Federal Register / Vol. 80, No. 49 / Friday, March 13, 2015 / Rules and Regulations 13253 

official colors of the Seal are Reflex Blue 

and Gold [Reflex Blue RGB Numbers: 0/ 

0/153 (R0, G0, B153); Reflex Gold RGB 

Numbers: 254/252/1 (R254, G252, B1)]. 

The Seal may also appear in Reflex Blue 

or Black. 

(e) The HHS Departmental symbol, 

logo, and seal shall each be referred to 

as an HHS emblem and shall 

collectively be referred to as HHS 

emblems. 

Dated: March 4, 2015. 

Sylvia M. Burwell, 

Secretary. 

[FR Doc. 2015–05536 Filed 3–12–15; 8:45 am] 

BILLING CODE 4150–04–P 

DEPARTMENT OF TRANSPORTATION 

49 CFR Parts 27 and 37 

[Docket OST–2006–23985] 

RIN 2105–AE15 

Transportation for Individuals With 

Disabilities; Reasonable Modification 

of Policies and Practices 

AGENCY: Office of the Secretary (OST), 

U.S. Department of Transportation 

(DOT). 

ACTION: Final rule. 

SUMMARY: The Department is revising its 

rules under the Americans with 

Disabilities Act (ADA) and section 504 

of the Rehabilitation Act of 1973, as 

amended (section 504), specifically to 

provide that transportation entities are 

required to make reasonable 

modifications/accommodations to 

policies, practices, and procedures to 

avoid discrimination and ensure that 

their programs are accessible to 

individuals with disabilities. 

DATES: This rule is effective July 13, 

2015. 

FOR FURTHER INFORMATION CONTACT: Jill 

Laptosky, Office of the General Counsel, 

1200 New Jersey Avenue SE., 

Washington, DC 20590, Room W96–488, 

202–493–0308, jill.laptosky@dot.gov. 

For questions related to transit, you may 

contact Bonnie Graves, Office of Chief 

Counsel, Federal Transit 

Administration, same address, Room 

E56–306, 202–366–0944, 

bonnie.graves@dot.gov; and, for rail, 

Linda Martin, Office of Chief Counsel, 

Federal Railroad Administration, same 

address, Room W31–304, 202–493– 

6062, linda.martin@dot.gov. 

SUPPLEMENTARY INFORMATION: This final 

rule concerning reasonable modification 

of transportation provider policies and 

practices is based on a notice of 

proposed rulemaking (NPRM) issued 

February 27, 2006 (71 FR 9761). The 

NPRM also concerned several other 

subjects, most notably 

nondiscriminatory access to new and 

altered rail station platforms. The 

Department issued a final rule on these 

other subjects on September 19, 2011 

(76 FR 57924). 

Executive Summary 

I. Purpose of the Regulatory Action 

This final rule is needed to clarify that 

public transportation entities are 

required to make reasonable 

modifications/accommodations to their 

policies, practices, and procedures to 

ensure program accessibility. While this 

requirement is not a new obligation for 

public transportation entities receiving 

Federal financial assistance (see section 

504 of the Rehabilitation Act), including 

the National Passenger Railroad 

Corporation (Amtrak), courts have 

identified an unintended gap in our 

Americans with Disabilities Act (ADA) 

regulations. This final rule will fill in 

the gap. The real-world effect will be 

that the nature of an individual’s 

disability cannot preclude a public 

transportation entity from providing full 

access to the entity’s service unless 

some exception applies. For example, 

an individual using a wheelchair who 

needs to access the bus will be able to 

board the bus even though sidewalk 

construction or snow prevents the 

individual from boarding the bus from 

the bus stop; the operator of the bus will 

need to slightly adjust the boarding 

location so that the individual using a 

wheelchair may board from an 

accessible location. 

Reasonable modification/

accommodation requirements are a 

fundamental tenet of disability 

nondiscrimination 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. Among the Department’s 

legal authorities to issue this rulemaking 

are section 504 of the Rehabilitation Act 

of 1973, as amended (29 U.S.C. 794), 

and the Americans with Disabilities Act 

(ADA), 42 U.S.C. 12101–12213. 

II. Summary of the Major Provisions of 

the Regulatory Action 

Public entities providing designated 

public transportation (e.g., fixed route, 

demand-responsive, and ADA 

complementary paratransit) service will 

need to make reasonable modifications/ 

accommodations to policies and 

practices to ensure program accessibility 

subject to several exceptions. These 

exceptions include when the 

modification/accommodation would 

cause a direct threat to the health or 

safety of others, would result in a 

fundamental alteration of the service, 

would not actually be necessary in order 

for the individual with a disability to 

access the entity’s service, or (for 

recipients of Federal financial 

assistance) would result in an undue 

financial and administrative burden. 

Appendix E of this final rule provides 

specific examples of requested 

modifications that public transportation 

entities typically would not be required 

to grant for one or more reasons. 

Public entities providing designated 

public transportation service will need 

to implement their own processes for 

making decisions and providing 

reasonable modifications under the 

ADA to their policies and practices. In 

many instances, entities already have 

compliant processes in place. This final 

rule does not prescribe the exact 

processes entities must adopt or require 

DOT approval of the processes. 

However, DOT reserves the right to 

review an entity’s process as part of its 

normal oversight. See 49 CFR 37.169. 

III. Costs and Benefits 

The Department estimates that the 

costs associated with this final rule will 

be minimal for two reasons. First, 

modifications to policies, practices, and 

procedures, if needed by an individual 

with a disability to enable him or her to 

participate in a program or activity, are 


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already required by other Federal law 

that applies to recipients of Federal 

financial assistance. Since virtually 

every entity subject to this final rule 

receives Federal financial assistance, 

each entity should already be modifying 

its policies, practices, and procedures 

when necessary. Second, the reasonable 

modification/accommodation 

requirements contained in this final rule 

are not very different from the origin-todestination requirement already 

applicable to complementary paratransit 

service, as required by current DOT 

regulations at 49 CFR 37.129(a) and as 

described in its implementing guidance. 

The Reasonable Modification NPRM 

Through amendments to the 

Department’s ADA regulations at 49 

CFR 37.5 and 37.169, the NPRM 

proposed that transportation entities, 

including, but not limited to, public 

transportation entities required to 

provide complementary paratransit 

service, must make reasonable 

modifications to their policies and 

practices to avoid discrimination on the 

basis of disability and ensure program 

accessibility. Making reasonable 

modifications to policies and practices 

is a fundamental tenet of disability 

nondiscrimination law, reflected in a 

number of DOT (e.g., 49 CFR 27.11(c)(3), 

14 CFR 382.7(c)) and DOJ (e.g., 28 CFR 

35.130(b)(7)) regulations. Moreover, 

since at least 1979, section 504 has been 

interpreted to require recipients of 

Federal financial assistance to provide 

reasonable accommodations to program 

beneficiaries. See, e.g., Alexander v. 

Choate, 469 U.S. 287 (1985); 

Southeastern Community College v. 

Davis, 442 U.S. 397 (1979). In 

accordance with these decisions of the 

U.S. Supreme Court (e.g., Choate and 

Davis), the obligation to modify policies, 

practices, and procedures is a 

longstanding obligation under section 

504, and the U.S. Department of Justice, 

which has coordination authority for 

section 504 pursuant to Executive Order 

12250, is in agreement with this 

interpretation. 

However, as the NPRM explained, 

DOT’s ADA regulations do not include 

language specifically requiring regulated 

parties to make reasonable 

modifications to policies and practices. 

The Department, when drafting 49 CFR 

part 37, intended that § 37.21(c) would 

incorporate the DOJ provisions on this 

subject, by saying the following: 

Entities to which this part applies also may 

be subject to ADA regulations of the 

Department of Justice (28 CFR parts 35 or 36, 

as applicable). The provisions of this part 

shall be interpreted in a manner that will 

make them consistent with applicable 

Department of Justice regulations. 

Under this language, provisions of the 

DOJ regulations concerning reasonable 

modifications of policies and practices 

applicable to public entities, such as 28 

CFR 35.130(b)(7), could apply to public 

entities regulated by DOT, while 

provisions of DOJ regulations on this 

subject applicable to private entities 

(e.g., 28 CFR 36.302) could apply to 

private entities regulated by DOT. A 

1997 court decision appeared to share 

the Department’s intention regarding the 

relationship between DOT and DOJ 

requirements (Burkhart v. Washington 

Area Metropolitan Transit Authority, 

112 F.3d 1207 (D.C. Cir. 1997)). 

However, more recent cases that 

addressed the issue directly held that, in 

the absence of a DOT regulation 

explicitly requiring transportation 

entities to make reasonable 

modifications, transportation entities 

were not obligated to make such 

modifications under the ADA. The 

leading case on this issue was Melton v. 

