Paratransit issues are one of the most common areas of concern in the implementation of the Americans with Disabilities Act. Information about consumer rights and responsibilities in this area has been hard to find in a clear and comprehensive manner. Toward this end, I am distributing a compilation of electronic text material I recently obtained from the Federal Transit Administration--part of the U.S. Department of Transportation. First is the initial issue of its ADA newsletter. Next is an ADA complaint form. Last are the paratransit regulations with accompanying analysis. Jamal Mazrui National Council on Disability Email: 74444.1076@compuserve.com ---------- FTA ADA Newsletter Issue No. 1 Federal Transit Administration Office of Civil Rights May, 1997 This newsletter will provide a discussion of current issues and recent findings involving transit aspects of the Americans with Disabilities Act of 1990 (ADA). Section 37.5 of the DOT ADA regulation prohibits discrimination against persons with disabilities in connection with the provision of transportation services. Section 503 of Title V of the ADA, expressly forbids retaliation, coercion, intimidation, interference, and threatening of persons who are enjoying their guaranteed rights. Unfortunately this is a common thread throughout the complaints received. From the subtle, "The bus driver passed me by because he said the lift was not working." To the blatant, "I'm not allowing any dogs on my bus; I don't care what your problem is!" And every imaginable variation in between has occurred, we hear it all. But discrimination is hard to prove. Without witnesses, all that we usually have is the complainant's statement. Perhaps the lift really isn't working or the bus is full. Or maybe the bus driver is behind schedule and finds it easier to pass by the person in the wheelchair. A vocal advocate with a history of complaining publicly to the press about allegedly poor treatment of persons with disabilities by a transit agency in the mid-West complained that he had been singled out for harassment. He cited various incidents where bus drivers taunted him, purposely passed him by, moved the lift while he was positioning himself, and purposely made his life "miserable." The complainant lacked corroborating evidence to support his allegations, but his history of complaining about the same issues to the transit provider and to the local newspaper helped us find his allegations credible. Our response to the transit provider emphasized FTA's policy of zero tolerance for retaliation, and expected assurances that its policy was the same. The file will remain open for a reasonable time with the complainant encouraged to notify us if he again encounters this type of discrimination. We have another ongoing complaint where the transit provider admitted that a picture of a particularly vocal complainant was posted in the bus drivers' lounge as a notice to avoid picking him up! We stress to transit providers the importance of taking immediate action to investigate and resolve these types of complaints. In almost all circumstances we find the transit providers to be eager to assist in correcting deficiencies. The most rewarding results are achieved when the transit provider identifies the employee and corrects the situation by retraining and/or counseling on employee responsibilities under the ADA. The largest number of complaints received are about paratransit service. Of those, eligibility is the biggest issue. We assist the transit providers and the complainants by urging the local process to be exhausted, if they have not already done so. Complainants should include any additional information regarding their disability that may have been omitted in their initial application. If they have already filed an appeal, we request documentation from the transit provider describing its formal appeal process and specific facts about the complainant's appeal. We analyze the information to determine if the complainant was properly notified of the right to appeal; if there was proper separation of functions between the persons making the initial decision and the decision on the appeal; and if the appeal decision was timely made. If it appears that the appeals process was in accordance with the regulation, we generally do not intervene and notify the complainant that we will take no further action. Occasionally, we disagree with the transit provider's determination. In several complaints from areas with severe winters, we have non-concurred with the transit providers' decision to deny eligibility and have encouraged them to grant conditional eligibility under Category 3. In other locations where sidewalks, or curb cuts, or street crossings do not exist within the complainant's path of travel to a fixed route bus stop, we have also encouraged the transit providers to grant conditional eligibility. Section 37.163 of the DOT ADA regulation requires a public transit provider to establish a system of regular and frequent maintenance checks of lifts sufficient to determine if they are operative. Inoperative lifts must be reported immediately and repaired before put back into service (with an exception noted in Section 37.163(e)). If the headway between the next accessible vehicle is greater than 30 minutes, alternate transportation must be promptly provided for persons with disabilities who require a lift. We receive numerous complaints about persons who are routinely stranded because of non-functioning lifts. It appears that the requirement to provide back up transportation is not widely implemented, nor are there regular and frequent checks of lifts as required. Most complainants who allege that they have been stranded are not even aware of their right to alternate transportation. In a recent complaint resolution, the transit provider pledged to: document when a driver notifies Dispatch of a lift failure; document the action the dispatcher takes in response; and ensure that bus drivers notify Dispatch immediately of a lift failure. With these simple modifications, we closed the complaint but will be alert to further complaints involving this agency. One paratransit provider denied a rider the right to ride with a companion. The rider scheduled a series of one way trips that included a trip to her companion's home and another trip to their destination. For its own convenience, the paratransit provider originally decided to wait for the rider to pick up her companion and then continue on to their destination. The paratransit provider later decided to refuse the trip on the grounds that the companion was not at the same origin as the rider. We intervened on behalf of the rider stating that Section 37.131 of the DOT ADA regulation prohibits restrictions for trip purposes or on the number of trips an eligible person takes. We often receive complaints regarding fare increases and route reductions or changes. We are prohibited by Section 5324(c) of the Federal Transit Laws, as codified, from becoming involved in local decisions regarding transit operations. We welcome your comments and suggestions for future editions of this newsletter. You may contact us at: 400 7th St., SW Room 7412 Washington, D.C. 20590 electronic mail: ada.assistance@fta.dot.gov Toll Free FTA ADA Assistance Line #1-888-446-4511 TDD 1-800-877-8339 (Federal Informa- tion Relay Service) DISCRIMINATION AND RETALIATION "We aren't doing our job if either side, the transit industry or the disability community, is too happy with us." Arthur Andrew Lopez Director, Office of Civil Rights PARATRANSIT: ELIGIBILITY AND APPEALS FTA ADA ASSISTANCE LINE 1-888-446-4511 ODDS AND ENDS LIFT FAILURES ---------- Federal Transit Administration Office of Civil Rights ADA Complaint Form The Federal Transit Administration (FTA) Office of Civil Rights is responsible for civil rights compliance and monitoring, which includes ensuring that providers of public transportation properly implement Title II of the Americans with Disabilities Act of 1990 (the ADA), the Department of Transportation (DOT) ADA regulations, and Section 504 of the Rehabilitation Act of 1973. In the FTA complaint investigation process, we analyze the complainant's allegations for possible ADA deficiencies by the transit provider. If deficiencies are identified they are presented to the transit provider and assistance is offered to correct the inadequacies within a predetermined timeframe. The ADA does not provide FTA the authority to seek compensatory, punitive or other types of monetary relief or damages on behalf of a complainant. If FTA cannot resolve apparent violations of the ADA or the DOT ADA regulations by voluntary means, formal enforcement proceedings may be initiated against the public transportation provider which may result in the termination of Federal funds. FTA also may refer the matter to the U.S. Department of Justice for enforcement. Please mail your completed form to: Director, FTA Office of Civil Rights, 400 7th Street, S.W., Room 7412, Washington, D.C. 20590 You may also contact us by phone at our toll free FTA ADA Assistance Line, 1-888-446-4511, TDD 1-202-366-0153, or through the Federal Information Relay Service, 1-800-877-8339 We can also be reached by electronic mail at: ada.assistance@fta.dot.gov. The FTA Web Page can be found at http://www.fta.dot.gov. Section I Name: Address: Telephone Numbers: (home) (work) Electronic Mail Address: Accessible format requirements? Large print _______ Audio tape _____ TDD _______ Other _________________________________________ Section II Are you filing this complaint on your own behalf? Yes ____ No ____ [If you answered "yes" to this question, go to Section III.] If not, please supply the name and relationship of the person for whom you are complaining: ________________________________________ Please explain why you have filed for a third party. __________________ ___________________________________________________________ ___________________________________________________________ Please confirm that you have obtained the permission of the aggrieved party if you are filing on behalf of a third party. Yes ____ No ____ Section III Have you previously filed an ADA complaint with FTA? Yes____ No___ If yes, what was your FTA Complaint Number? __________________ [Note: This information is needed for administrative purposes; we will assign the same complaint number to the new complaint.] Have you filed this complaint with any of the following agencies? Transit Provider _____ Department of Transportation _____ Department of Justice _____ Equal Employment Opportunity Commission _____ Other ____________________________________________________ Have you filed a lawsuit regarding this complaint? Yes ____ No ____ If yes, please provide a copy of the complaint form. [Note: This above information is helpful for administrative tracking purposes. However, if litigation is pending regarding the same issues, we defer to the decision of the court.] Section IV Name of public transit provider complaint is against: ________________________________________________________ Contact person: ______________________ Title: ________________ Telephone number: _________________________ On separate sheets, please describe your complaint. You should include specific details such as names, dates, times, route numbers, witnesses, and any other information that would assist us in our investigation of your allegations. Please also provide any other documentation that is relevant to this complaint. Section V May we release a copy of your complaint to the transit provider? Yes ____ No ____ May we release your identity to the transit provider? Yes ____ No ____ Please sign here: _____________________________________________ Date: ________________________ [Note - We cannot accept your complaint without a signature.] ---------- U.S. DEPARTMENT OF TRANSPORTATION PARATRANSIT REGULATIONS SUBPART F - Paratransit As A Complement To Fixed Route Service PREAMBLE REGULATORY LANGUAGE APPENDIX D Section ()37.121 Requirement for Comparable Complementary Paratransit Service. This section sets forth the basic requirement for comparable paratransit service, which applies to each public entity operating a fixed route system. The requirements for paratransit service are to be met by a system complying with 37.123 - 37.133, which embody the eligibility requirements and service criteria for paratransit, though compliance with 37.131 may be modified where an undue financial burden waiver is granted. Though it is clear from the statute, a number of commenters wanted an explicit statement in the rule that.the commuter bus and commuter rail systems are not required to provide complementary paratransit. The former is the case because 223(a) of the ADA specifically exempts commuter bus service from the paratransit requirement. The latter is true because commuter rail is excluded from the definition of "designated public transportation." Since, by definition, only entities providing designated public transportation can operate a "fixed route system," and the paratransit requirement applies only to entities operating fixed route systems, commuter rail systems are not subject to the paratransit requirement. Paragraph (c) restates that these types of systems do not have to provide paratransit. 