*October 25, 2002*

Roseann B. MacKechnie

Clerk

United States Court of Appeals

for the Second Circuit

U.S. Courthouse, 40 Foley Square

New York, New York 10007

Re: *Anderson, et al. v. Rochester-Genesee Regional Transp. Auth., et
al.,*

No. 01-9105 (2d Cir.)

Dear Ms. MacKechnie:

The United States, on behalf of the Department of Transportation ("DOT"
or "Department"), respectfully submits this letter brief in response to
the Court's July 26, 2002, Order requesting the Department's views on
the meaning of its regulatory provisions governing complementary
paratransit services required by Title II of the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. 12132 and 12143. Specifically,
the Court requested the Department's views on three issues:

1.  Whether 49 C.F.R. 37.131(b) obligates public transit authorities to
    provide paratransit service to all eligible persons requesting
    next-day rides;

2.  How 49 C.F.R. 37.131(b) interacts with the "capacity constraints"
    provision of 49 C.F.R. 37.131(f); and

3.  How a paratransit provider should determine if it has denied a
    "substantial number" of trips in violation of 49 C.F.R.
    37.131(f)(3)(i)(B).

The Department's response to each of these issues is set forth below.

**BACKGROUND**

The ADA prohibits discrimination against individuals with disabilities
in the provision of public services, and specifically provides that

> \[i\]t shall be considered discrimination for purposes of section
> 12132 of this title and section 794 of Title 29 for a public entity
> which operates a fixed route system (other than a system which
> provides solely commuter bus service) to fail to provide with respect
> to the operations of its fixed route system, in accordance with this
> section, paratransit and other special transportation services to
> individuals with disabilities, including individuals who use
> wheelchairs, that are sufficient to provide to such individuals a
> level of service (1) which is comparable to the level of designated
> public transportation services provided to individuals without
> disabilities using such system; or (2) in the case of response time,
> which is comparable, to the extent practicable, to the level of
> designated public transportation services provided to individuals
> without disabilities using such system.

42 U.S.C. 12143(a).

Section 12143 also required DOT to adopt regulations implementing these
and other requirements relating to paratransit services. Accordingly,
DOT's regulations, set forth in Subpart F of Part 37 in Title 49 of the
Code of Federal Regulations, specifically require that "each public
entity operating a fixed route system shall provide paratransit or other
special service to individuals with disabilities that is comparable to
the level of service provided to individuals without disabilities." 49
C.F.R. 37.121(a).

Section 37.121(b) provides that "\[t\]o be deemed comparable to a fixed
route service, a complementary paratransit system shall meet the
requirements of §§ 37.123-37.133 of this subpart." Within that subpart,
section 37.131 sets further "\[s\]ervice criteria for complementary
paratransit" that must be addressed in all paratransit plans. Paragraph
37.131(a) addresses the geographic area to be served; (b) addresses
service reservation criteria; (c) addresses the fares to be charged; and
(d), (e), and (f) address limitations on service. Paragraph (g)
addresses additional service that also may be provided. Compliance with
paragraphs (a) through (f) is required for every paratransit plan.

As noted, the ADA in 42 U.S.C. 12143(a), states that, "in the case of
response time \[paratransit service must be\] comparable, to the extent
practicable, to the level of designated public transportation services
provided to individuals without disabilities using the \[fixed route
transit\] system." In response to this statutory directive, DOT adopted
the next-day response time requirement in 49 C.F.R. 37.131(b). DOT
considered requiring transit providers to respond to calls for
paratransit service on the same day they were received, or to schedule
service within the same intervals at which fixed route service is
available. See 56 Fed. Reg. 13,869 (1991).

However, the Department determined that the best method of implementing
the comparability requirement in Section 12143(a)(2) was to require
transit authorities to comply with the rule on a next-day service basis.
56 Fed. Reg. 45,606 (1991). In promulgating the response time
regulation, the Department therefore made a clear, firm determination
that next-day service was the level of service that would be both
"comparable" to the service provided to individuals without disabilities
using fixed-route systems, and "practicable" for the transit authorities
required to provide that service.[^1]

DOT's regulations, in pertinent part, thus address the "next-day"
service requirement as follows:

> \(b\) *Response time*. The entity shall schedule and provide
> paratransit service to any ADA paratransit eligible person at any
> requested time on a particular day in response to a request for
> service made the previous day. \* \* \*

