA Letter of Finding stated that “the DOT ADA regulations only set specific service crite- ria (for example, “origin-to-destination” service) for ADA paratransit and do not prescribe similar requirements for general demand-responsive transportation (§37.129). We cannot compel a transit agency to adjust its service area absent a regulatory requirement.” The letter stated that the transit agency stated that “due to narrow one-lane roads, limited turnaround areas, and steep grades, [the transit agency] cannot safely navigate its vehicles in your com- munity.” The letter also stated that “the agency would research whether it could purchase smaller van-type shuttles capable of entering communities such as yours and invited you to submit information that would help with the discussion.” The letter stated that the FTA was

Review of Primary Sources and Related Documents 19 taking no further action and closed the complaint (FTA complaint number 14-0256; letter dated Oct. 1, 2014). • A passenger with a disability requested that a commuter rail provider extend a half-fare dis- count required for recipients of FTA Section 5307 funding to the PCA. The individual also requested another transit agency excuse them from the functional assessment of the local paratransit eligibility process and instead permit them to self-certify, conduct the assess- ment by “live chat,” or create a specific type of test to complete. Additionally, the passenger requested that their visitor eligibility for the second transit system be extended for an addi- tional 120 days. The FTA Letter of Finding stated that “FTA is prohibited from regulating the routes, schedules, or fares of public transit operators or from requiring an agency to extend the half-fare discount to additional people.” The letter also states, “A determination of para- transit eligibility is to be based on the applicant’s functional ability to use the fixed-route bus or rail and is not a medical decision.” The letter further stated, “Your request that [the transit system] extend your visitor eligibility also does not need to be considered in the modification of policy context. The DOT ADA regulations at §37.127 and Appendix D directly address visitor eligibility requirements.” With this letter, the FTA concluded the processing of both complaints (FTA complaint numbers 14-0262 and 15-0227; letter dated Oct. 15, 2015). • A passenger with a disability alleged that a commuter rail provider denied the passenger “an accommodation based on your electromagnetic sensitivity by refusing to grant you private or black car service from your home in Orange County, New York, to your offered job in New York City. You argue that you are unable to ride the Metro-North commuter rail service because the extensive use of cellular phones by other passengers contributes to your electro- magnetic sensitivity and leads to extreme headaches.” The letter also stated, “Public transit is, by nature, a shared-ride service and distinct from services such as taxi or private car service. The DOT ADA regulations do not require that a transit agency provide a customer a trip unaccompanied by other riders, even with ADA complementary paratransit service. More- over, while providers of noncommuter fixed-route bus and rail service must provide comple- mentary paratransit services to individuals with disabilities who qualify, this requirement does not extend to commuter rail service like Metro-North, which is likely why it suggested you contact your county regarding transportation options. . . . While you may decide to inquire about the application process for ADA paratransit in your county or New York City, there is simply no requirement that Metro-North or any paratransit provider dispatch a vehicle to provide you a solo, non-shared ride or that it provide service outside its established service area. Public transit therefore may not be the best option” (FTA complaint number 15-0092; letter dated Feb. 11, 2015). • A passenger who is blind requested assistance to the door from their driveway. The transit agency indicated that pulling into the driveway would “threaten the safety of the [paratransit provider] vehicle, along with the driveway surface and the homes adjacent to the driveway.” The transit agency instead offered that the bus operator could escort the individual “from an exterior doorway to the vehicle,” unless “the driveway is covered in ice and unsafe to travel.” The transit agency informed the passenger that their “driveway, steps, and porch will need to be reasonably clear of snow and ice.” The transit agency determined that pulling in and out of the driveway “constitutes a direct threat to the safety of its drivers, other passengers, and any nearby pedestrians.” Concerns expressed included backing out into a narrow street, over- hanging branches on a large tree flanking the driveway, narrowness of the driveway (which results in the passenger and driver needing to walk on the lawn to walk around the vehicle), and bushes on the driver’s side that “leave insufficient space to open that door, exit the vehi- cle, and walk around to passenger-side door.” The FTA Letter of Finding cited Examples 1, 17, and 18 in Appendix E to Part 37. The letter stated that the “DOT has already opined that door-to-door assistance from a paratransit driver to traverse a pathway is reasonable (provided that snow and ice conditions do not amount to a direct threat to others) and that