Dallas Area Rapid Transit (DART), 391 

F.3d 669 (5th Cir. 2004); cert. denied 

125 S. Ct. 2273 (2005). In this case, the 

court upheld DART’s refusal to pick up 

a paratransit passenger with a disability 

in a public alley behind his house, 

rather than in front of his house (where 

a steep slope allegedly precluded access 

by the passenger to DART vehicles). The 

DART argued that paratransit operations 

are not covered by DOJ regulations. 

‘‘Instead,’’ as the court summarized 

DART’s argument, ‘‘paratransit services 

are subject only to Department of 

Transportation regulations found in 49 

CFR part 37. The Department of 

Transportation regulations contain no 

analogous provision requiring 

reasonable modification to be made to 

paratransit services to avoid 

discrimination.’’ 391 F.3d at 673. 

The court essentially adopted DART’s 

argument, noting that the permissive 

language of § 37.21(c) (‘‘may be 

subject’’) did not impose coverage under 

provisions of DOJ regulations which, by 

their own terms, provided that public 

transportation programs were ‘‘not 

subject to the requirements of [28 CFR 

part 35].’’ See 391 F.3d at 675. ‘‘It is 

undisputed,’’ the court concluded 

that the Secretary of Transportation has been 

directed by statute to issue regulations 

relating specifically to paratransit 

transportation. Furthermore, even if the 

Secretary only has the authority to 

promulgate regulations relating directly to 

transportation, the reasonable modification 

requested by the Meltons relates specifically 

to the operation of DART’s service and is, 

therefore, exempt from the [DOJ] regulations 

in 28 CFR Part 35. 

Id. Two other cases, Boose v. Tri-County 

Metropolitan Transportation District of 

Oregon, 587 F.3d 997 (9th Cir. 2009) 

and Abrahams v. MTA Long Island Bus, 

644 F.3d 110 (2d Cir. 2011), 

subsequently agreed with Melton. 

Because the Department believed that, 

as in all other areas of disability 

nondiscrimination law, making 

reasonable modifications to policies and 

practices is a crucial element of 

nondiscriminatory and accessible 

service to people with disabilities, we 

proposed to fill the gap the courts had 

identified in our regulations. 

Consequently, the 2006 NPRM proposed 

amending the DOT rules to require that 

transportation entities, both fixed route 

and paratransit, make reasonable 

modifications in the provisions of their 

services when doing so is necessary to 

avoid discrimination or to provide 

program accessibility to services. 

In § 37.5, the general 

nondiscrimination section of the ADA 

rule, the Department proposed to add a 

paragraph requiring all public entities 

providing designated public 

transportation to make reasonable 

modifications to policies and practices 

where needed to avoid discrimination 

on the basis of disability or to provide 

program accessibility to services. The 

language was based on DOJ’s 

requirements and, like the DOJ 

regulation, would not require a 

modification if doing so would 

fundamentally alter the nature of the 

entity’s service. 

The NPRM also proposed to place 

parallel language in a revised § 37.169, 

replacing an obsolete provision related 

to over-the-road buses. Under the 

proposal, in order to deny a request for 

a modification, the head of a public 

entity providing designated public 

transportation services would have had 

to make a written determination that a 

needed reasonable modification created 

a fundamental alteration or undue 

burden. The entity would not have been 

required to seek DOT approval for the 

determination, but DOT could review 

the entity’s action (e.g., in the context of 

a complaint investigation or compliance 

review) as part of a determination about 

whether the entity had discriminated 

against persons with disabilities. In the 

case where the entity determined that a 

requested modification created a 

fundamental alteration or undue 

burden, the entity would be obligated to 

seek an alternative solution that would 

not create such an undue burden or 

fundamental alteration. 

The ADA and part 37 contain 

numerous provisions requiring 

transportation entities to ensure that 

persons with disabilities can access and 


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Federal Register / Vol. 80, No. 49 / Friday, March 13, 2015 / Rules and Regulations 13255 

use transportation services on a 

nondiscriminatory basis. Some of these 

provisions relate to the acquisition of 

vehicles or the construction or alteration 

of transportation facilities. Others 

concern the provision of service by 

public and private entities, in modes 

ranging from public demand-responsive 

service for the general public to private 

over-the-road buses. Still others concern 

the provision of complementary 

paratransit service. 

In all of these cases, public 

transportation entities are likely to put 

policies and procedures in place to 

carry out applicable requirements. In 

order to achieve the objectives of the 

underlying requirements in certain 

individual cases, entities may need to 

depart from these otherwise acceptable 

policies. This final rule concerns the 

scope of situations in which such 

departures—i.e., reasonable 

modifications—are essential. The 

underlying provisions of the rule 

describe the ‘‘bottom line’’ of what 

transportation entities must achieve. 

This reasonable modification rule 

describes how transportation entities get 

to that ‘‘bottom line’’ in individual 

situations where entities’ normal 

procedures do not achieve the intended 

result. 

As comments to the NPRM made 

clear, an important concern of 

transportation entities is that the DOT 

final rule makes it possible to 

understand clearly what modifications 

are expected; in other words, which 

requested modifications would be 

‘‘reasonable’’ and which would not. For 

example, in the fixed route context, we 

believe that stopping a bus a short 

distance from a bus stop sign to allow 

a wheelchair user to avoid an obstacle 

to boarding using a lift (e.g., a utility 

repair, a snowdrift) would generally be 

reasonable. Establishing a ‘‘flag stop’’ 

policy that allowed a passenger to board 

a bus anywhere, without regard to bus 

stop locations, would not. In the 

complementary paratransit context, the 

Department would expect, in many 

circumstances, that drivers would 

provide assistance outside a vehicle 

where needed to overcome an obstacle, 

but drivers would not have to provide 

personal services that extend beyond 

the doorway into a building to assist a 

passenger. Appendix E to this final rule 

addresses issues of this kind in greater 

detail. 

In addition to the ‘‘modification of 

policies’’ language from the DOJ ADA 

rules, there are other features of those 

rules that are not presently incorporated 

in the DOT ADA rules (e.g., pertaining 

to auxiliary aids and services). The 

NPRM sought comment on whether it 

would be useful to incorporate any 

additional provisions from the DOJ rules 

into Part 37. 

Comments to the NPRM 

The Department received over 300 

comments on the reasonable 

modification provisions of the NPRM. 

These comments were received during 

the original comment period, a public 

meeting held in August 2010, and a 

reopened comment period at the time of 

that meeting. The comments were 

polarized, with almost all disability 

community commenters favoring the 

proposal and almost all transit industry 

commenters opposing it. 

The major themes in transit industry 

comments opposing the proposal were 

the following. Many transit industry 

commenters opposed the application of 

the concept of reasonable modification 

to transportation, and a few commenters 

argued that it was not the job of transit 

entities to surmount barriers existing in 

communities. Many transit commenters 

said that the rule would force them to 

make too many individual, case-by-case 

decisions, making program 

administration burdensome, leading to 

pressure to take unreasonable actions, 

creating the potential for litigation, and 

making service slower and less reliable. 

Some of these commenters also objected 

to the proposal that the head of an 

entity, or his designee, would be 

required to make the decision that a 

requested modification was a 

fundamental alteration or would result 

in an undue burden, and provide a 

written decision to the requestor, stating 

this requirement would take substantial 

staff time to complete. Many 

commenters provided examples or, in 

some cases, extensive lists, of the kinds 

of modifications they had been asked or 

might be asked to make, many of which 

they believed were unreasonable. A 

number of commenters said the rule 

would force paratransit operators to 

operate in a door-to-door mode, 

eliminating, as a practical matter, the 

curb-to-curb service option. A major 

comment from many transit industry 

sources was that reasonable 

modification would unreasonably raise 

the costs of providing paratransit. Pertrip costs would rise, various 

commenters said, because of increased 

dwell time at stops, the need for 

additional personnel (e.g., an extra staff 

person on vehicles to assist passengers), 

increased insurance costs, lower service 

productivity, increased need for 

training, or preventing providers from 

charging fees for what they would 

otherwise view as premium service. 

Some of these commenters attached 

numbers to their predictions of 

increased costs (e.g., the costs of 

paratransit would rise from 22–50 

percent, nationwide costs would rise by 

$1.89–2.7 billion), though, with few 

exceptions, these numbers appeared to 

be based on extrapolations premised on 

assumptions about the requirements of 

the NPRM that were contrary to the 

language of the NPRM’s regulatory text 

and preamble or on no analysis at all. 

Commenters opposed to the proposal 

also raised safety issues, again 

principally in the context of paratransit. 