49 C.F.R. 37.131(b). DOT regulations also specifically prohibit the
transit authority from denying service based on "capacity constraints,"
stating, in pertinent part, as follows:

> \(f\) *Capacity constraints*. The entity shall not limit the
> availability of complementary paratransit service to ADA paratransit
> eligible individuals by any of the following:
>
> \(1\) Restrictions on the number of trips an individual will be
> provided;

\(2\) Waiting lists for access to the service; or

> \(3\) Any operational pattern or practice that significantly limits
> the availability of service to ADA paratransit eligible persons.
>
> \(i\) Such patterns or practices include, but are not limited to, the
> following:
>
> \(A\) Substantial numbers of significantly untimely pickups for
> initial or return trips;
>
> \(B\) Substantial numbers of trip denials or missed trips;
>
> \(C\) Substantial numbers of trips with excessive trip lengths.
>
> \(ii\) Operational problems attributable to causes beyond the control
> of the entity (including, but not limited to, weather or traffic
> conditions affecting all vehicular traffic that were not anticipated
> at the time a trip was scheduled) shall not be a basis for determining
> that such a pattern or practice exists.

49 C.F.R. 37.131(f).

**RESPONSES TO THE COURT'S QUESTIONS**

> **1. Does 49 C.F.R. 37.131(b) obligate public transit authorities to
> provide paratransit service to *all* eligible persons requesting
> next-day rides?**

Section 37.131(b) states that a transit provider is obligated to
"schedule and provide paratransit service to any ADA paratransit
eligible person at any requested time on a particular day in response to
a request for service made the previous day." By its terms, Section
37.131(b) imposes an affirmative obligation on transit agencies to
design, fund, and implement a next-day service to meet the foreseeable
needs of all ADA-eligible individuals. Like 49 C.F.R. 37.131(a), which
imposes obligations respecting area coverage, Section 37.131(b)
prescribes the obligation in unqualified terms. The regulation
accordingly forecloses any planned non-coverage. A transit provider
cannot, for example, plan to deny next-day service to some
"insubstantial" number of eligible individuals or plan to deny next-day
service to a particular, remote neighborhood. The DOT has consistently
advised transit providers that they must design, fund, and implement
their programs to meet 100% of the anticipated demand for next-day
paratransit service from eligible individuals. See, *e.g.*, Letter from
William P. Sears, Chief Counsel of DOT's Federal Transit Administration
(FTA), to Richard DeRock, Executive Director of Access Services, Inc.
(Jan. 9, 2002) (reprinted in Addendum A to Appellant's Opening Brief);
Letter from Patrick W. Reilly, then-Chief Counsel of the FTA, to Cheryl
Y. Spicer, Chief Operating Officer of the Southeastern Pennsylvania
Transportation Authority (Dec. 28, 1999) (reprinted at Joint Appendix
A-468 to A-470); Letter from Patrick W. Reilly, then-Chief Counsel of
the FTA, to Stephen F. Gold, Esq. (March 23, 1999) (reprinted at Joint
Appendix A-474 to A-476).

> **2. How does 49 C.F.R. 37.131(b) interact with the "capacity
> constraints" provision of 49 C.F.R. 37.131(f)?**

Sections 37.131(b) and 37.131(f) are complementary. Nevertheless, they
address different aspects of administering a paratransit service. As
explained above, Section 37.131(b) addresses a transit provider's
responsibilities from a conceptual perspective and imposes an
affirmative obligation on transit authorities to design, fund, and
implement a paratransit program that will fully meet the anticipated
needs of ADA-eligible individuals for next-day paratransit\
\
service. Section 37.131(f), by contrast, addresses the transit
provider's responsibilities from the practical perspective of "capacity
constraints" and specifically imposes a prohibition on "\[a\]ny
operational pattern or practice that significantly limits the
availability of service to ADA paratransit eligible persons." 49 C.F.R.
37.131(f)(3).

