**Office of the Secretary**

**of Transportation GENERAL COUNSEL**  1200 New Jersey Avenue, SE Washington, DC 20590 

## MEMORANDUM Prepared By : Jill Laptosky

Attorney - Advisor , Office of Regulation and Enforcement (C - 50) Re: Office of the Secretary ’s Final Rule on Transportation with I ndividuals with Disabilities: Rea sonable Modifications (2105

–AD54 ) On May 28, 2014, representatives from the U.S. Department of Transport ation (DOT) met with Access Services, the Los Angeles County Consolidated Transportation Services Agency that administers the Los Angeles County Coordinated Paratransit Plan on behalf of the county’s 44 public fixed route operators (i.e., bus and rail). Access Services called the meeting to d iscuss the Federal Transit Administration’s (FTA) Fiscal Year 2013 Grantee Management Review finding regarding the Americans with Disabilities Act (ADA). Specifically , the FTA found that Access Services was not providing origin - to - destination service as r equired by 49 CFR 37.129(a). The following ind ividuals were present from DOT :  James Cole, Deputy

General Counsel, Office of the Secretary (OST)  John Day , Legislative Analyst, Federal Transit Administration  Linda Ford, Director, Civil Rights, Federal Trans it Administration  Bonnie Graves, Attorney, Federal Transit Administration  Bryna Helfer, Director of Public Engagement, OST  Jill Laptosky , Attorney , OST  Kathry

n Sinniger, Assistant General Counsel, OST The following individuals were present from or on beha lf of Access Services:  Andre Colaiace, Deputy Executive Director Planning and Governmental Affairs , Access Services  Len Simon, Simon and Company, Inc.  Shelly Verrinder, Executive Director, Access Services Mr. Colaiace provided a description of Access Services, discussed some of the funding challenges, and mentioned that Access Services has responded to FTA’s finding. Access Services has a policy

disagreement with DOT on what origin - to - destination service requires. Acc ess Services feels that they are going above and beyond the requirements of ordinary se rvice , but FTA is asking for them to do more (i.e., origin - to - destination service). Access Services believes that providing origin - to - destination service would impose a large cost estimated2

between $40 - 70 million over 4 years. This cost includes a full conversion to a door - to - door service model from the curb - to - curb service model that Access Service currently uses. This cost also includes increased dwell times of 1 - 2 m inutes in certain trips, which Access Services estimates would slow down service on their s ys tem. For example, Access Services say s that drivers providing door - to - door service may onl y be able to complete eight trips in the time that today , whereas under a curb - to - curb service model, the driver may be able to complete ten trips. Ms. Graves mentioned that some transit agencies have found the opposite effect

—that is, that switching from a curb - to - curb to a door - to - door service model actuall y lowers s ys temwi de costs as it has reduced dwell times . Access Services also mentioned some safety issues that they have with providing door - to - door service, such as jo yriding. Ms. Graves provided some basic clarifications of what origin - to - destination service is and is not. Specificall y, origin - to - destination does not require a sy stem providing curb - to - curb service to change its entire operation to door - to - door. It requires only that the transit sy stem provide door to - door service for those passengers who need door - t o - door in order to use the service. Access Services asserted that a provision of the Safe, Accountable, Flexible, Efficient Transportation Equity

Act: A L egacy

for Users (SAFETEA

–LU) states that guidance cannot be binding. However, Ms. Graves clarified that the SAFETEA

–LU provision applies only to certain FTA guidance documents, and not OST guidance documents, such as the 2005 origin - to destination guidance. Under 49 U.S.C. 5334(k), when FTA is sues a statement that has a binding obligation on recipients, FTA must follow applicable rulemaking procedures. With regard to OST’s pending rulemaking on reasonable modifications, Access Services said, “If reasonable modification comes out as law, we are prepared to implement it.” Access Services discussed a couple of cases, Melton and Rochester . Access Services said that this was the first time that not complying with origin - to - destination service has come up as a finding in a triennial review, and the y want to find a way to close the finding. Access Services believes that the guidance found in the Appendix to Part 37 and the guidance issued in 2005 are inconsistent. Mr. Simon asked some questions about the pending rulemaking on reasonable modificatio ns, but OST declined to comment. Ms. Sinniger mentioned that the schedule for the reasonable modification final rule is posted on the DOT Web site monthly , and that publication is currently projected for October 2014. Access Services mentioned that when the reasonable modification final rule is issued, it will require a large educational effort for their passengers on their part. Currently , Access Services does not have any clients who need door - to - door service. They refer those who do to other service providers (e.g., dial - a - ride). Mr. Cole closed b y sayi ng that the best way to move forward is to get the reasonable modification final rule completed as soon as possible .