Making some reasonable modifications 

would force drivers to leave vehicles, 

commenters said. This could result in 

other passengers being left alone, which 

could expose them to hazards. Drivers 

leaving a vehicle would have to turn off 

the vehicle’s engine, resulting in no air 

conditioning or heating for other 

passengers in the time the driver was 

outside the vehicle. The driver could be 

exposed to injury outside the vehicle 

(e.g., from a trip and fall). 

A smaller number of commenters also 

expressed concern about the application 

of the reasonable modification concept 

to fixed route bus service. Some 

commenters said that the idea of buses 

stopping at other than a designated bus 

stop was generally unsafe and 

burdensome, could cause delays, and 

impair the clarity of service. A number 

of these commenters appeared to believe 

that the NPRM could require transit 

entities to stop anywhere along a route 

where a person with a disability was 

flagging a bus down, which they said 

would be a particularly burdensome 

practice. 

Commenters also made legal 

arguments against the proposal. Some 

commenters supported the approach 

taken by the court in Melton. Others 

said that the Department lacks statutory 

authority under the ADA to require 

reasonable modification or that 

reasonably modifying paratransit 

policies and practices would force 

entities to exceed the ‘‘comparable’’ 

service requirements of the statute. 

Some of these commenters said that the 

proposal would push entities too far in 

the direction of providing 

individualized, human service-type 

transportation, rather than mass transit. 

A number of commenters also said that 

it was good policy to maintain local 

option for entities in terms of the service 

they provide. Others argued that the 

proposed action was inconsistent with 

statutes or Executive Orders related to 

unfunded mandates and Federalism. 

A variety of commenters—in both the 

disability community and transportation 

industry—noted that a significant 

number of paratransit operators already 

either provide door-to-door service as 


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13256 Federal Register / Vol. 80, No. 49 / Friday, March 13, 2015 / Rules and Regulations 

their basic mode of service (some 

commenters said as many as 50 percent 

of paratransit operators provide door-todoor service) or follow what, in effect, 

is curb-to-curb with reasonable 

modification approach for paratransit, 

or allowed fixed route buses flexibility 

in terms of where they stop. Some of 

these commenters said that transit 

operators imposed conditions on the 

kind of modifications that could be 

made (e.g., drivers could only leave the 

vehicle for a limited time or distance). 

In some cases, commenters said, 

while they use their discretion to make 

the kinds of modifications the NPRM 

proposed, they wanted these actions to 

remain discretionary, rather than being 

the subject of a Federal mandate. A 

smaller number of commenters asked 

for additional guidance on expectations 

under a reasonable modification rule or 

for clarification of an enforcement 

mechanism for the proposed 

requirement. 

Disability community commenters 

were virtually unanimous in supporting 

the proposal, saying that curb-to-curb 

paratransit service was often inadequate 

for some people with disabilities, who, 

in some circumstances, could not make 

use of ADA-mandated paratransit 

service. For example, medical oxygen 

users should not have to use part of 

their supply waiting at the curb for a 

vehicle; blind passengers may need 

wayfinding assistance to get to or from 

a vehicle; or bad weather may make 

passage to or from a vehicle unduly 

difficult for wheelchair users. Some 

disability community commenters 

supported the inclusion in the rule of 

various other provisions of the DOJ 

ADA regulations (e.g., with respect to 

auxiliary aids and services). 

DOT Response to Comments 

Reasonable modification is a central 

concept of disability nondiscrimination 

law, based on the principle that it is 

essential for entities to consider 

individuals with disabilities as 

individuals, not simply as members of 

a category. The concept recognizes that 

entities may have general policies, 

legitimate on their face, that prevent 

nondiscriminatory access to entities’ 

service, programs, or facilities by some 

individuals with disabilities under some 

circumstances. The concept calls on 

entities to make individual exceptions 

to these general policies, where needed 

to provide meaningful, 

nondiscriminatory access to services, 

programs, or facilities, unless making 

such an exception would require a 

fundamental alteration of an entity’s 

programs. 

Reasonable modification requirements 

are part of existing requirements for 

recipients of Federal financial 

assistance, DOJ ADA rules for public 

and private entities, DOT ADA rules for 

passenger vessels, and DOT rules under 

the Air Carrier Access Act. In none of 

these contexts has the existence of a 

reasonable modification requirement 

created a significant obstacle to the 

conduct of the wide variety of public 

and private functions covered by these 

rules. Nor has it led to noticeable 

increases in costs. At this point, surface 

transportation entities are the only class 

of entities not explicitly covered by an 

ADA regulatory reasonable modification 

requirement. Having reviewed the 

comments to this rulemaking, the 

Department has concluded that 

commenters failed to make a persuasive 

case that there is legal justification for 

public transportation entities to be 

treated differently than other 

transportation entities. Further, per the 

analysis above, section 504 requires 

entities receiving Federal financial 

assistance to make reasonable 

accommodations to policies and 

practices when necessary to provide 

nondiscriminatory access to services. 

This existing requirement applies to 

nearly all public transportation entities. 

As stated in the NPRM, DOT 

recognizes that not all requests by 

individuals with disabilities for 

modifications of transportation provider 

policies are, in fact, reasonable. The 

NPRM recognized three types of 

modifications that would not create an 

obligation for a transportation provider 

to agree with a request: (1) Those that 

would fundamentally alter the 

provider’s program, (2) those that would 

create a direct threat, as defined in 49 

CFR 37.3, as a significant risk to the 

health or safety of others, and (3) those 

that are not necessary to enable an 

individual to receive the provider’s 

services. The NPRM provided some 

examples of modifications that should 

be or need not be granted. Commenters 

from both the disability community and 

the transit industry provided a vastly 

larger set of examples of modifications 

that they had encountered or believed 

either should or should not be granted. 

To respond to commenters’ concerns 

that, given the wide variety of requests 

that can be made, it is too difficult to 

make the judgment calls involved, the 

Department has created an Appendix E 

to its ADA regulation that lists examples 

of types of requests that we believe, in 

most cases, either will be reasonable or 

not. This guidance recognizes that, 

given the wide variety of circumstances 

with which transportation entities and 

passengers deal, there may be some 

generally reasonable requests that could 

justly be denied in some circumstances, 

and some requests that generally need 

not be granted that should be granted in 

other circumstances. In addition, we 

recognize that no list of potential 

requests can ever be completely 

comprehensive, since the possible 

situations that can arise are far more 

varied than can be set down in any 

document. That said, we hope that this 

Appendix will successfully guide 

transportation entities’ actions in a 

substantial majority of the kinds of 

situations commenters have called to 

our attention, substantially reducing the 

number of situations in which fromscratch judgment calls would need to be 

made, and will provide an 

understandable framework for 

transportation entities’ thinking about 

specific requests not listed. Of course, as 

the Department learns of situations not 

covered in the Appendix, we may add 

to it. 

The Department wants again to make 

clear that, as stated in the preamble to 

the last rulemaking: 

[the] September 2005 guidance concerning 

origin-to-destination service remains the 

Department’s interpretation of the obligations 

of ADA complementary paratransit providers 

under existing regulations. As with other 

interpretations of regulatory provisions, the 

Department will rely on this interpretation in 

implementing and enforcing the origin-todestination requirement of part 37. 76 FR 

57924, 57934 (Sept. 19, 2011). 

Thus, achieving the objective of 

providing origin-to-destination service 

does not require entities to make doorto-door service their basic mode of 

service provision. It remains entirely 

consistent with the Department’s ADA 

rule to provide ADA complementary 

paratransit in a curb-to-curb mode. 

When a paratransit operator does so, 

however, it would need to make 

exceptions to its normal curb-to-curb 

policy where a passenger with a 

disability makes a request for assistance 

beyond curb-to-curb service that is 

needed to provide access to the service 

and does not result in a fundamental 

alteration or direct threat to the health 

or safety of others. Given the large 

number of comments on this issue, and 

to further clarify the Department’s 

position on this, we have added a 

definition of ‘‘origin-to-destination’’ in 

part 37. 

As commenters noted, a significant 

number of paratransit operators already 

follow an origin-to-destination policy 

that addresses the needs of passengers 

that require assistance beyond the curb 

in order to use the paratransit service. 

This fact necessarily means that these 

providers can and do handle individual 


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Federal Register / Vol. 80, No. 49 / Friday, March 13, 2015 / Rules and Regulations 13257 

requests successfully. When a 

significant number of complementary 

paratransit systems already do 

essentially what this rule requires, or 

more, it is difficult to argue that it 

cannot be done without encountering 

insuperable problems. 