Section 37.131(f)(3) recognizes that a paratransit program which
theoretically satisfies 100% of anticipated demand may suffer from
inadequacies in actual operation that result in a denial of service.
That provision explicitly states a prohibited pattern or practice can be
established through a "substantial" number of trip denials. 49 C.F.R.
37.131(f)(3)(i)(B). Section 37.131(f)'s "substantial numbers"
requirement embodies the common-sense notion that a "pattern or
practice" of trip denials cannot be predicated on isolated instances,
but instead involves repeated failures. See 49 C.F.R. Pt. 37, App. D, §
37.131, at 528 (2001). Even a well conceived paratransit service,
designed, funded, and implemented to meet 100% of projected need, may
occasionally experience trip denials. Section 37.131(f) accordingly
recognizes that an "insubstantial" number of trip denials does not
establish an "operational pattern or practice that significantly limits
the availability of service to ADA paratransit eligible persons." 49
C.F.R. 37.131(f)(3). Section 37.131(f) also recognizes, however, that
"substantial numbers" of trip denials can establish that a paratransit
service -- no matter how well-designed, funded, or implemented in theory
-- is inadequate as a matter of actual operation.

Section 37.131(f)(3)(ii) makes clear that the cause of operational
problems, as well as their frequency, is relevant in assessing the
adequacy of a paratransit program. Operational problems that are
attributable to causes beyond the transit agency's control do not
provide a basis for finding an impermissible pattern or practice. 49
C.F.R. 37.131(f)(3)(ii). Nevertheless, an excusable cause must truly be
beyond the control of the transit provider. A transit agency is expected
to anticipate recurrent traffic congestion, seasonal variations in
weather, and the need to maintain vehicles. See 49 C.F.R. Pt. 37, App.
D, § 37.131, at 528 (2001). As Section 37.131(f)(3)(ii) expressly
indicates, the transit authority cannot disclaim responsibility for all
traffic conditions, as distinguished from more specific problems, such
as "traffic conditions affecting all vehicular traffic that were not
anticipated at the time a trip was scheduled." 49 C.F.R.
37.131(f)(3)(ii). Indeed, once a seemingly unforeseeable pattern
develops, such as a recurring traffic jam at a particular location, the
recurring event becomes foreseeable, and the transit authority can no
longer claim the matter is beyond its ability to address.

> **3. How should a paratransit provider determine if it has denied a
> "substantial number" of trips in violation of 49 C.F.R.
> 37.131(f)(3)(i)(B)?**

DOT has consistently taken the position that the determination of
whether there is a substantial number of trip denials or missed trips
requires a flexible approach. Generally speaking, there is no "magic
number," whether expressed in absolute terms or as a percentage, that
can be used to determine whether a transit authority has denied or
missed a substantial\
\
\
number of trips.[^2] Rather, DOT's regulation is designed to allow
flexibility so that individual transit authorities can account for the
wide variety and nature of service required.[^3] Given this variety, the
absolute number of trip denials, or even the percentage of denials,
experienced on a given system may be more meaningful in some cases than
in others. As the FTA Chief Counsel has written, "\[a\] determination of
whether denials or missed trips are 'substantial' necessarily involves a
factual case-by-case determination." Letter from FTA Chief Counsel
William P. Sears to Richard DeRock, Executive Director of Access
Services, Inc. (Jan. 9, 2002) (reprinted in Addendum A to Appellant's
Opening Brief). The demographics, geography, type of service, and
economic base of a large city's multi-million-passenger-per-day system
obviously differ from those of a small city's thousand-passenger-per-day
system. Under the regulation, DOT views paratransit trip denials within
the context of each agency's service profile.

Depending on the nature of a particular system, the following
non-exhaustive list of considerations may be relevant in determining
whether there has been a substantial number of trip denials: Has there
been a time period sufficient to establish the existence of a pattern or
practice, considering advance, next-day and total paratransit
reservations? What changes has the transit authority instituted in the
short term in order to address trip denial problems? Is the provider's
service improving or not, *i.e.*, is the provider attempting to address
and correct prior denials of service? To what extent could the denials
have been planned for or foreseen? Was the frequency and consistency of
denials due to factors outside of the provider's control? Moreover, the
transit agency must determine whether it engaged in a good faith effort
in its planning process to\
\
estimate future demand, whether its resulting demand forecasts were
reasonably based on the appropriate data, and whether those forecasts
include a reasonable margin for circumstances in which actual demand may
exceed demand forecasts.