37.121 Requirement for comparable complementary paratransit service. (a) Except as provided in paragraph (c) of this section, each public entity operating a fixed route system shall provide paratransit or other special service to individuals with disabilities that is comparable to the level of service (b) To be deemed comparable to fixed route service, a complementary paratransit system shall meet the requirements of 37.123 - 37.133 of this Subpart. The requirement to comply with 37.131 may be modified in accordance with the provisions of this Subpart relating to undue financial burden. (c) Requirements for complementary paratransit do not apply to commuter bus, commuter rail, or intercity rail systems. --- 37.121 Requirement for Comparable Complementary Paratransit Service. This section sets forth the basic requirement that all public entities who operate a fixed route system have to provide paratransit service that is both comparable and complementary to the fixed route service. By "complementary," we mean service that acts as a "safety net" for individuals with disabilities who cannot use the fixed route system. By "comparable," we mean service that meets the service criteria of this Subpart. This requirement applies to light and rapid rail systems as well as to bus systems, even when rail and bus systems share all or part of the same service area. Commuter bus, commuter rail and intercity rail systems do not have to provide paratransit, however. The remaining provisions of Subpart F set forth the details of the eligibility requirements for paratransit, the service criteria that paratransit systems must meet, the planning process involved, and the procedures for applying for waivers based on undue financial burden. A number of transit providers commented on the general concept of comparability used in the NPRM, which would require paratransit systems to meet a number of service criteria. The thrust of these comments was that it would be better to take a less specific approach to comparability. The rule, in this view, should state only a general concept of comparability and then permit local areas to design systems that would serve the needs of individuals with disabilities to the same degree that fixed route serves the needs of the rest of the population. Another commenter's spin on this point was that the criteria should be only "minimum" criteria (i.e., guidelines or goals), with the local community, with consumer input, to determine what is comparable. Anything going beyond "minimum" criteria goes beyond the statute, in this commenter's view. The latter comment misconstrues what a minimum criterion is. A "minimum" criterion is one which establishes a floor for service, below which one may not go. It is not a "minimal" criterion, which requires someone to do very little. DOJ makes the same point in the preambles to its ADA rules. The view that there should be only a very general requirement for comparability, the content of which would be filled in at the local level, is inconsistent with the requirement for a set of minimum service criteria that would "determine the level of services" to be provided (223(c)(3) of the ADA). Moreover, it fails to take into account a long statutory and regulatory history of the concept of comparability, which leads directly to the service criteria approach of this rule. The ADA's joining of the concept of comparability with the need to establish specific service criteria builds on the approach taken by 16(d) of the Urban Mass Transportation Act of 1964, as amended (implemented by the Department's 1986 regulation on transportation services for individuals with disabilities, which established service criteria approaching a paratransit system that closely resembles that of the ADA NPRM)> ). In enacting the ADA, Congress did nothing to suggest that the Department's approach should be changed. The language and purpose of the ADA are consistent with the Department's decision to retain service criteria. Paratransit may be provided by a variety of modes. Publicly operated dial-a-ride vans, service contracted out to a private paratransit provider, user-side subsidy programs, or any combination of these and other approaches is acceptable. Entities who feel it necessary to apply for an undue financial burden waiver should be aware that that one of the factors UMTA will examine in evaluating waiver requests is efficiencies the provider could realize in its paratransit service. Therefore, it is important for entities in this situation to use the most economical and efficient methods of providing paratransit they can devise. It is also important for them to establish and consistently implement strong controls against fraud, waste and abuse in the paratransit system. Fraud, waste and abuse can drain significant resources from a system and control of there problems is an important "efficiency for any paratransit system. It will be difficult for the Department to grant an undue financial burden waiver to entities which do not have a good means of determining if fraud, waste and abuse are problems and adequate methods of combating these problems, where they are found to exist. --- A few commenters also asked that light and rapid rail operators be exempted from the paratransit requirement, since they typically served areas that bus systems also serve. The Department cannot adopt this comment. The ADA requires that all public entities operating fixed route systems -- a category into which public rapid and light rail operators clearly fall -- provide paratransit. Congress excepted commuter bus service, but no one else, from this requirement. --- 37.123 ADA Paratransit Eligibility - Standards Eligibility was one of the most commented-upon portions of the NPRM. One of the most frequent general comments was that the NPRM's conception of eligibility was too restrictive. To "strictly limit" ADA paratransit eligibility to the three proposed categories would create substantial hardship for many persons with disabilities, commenters said, and could deprive some persons who currently depend on paratransit of the opportunity to continue using the service (other commenters noted that some previously ineligible persons, such as those with cognitive disabilities, might become eligible, however). The short answer to these comments is that the NPRM followed the statute almost to the letter in defining the eligibility categories. The longer answer has to do with the design and intent of the ADA. The ADA is a civil rights statute, not a transportation or social service program statute. The ADA clearly emphasizes nondiscriminatory access to fixed route service, with complementary paratransit acting as a "safety net" for people who cannot use the fixed route system. Under the ADA, complementary paratransit is not intended to be a comprehensive system of transportation for individuals with disabilities. 37.123 ADA paratransit eligibility - standards. (a) Public entities required by 37.121 of this subpart to provide complementary paratransit service shall provide the service to the ADA paratransit eligible individuals described in paragraph (e) of this section. (b) If an individual meets the eligibility criteria of this section with respect to some trips but not others, the individual shall be ADA paratransit eligible only for those trips for which he or she meets the criteria. (c) Individuals may be ADA paratransit eligible on the basis of a permanent or temporary disability. (d) Public entities may provide complementary paratransit service to persons other than ADA paratransit eligible individuals. However, only the cost of service to ADA paratransit eligible individuals may be considered in a public entity's request for an undue financial burden waiver under 37.151 - 37.155 of this part. 37.123 ADA Paratransit Eligibility - Standards General Provisions This section sets forth the minimum requirements for eligibility for complementary paratransit service. All fixed route operators providing complementary paratransit must make service available at least to individuals meeting these standards. The ADA does not prohibit providing paratransit service to anyone. Entities may provide service to additional persons as well. Since only service to ADA eligible persons is required by the rule, however, only the costs of this service can be counted in the context of a request for an undue financial burden waiver. When the rule says that ADA paratransit eligibility shall be strictly limited to persons in the eligible categories, then, it is not saying that entities are in any way precluded from serving other people. It is saying that the persons who must be provided service, and counting the costs of providing them service, in context of an undue burden waiver, are limited to the regulatory categories. Another way of saying this is that the ADA does not attempt to meet all the transportation needs of individuals with disabilities. As one disability group representative suggested during the Advisory Committee meetings, the ADA is intended simply to provide to individuals with disabilities with the same mass transportation service opportunities everyone else gets, whether they be good, bad, or mediocre. It appears that many of the commenters who expressed concern about the perceived restrictiveness of the NPRM eligibility criteria did so in the belief that the rule should mandate a comprehensive transportation system for individuals with disabilities that would meet all or almost all their transportation needs. This desire for the best service possible is very understandable. While we do not share these commenters' view of the statute, we emphasize that the ADA and this rule set no ceilings on the service that local entities may provide. Local entities can provide paratransit service to anyone they wish. Such additional service, provided as a matter of local discretion, is very desirable. The rule points out, however, that since it is not mandated by the ADA, its costs cannot be regarded as financial burdens of ADA compliance that can be taken into account for undue financial burden waiver purposes. It should be pointed out that a number of commenters, both disability groups and transit properties, supported the notion of strict adherence to the statutory eligibility criteria. Doing so was seen as a means of avoiding undue financial