To respond to commenters’ concerns 

about an asserted onerous review 

process of requested modifications, the 

Department has removed the 

requirement that a response to a request 

be in writing, and is amending the 

complaint procedure in 49 CFR 27.13, 

and then mirroring that provision in a 

new section 37.17, to ensure it applies 

not just to recipients of Federal funds 

but to all designated public 

transportation entities. A person who is 

denied a modification may file a 

complaint with the entity, but the 

process would be the same as with any 

other complaint, so no separate 

complaint procedure is listed in 37.169. 

With respect to fixed route bus 

service, the Department’s position— 

elaborated upon in Appendix E—is that 

transportation providers are not 

required to stop at nondesignated 

locations. That is, a bus operator would 

not have to stop and pick up a person 

who is trying to flag down the bus from 

a location unrelated to or not in 

proximity to a designated stop, 

regardless of whether or not that person 

has a disability. On the other hand, if a 

person with a disability is near a bus 

stop, but cannot get to the precise 

location of the bus stop sign (e.g., 

because there is not an accessible path 

of travel to that precise location) or 

cannot readily access the bus from the 

precise location of the bus stop sign 

(e.g., because of construction, snow, or 

a hazard that makes getting onto the lift 

from the area of the bus stop sign too 

difficult or dangerous), then it is 

consistent both with the principle of 

reasonable modification and with 

common sense to pick up that passenger 

a modest distance from the bus stop 

sign. Doing so would not fundamentally 

alter the service or cause significant 

delays or degradation of service. 

While it is understandable that 

commenters opposed to reasonable 

modification would support the 

outcome of Melton and cases that 

followed, it is important to understand 

that the reasoning of these cases is based 

largely on the proposition that, in the 

absence of a DOT ADA regulation, 

transportation entities could not be 

required to make reasonable 

modifications on the basis of DOJ 

requirements, standing alone. This final 

rule will fill the regulatory gap that 

Melton identified. While Melton stated 

that there was a gap in coverage with 

respect to public transportation and 

paratransit, as § 37.5(f) notes, private 

entities that were engaged in the 

business of providing private 

transportation services have always 

been obligated to provide reasonable 

modifications under title III of the ADA. 

Further, as stated above, reasonable 

accommodation is a requirement under 

section 504 of the Rehabilitation Act of 

1973. 

We do not agree with commenters 

who asserted that reasonable 

modification goes beyond the concept of 

comparable complementary paratransit 

found in the ADA, going too far in the 

direction of individualized, human 

services transportation, rather than mass 

transit. To the contrary, complementary 

paratransit remains a shared-ride service 

that must meet regulatory service 

criteria. Nothing in this final rule 

changes that. What the final rule does 

make clear is that in providing 

complementary paratransit service, 

transit authorities must take reasonable 

steps, even if case-by-case exceptions to 

general procedures, to make sure that 

eligible passengers can actually get to 

the service and use it for its intended 

purpose. ADA complementary 

paratransit remains a safety net for 

individuals with disabilities who cannot 

use accessible fixed route service. 

Adhering rigidly to policies that deny 

access to this safety net is inconsistent 

with the nondiscrimination obligations 

of transportation entities. Because 

transportation entities would not be 

required to make any modifications to 

their general policies that would 

fundamentally alter their service, the 

basic safety net nature of 

complementary paratransit service 

remains unchanged. 

By the terms of the Unfunded 

Mandates Reform Act of 1995, as 

amended, requirements to comply with 

nondiscrimination laws, including those 

pertaining to disability, are not 

unfunded mandates subject to the 

provisions of the Act. 2 U.S.C. 1503. As 

a practical matter, for the vast majority 

of transportation entities subject to the 

DOT ADA regulation who receive FTA 

or other DOT financial assistance, 

compliance with any DOT regulations 

is, to a significant degree, a funded 

mandate. For both these reasons, 

comments suggesting that the proposal 

would impose an unfunded mandate 

were incorrect. 

With respect to federalism, State and 

local governments were consulted about 

the rule, both by means of the 

opportunity to comment on the NPRM 

and a public meeting. Transportation 

authorities—many of which are likely to 

be State and local entities—did 

participate extensively in the 

rulemaking process, as the docket amply 

demonstrates. As stated previously, 

transportation industry commenters 

prefer to use their discretion to make the 

kinds of modifications the NPRM 

proposed, rather than being subject to a 

Federal mandate. These entities 

continue to have the discretion to grant 

or deny requests for reasonable 

modification, albeit in the context of 

Appendix E. 

The effects of the final rule on fixed 

route service are quite modest, and 

comments did not assert the contrary. 

The issue of the cost impact of the 

reasonable modification focused almost 

exclusively on ADA complementary 

paratransit. There was little in the way 

of allegations that making exceptions to 

usual policies would increase costs in 

fixed route service. 

In looking at the allegations of cost 

increases on ADA complementary 

paratransit, the Department stresses that 

all recipients of Federal financial 

assistance—which includes public 

transportation entities of 

complementary paratransit service—are 

already required to modify policies, 

practices, and procedures if needed by 

an individual with a disability to enable 

him or her to participate in the 

recipient’s programs or activities, and 

this principle has been applied by 

Federal agencies and the courts 

accordingly. However, to provide 

commenters with a fuller response to 

their comments, the Department would 

further make three primary points. First, 

based on statements on transportation 

provider Web sites and other 

information, one-half to two-thirds of 

transit authorities already provide either 

door-to-door service as their basic mode 

of service or provide what amounts to 

curb-to-curb service with assistance 

beyond the curb as necessary in order to 

enable the passenger to use the service. 

The rule would not require any change 

in behavior, or any increase in costs, for 

these entities. Second, the effect of 

providing paratransit service in a doorto-door, or curb-to-curb, with reasonable 

modification, mode on per-trip costs is 

minimal. In situations where 

arrangements for reasonable 

modification are made in advance, 

which would be a significant portion of 

all paratransit modification requests, 

per-trip costs could even be slightly 

lower. The concerns expressed by 

commenters that per-trip costs would 

escalate markedly appear not to be 

supported by the data. Third, there 

could be cost increases, compared to 

current behavior, for paratransit 

operators that do not comply with 

existing origin-to-destination 


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1See 28 CFR 35.160(b)(1). 

requirements of the rule. Suppressing 

paratransit ridership by preventing 

eligible individuals from using the 

service or making the use of the service 

inconvenient saves money for entities. 

Conversely, making service more usable, 

and hence more attractive, could 

increase usage. Because of the operating 

cost-intensive nature of paratransit 

service, providing service to more 

people tends to increase costs. The 

Department estimated that increased 

costs from increased ridership stemming 

from improved service could amount to 

$55 million per year nationwide for 

those public transportation entities who 

are not in compliance with the current 

DOT origin-to-destination regulations. 

This estimate would be at the upper 

end of the range of possible ridershipgenerated cost increases, since it is not 

clear that transportation entities with a 

strict curb-to-curb policy never provide 

modifications to their service. Analysts 

made the assumption that transportation 

agencies with curb-to-curb policies did 

not make modifications when 

modifications were not mentioned on 

the entities’ Web sites. Disability 

community commenters suggested that, 

as a practical matter, transportation 

entities often provide what amounts to 

modifications even if their formal 

policies do not call for doing so. 

In addition, it should be emphasized 

that transportation entities who comply 

with the existing rule’s origin-todestination requirement will not 

encounter ridership-related cost 

increases. In an important sense, any 

paratransit operation that sees an 

increase in ridership when this rule 

goes into effect are experiencing 

increased costs at this time because of 

their unwillingness to comply with 

existing requirements over the past 

several years. 

Provisions of the Final Rule 

In amendments to 49 CFR part 27 (the 

Department’s section 504 rule) and part 

37 (the Department’s ADA rule for most 

surface transportation), the Department 

is incorporating specific requirements to 

clarify that public transportation entities 

are required to modify policies, 

practices, procedures that are needed to 

ensure access to programs, benefits, and 

services. 

With regard to the Department’s 

section 504 rule at 49 CFR part 27, we 

are revising the regulation to 

specifically incorporate the preexisting 

reasonable accommodation requirement 

recognized by the U.S. Supreme Court 

(see, e.g., Choate and Davis). The 

revised section 27.7 will clarify that 

recipients of Federal financial assistance 

are required to provide reasonable 

accommodations to policies, practices, 

or procedures when the 

accommodations are necessary to avoid 

discrimination on the basis of disability 

unless making the modifications (1) 

would fundamentally alter the nature of 

the service, program, or activity, or (2) 

would result in undue financial and 

administrative burdens. 

