Appendix E to Part 37 - Reasonable Modification Requests
49:1.0.1.1.27.10.43.1.25 : Appendix E
Appendix E to Part 37 - Reasonable Modification Requests
A. This appendix explains the Department's interpretation of §§
37.5(i) and 37.169. It is intended to be used as the official
position of the Department concerning the meaning and
implementation of these provisions. The Department also issues
guidance by other means, as provided in § 37.15. The Department
also may update this appendix periodically, provided in response to
inquiries about specific situations that are of general relevance
or interest.
B. The Department's ADA regulations contain numerous
requirements concerning fixed route, complementary paratransit, and
other types of transportation service. Transportation 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 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 shared-ride 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.
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.
1 Please 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 . . .”).
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 hand-held
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.
[80 FR 13261, Mar. 13, 2015, as amended at 80 FR 26196, May 7,
2015]