burdens and of avoiding an overload on the system that would make it harder for people who really needed the service to get it. (e) The following individuals are ADA paratransit eligible: (1) Any individual with a disability who is unable, as the result of a physical or mental impairment (including a vision impairment), and without the assistance of another individual (except the operator of a wheelchair lift or other boarding assistance device), to board, ride, or disembark from any vehicle on the system which is readily accessible to and usable by individuals with disabilities. (2) Any individual with a disability who needs the assistance of a wheelchair lift or other boarding assistance device and is able, with such assistance, to board, ride and disembark from any vehicle which is readily accessible to and usable by individuals with disabilities if the individual wants to travel on a route on the system during the hours of operation of the system at a time, or within a reasonable period of such time, when such a vehicle is not being used to provide designated public transportation on the route. Temporary Disabilities Eligibility may be based on a temporary as well as a permanent disability. The individual must meet one of the three eligibility criteria in any case, but can do so for a limited period of time. For example, if an individual breaks both legs and is in two casts for several weeks, becomes a wheelchair user for the duration, and the bus route that would normally take him to work is not accessible, the individual could be eligible under the second eligibility category.In granting eligibility to such a person, the entity should establish an expiration date for eligibility consistent with the expected end of the period disability. Trip-by-Trip Eligibility A person may be ADA paratransit eligible for some trips but not others. Eligibility does not inhere in the individual or his or her disability, as such, but in meeting the functional criteria of inability.to use the fixed route system established by the ADA. This inability is likely to change with differing circumstances. The NPRM specified that persons could be eligible on the basis of permanent or temporary disabilities. A few commenters objected to permitting eligibility based on a temporary disability. The Department believes that if someone meets one of the eligibility criteria, that person should be provided service, regardless of the duration of the disability involved. As noted in the next section of the rule, an entity may establish an expiration date for eligibility, which should prevent situations in which someone would remain eligible permanently based on a temporary disability. Another concept that generated substantial comment was that of trip-by-trip determination of eligibility. Even those comments that objected to this provision recognized its conceptual validity. That is, all three statutory eligibility categories deal with functional inability to use fixed route transit arising from a combination of a disability and circumstances. Circumstances change (and, as commenters pointed, the manifestations of disabilities can vary as well). Someone who can navigate the system to work may not be able to navigate the system to a different destination. Someone who can get to a bus stop in the summer may not be able to get there in the winter. Someone who can use accessible fixed route service can travel to some locations on the fixed route system but not others (i.e., those to which routes are not yet accessible). Consistent with this statutory scheme, it does not make sense to say that if the statute mandates that an individual be eligible in one set of circumstances, the individual must be regarded as eligible in all circumstances, even where, in fact, the individual can use fixed route service. (i) An individual is eligibleunder this paragraph with respect to travel on an otherwise accessible route on which the boarding or disembarking location which the individual would use is one at which boarding or disembarking from the vehicle is precluded as provided in 37.167(g) of this Part. (ii) An individual using a common wheelchair is eligible under this paragraph if the individual's wheelchair cannot be accommodated on an existing vehicle (e.g., because the vehicle's lift does not meet the standards of Part 38 of this title), even if that vehicle is accessible to other individuals with disabilities and their mobility wheelchairs. (iii) With respect to rail systems, an individual is eligible under this paragraph if the individual could use an accessible rail system, but (A) there is not yet one accessible car per train on the system; or (B) key stations have not yet been made accessible. (3) Any individual with a disability who has a specific impairment-related condition which prevents such individual from traveling to a boarding location or from a disembarking location on such system. For example, someone whose impairment-related condition is a severe sensitivity to temperatures below 20 degrees is not prevented from using fixed route transit when the temperature is 75 degrees. Someone whose impairment-related condition is an inability to maneuver a wheelchair through snow is not prevented from using fixed route transit when there is no snow on the ground. Someone with a cognitive disability may have learned to take the same bus route to a supported employment job every day. This individual is able to navigate the system for work purposes and therefore would not be eligible for paratransit for work trips. But the individual may be unable to get to other destinations on the bus system without getting lost, and would be eligible for paratransit for non-work trips. Someone who normally drives his own car to a rail system park and ride lot may have a specific impairment related condition preventing him from getting to the station when is car is in the shop. A person who can use accessible fixed route service can go to one destination on an accessible route; another destination would require the use of an inaccessible route. The individual would be eligible for the latter but not the former. The thrust of the comments objecting to trip-by-trip eligibility was that it was too difficult to administer. It would complicate eligibility determinations and trip scheduling and create significant additional workload, commenters said. Some commenters, both disability groups and transit properties, said that the trip-by-trip approach was practicable, however. During the discussions of the Advisory Committee, some transit property representatives said that they were already doing or planning to do trip-by-trip eligibility, while others said it was not possible for them to operate in that way. The Department is retaining this concept in the final rule. That is, if someone meets the eligibility criteria for some trips but not others, that person is ADA eligible only for the former. This does not mean that, in practice, a transit property which finds that administering a trip-by-trip eligibility system is too difficult must do so. The ADA requires paratransit to be provided to ADA eligible persons. As long as a transit provider ensures that paratransit is made available to all persons for all trips for which they meet eligibility criteria, the transit provider has complied with the rule. If the transit provider finds it administratively more practicable to provide any requested trip to an individual who is ADA paratransit eligible only for some of the trips requested, that is permitted under the rule. The only caveat is that the cost of trips not mandated by ADA requirements cannot be counted in the context of a request for an undue financial burden waiver. (In applying for an undue burden waiver, an entity which did not actually operate a trip-by-trip eligibility system would count only the percentage of its overall costs equal to its percentage of ADA-mandated trips.) (i) Only a specific impairment-related condition which prevents the individual from traveling to a boarding location or from a disembarking location is a basis for eligibility under this paragraph. A condition which makes traveling to boarding location or from a disembarking location more difficult for a person with a specific impairment-related condition than for an individual who does not have the condition, but does not prevent the travel, is not a basis for eligibility under this paragraph. (ii) Architectural barriers not under the control of the public entity providing fixed route service and environmental barriers (e.g., distance, terrain, weather) do not, standing alone, form a basis for eligibility under this paragraph. The interaction of such barriers with an individual's specific impairment-related condition may form a basis for eligibility under this paragraph, if the effect is to prevent the individual from traveling to a boarding location or from a disembarking location. (f) Individuals accompanying an ADA paratransit eligible individual shall be provided service as follows: (1) One other individual accompanying the ADA paratransit eligible individual shall be provided service. In many cases, though the person is eligible for some trips but not others, eligibility determinations would not have to be made literally on a trip-by-trip basis. It may often be possible to establish the conditions on eligibility as part of the initial eligibility determination process. Someone with a temperature sensitivity might be granted seasonal eligibility. Somebody who is able to navigate the system for work but not non-work trips could have this fact noted in his or her eligibility documentation. Likewise, someone with a variable condition (e.g., multiple sclerosis, HIV disease, need for kidney dialysis) could have their eligibility based on the underlying condition, with paratransit need for a particular trip dependent on self-assessment or a set of medical standards (e.g., trip within a certain amount of time after a dialysis session). On the other hand, persons in the second eligibility category (people who can use accessible fixed route service where it exists) would to be use for a given trip. Because entities are not precluded from providing service beyond that required by the rule, an entity that believes it is too difficult to administer a program of trip-by-trip eligibility is not required to do so. Nothing prevents an entity from providing all requested trips to a person whom the ADA requires to receive service for only some trips. In this case, if the entity intends to request an undue financial burden waiver, the entity, as provided in the undue burden provisions of this rule, must estimate, by a statistically valid technique, the percentage of its paratransit trips that are mandated by the ADA. Only that percentage of its total costs will be counted in considering the undue burden waiver request. The first eligibility category concerns individuals who cannot board, ride, or disembark from an accessible vehicle (e.g., people who, because of a visual or cognitive impairment, cannot "navigate the system"). This category was not the subject of much comment, except in relation to the issue of trip-by-trip determinations of eligibility, discussed above. In this context, some commenters with multiple sclerosis (MS) said that because of unpredictable day-to-day fluctuations in their condition, it would be almost impossible to apply trip-by-trip eligibility to them. This is a reasonable factor for transit providers to take into account as they plan their eligibility systems, but disability-specific eligibility provisions are not practicable in this regulation, in our view. Some commenters questioned the eligibility of relatively mobile persons with visual impairments. The statute makes clear, however, that such persons are eligible if they cannot "navigate the system." The second eligibility category consists of people who can use an accessible vehicle but cannot use a route on the fixed route system for lack of accessible vehicles. There was relatively little comment on the basic requirement of this transitional eligibility category. There were a number of comments on one aspect of the proposed rule, however, which would make eligible for paratransit persons who could travel on an accessible vehicle but for a stop on which the bus lift cannot be deployed. A number of transit properties objected to providing paratransit service on the basis of circumstances they viewed as being beyond their control (e.g., terrain features or architectural barriers). In many places, conditions at bus stops are under the jurisdiction of a state or local government, not the transit provider. Disability community commenters, on the other hand, said that if a stop were difficult to use by people with disabilities, the stop should be relocated. In no case, these commenters said, should the transit authority be permitted to declare stops off limits to wheelchair users, unless the lift would physically not deploy or would be damaged if it deployed. (i) If the ADA paratransit eligible individual is traveling with a personal care attendant, the entity shall provide service to one other individual in addition to the attendant who is accompanying the eligible individual. (ii) A family member or friend is regarded as a person accompanying the eligible individual, and not as a personal care attendant, unless the family member or friend registered is acting in the capacity of a personal care attendant; (2) Additional individuals accompanying the ADA paratransit eligible individual shall be provided service, provided that space is available for them on the paratransitvehicle carrying the ADA paratransit eligible individual and that transportation of the additional individuals will not result in a denial of service to ADA paratransit eligible individuals. (3) In order to be considered as "accompanying" the eligible individual for purposes of this paragraph, the other individual(s) shall have the same origin and destination as the eligible individual. --- Category 1 Eligibility The first eligibility category includes, among others, persons with mental or visual impairments who, as a result, cannot "navigate the system." This eligibility category includes people who cannot board, ride, or disembark from an accessible vehicles "without the assistance of another individual." This means that, if an individual needs an attendant to board, ride, or disembark from an accessible fixed route vehicles (including "navigating the system"), the individual is eligible for paratransit. One implication of this language is that an individual does not lose paratransit eligibility based on "inability to navigate the system" because the individual chooses to travel with a friend on the paratransit system (even if the friend could help the person navigate the fixed route system). Eligibility in this category is based on ability to board, ride, and disembark independently. Mobility training (e.g., of persons with mental or visual impairments) may help to improve the ability of persons to navigate the system or to get to a bus stop. Someone who is successfully mobility trained to use the fixed route system for all or some trips need not be provided paratransit service for those trips. The Department encourages entities to sponsor such training as a means of assisting individuals to use fixed route rather than paratransit. Category 2 Eligibility The second eligibility criterion is the broadest, with respect to persons with mobility impairments, but its impact should be reduced over time as transit systems become more accessible. This category applies to persons who could use accessible fixed route transportation, but accessible transportation is not being used at the time, and on the route, the persons would travel. This concept is route based, not system based. The Department agrees that if a lift physically cannot be deployed at a stop, or would be damaged if it did, the transit authority should not have to deploy it. But it is not appropriate, in this event, to impose the resulting inconvenience on a passenger with a disability by denying that passenger the ability to get to a particular destination. If the transit provider does not provide fixed route service to a passenger with a disability at a particular location at which service is provided to other persons, it does not provide accessible service there, triggering paratransit eligibility. Moving a stop to a location where the lift will work, as some commenters suggested, is one solution to this problem. The issue of refusing to deploy a lift where it can be deployed is a provision of service issue that is discussed under 37.167. We would also point out that 37.9 requires transit providers to cooperate with other public entities (who have responsibilities for bus stops under the DOJ Title II rule) with respect to bus stop accessibility. The rule also provides that if someone with a common wheelchair cannot use a lift on an existing vehicle (i.e., because the lift does not meet Access Board standards), that individual would be eligible under this category. This is another form of "transitional" eligibility the occurrence of which should be reduced as new vehicles meeting Access Board standards come on line. A few commenters suggested that rail systems not be subject to paratransit requirements, since they tend to have service areas that overlap bus service areas. Given the statutory requirement that complementary paratransit be provided for every fixed route system, we cannot adopt this comment. Comments did ask how eligibility requirements would apply to rail, however. The first and third standards quite clearly apply to rail the same as they do to bus, but the second standard is somewhat more difficult to apply in the rail context. Speaking first of bus systems, if a person is traveling from Point A to Point B on route 1, and route 1 is accessible, the person is not eligible for paratransit for the trip. This is true even though other portions of the system are still inaccessible. If the person is traveling from Point A to Point C on route 2, which is not accessible, the person is eligible for that trip. If the person is traveling from point A to Point B on accessible route 1, with a transfer at B to go on inaccessible route 3 to Point D, then the person is eligible for the second leg of the trip. (The entity could choose to provide a paratransit trip from A to D or a paratransit or on-call bus trip from B to D.) For purposes of this standard, we view a route as accessible when all buses scheduled on the route are accessible. Otherwise, it is unlikely that an accessible vehicle could be provided "within a reasonable period of [a] time" when the individual wants to travel, as the provision requires. We recognize that some systems' operations may not be organized in a way that permits determining whether a given route is accessible, even though a route-by-route determination appears to be contemplated by the statute. In such cases, it may be that category 2 eligibility would persist until the entire system was eligible. With respect to a rail system, an individual is eligible under this standard if, on the route or line he or she wants to use, there is not yet one car per train accessible or if key stations are not yet accessible. This eligibility remains even if bus systems covering the area served by the rail system have become 100 percent accessible. This is necessary because people use rail systems for different kinds of trips than bus systems. It would often take much more in the way of time, trouble, and transfers for a person to go on the buses of one or more transit authorities than to have a direct trip provided by the rail operator. Since bus route systems are often designed to feed rail systems rather than duplicate them, it may often be true that "you can't get there from here" relying entirely on bus routes or the paratransit service area that parallels them. The statutory standard appears to be drafted with bus systems in mind, but its conceptual point applies to rail systems as well. This point is that if someone can ride on a route when it is accessible, but cannot now ride because the system is still inaccessible, the person is ADA paratransit eligible. With bus systems, residual inaccessibility has to do with there not yet being 100 percent accessible buses. On a rapid or light rail system, it has to do with there not yet being one accessible car per train or with key stations not yet being made accessible. The final rule uses these two factors to define rail system paratransit eligibility. If the lift on a vehicle cannot be deployed at a particular stop, an individual is eligible for paratransit under this category with respect to the service to the inaccessible stop. If on otherwise accessible route 1, an individual wants to travel from Point A to Point E, and the lift cannot be deployed at E, the individual is eligible for paratransit for the trip. (On-call bus would not work as a mode of providing this trip, since a bus lift will not deploy at the stop.) This is true even though service from Point A to all other points on the line is fully accessible. In this circumstance, the entity should probably think seriously about working with the local government involved to have the stop moved or made accessible. When we say that a lift cannot be deployed, we mean literally that the mechanism will not work at the location to permit a wheelchair user or other person with a disability to disembark or that the lift will be damaged if it is used there. It is not consistent with the rule for a transit provider to declare a stop off-limits to someone who uses the lift while allowing other passengers to use the stop. However, if temporary conditions not under the operator's control (e.g., construction, an accident, a landslide) make it so hazardous for anyone to disembark that the stop is temporarily out of service forall passengers may the operator refuse to allow a passenger to disembark using the lift. Category 3 Eligibility The third eligibility criterion concerns individuals who have a specific impairment-related condition which prevents them from getting to or from a stop or station. As noted in the legislative history of the ADA, this is intended to be a "very narrow exception" to the general rule that difficulty in traveling to or from boarding or disembarking locations is not a basis for eligibility. The third eligibility category, for people who have specific impairment-related conditions that prevent their getting to or from a stop -- generated the most comment. The most thorough explanation of this concept comes from the House Public Works and Transportation Committee report (H. Rept. 101-485, Pt. 1, at 29-30): In general, the Committee does not intend that the concepts of boarding and disembarking include travel to or from a boarding or disembarking location. However, the Committee included a very narrow exception in recognition of specific impairment-related conditions which certain individuals with disabilities may have. Under the bill, paratransit services must be provided to any individual with a disability who has a specific impairment-related condition that prevents the individual from traveling to a boarding location or from a disembarking location on a fixed route system. A specific condition related to the impairment of the individual with a disability such as chronic fatigue, blindness, a lack of cognitive ability to remember and follow directions or a special sensitivity to temperature must be present. The Committee does not intend for the existence of architectural barriers