With regard to the Department’s ADA 

regulations in part 37, we are revising 

the regulation to further clarify this 

requirement and to fill in the gap 

identified by the courts. Under our 

revised part 37 regulations, public 

transportation entities may deny 

requests for modifications to their 

policies and practices on one or more of 

the following grounds: 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. Please note that 

under our section 504 regulations at part 

27, there is an undue financial and 

administrative burden defense, which is 

not relevant to our ADA regulations at 

part 37. 

This final rule revises section 37.169, 

which focuses on the reasonable 

modification obligations of public 

entities providing designated public 

transportation, including fixed route, 

demand-responsive, and 

complementary paratransit service. The 

key requirement of the section is that 

these types of transportation entities 

implement their own processes for 

making decisions on and providing 

reasonable modifications to their 

policies and practices. In many cases, 

agencies are handling requests for 

modifications during the paratransit 

eligibility process, customer service 

inquiries, and through the long-existing 

requirement in the Department’s section 

504 rule for a complaint process. 

Entities will need to review existing 

procedures and conform them to the 

new rule as needed. The Department is 

not requiring that the process be 

approved by DOT, and the shape of the 

process is up to the transportation 

provider, but it must meet certain basic 

criteria. The DOT can, however, review 

an entity’s process as part of normal 

program oversight, including 

compliance reviews and complaint 

investigations. 

First, the entity must make 

information about the process, and how 

to use it, readily available to the public, 

including individuals with disabilities. 

For example, if a transportation 

provider uses printed media and a Web 

site to inform customers about bus and 

paratransit services, then it must use 

these means to inform people about the 

reasonable modification process. Of 

course, like all communications, this 

information must be provided by means 

accessible to individuals with 

disabilities.1

Second, the process must provide an 

accessible means by which individuals 

with disabilities can request a 

reasonable modification/

accommodation. Whenever feasible, 

requests for modifications should be 

made in advance. This is particularly 

appropriate where a permanent or longterm condition or barrier is the basis for 

the request (e.g., difficulty in access to 

a paratransit vehicle from the 

passenger’s residence; the need to eat a 

snack on a rail car to maintain a 

diabetic’s blood sugar levels; lack of an 

accessible path of travel to a bus stop, 

resulting in a request to have the bus 

stop a short distance from the bus stop 

location). In the paratransit context, it 

may often be possible to consider 

requests of this kind in conjunction 

with the eligibility process. The request 

from the individual with a disability 

should be as specific as possible and 

include information on why the 

requested modification is needed in 

order to allow the individual to use the 

transportation provider’s services. 

Third, the process must also provide 

for those situations in which an advance 

request and determination is not 

feasible. The Department recognizes that 

these situations are likely to be more 

difficult to handle than advance 

requests, but responding to them is 

necessary. For example, a passenger 

who uses a wheelchair may be able to 

board a bus at a bus stop near his 

residence but may be unable to 

disembark due to a parked car or utility 

repair blocking the bus boarding and 

alighting area at the stop near his 

destination. In such a situation, the 

transit vehicle operator would have the 

front-line responsibility for deciding 

whether to grant the on-the-spot request, 

though it would be consistent with the 

rule for the operator to call his or her 

supervisor for guidance on how to 

proceed. 

Further, section 37.169 states three 

grounds on which a transportation 

provider could deny a requested 

modification. These grounds apply both 

to advance requests and on-the-spot 

requests. The first ground is that the 

request would result in a fundamental 

alteration of the provider’s services (e.g., 

a request for a dedicated vehicle in 


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Federal Register / Vol. 80, No. 49 / Friday, March 13, 2015 / Rules and Regulations 13259 

paratransit service, a request for a fixed 

route bus to deviate from its normal 

route to pick up someone). The second 

ground is that fulfilling a request for a 

modification would create a direct 

threat to the health or safety of others 

(e.g., a request that would require a 

driver to engage in a highly hazardous 

activity in order to assist a passenger, 

such as having to park a vehicle for a 

prolonged period of time in a noparking zone on a high-speed, highvolume highway that would expose the 

vehicle to a heightened probability of 

being involved in a crash). Third, the 

requested modification would not be 

necessary to permit the passenger to use 

the entity’s services for their intended 

purpose in a nondiscriminatory fashion 

(e.g., the modification might make 

transportation more convenient for the 

passenger, who could nevertheless use 

the service successfully to get where he 

or she is going without the 

modification). Appendix E provides 

additional examples of requested 

modifications that transportation 

entities usually would not be required 

to grant for one or more of these reasons. 

Where a transportation provider has a 

sound basis, under this section, for 

denying a reasonable modification 

request, 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). Transportation agencies that 

are Federal recipients are required to 

have a complaint process in place. The 

Department has added a new section 

37.17 that extends the changes made to 

49 CFR 27.13 to all public and private 

entities that provide transportation 

services, regardless of whether the 

entity receives Federal funds. 

By requiring entities to implement a 

local reasonable modification process, 

the Department intends decisions on 

individual requests for modification to 

be addressed at the local level. The 

Department does not intend to use its 

complaint process to resolve 

disagreements between transportation 

entities and individuals with disabilities 

about whether a particular modification 

request should have been granted. 

However, if an entity does not have the 

required process, it is not being 

operated properly (e.g., the process is 

inaccessible to people with disabilities, 

does not respond to communications 

from prospective complainants), it is not 

being operated in good faith (e.g., 

virtually all complaints are routinely 

rejected, regardless of their merits), or in 

any particular case raising a Federal 

interest, DOT agencies may intervene 

and take enforcement action. 

Regulatory Analyses and Notices 

Executive Order 12866 (Regulatory 

Planning and Review), DOT Regulatory 

Policies and Procedures, and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

This final rule is not significant for 

purposes of Executive Orders 12866 and 

13563 and the Department of 

Transportation’s Regulatory Policies and 

Procedures. Therefore, it has not been 

reviewed by the Office of Management 

and Budget under Executive Order 

12866 and Executive Order 13563. The 

costs of this rulemaking are expected to 

be minimal for two reasons. First, 

modifications to policies, practices, and 

procedures, if needed by an individual 

with a disability to enable him or her to 

participate in a program or activity, are 

already required by other Federal law 

that applies to recipients of Federal 

financial assistance. Since virtually 

every entity subject to this final rule 

receives Federal financial assistance, 

each entity should already be modifying 

its policies, practices, and procedures 

when necessary. Second, the reasonable 

modification/accommodation 

requirements contained in this final rule 

are not very different from the origin-todestination requirement already 

applicable to complementary paratransit 

service, as required by current DOT 

regulations at 49 CFR 37.129(a) and as 

described in its implementing guidance. 

However, the Department recognizes 

that it is likely that some regulated 

entities are not complying with the 

current section 504 requirements and 

origin-to-destination regulation. In those 

circumstances only, the Department 

estimates that increased costs from 

increased ridership stemming from 

improved service could amount to $55 

million per year nationwide for those 

public transportation entities who are 

not in compliance with the current DOT 

origin-to-destination regulations and 

section 504 requirements. Those costs 

are not a cost of this rule, but rather a 

cost of coming into compliance with 

current law. 

Executive Order 13132 (Federalism) 

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132. This final rule does not include 

any provision that (1) has substantial 

direct effects on the States, the 

relationship between the national 

government and the States, or the 

distribution of power and 

responsibilities among the various level 

of government; (2) imposes substantial 

direct compliance costs on State and 

local governments; or (3) preempts State 

law. Therefore, the rule does not have 

federalism impacts sufficient to warrant 

the preparation of a Federalism 

Assessment. 

Executive Order 13084 (Consultation 

and Coordination With Indian Tribal 

Governments) 

The final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13084. Because this final rule does not 

significantly or uniquely affect the 

communities of the Indian Tribal 

governments or impose substantial 

direct compliance costs on them, the 

funding and consultation requirements 

of Executive Order 13084 do not apply. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act 

(5 U.S.C. 601, et seq.) requires an agency 

to review regulations to assess their 

impact on small entities unless the 

agency determines that a rule is not 

expected to have a significant economic 

impact on a substantial number of small 

entities. The Department certifies that 

this rule will not have a significant 

economic impact on a substantial 

number of small entities. The rule may 

affect actions of some small entities 

(e.g., small paratransit operations). 

However, the bulk of paratransit 

operators are not small entities, and the 

majority of all paratransit operators 

already appear to be in compliance. 

There are not significant cost impacts on 

fixed route service at all, and the 

number of small grantees who operate 

fixed route systems is not large. Since 

operators can provide service in a 

demand-responsive mode (e.g., route 

deviation) that does not require the 

provision of complementary paratransit, 

significant financial impacts on any 

given operator are unlikely. 

Paperwork Reduction Act 

This rule imposes no new information 

reporting or recordkeeping necessitating 

clearance by the Office of Management 

and Budget. 