Nevertheless, in some cases, it may be obvious from empirical data that
a transit authority has denied a substantial number of trips. If, as
alleged by appellees in this case, the Rochester-Genesee Regional
Transit Authority failed to provide 57 percent of next-day reservation
requests, if that denial rate pertains to ADA-eligible individuals, and
if the denials are attributable to factors within the transit provider's
control, then there can be no serious disagreement that the provider has
engaged in an "operational pattern or practice that significantly limits
the availability of service to ADA paratransit eligible persons." 49
C.F.R. 37.131(f)(3).

\_\_\_\_\_\_\_\_\_

We hope that the foregoing information is helpful to the Court.

Sincerely,

Kirk K. Van Tine Ralph F. Boyd, Jr.

General Counsel Assistant Attorney General

Department of Transportation

William P. Sears

Chief Counsel Jessica Dunsay Silver

Federal Transit Administration Gregory B. Friel

Attorneys

Department of Justice

Civil Rights Division

Appellate Section

> (Counsel for Department of Transportation)

**CERTIFICATE OF SERVICE**

(page 1 of 2)

I hereby certify that on October 25, 2002, two copies of the foregoing
letter brief of the United States Department of Transportation were
served by Federal Express, next business day delivery, on each of the
following counsel for the parties:

David L. Cook, Esq.

Nixon, Peabody LLP

1300 Clinton Square

P.O. Box 31051

> Rochester, New York 14603-1051

(counsel for appellees)

> Bryan D. Hetherington, Esq.

Public Interest Law Office of Rochester

> Suite 701

80 St. Paul St.

> Rochester, NY 14604
>
> (counsel for appellees)
>
> Paul J. Yesawich, III, Esq.
>
> Harris, Beach LLP
>
> 99 Garnsey Road
>
> Pittsford, New York 14534
>
> (counsel for appellants)

I further certify that on October 25, 2002, two copies of the same
letter brief were served by first-class mail, postage prepaid, on each
of the following counsel for the *amici curiae*:

> Stephen F. Gold, Esq.
>
> 125 South 9th Street, Suite 700
>
> Philadelphia, Pennsylvania 19130
>
> (counsel for Eastern Paralyzed Veterans Ass'n)
>
> Mary McCorry, Esq.

Martin B. Schnabel, Esq.

NYC Transit Authority Office of the General Counsel

130 Livingston Street, Room 1244

Brooklyn, New York 11201

> (counsel for New York City Transit Authority)

**CERTIFICATE OF SERVICE**

(page 2 of 2)

I further certify that the same letter brief was filed in accordance
with Fed. R. App. P. 25(a)(2)(B) by sending it to the Clerk of the
United States Court of Appeals for the Second Circuit by Federal
Express, next business day delivery, on October 25, 2002.

GREGORY B. FRIEL

Attorney

[^1]: 1 ^1^ The statute required the Department to determine the type of
    service that would be both "comparable" and "practicable." The
    statutory "to the extent practicable" provision was never intended
    to give a transit authority the discretion to adhere to the
    Department's requirement only to the extent that it believes
    practicable.

[^2]: 2 ^2^ In DOT's ADA rulemaking proceeding, a few commenters
    suggested that the Department should articulate an established
    performance standard, such as a requirement to meet 98 percent of
    trip requests per day. The Department declined to adopt such a
    bright line test. 56 Fed. Reg. 45,608 (1991).

[^3]: 3 ^3^ For example, factors that DOT officials might bring to the
    attention of a transit provider seeking guidance about reducing its
    trip denials include the following: Is the transit operator making
    good faith efforts to ensure sufficient capacity for all eligible
    riders, *e.g.*, does it re-certify riders periodically to determine
    whether the conditions that made them eligible still exist? Has the
    transit authority taken steps to ensure that its fixed-route
    services are accessible to individuals with disabilities so as to
    reduce the need for paratransit services? Did the transit authority
    grandfather existing elderly and handicapped paratransit riders who
    are not eligible under the ADA's more stringent criteria? Does it
    provide ADA paratransit service in excess of its fixed route service
    area? Is its reservation system designed to encourage reservations
    so far in advance as to constrain the availability of subsequent
    reservations or to result in rising numbers of no-shows and
    last-minute cancellations? Does its reservation system prevent a
    rider from booking the same trip twice? Has it established, and does
    it enforce, policies regarding riders who are chronic no-shows? Does
    it charge the maximum allowable fare in order to optimize revenue?
    Does it maintain vehicles and equipment in operable condition? Does
    it operate the system as a shared-ride system in order to maximize
    vehicle capacity?