to trigger eligibility for paratransit under this section if these barriers are not the responsibility of the fixed route operator to remove. In particular, no eligibility for paratransit exists due simply to a lack of curb cuts in the path of travel of an individual with a disability since, in the short term, such barriers can often be navigated around and, more importantly, pressure to eliminate these architectural barriers must be maintained on the state and local governmental entities responsible for eliminating them. In the same way, distance from a boarding of disembarking location alone does not trigger eligibility under this section. In both of these cases, a specific condition related to the impairment of the individual with a disability such as those cited previously must also be present to trigger paratransit eligibility. The committee is concerned that a broad interpretation of this exception will discourage the use of fixed route transit systems by individuals with disabilities. What is a specific impairment-related condition? The legislative history mentions four examples: chronic fatigue, blindness, a lack of cognitive ability to remember and follow directions, or a special sensitivity to temperature. Impaired mobility, severe communications disabilities (e.g., a combination of serious vision and hearing impairments), cardiopulmonary conditions, or various other serious health problems may have similar effects. The Department does not believe that it is appropriate, or even possible, to create an exhaustive list. What the rule uses as an eligibility criterion is not just the existence of a specific impairment-related condition. To be a basis for eligibility, the condition must prevent the individual from traveling to a boarding location or from a disembarking location. The word "prevent" is very important. For anyone, going to a bus stop and waiting for a bus is more difficult and less comfortable than waiting for a vehicle at one's home. This is likely to be all the more true for an individual with a disability. But for many persons with disabilities, in many circumstances, getting to a bus stop is possible. If an impairment related condition only makes the job of accessing transit more difficult than it might otherwise be, but does not prevent the travel, then the person is not eligible. For example, in many areas, there are not yet curb cuts. A wheelchair user can often get around this problem by taking a less direct route to a destination than an ambulatory person would take. That involves more time, trouble, and effort than for someone without a mobility impairment. But the person can still get to the bus stop. On the basis of these architectural barriers, the person would not be eligible. Entities are cautioned that, particularly in cases involving lack of curb cuts and other architectural barrier problems, assertions of eligibility should be given tight scrutiny. Only if it is apparent from the facts of a particular case that an individual cannot find a reasonable alternative path to a location should eligibility be granted. Most comments on this subject said that the category was too restrictive, and that it failed to take into account the difficulty many individuals with disabilities have in getting to a bus stop. A blind person who cannot cross an eight-lane highway, or a wheelchair user who cannot go up a steep hill or push through heavy snow, may in fact be prevented from getting to a stop and using fixed route transit. The rule should recognize, these commenters said, that a combination of a disability and physical barriers, distance, terrain, etc. constitutes a valid basis for eligibility. The Department believes that it is reasonable to clarify in the rule that a combination of an impairment-related condition and environmental barriers may form a basis for eligibility. The existence of a barrier, standing alone, does not confer eligibility; only if the interaction of the barrier and the impairment-related condition prevents getting to the stop would there be eligibility. This position recognizes that environmental barriers "alone" do not confer eligibility. The Advisory Committee was in general agreement with this approach. The final rule also calls attention to the statutory word "prevents." An impairment-related condition does not confer eligibility if it simply makes use of fixed route transit less comfortable, or more difficult, than use of fixed route transit for persons who do not have the condition. Members of the Advisory Committee recounted conversations with paratransit users who objected to going to the bus stop and waiting for the bus, rather than scheduling a paratransit van to come to their house. The rule provides that, unless the condition prevents the travel, the individual is not ADA paratransit eligible. If we add a foot of snow to the scenario, then the same person taking the same route may be unable to get to the bus stop. If is not the snow alone that stops him; it is the interaction of the snow and the fact that the individual has a specific-impairment related condition that requires him to push a wheelchair through the snow that prevents the travel Inevitably, some judgment is required to distinguish between situations in which travel is prevented and situations in which it is merely made more difficult. In the Department's view, a case of "prevented travel" can be made not only where travel is literally impossible (e.g., someone cannot find the bus stop, someone cannot push a wheelchair through the foot of snow or up a steep hill) but also where the difficulties are so substantial that a reasonable person with the impairment-related condition in question would be deterred from making the trip. The regulation makes the interaction between an impairment-related condition and the environmental barrier (whether distance, weather, terrain, or architectural barriers) the key to eligibility determinations. This is an individual determination. Depending on the specifics of their impairment-related conditions, one individual may be able to get from his home to a bus stop under a given set of conditions, while his next-door neighbor may not. The ADA also requires one other person accompanying the eligible individual to be provided service, with other persons provided service on a space available basis. A few comments said that no more than one individual should ever be provided service, since doing so would unduly complicate scheduling. Others said that more than one person should be guaranteed service in some situations (e.g., a parent who is a wheelchair user taking three children to the doctor). Other comments asked for clarification of the role of attendants. There were several suggestions that in order to be provided service, the other people should have the same origin and destination as the eligible individual. Since the statute is clear about carrying one companion, with others space available, we do not have discretion to make either requested change on that point. With respect to attendants, we are persuaded by commenters' argument that a personal care attendant is (like a wheelchair) a necessary part of the eligible individual's mobility. Consequently, a personal care attendant (as distinct from a family member or.friend who is along for the ride) is not counted against the one companion limit. To help providers administer this portion of the rule, the eligibility process provision (37.125) allows them to require persons who will be traveling with personal care attendants to register that fact in advance. We also agree with commenters who said the additional individuals should have the same origin and destination as the eligible individual, since the statute allows these otherwise ineligible persons to take the trip because they are "accompanying" the eligible individual. This means, in our view, that they are taking the same trip as the eligible individual. --- Companions The ADA requires entities to provide paratransit to one person accompanying the eligible individual, with others served on a space- available basis. The one individual who is guaranteed space on the vehicle can be anyone -- family member, business associate, friend, date, etc. The provider cannot limit the eligible individual's choice of type of companion. The transit authority may require that the eligible individual reserve a space for the companion when the individual reserves his or her own ride. This one individual rides even if this means that there is less room for other eligible individuals. Additional individuals beyond the first companion are carried only on a space available basis; that is, they do not displace other ADA paratransit eligible individuals. A personal care attendant (i.e., someone designated or employed specifically to help the eligible individual meet his or her personal needs) always may ride with the eligible individual. If there is a personal care attendant on the trip, the eligible individual may still bring a companion, plus additional companions on a space available basis. The entity may require that, in reserving the trip, the eligible individual reserve the space for the attendant. To prevent potential abuse of this provision, the rule provides that a companion (e.g., friend or family member) does not count as a personal care attendant unless the eligible individual regularly makes use of a personal care attendant and the companion is actually acting in that capacity. As noted under 37.125, a provider may require that, as part of the initial eligibility certification process, an individual indicate whether he or she travels with a personal care attendant. If someone does not indicate the use of an attendant, then any individual accompanying him or her would be regarded simply as a companion. To be viewed as "accompanying" the eligible individual, a companion must have the same origin and destination points as the eligible individual. In appropriate circumstances, entities may also wish to provide service to a companion who has either an origin or destination, but not both, with the eligible individual (e.g., the individual's date is dropped off at her own residence on the return frip from a concert). --- 37.125 ADA Paratransit Eligibility - Process It is common for commenters on proposed rules to complain that Federal agencies are imposing overly prescriptive requirements on them, and denying them appropriate local discretion (indeed, certain portions of this NPRM received responses of this kind). The most common comment on this section, however, was that the rule is not prescriptive enough. Commenters asked for exhaustive lists of impairment-related conditions, on an order of detail similar to the Access Board technical standards for vehicle accessibility. Standard Federal eligibility forms were requested, and some commenters favored a Federal (or at least centralized) eligibility certification process. The Department understands the motivation behind these comments. Making case-by-case determinations of eligibility is a difficult business at best, fraught with tough judgment calls and conflicts between a genuine desire to provide service that people need, the need to provide service in accordance with the rules , and the need to stay within available resources. It would be very helpful to have that job made easier by standard procedures that everyone throughout the nation follows and standard eligibility templates into which all applicants could be fit, making difficult judgment decisions less necessary. We sympathize, but we are unable to provide the requested prescriptiveness. This is not just a matter of generic regulatory policy. It is a fact that DOT is not as well situated as people in local areas to know what types of conditions, combined with what sorts of local circumstances, make a given person eligible for a certain set of trips. During the Advisory Committee meetings, we asked for recommendations from members -- among them some of the most able transit providers and disability groups in the country -- for what a set of Federal eligibility guidelines might look like, and we received only one. Various members mentioned functional tests they applied; we do not believe it would be that useful to endorse one of the many variations on such lists that people could devise. 