National Environmental Policy Act 

The agency has analyzed the 

environmental impacts of this action 

pursuant to the National Environmental 

Policy Act of 1969 (NEPA) (42 U.S.C. 

4321 et seq.) and has determined that it 

is categorically excluded pursuant to 

DOT Order 5610.1C, Procedures for 

Considering Environmental Impacts 

(44 FR 56420, Oct. 1, 1979). Categorical 

exclusions are actions identified in an 

agency’s NEPA implementing 


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procedures that do not normally have a 

significant impact on the environment 

and therefore do not require either an 

environmental assessment (EA) or 

environmental impact statement (EIS). 

See 40 CFR 1508.4. In analyzing the 

applicability of a categorical exclusion, 

the agency must also consider whether 

extraordinary circumstances are present 

that would warrant the preparation of 

an EA or EIS. Id. Paragraph 3.c.5 of DOT 

Order 5610.1C incorporates by reference 

the categorical exclusions for all DOT 

Operating Administrations. This action 

is covered by the categorical exclusion 

listed in the Federal Highway 

Administration’s implementing 

procedures, ‘‘[p]romulgation of rules, 

regulations, and directives.’’ 23 CFR 

771.117(c)(20). The purpose of this 

rulemaking is to provide that 

transportation entities are required to 

make reasonable modifications/

accommodations to policies, practices, 

and procedures to avoid discrimination 

and ensure that their programs are 

accessible to individuals with 

disabilities. The agency does not 

anticipate any environmental impacts, 

and there are no extraordinary 

circumstances present in connection 

with this rulemaking. 

There are a number of other statutes 

and Executive Orders that apply to the 

rulemaking process that the Department 

considers in all rulemakings. However, 

none of them is relevant to this rule. 

These include the Unfunded Mandates 

Reform Act (which does not apply to 

nondiscrimination/civil rights 

requirements), Executive Order 12630 

(concerning property rights), Executive 

Order 12988 (concerning civil justice 

reform), and Executive Order 13045 

(protection of children from 

environmental risks). 

List of Subjects 

49 CFR Part 27 

Administrative practice and 

procedure, Airports, Civil rights, 

Highways and roads, Individuals with 

disabilities, Mass transportation, 

Railroads, Reporting and recordkeeping 

requirements. 

49 CFR Part 37 

Buildings and facilities, Buses, Civil 

rights, Individuals with disabilities, 

Mass transportation, Railroads, 

Reporting and recordkeeping 

requirements, Transportation. 

For the reasons set forth in the 

preamble, the Department of 

Transportation amends 49 CFR parts 27 

and 37, as follows: 

PART 27—NONDISCRIMINATION ON 

THE BASIS OF DISABILITY IN 

PROGRAMS OR ACTIVITIES 

RECEIVING FEDERAL FINANCIAL 

ASSISTANCE 

■ 1. The authority citation for part 27 is 

revised to read as follows: 

Authority: Section 504 of the 

Rehabilitation Act of 1973, as amended (29 

U.S.C. 794); 49 U.S.C. 5332. 

■ 2. Amend § 27.7 by adding a new 

paragraph (e) to read as follows: 

§ 27.7 Discrimination prohibited. 

* * * * * 

(e) Reasonable accommodations. A 

recipient shall make reasonable 

accommodations in policies, practices, 

or procedures when such 

accommodations 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. For the purposes of this section, 

the term reasonable accommodation 

shall be interpreted in a manner 

consistent with the term ‘‘reasonable 

modifications’’ as set forth in the 

Americans with Disabilities Act title II 

regulations at 28 CFR 35.130(b)(7), and 

not as it is defined or interpreted for the 

purposes of employment discrimination 

under title I of the ADA (42 U.S.C. 

12111–12112) and its implementing 

regulations at 29 CFR part 1630. 

■ 3. Revise § 27.13 to read as follows: 

§ 27.13 Designation of responsible 

employee and adoption of complaint 

procedures. 

(a) Designation of responsible 

employee. Each recipient shall designate 

at least one person to coordinate its 

efforts to comply with this part. 

(b) Adoption of complaint procedures. 

A recipient shall adopt procedures that 

incorporate appropriate due process 

standards and provide for the prompt 

and equitable resolution of complaints 

alleging any action prohibited by this 

part and 49 CFR parts 37, 38, and 39. 

The procedures shall meet the following 

requirements: 

(1) The process for filing a complaint, 

including the name, address, telephone 

number, and email address of the 

employee designated under paragraph 

(a) of this section, must be sufficiently 

advertised to the public, such as on the 

recipient’s Web site; 

(2) The procedures must be accessible 

to and usable by individuals with 

disabilities; 

(3) The recipient must promptly 

communicate its response to the 

complaint allegations, including its 

reasons for the response, to the 

complainant by a means that will result 

in documentation of the response. 

PART 37—TRANSPORTATION 

SERVICES FOR INDIVIDUALS WITH 

DISABILITIES (ADA) 

■ 4. The authority citation for part 27 

continues to read as follows: 

Authority: 42 U.S.C. 12101–12213; 49 

U.S.C. 322. 

■ 5. In § 37.3, add a definition of 

‘‘Origin-to-destination service’’ in 

alphabetical order to read as follows: 

§ 37.3 Definitions. 

* * * * * 

Origin-to-destination service means 

providing service from a passenger’s 

origin to the passenger’s destination. A 

provider may provide ADA 

complementary paratransit in a curb-tocurb or door-to-door mode. When an 

ADA paratransit operator chooses curbto-curb as its primary means of 

providing 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 in a fundamental 

alteration or direct threat. 

* * * * * 

■ 6. Amend § 37.5 by revising paragraph 

(h) and adding paragraph (i) to read as 

follows: 

§ 37.5 Nondiscrimination. 

* * * * * 

(h) It is not discrimination under this 

part for an entity to refuse to provide 

service to an individual with disabilities 

because that individual engages in 

violent, seriously disruptive, or illegal 

conduct, or represents a direct threat to 

the health or safety of others. However, 

an entity shall not refuse to provide 

service to an individual with disabilities 

solely because the individual’s 

disability results in appearance or 

involuntary behavior that may offend, 

annoy, or inconvenience employees of 

the entity or other persons. 

(i) Public and private entity 

distinctions.— (1) Private entity–private 

transport. Private entities that are 

primarily engaged in the business of 

transporting people and whose 

operations affect commerce shall not 

discriminate against any individual on 

the basis of disability in the full and 

equal enjoyment of specified 

transportation services. This obligation 

includes, with respect to the provision 

of transportation services, compliance 

with the requirements of the rules of the 

Department of Justice concerning 


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eligibility criteria, making reasonable 

modifications, providing auxiliary aids 

and services, and removing barriers 

(28 CFR 36.301–36.306). 

(2) Private entity–public transport. 

Private entities that provide specified 

public transportation shall make 

reasonable modifications in policies, 

practices, or procedures, when the 

modifications are necessary to afford 

goods, services, facilities, privileges, 

advantages, or accommodations to 

individuals with disabilities, unless the 

entity can demonstrate that making the 

modifications would fundamentally 

alter the nature of the goods, services, 

facilities, privileges, advantages, or 

accommodations. 

(3) Public entity–public transport. 

Public entities that provide designated 

public transportation shall make 

reasonable modifications in policies, 

practices, or procedures when the 

modifications are necessary to avoid 

discrimination on the basis of disability 

or to provide program accessibility to 

their services, subject to the limitations 

of § 37.169(c)(1)–(3). This requirement 

applies to the means public entities use 

to meet their obligations under all 

provisions of this part. 

(4) In choosing among alternatives for 

meeting nondiscrimination and 

accessibility requirements with respect 

to new, altered, or existing facilities, or 

designated or specified transportation 

services, public and private entities 

shall give priority to those methods that 

offer services, programs, and activities 

to qualified individuals with disabilities 

in the most integrated setting 

appropriate to the needs of individuals 

with disabilities. 

■ 7. Add § 37.17 to read as follows: 

§ 37.17 Designation of responsible 

employee and adoption of complaint 

procedures. 

(a) Designation of responsible 

employee. Each public or private entity 

subject to this part shall designate at 

least one person to coordinate its efforts 

to comply with this part. (b) Adoption 

of complaint procedures. An entity shall 

adopt procedures that incorporate 

appropriate due process standards and 

provide for the prompt and equitable 

resolution of complaints alleging any 

action prohibited by this part and 49 

CFR parts 27, 38 and 39. The procedures 

shall meet the following requirements: 

(1) The process for filing a complaint, 

including the name, address, telephone 

number, and email address of the 

employee designated under paragraph 

(a) of this section, must be sufficiently 

advertised to the public, such as on the 

entity’s Web site; 

(2) The procedures must be accessible 

to and usable by individuals with 

disabilities; 

(3) The entity must promptly 

communicate its response to the 

complaint allegations, including its 

reasons for the response, to the 

complainant and must ensure that it has 

documented its response. 