20 Implementing the U.S. DOT Reasonable Modification Rule the paratransit driver, other passengers, and the vehicle need not be exposed to safety hazards. If driver assistance to/from your side door is now insufficient to allow you to take paratransit, you must identify another exterior door and inform [the transit agency].” The transit agency adjusted its paratransit scheduling and dispatching software to provide notation on the door- to-door assistance needed by the passenger and made other improvements in reinforcing the origin-to-destination policy for all passengers needing door-to-door assistance. The letter stated that the transit agency’s “revised policy also states that drivers are to contact dispatch for guidance, should they have a question on a customer’s request for such assistance. [The transit agency] reported posting the revised policy in its bus garage and verbally reinstructing all drivers on the revised policy” (FTA complaint number 17-0280; letter dated Dec. 7, 2017). Accommodating Devices that Are Not Primarily Designed or Intended to Assist Persons with Mobility Disabilities • A passenger with a disability requested the transit system accommodate the passenger’s roll- ing shopping bag as a modification of policy, because the individual is unable to lift anything heavy. The FTA Letter of Finding stated that “Appendix E clarifies that reasonable modi- fication applies to an entities’ own policies and practices, and not regulatory requirements contained in 49 C.F.R. Parts 27, 37, 38, and 39. The preamble to the rule clarifies that modi- fication of policy decisions are to be made locally.” It also stated that “the Department does not interpret its rules to require transportation providers to accommodate devices that are not primarily designed or intended to assist persons with mobility disabilities (e.g., skateboards, bicycles, shopping carts), apart from general policies applicable to all passengers who might seek to bring such devices into a vehicle.” The transit agency indicated to the FTA that “only collapsed shopping carts are permitted on buses, and they are not to block bus aisles.” The letter also stated that “the DOT has already opined that shopping carts need not be accommo- dated. You could consider traveling with someone to carry your heavy items and/or contact- ing [the transit system] if you need information on the type of bag that you may bring with you on the bus” (FTA complaint number 17-0279; letter dated Nov. 6, 2017). • A passenger with a disability requested that a rail provider allow them to use roller skates as mobility devices throughout the rail system, and the transit agency denied the request on the basis of “direct threat.” The Letter of Finding stated that FTA agreed with the transit agency’s conclusion on rail vehicles and on station platforms, but not in station concourses or transit agency-controlled outside areas near stations (FTA complaint number 06-0135; letter dated Oct. 15, 2007). Requests for Modification of Regulatory Requirements (Rather than Modification of Local Policy) • A passenger’s representative indicated that the individual requested that the transit pro- vider stop at locations other than its established stops. The transit system provides demand response service for the general public throughout one county, and five fixed stops in a neigh- boring county that is served by another transit system. The FTA Letter of Finding stated, “The complaint indicated that your client’s request primarily sought modification of DOT regulatory requirements rather than [the transit system]’s policies, practices, and procedures. As described, your client asked [the transit system] to operate in [the neighboring county] as if it were the ADA complementary paratransit provider in [the other transit system]’s service area (which it is not).” The FTA alerted the transit agency to review its internal procedures to ensure it has implemented required disability-related complaint processing procedures. The letter stated that the FTA was taking no further action and closed the complaint (FTA complaint number 17-0070; letter dated Nov. 6, 2017).

Review of Primary Sources and Related Documents 21 Other Relevant Documents Several additional publications were found to contain content related to making reasonable modifications: • Transportation Update: Where We’ve Gone and What We’ve Learned, developed by Marilyn Golden of the Disability Rights Education and Defense Fund for the National Council on Disability (NCD), May 4, 2015; • Topic Guides on ADA Transportation (electronic resource), developed by DREDF for the FTA, June 2010, particularly “Origin to Destination Service in ADA Paratransit”; and • 2016 Transportation Trends: A Look at the Year’s Top Mobility Challenges & Opportuni- ties, developed by the National Aging and Disability Transportation Center (NADTC), February 2017. The two documents developed by the DREDF were reviewed for this synthesis. Transportation Update: Where We’ve Gone and What We’ve Learned This document was developed by the DREDF for the NCD. NCD is an independent fed- eral agency charged with advising the president, Congress, and other federal agencies regarding policies, programs, practices, and procedures that affect people with disabilities. DREDF is a national civil rights law and policy center with a mission to advance the civil and human rights of people with disabilities through legal advocacy, training, education, and public policy and legislative development. Transportation Update: Where We’ve Gone and What We’ve Learned was developed prior to the publication of the final rule on reasonable modification. Relevant excerpts from it are summarized by topic. Origin-to-Destination Service The 2015 NCD report states, “Providing door-to-door service only on an as-needed basis adds to the operational complexity of paratransit operations. The need for assistance beyond the vehicle must be determined and accurately recorded during the trip booking process, then accurately transmitted to drivers. Inconsistencies in providing assistance can contribute to missed connections and missed trips.” The report quotes a general manager of a transit system that decided to adopt a door-to-door policy so as to provide consistent service standards and points out that “a full-time door-to-door policy can be both customer-friendly and operation- ally efficient. It can actually reduce travel times, because the driver can locate the rider sooner, help the rider enter the vehicle more quickly, and avoid missing the rider, which can cause significant scheduling problems if a vehicle must return to pick the person up. Door-to-door service can have a positive impact on on-time performance” (Golden 2015, 107). The NCD report illustrates the variations in the industry through several examples of transit system policies related to whether or not the vehicle must be within the driver’s line of sight. One paratransit director was quoted as saying that “there is more risk in leaving someone at the curb than in leaving the sight line of the vehicle for a minute” (Golden 2015, 109). Providing assistance to a passenger while climbing up and down steps is discussed in the NCD report. Assisting a passenger in a wheelchair down a flight of stairs is cited as presenting a direct threat, although two examples are provided of transit systems that assist passengers in wheel- chairs (at least manual wheelchairs) up or down one step or the curb. Assisting an ambulatory passenger is required, “assuming other safety policies (such as maintaining effective continuing