37.125 ADA paratransit eligibility - process. Each public entity required to provide complementary paratransit service by e37.121 of this Part shall establish a process for determining ADA paratransit eligibility. (a) The process shall strictly limit ADA paratransit eligibility to individuals specified in 37.123 of this Part. (b) All information about the process, materials necessary to apply for eligibility, and notices and determinations concerning eligibility shall be made available in accessible formats, upon request. (c) If, by a date 21 days following the submission of a complete application, the entity has not made a determination of eligibility, the applicant shall be treated as eligible and provided service until and unless the entity denies the application. (d) The entity's determination concerning eligibility shall be in writing. If the determination is that the individual is ineligible, the determination shall state the reasons for the finding. (e) The public entity shall provide documentation to each eligible individual stating that he or she is "ADA Paratransit Eligible." The documentation shall include the name of the eligible individual, the name of the transit provider, the telephone number of the entity's paratransit coordinator, anexpiration date for eligibility, and any conditions or limitations on the individual's eligibility including the use of a personal care attendant. 37.125 ADA Paratransit Eligibility - Process This section requires an eligibility process to be established by each operator of complementary paratransit. The details of the process are to be devised through the planning and public participation process of this Subpart. The process may not impose unreasonable administrative burdens on applicants, and, since it is part of the entity's nondiscrimination obligations, may not involve "user fees" or application fees to the applicant. The process may include functional criteria related to the substantive eligibility criteria of 37.123 and, where appropriate, functional evaluation or testing of applicants. The substantive eligibility process is not aimed at making a medical or diagnostic determination. While evaluation by a physician (or professionals in rehabilitation or other relevant fields) may be used as part of the process, a diagnosis of a disability is not dispositive. What is needed is a determination of whether, as a practical matter, the individual can use fixed route transit in his or her own circumstances. That is a transportation decision primarily, not a medical decision. The goal of the process is to ensure that only people who meet the regulatory criteria, strictly applied, are regarded as ADA paratransit eligible. The Department recognizes that transit entities may wish to provide service to other persons, which is not prohibited by this rule. However, the eligibility process should clearly distinguish those persons who are ADA eligible from those who are provided service on other grounds. For example, eligibility documentation must clearly state whether someone is ADA paratransit eligible or eligible on some other basis. This is not just a matter of generic regulatory policy. It is a fact that DOT is not as well situated as people in local areas to know what types of conditions, combined with what sorts of local circumstances, make a given person eligible for a certain set of trips. During the Advisory Committee meetings, we asked for recommendations from members -- among them some of the most able transit providers and disability groups in the country -- for what a set of Federal eligibility guidelines might look like, and we received only one. Various members mentioned functional tests they applied; we do not believe it would be that useful to endorse one of the many variations on such lists that people could devise. Federally-designed templates, especially those that attempt to apply to the situations of thousands or millions of individual human beings, tend to fit poorly. A centralized process, even if the resources existed for it (they don't) would, in our view, be much less desirable than a process at the local level. Not only would it take longer to make decisions, but it would inevitably be less responsive to the details of local circumstances and individual needs. We would point out that the legislative history of the ADA contemplated that implementation of the paratransit requirement by fixed route operators would include a local certification process. For these reasons, this section retains the with a requirement that each transit provider (or groups of providers in a region coordinating with one another) devise and operate a local eligibility process. For the reasons described in the discussion of 37.121. this process must strictly limit ADA paratransit eligibility to the persons described in that section (this does not mean that paratransit service must be limited to such persons, however). The NPRM proposed that information concerning this process be made available in accessible formats. There were few comments on this subject, none of which opposed the idea (though some asked for additional guidance), and we are retaining it. (f) The entity may require recertification of the eligibility of ADA paratransit eligible individuals at reasonable intervals. (g) The entity shall establish an administrative appeal process through which individuals who are denied eligibility can obtain review of the denial. (1) The entity may require that an appeal be filed within 60 days of the denial of an individual's application. (2) The process shall include an opportunity to be heard and to present information and arguments, separation of functions (i.e., a decision by a person not involved with the initial decision to deny eligibility), and written notification of the decision, and the reasons for it; (h) The entity may establish an administrative process to suspend, for a reasonable period of time, the provision of complementary paratransit service to ADA eligible individuals who establish a pattern or practice of missing scheduled trips. (1) Trips missed by the individual for reasons beyond his or her control (including, but not limited to, trips which are missed due to operator error) shall not be a basis for determining that such a pattern or practice exists. (2) Before suspending service, the entity shall take the following steps: (i) Notify the individual in writing that the entity proposes to suspend service, citing with specificity the basis of the proposed suspension and setting forth the proposed sanction. When a person applies for eligibility, the entity will provide all the needed forms and instructions. These forms and instructions may include a declaration of whether the individual travels with a personal care attendant. The entity may make further inquiries concerning such a declaration (e.g., with respect to the individual's actual need for a personal care attendant). When the application process is complete -- all necessary actions by the applicant taken -- the entity should process the application in 21 days. If it is unable to do so, it must begin to provide service to the applicant on the 22nd day, as if the application had been granted. Service may be terminated only if and when the entity denies the application. All determinations shall be in writing; in the case of a denial, reasons must be specified. The reasons must specifically relate the evidence in the matter to the eligibility criteria of this rule and of the entity's process. A mere recital that the applicant can use fixed route transit is not sufficient. For people granted eligibility, the documentation of eligibility shall include at least the following information: -- the individual's name -- the name of the transit provider -- the telephone number of the entity's paratransit coordinator -- an expiration date for eligibility -- any conditions or limitations on the individual's eligibility, including the use of a personal care attendant. The last point refers to the situation in which a person is eligible for some trips but not others. or if the traveler is authorized to have a personal care attendant ride free of charge. For example, the documentation may say that the individual is eligible only when the temperature falls below a certain point, or when the individual is going to a destination not on an accessible bus route, or for non-work trips, etc. The NPRM proposed a concept of "presumptive eligibility." The purpose of this provision is to protect applicants against lengthy delays in being approved for paratransit service. The provision said that after a length of time had passed from the application, the applicant would be presumed eligible and provided service, until and unless a negative determination were made. Most comments focused on the length of the period of time. Most said between two and four weeks was appropriate, with transit providers clustering around the latter and disability groups around the former. Others suggested immediate eligibility or a waiting period of up to six or eight weeks. Some comments suggested specifying that the period of time should not begin to run until.a complete application had been received. The Department believes that the suggestion that the time period should start to run when a complete application has been received is a good one, since it will not penalize transit providers for delays that are outside its control. With this addition, the Department believes that 21 days is a good length for the time period. This period will not drastically inconvenience applicants, but will allow a realistic time for transit agencies to do their work. The Department recognizes that legitimate workload and resource limitations may sometimes prevent decisions from being made in this time frame, and adopts this provision in the belief that such delays should not unduly burden applicants who need service. (ii) Provide the individual an opportunity to be heard and to present information and arguments; (iii) Provide the individual with written notification of the decision and the reasons for it. (3) The appeals process of paragraph (g) of this section is available to an individual on whom sanctions have been imposed under this paragraph. The sanction is stayed pending the outcome of the appeal. (i) In applications for ADA paratransit eligibility, the entity may require the applicant to indicate whether or not he or she travels with a personal care attendant. --- As the mention of an expiration date implies, certification is not forever. The entity may recertify eligibility at reasonable intervals to make sure that changed circumstances have not invalidated or changed the individual's eligibility. In the Department's view, a reasonable interval for recertification is probably between one and three years. Less than one year would probably be too burdensome for consumers; over three years would begin to lose the point of doing recertifications. The recertification interval should be stated in the entity's plan. Of course, a user of the service can apply to modify conditions on his or her eligibility at any time. The administrative appeal process is intended to give applicants who have been denied eligibility the opportunity to have their cases heard by some official other than the one who turned them down in the first place. In order to