■ 8. Add § 37.169 to read as follows: 

§ 37.169 Process to be used by public 

entities providing designated public 

transportation service in considering 

requests for reasonable modification. 

(a)(1) A public entity providing 

designated public transportation, in 

meeting the reasonable modification 

requirement of § 37.5(g)(1) with respect 

to its fixed route, demand responsive, 

and complementary paratransit services, 

shall respond to requests for reasonable 

modification to policies and practices 

consistent with this section. 

(2) The public entity shall make 

information about how to contact the 

public entity to make requests for 

reasonable modifications readily 

available to the public through the same 

means it uses to inform the public about 

its policies and practices. 

(3) This process shall be in operation 

no later than July 13, 2015. 

(b) The process shall provide a means, 

accessible to and usable by individuals 

with disabilities, to request a 

modification in the entity’s policies and 

practices applicable to its transportation 

services. 

(1) Individuals requesting 

modifications shall describe what they 

need in order to use the service. 

(2) Individuals requesting 

modifications are not required to use the 

term ‘‘reasonable modification’’ when 

making a request. 

(3) Whenever feasible, requests for 

modifications shall be made and 

determined in advance, before the 

transportation provider is expected to 

provide the modified service, for 

example, during the paratransit 

eligibility process, through customer 

service inquiries, or through the entity’s 

complaint process. 

(4) Where a request for modification 

cannot practicably be made and 

determined in advance (e.g., because of 

a condition or barrier at the destination 

of a paratransit or fixed route trip of 

which the individual with a disability 

was unaware until arriving), operating 

personnel of the entity shall make a 

determination of whether the 

modification should be provided at the 

time of the request. Operating personnel 

may consult with the entity’s 

management before making a 

determination to grant or deny the 

request. 

(c) Requests for modification of a 

public entity’s policies and practices 

may be denied only on one or more of 

the following grounds: 

(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. 

(d) In determining whether to grant a 

requested modification, public entities 

shall be guided by the provisions of 

Appendix E to this Part. 

(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. 

(f)(1) Public entities are not required 

to obtain prior approval from the 

Department of Transportation for the 

process required by this section. 

(2) DOT agencies retain the authority 

to review an entity’s process as part of 

normal program oversight. 

■ 9. Add a new Appendix E to Part 37 

to read as follows: 

Appendix E to Part 37—Reasonable 

Modification Requests 

A. This appendix explains the 

Department’s interpretation of §§ 37.5(g) 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 entities 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 system, 

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 regulation’s objectives. Implementing a 

fixed route bus policy in the normal way may 


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not allow a passenger with a disability to 

access and use the system at a particular 

location. Implementing 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 comply 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 create 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 administrative burden. In the 

examples that follow, these limitations are 

taken into account. 

D. The examples included in this appendix 

are neither exhaustive nor exclusive. 

Transportation 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 CFR 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. 

Examples 

1. Snow and Ice. Except in extreme 

conditions that rise to the level of a direct 

threat to the driver or others, a passenger’s 

request for a paratransit driver to walk over 

a pathway that has not been fully cleared of 

snow and ice should be granted so that the 

driver can help the passenger with a 

disability navigate the pathway. For example, 

ambulatory blind passengers often have 

difficulty in icy conditions, and allowing the 

passenger to take the driver’s arm will 

increase both the speed and safety of the 

passenger’s walk from the door to the 

vehicle. Likewise, if snow or icy conditions 

at a bus stop make it difficult or impossible 

for a fixed route passenger with a disability 

to get to a lift, or for the lift to deploy, the 

driver should move the bus to a cleared area 

for boarding, if such is available within 

reasonable proximity to the stop (see 

Example 4 below). 

2. Pick Up and Drop Off Locations with 

Multiple Entrances. A paratransit rider’s 

request to be picked up at home, but not at 

the front door of his or her home, should be 

granted, as long as the requested pick-up 

location does not pose a direct threat. 

Similarly, in the case of frequently visited 

public places with multiple entrances (e.g., 

shopping malls, employment centers, 

schools, hospitals, airports), the paratransit 

operator should pick up and drop off the 

passenger at the entrance requested by the 

passenger, rather than meet them in a 

location that has been predetermined by the 

transportation agency, again assuming that 

doing so does not involve a direct threat. 

3. Private Property. Paratransit passengers 

may sometimes seek to be picked up on 

private property (e.g., in a gated community 

or parking lot, mobile home community, 

business or government facility where 

vehicle access requires authorized passage 

through a security barrier). Even if the 

paratransit operator does not generally have 

a policy of picking up passengers on such 

private property, the paratransit operator 

should make every reasonable effort to gain 

access to such an area (e.g., work with the 

passenger to get the permission of the 

property owner to permit access for the 

paratransit vehicle). The paratransit operator 

is not required to violate the law or lawful 

access restrictions to meet the passenger’s 

requests. A public or private entity that 

unreasonably denies access to a paratransit 

vehicle may be subject to a complaint to the 

U.S. Department of Justice or U.S. 

Department of Housing and Urban 

Development for discriminating against 

services for persons with disabilities. 

4. Obstructions. For fixed route services, a 

passenger’s request for a driver to position 

the vehicle to avoid obstructions to the 

passenger’s ability to enter or leave the 

vehicle at a designated stop location, such as 

parked cars, snow banks, and construction, 

should be granted so long as positioning the 

vehicle to avoid the obstruction does not 

pose a direct threat. To be granted, such a 

request should result in the vehicle stopping 

in reasonably close proximity to the 

designated stop location. Transportation 

entities are not required to pick up 

passengers with disabilities at nondesignated 

locations. Fixed route operators would not 

have to establish flag stop or route-deviation 

policies, as these would be fundamental 

alterations to a fixed route system rather than 

reasonable modifications of a system. 

Likewise, subject to the limitations discussed 

in the introduction to this appendix, 

paratransit operators should be flexible in 

establishing pick up and drop off points to 

avoid obstructions. 

5. Fare Handling. A passenger’s request for 

transit personnel (e.g., the driver, station 

attendant) to handle the fare media when the 

passenger with a disability cannot pay the 

fare by the generally established means 

should be granted on fixed route or 

paratransit service (e.g., in a situation where 

a bus passenger cannot reach or insert a fare 

into the farebox). Transit personnel are not 

required to reach into pockets or backpacks 

in order to extract the fare media. 

6. Eating and Drinking. If a passenger with 

diabetes or another medical condition 

requests to eat or drink aboard a vehicle or 

in a transit facility in order to avoid adverse 

health consequences, the request should be 

granted, even if the transportation provider 

has a policy that prohibits eating or drinking. 

For example, a person with diabetes may 

need to consume a small amount of orange 

juice in a closed container or a candy bar in 

order to maintain blood sugar levels. 

7. Medicine. A passenger’s request to take 

medication while aboard a fixed route or 

paratransit vehicle or in a transit facility 

should be granted. For example, transit 

agencies should modify their policies to 

allow individuals to administer insulin 

injections and conduct finger stick blood 

glucose testing. Transit staff need not provide 

medical assistance, however, as this would 

be a fundamental alteration of their function. 

8. Boarding Separately From Wheelchair. 

A wheelchair user’s request to board a fixed 

route or paratransit vehicle separately from 

his or her device when the occupied weight 

of the device exceeds the design load of the 

vehicle lift should generally be granted. 

(Note, however, that under § 37.165(b), 

entities are required to accommodate device/ 

user loads and dimensions that exceed the 

former ‘‘common wheelchair’’ standard, as 

long as the vehicle and lift will accommodate 

them.) 

9. Dedicated vehicles or special equipment 

in a vehicle. A paratransit passenger’s request 

for special equipment (e.g., the installation of 

specific hand rails or a front seat in a vehicle 

for the passenger to avoid nausea or back 

pain) can be denied so long as the requested 

equipment is not required by the Americans 

with Disabilities Act or the Department’s 

rules. Likewise, a request for a dedicated 

vehicle (e.g., to avoid residual chemical 

odors) or a specific type or appearance of 

vehicle (e.g., a sedan rather than a van, in 

order to provide more comfortable service) 

can be denied. In all of these cases, the 

Department views meeting the request as 

involving a fundamental alteration of the 

provider’s service. 

10. Exclusive or Reduced Capacity 

Paratransit Trips. A passenger’s request for 

an exclusive paratransit trip may be denied 

as a fundamental alteration of the entity’s 

services. Paratransit is by nature a sharedride service. 