22 Implementing the U.S. DOT Reasonable Modification Rule control of the vehicle) are not compromised.” An operator is also expected to clear “one or two objects out of the path of a wheelchair user” between the vehicle and door, and to push a wheel- chair through a shallow depth of snow (e.g., one to two inches), but not to “do extensive work to clear a path of travel” or “shovel a driveway or walkway” (Golden 2015, 110–111). The ability of the passenger to find the vehicle at the curb can sometimes be a concern, and some form of communication may be needed to alert a passenger already waiting at the curb. The NCD report noted that “reasonable assistance is sometimes needed to make the connec- tion between vehicle operator and passenger, in addition to providing physical assistance.” An example was provided of a passenger who is blind who waited for a paratransit vehicle that was parked, waiting, in front of her, until another pedestrian advised her of the presence of the para- transit van. The report recommends, “Thorough policies for identifying passengers and helping passengers identify vehicles are important for riders with vision and cognitive disabilities as well as other disabilities, and in situations including inclement weather and low light that make it difficult to identify waiting vehicles” (Golden 2015, 109). Luggage and Packages The NCD report suggested that transit systems may elect to have a policy to provide assistance with carrying packages and may want to define what is considered reasonable, providing an example of a paratransit provider that does this (Golden 2015, 112). Assistance with Seating The NCD report also summarized several FTA responses to complaints related to seating that were made long before the passage of the DOT final rule. Topic Guides on ADA Transportation DREDF prepared a series of ADA topic guides for FTA that were published in 2010. The “Origin to Destination Service in ADA Paratransit” topic guide discusses the issue of assisting a paratransit-eligible individual in walking up or down their long, steep, and curved driveway. The topic guide states, “Ideally, the transit agency and the rider would communicate about this condition before the vehicle arrives. Some extremely steep slopes could be too dangerous to assist someone down. Some curved driveways could require the vehicle operator to lose sight of the vehicle, which some transit agencies disallow. But it may not reach the level of fundamental alteration or direct threat for the driver to go part way. Perhaps someone else at home or on site could do the rest. If the driver radios in and says she cannot go all the way to the door, the dispatcher would likely call the rider to see if there is someone who can assist him to where the driver can meet them both” (DREDF 2010). 2016 Transportation Trends: A Look at the Year’s Top Mobility Challenges and Opportunities This report was developed by NADTC. NADTC promotes the availability and accessibility of transportation options for older adults, people with disabilities, caregivers, and communities, and is funded through a cooperative agreement of Easterseals, the National Association of Area Agencies on Aging, and FTA. NADTC reported that in 2016, with regard to the ADA, “there are three topics that currently create the most requests for technical assistance or are brought up as questions: reasonable modification, service animals, and customer service/passenger assistance.” On the matter of passenger requests for specific types of vehicles, the NADTC 2016 Trends report notes that “some providers make an effort to provide a specific type [of] vehicle for most trips but advise

Review of Primary Sources and Related Documents 23 the customer that it is not guaranteed for a specific type of vehicle to be available for all trip requests” (NADTC, 2017, 2–5). Useful Links March 13, 2015, Federal Register notice on the final rule: • http://www.federalregister.gov/documents/2015/03/13/2015-05646/transportation-for- individuals-with-disabilities-reasonable-modification-of-policies-and-practices and • http://www.gpo.gov/fdsys/pkg/FR-2015-03-13/pdf/2015-05646.pdf Current language of the final rule: • 49 C.F.R. Part 27—http://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title49/49cfr27_ main_02.tpl • 49 CFR Part 37—http://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title49/49cfr37_ main_02.tpl The February 27, 2006, NPRM: • http://www.federalregister.gov/documents/2006/02/27/06-1658/transportation-for-individuals- with-disabilities The individual comments to the docket: • http://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po= 0&dct=PS&D=DOT-OST-2006-23985 U.S. Department of Transportation Disability Law Guidance on Origin-to-Destination Service: • http://www.transit.dot.gov/regulations-and-guidance/civil-rights-ada/origin-destination- service FTA ADA Circular: • http://www.transit.dot.gov/regulations-and-guidance/fta-circulars/americans-disabilities- act-guidance-pdf • http://www.transit.dot.gov/regulations-and-guidance/civil-rights-ada/americans-disabilities- act-guidance FTA Slide Presentation on the Final Rule on Reasonable Modification: • http://www.transit.dot.gov/regulations-and-guidance/civil-rights-ada/ada-reasonable- modification FTA Letters of Finding: • http://www.transit.dot.gov/regulations-and-guidance/civil-rights-ada/complaint-letters- finding-according-subject The NCD Transportation Update: Where We’ve Gone and What We’ve Learned report: • http://ncd.gov/publications/2015/05042015 DREDF ADA Topic Guides: • http://dredf.org/ADAtg/ NADTC 2016 Transportation Trends report: • http://www.nadtc.org/wp-content/uploads/NADTC-Trends-Report-Mar-2017-FINAL.pdf