have appropriate separation of functions -- a key element of administrative due process -- not only must the same person not decide the case on appeal, but that person, to the extent practicable, should not have been involved in the first decision (e.g., as a member of the same office, or a supervisor or subordinate of the original decisionmaker). When, as in the case of a small transit operator, this degree of separation is not feasible, the second decisionmaker should at least be "bubbled" with respect to the original decision (i.e., not have participated in the original decision or discussed it with the original decisionmaker). In addition, there must be an opportunity to be heard in person as well as the chance to present written evidence and arguments. All appeals decisions must be in writing, stating the reasons for the decision. There were no objections to the proposal that eligibility determinations be in writing, and that provision is adopted. With respect to documentation of eligibility, some commenters asked for a requirement for an ID card, as such. There was disagreement among commenters whether DOT should prescribe a standard card or whether this should be left to local discretion. On the other hand, some comments said an ID card was unnecessary, given the presumptive eligibility requirement for visitors. Others opposed the idea on grounds of cost or administrative burden. There were a variety of ideas on what type of information the card should contain. The Department believes that documentation of eligibility is a good idea, which will provide proof to both local and out-of-town provider personnel that the person is eligible. While we think it is unnecessary to prescribe a form, certain basic information should be on the form -- name of the eligible individual, name of the transit provider, the telephone number of the entity's paratransit coordinator, an expiration date, and any conditions or limitations on the eligibility. The documentation need not be a card, as such: it can be a letter or some other format. The Department does not believe such documentation will prove burdensome, since transit providers will have to provide most of this information in eligibility decision notices anyway. A number of commenters favored recertification. Since circumstances change over time, it is useful for a transit provider to determine, at reasonable intervals, that an individual remains eligible, is still living and in the area etc. The final rule permits a recertification requirement. To prevent the filing of stale claims, the entity may establish a 60 day "statute of limitations" on filing of appeals, the time starting to run on the date the individual is notified of the negative initial decision. After the appeals process has been completed (i.e., the hearing and/or written submission completed), the entity should make a decision within 30 days. If it does not, the individual must be provided service beginning the 31st day, until and unless an adverse decision is rendered on his or her appeal. Under the eligibility criteria of the rule, an individual has a right to paratransit if he or she meets the eligibility criteria. As noted in the discussion of the nondiscrimination section, an entity may refuse service to individual with a disability who engages in violent, seriously disrputive, or illegal conduct, using the same standards for exclusion that would apply to any other person who acted in such an inppropriate way. The rule also allows an entity to establish a process to suspend, for a reasonable period of time, the provision of paratransit service to an ADA eligible person who establishes a pattern or practice of missing scheduled trips. The purpose of this process would be to deter or deal with chronic "no-shows." The sanction system -- articulated criteria for the imposition of sanctions, length of suspension periods, details of the administrative process, etc. -- would be developed through the public planning and participation process for the entity's paratransit plan, and the result reflected in the plan submission to UMTA. The relatively few comments that addressed the administrative appeals process favored it, emphasizing the need for administrative due process. As adopted, this provision would include a filing deadline of 60 days, an opportunity to be heard in person, separation of functions (so that the appeal is not merely a reconsideration by the same person or office that made the original decision) and written notification. Appeals processes can become prolonged, just like initial decisions, so that beginning after 30 days from the completion of the appeal process, service would have to be provided to the individual until and unless a negative determination is rendered. Comments asked under what circumstances it would be appropriate to deny eligibility or refuse service to individuals. Commenters suggested such circumstances as violent, illegal, or disruptive behavior, or a pattern of being a "no-show," as potential reasons for refusing service. The ADA says people who meet its criteria must be treated as eligible. Therefore, it is only in very few and compelling situations that an entity is entitled to refuse service to an otherwise eligible person. The definition which the Department adopts would concern a passenger who engages in violent, seriously disruptive or illegal conduct. This issue is covered in the nondiscrimination section of the rule. Sanctioning individuals who chronically fail to show up for scheduled rides, on the other hand, is not refusing to provide service on the basis of disability. An appropriate system of sanctions can help to deter or deal with individuals who misuse the system, absorbing capacity that could otherwise go to people who need rides and increasing costs. It is very important to note that sanctions could be imposed only for a "pattern or practice" of missed trips. A pattern or practice involves intentional, repeated or regular actions, not isolated, accidental, or singular incidents. Moreover, only actions within the control of the individual count as part of a pattern or practice. Missed trips due to operator error are not attributable to the individual passenger for this purpose. If the vehicle arrives substantially after the scheduled pickup time, and the passenger has given up on the vehicle and taken a taxi or gone down the street to talk to a neighbor, that is not a missed trip attributable to the passenger. If the vehicle does not arrive at all, or is sent to the wrong address, or to the wrong entrance to a building, that is not a missed trip attributable to the passenger. There may be other circumstances beyond the individual's control (e.g., a sudden turn for the worse in someone with a variable condition, a sudden family emergency) that make it impracticable for the individual to travel at the scheduled time and also for the individual to notify the entity in time to cancel the trip before the vehicle comes. Such circumstances also would not form part of a sanctionable pattern or practice Once an entity has certified someone as eligible, the individual's eligibility takes on the coloration of a property right. (This is not merely a theoretical statement. If one depends on transportation one has been found eligible for to get to a job, and the eligibility is removed, one may lose the job. The same can be said for access to medical care or other important services.) Consequently, before eligibility may be removed "for cause" under this provision, the entity must provide administrative due process to the individual. For this reason, the final rule permits public entities to suspend the provision of paratransit service to otherwise ADA paratransit eligible individuals who engage in a pattern or practice of missing scheduled trips. A "pattern or practice" involves intentional, regular, or repeated actions, not isolated, accidental or singular events. "No-shows" attributable to causes beyond the individual's control -- including problems with the delivery of the service (e.g., the van is an hour late and, before it arrives, the passenger has given up and called a taxi) -- cannot form part of such a pattern or practice. Before imposing a sanction, the entity would have to provide basic administrative due process to the individual, and this section's administrative appeal mechanism would apply in cases decided against the individual. --- If the entity proposes to impose sanctions on someone, it must first notify the individual in writing (using accessible formats where necessary). The notice must specify the basis of the proposed action (e.g., Mr. Smith scheduled trips for 8 a.m. on May 15, 2 p.m. on on June 3, 9 a.m. on June 21, and 9:20 p.m. on July 10, and on each occasion the vehicle appeared at the scheduled time and Mr. Smith was nowhere to be found) and set forth the proposed sanction (e.g., Mr. Smith would not receive service for 15 days). The entity would provide the individual an opportunity to be heard (i.e., an in-person informal hearing before a decisionmaker) as well as to present written and oral information and arguments. All relevant entity records and personnel would be made available to the individual, and other persons could testify. It is likely that, in many cases, an important factual issue would be whether a missed trip was the responsibility of the provider or the passenger, and the testimony of other persons and the provider's records or personnel are likely to be relevant in deciding this issue. While the hearing is intended to be informal, the individual could bring a representative (e.g., someone from an advocacy organization, an attorney). The individual may waive the hearing and proceed on the basis of written presentations. If the individual does not respond to the notice within a reasonable time, the entity may make, in effect, a default finding and impose sanctions. If there is a hearing, and the individual needs paratransit service to attend the hearing, the entity must provide it. We would emphasize that, prior to a finding against the individual after this due process procedure, the individual must continue to receive service. The entity cannot suspend service while the matter is pending. The entity must notify the individual in writing about the decision, the reasons for it, and the sanctions imposed, if any. Again, this information would be made available in accessible formats. In the case of a decision adverse to the individual, the administrative appeals process of this section would apply. The sanction would be stayed pending an appeal. There are means other than sanctions, however, by which a transit provider can deal with a "no-show" problem in its system. Providers who use "real time scheduling" report that this technique is very effective in reducing no-shows and cancellations, and increasing the mix of real time scheduling in a system can probably be of benefit in this area. Calling the customer to reconfirm a reasonable time before pickup can head off some problems, as can educating consumers to call with cancellations ahead of time. Training of dispatch and operator personnel can help to avoid miscommunications that lead to missed trips. --- 37.127 Complementary Paratransit Service for Visitors. Commenters had little quarrel with the idea that out-of-town visitors should be able to use paratransit in the area they are visiting, without going through a long eligibility process that would probably outlast their visit. But commenters had a number of questions and concerns about the operation of the process. First, commenters wanted some definition of who a visitor is. Several suggested that a visitor should only be someone from outside not only the jurisdiction in which the individual resides, but also outside nearby jurisdictions which coordinate paratransit service with the "home" jurisdiction. The Department believes that this comment has merit, and we have included a provision to this effect. Second, most commenters agreed that presenting an ADA eligibility documentation from one's "home" jurisdiction should be sufficient to gain eligibility away from home. A few commenters were concerned that such a procedure would lead to inequitable results if, for instance, someone from a city with loose eligibility criteria came into a city with a tighter program. The Department concedes this situation could exist, but believes that it is a problem that is not so serious as to justify eliminating the "full faith and credit" that one jurisdiction would extend to another's eligibility decisions for the short term. 37.127 Complementary paratransit service for visitors. (a) Each public entity required to provide complementary paratransit service under 37.121 of this part shall make the service available to visitors as provided in this section. (b) For purposes of this section, a visitor is an individual with disabilities who does not reside in the jurisdiction(s) served by the public entity or other entities with which the public entity provides coordinated complementary paratransit service within a region. (c) Each public entity shall treat as eligible for its complementary paratransit service all visitors who present documentation that they are ADA paratransit eligible, under the criteria of 37.125 of this Part, in the jurisdiction in which they reside. 