11. Outside of the Service Area or 

Operating Hours. A person’s request for fixed 

route or paratransit service may be denied 

when honoring the request would require the 

transportation provider to travel outside of its 

service area or to operate outside of its 

operating hours. This request would not be 

a reasonable modification because it would 

constitute a fundamental alteration of the 

entity’s service. 

12. Personal Care Attendant (PCA). While 

PCAs may travel with a passenger with a 

disability, transportation agencies are not 

required to provide a personal care attendant 

or personal care attendant services to meet 

the needs of passengers with disabilities on 

paratransit or fixed route trips. For example, 

a passenger’s request for a transportation 

entity’s driver to remain with the passenger 

who, due to his or her disability, cannot be 

left alone without an attendant upon 

reaching his or her destination may be 

denied. It would be a fundamental alteration 

of the driver’s function to provide PCA 

services of this kind. 


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Federal Register / Vol. 80, No. 49 / Friday, March 13, 2015 / Rules and Regulations 13263 

1Please see guidance issued on this topic. U.S. 

Department of Transportation, Origin-to-Destination 

Service, September 1, 2005, available at http://

www.fta.dot.gov/12325_3891.html (explaining that, 

‘‘the Department does not view transit providers’ 

obligations as extending to the provision of 

personal services. . . . Nor would drivers, for 

lengthy periods of time, have to leave their vehicles 

unattended or lose the ability to keep their vehicles 

under visual observation, or take actions that would 

be clearly unsafe . . .’’). 

13. Intermediate Stops. The Department 

views granting a paratransit passenger’s 

request for a driver to make an intermediate 

stop, where the driver would be required to 

wait, as optional. For example, a passenger 

with a disability arranges to be picked up at 

a medical facility and dropped off at home. 

On the way, the passenger with a disability 

wishes to stop by a pharmacy and requests 

that the driver park outside of the pharmacy, 

wait for the passenger to return, and then 

continue the ride home. While this can be a 

very useful service to the rider, and in some 

cases can save the provider’s time and money 

(by scheduling and providing a separate trip 

to and from the drug store), such a stop in 

the context of a shared ride system is not 

required. Since paratransit is, by its nature, 

a shared ride system, requests that could 

disrupt schedules and inconvenience other 

passengers could rise to the level of a 

fundamental alteration. 

14. Payment. A passenger’s request for a 

fixed route or paratransit driver to provide 

the transit service when the passenger with 

a disability cannot or refuses to pay the fare 

may be denied. If the transportation agency 

requires payment to ride, then to provide a 

free service would constitute a fundamental 

alteration of the entity’s service. 

15. Caring for Service Animals. A 

paratransit or fixed route passenger’s request 

that the driver take charge of a service animal 

may be denied. Caring for a service animal 

is the responsibility of the passenger or a 

PCA. 

16. Opening Building Doors. For 

paratransit services, a passenger’s request for 

the driver to open an exterior entry door to 

a building to provide boarding and/or 

alighting assistance to a passenger with a 

disability should generally be granted as long 

as providing this assistance would not pose 

a direct threat, or leave the vehicle 

unattended or out of visual observation for a 

lengthy period of time.1 Note that a request 

for ‘‘door-through-door’’ service (i.e., 

assisting the passenger past the door to the 

building) generally would not need to be 

granted because it could rise to the level of 

a fundamental alteration. 

17. Exposing Vehicle to Hazards. If the 

passenger requests that a vehicle follow a 

path to a pick up or drop off point that would 

expose the vehicle and its occupants to 

hazards, such as running off the road, getting 

stuck, striking overhead objects, or reversing 

the vehicle down a narrow alley, the request 

can be denied as creating a direct threat. 

18. Hard-to-Maneuver Stops. A passenger 

may request that a paratransit vehicle 

navigate to a pick-up point to which it is 

difficult to maneuver a vehicle. A passenger’s 

request to be picked up in a location that is 

difficult, but not impossible or impracticable, 

to access should generally be granted as long 

as picking up the passenger does not expose 

the vehicle to hazards that pose a direct 

threat (e.g., it is unsafe for the vehicle and 

its occupants to get to the pick-up point 

without getting stuck or running off the 

road). 

19. Specific Drivers. A passenger’s request 

for a specific driver may be denied. Having 

a specific driver is not necessary to afford the 

passenger the service provided by the transit 

operator. 

20. Luggage and Packages. A passenger’s 

request for a fixed route or paratransit driver 

to assist with luggage or packages may be 

denied in those instances where it is not the 

normal policy or practice of the 

transportation agency to assist with luggage 

or packages. Such assistance is a matter for 

the passenger or PCA, and providing this 

assistance would be a fundamental alteration 

of the driver’s function. 

21. Request to Avoid Specific Passengers. 

A paratransit passenger’s request not to ride 

with certain passengers may be denied. 

Paratransit is a shared-ride service. As a 

result, one passenger may need to share the 

vehicle with people that he or she would 

rather not. 

22. Navigating an Incline, or Around 

Obstacles. A paratransit passenger’s request 

for a driver to help him or her navigate an 

incline (e.g., a driveway or sidewalk) with 

the passenger’s wheeled device should 

generally be granted. Likewise, assistance in 

traversing a difficult sidewalk (e.g., one 

where tree roots have made the sidewalk 

impassible for a wheelchair) should generally 

be granted, as should assistance around 

obstacles (e.g., snowdrifts, construction 

areas) between the vehicle and a door to a 

passenger’s house or destination should 

generally be granted. These modifications 

would be granted subject, of course, to the 

proviso that such assistance would not cause 

a direct threat, or leave the vehicle 

unattended or out of visual observation for a 

lengthy period of time. 

23. Extreme Weather Assistance. A 

passenger’s request to be assisted from his or 

her door to a vehicle during extreme weather 

conditions should generally be granted so 

long as the driver leaving the vehicle to assist 

would not pose a direct threat, or leave the 

vehicle unattended or out of visual 

observation for a lengthy period of time. For 

example, in extreme weather (e.g., very 

windy or stormy conditions), a person who 

is blind or vision-impaired or a frail elderly 

person may have difficulty safely moving to 

and from a building. 

24. Unattended Passengers. Where a 

passenger’s request for assistance means that 

the driver will need to leave passengers 

aboard a vehicle unattended, transportation 

agencies should generally grant the request as 

long as accommodating the request would 

not leave the vehicle unattended or out of 

visual observation for a lengthy period of 

time, both of which could involve direct 

threats to the health or safety of the 

unattended passengers. It is important to 

keep in mind that, just as a driver is not 

required to act as a PCA for a passenger 

making a request for assistance, so a driver 

is not intended to act as a PCA for other 

passengers in the vehicle, such that he or she 

must remain in their physical presence at all 

times. 

25. Need for Return Trip Assistance. A 

passenger with a disability may need 

assistance for a return trip when he or she 

did not need that assistance on the initial 

trip. For example, a dialysis patient may have 

no problem waiting at the curb for a ride to 

go to the dialysis center, but may well require 

assistance to the door on his or her return 

trip because of physical weakness or fatigue. 

To the extent that this need is predictable, it 

should be handled in advance, either as part 

of the eligibility process or the provider’s 

reservations process. If the need arises 

unexpectedly, then it would need to be 

handled on an ad hoc basis. The paratransit 

operator should generally provide such 

assistance, unless doing so would create a 

direct threat, or leave the vehicle unattended 

or out of visual observation for a lengthy 

period of time. 

26. Five-Minute Warning or Notification of 

Arrival Calls. A passenger’s request for a 

telephone call 5 minutes (or another 

reasonable interval) in advance or at time of 

vehicle arrival generally should be granted. 

As a matter of courtesy, such calls are 

encouraged as a good customer service model 

and can prevent ‘‘no shows.’’ Oftentimes, 

these calls can be generated through an 

automated system. In those situations where 

automated systems are not available and 

paratransit drivers continue to rely on handheld communication devices (e.g., cellular 

telephones) drivers should comply with any 

State or Federal laws related to distracted 

driving. 

27. Hand-Carrying. Except in emergency 

situations, a passenger’s request for a driver 

to lift the passenger out of his or her mobility 

device should generally be denied because of 

the safety, dignity, and privacy issues 

implicated by hand-carrying a passenger. 

Hand-carrying a passenger is also a PCA-type 

service which is outside the scope of driver 

duties, and hence a fundamental alteration. 

Issued this 6th day of March, 2015, at 

Washington, DC, under authority delegated 

in 49 CFR 1.27(a). 

Kathryn B. Thomson, 

General Counsel. 

[FR Doc. 2015–05646 Filed 3–12–15; 8:45 am] 

BILLING CODE 4910–9X–P 


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