37.127 Complementary Paratransit for Visitors. This section requires each entity having a complementary paratransit system to provide service to visitors from out of town on the same basis as it is provided to local residents. By "on the same basis," we mean under all the same conditions, service criteria, etc., without distinction. For the period of a visit, the visitor is treated exactly like an eligible local user, without any higher priority being given to either. A visitor is defined as someone who does not reside in the jurisdiction or jurisdictions served by the public entity or other public entities with which it coordinates paratransit service. For example, suppose an five-county metropolitan area provides coordinated paratransit service under a joint plan. A resident of any of the five counties would not be regarded as a visitor in any of them. Note that the rule talks in terms of "jurisdiction" rather than "service area." If an individual lives in XYZ County, but outside the fixed route service area of that county's transit provider, the individual is still not a visitor for purposes of paratransit in PQR County, if PQR is one of the counties with which XYZ provides coordinated paratransit service. Third, what if someone does not have ADA eligibility documentation? This could happen when, for example, a person travels from a small town which has no mass transit to a city that has complementary paratransit, or when someone who could use fixed route service at home is unable to navigate a fixed route system in a strange city. The NPRM proposed presumptive visitor eligibility as a solution to this problem. Most commenters agreed with this idea, but suggested that transit providers should be able to get certain minimum documentation from such a person. The Department agrees, and the final rule permits the provider to require presentation of proof of residence (to make sure the person was a visitor) and, when necessary, documentation of disability (e.g., in the case of a so-called "hidden disability"). The provider would accept the visitor's statementof inability to use the fixed route system. Fourth, how long should visitor eligibility last? A number of commenters suggested that the rule should state an outside limit, after which someone would have to apply for regular, local eligibility. The Department also believes that this comment has merit. Since the period before service must be provided to a local applicant is 21 days, this seems to be a reasonable period of time. That is, a visitor who anticipated staying in town for longer than three weeks, or a part-year resident, could submit a completed application upon arrival, and receive service for 21 days, and then either have a decision from the local transit provider or a continuation of service until a decision was rendered. --- (d) With respect to visitors with disabilities who do not present such documentation, the public entity may require the documentation of the individual's place of residence and, if the individual's disability is not apparent, of his or her disability. The entity shall provide paratransit service to individuals with disabilities who qualify as visitors under paragraph (b) of this section. The entity shall accept a certification by such individuals that they are unable to use fixed route transit. (e) A public entity shall make the service to a visitor required by this section available for any combination of 21 days during any 365-day period beginning with the visitor's first use of the service during such 365-day period. In no case shall the public entity require a visitor to apply for or receive eligibility certification from the public entity before receiving the service required by this section. --- A visitor can become eligible in one of two ways. The first is to present documentation from his or her "home" jurisdiction's paratransit system. The local provider will give "full faith and credit" to the ID card or other documentation from the other entity. If the individual has no such documentation, the local provider may require the provision of proof of visitor status (i.e., proof of residence somewhere else) and, if the individual's disability is not apparent, proof of the disability (e.g., a letter from a doctor or rehabilitation professional). Once this documentation is presented and is satisfactory, the local provider will make service available on the basis of the individual's statement that he or she is unable to use the fixed route transit system. The local provider need serve someone based on visitor eligibility for no more than 21 days. After that, the individual is treated the same as a local person for eligibility purposes. This is true whether the 21 days are consecutive or parceled out over several shorter visits. The local provider may require the erstwhile visitor to apply for eligibility in the usual local manner. A visitor who expects to be around longer than 21 days should apply for regular eligibility as soon as he arrives.The same approach may be used for a service of requested visits totaling 21 days or more in a relating compact period of time. Preferably, this application process should be arranged before the visitor arrives, by letter, telephone or fax, so that a complete application can be processed expeditiously. --- 37.129 Types of Service. The NPRM preamble discussed some aspects of the kinds of transportation service that would be acceptable to provide as a part of complementary paratransit service. The premise of this discussion was that complementary paratransit service was demand responsive, providing origin to destination service. Several comments asked for clarification on whether such service was meant to be door-to-door or curb-to-curb, and some of them recommended one or the other, or a combination of the two. The Department declines to characterize the service as either. The main point, we think, is that the service must go from the user's point of origin to his or her destination point. It is reasonable to think that service for some individuals or locations might be better if it is door-to-door, while curb-to-curb might be better in other circumstances. This is exactly the sort of detailed operational decision best left to the development of paratransit plans at the local level. The NPRM asked whether on-call bus or paratransit feeder service would be acceptable in some circumstances. Comments were unanimous that on-call bus service would be appropriate for persons in the second eligibility category. Feeder service was generally approved for the second and third eligibility categories, but with some reservations, mainly from disability groups which were concerned that a feeder system that would require more transfers than would be required for a similar trip on fixed route. 37.129 Types of service (a) Except as provided in this section, complementary paratransit service for ADA paratransit eligible persons shall be origin-to-destination service. (b) Complementary paratransit service for ADA paratransit eligible persons described in 37.123(e)(2) of this part may also be provided by on-call bus service or paratransit feeder service to an accessible fixed route, where such service enables the individual to use the fixed route bus system for his or her trip. (c) Complementary paratransit service for ADA eligible persons described in 37.123 (e)(3) of this part also may be provided by paratransit feeder service to and/or from an accessible fixed route. --- 37.129 Types of Service. The basic mode of service for complementary paratransit is demand responsive, origin-to-destination service. This service may be provided for persons in any one of the three eligibility categories, and must always be provided to persons in the first category (e.g., people who cannot navigate the system). The local planning process should decide whether, or in what circumstances, this service is to be provided as door-to-door or curb-to-curb service. For persons in the second eligibility category (e.g., persons who can use accessible buses, but do not have an accessible bus route available to take them to their destination), origin-to-destination service can be used. Alternatively, the entity can provide either of two other forms of service. One is on-call bus, in which the individual calls the provider and arranges for one or more accessible buses to arrive on the routes he needs to use at the appropriate time. On-call bus service must meet all the service criteria of 37.131, except that on-call buses run only on fixed routes and the fare charged can be only the fixed route fare that anyone pays on the bus (including discounts). The second option is "feeder paratransit" to an accessible fixed route that will take the individual to his or her destination. Feeder paratransit, again, would have to meet all the criteria of 37.131. With respect to fares, the paratransit fare could be charged. but the individual would not be double charged for the trip. That is, having paid the paratransit fare, the transfer to the fixed route would be free. The Department agrees that on-call bus service and feeder service are appropriate in the eligibility categories mentioned. The second eligibility category consists of people who can use an accessible fixed route system, but currently do not have an accessible route to use to get to their destination. An on-call bus system can put an accessible bus on their route at the time they want to travel, meeting ADA requirements in their case. In some cases, a paratransit feeder to an accessible bus line would also work for people in this category. The third category consists of people who can use a fixed route system but are unable, because of a specific impairment related condition, to get to or from a stop or station. Feeder paratransit to get them from home to a bus stop, or from a bus stop to a destination, meets ADA requirements for them. In order to make such a system operational, transfers between paratransit and fixed route vehicles would seem essential. Consequently, without eliminating this mode of providing service altogether, the Department could not prohibit transfers. --- For persons in the third eligibility category (e.g., persons who can use fixed route transit but who, because of a specific impairment-related condition, cannot get to or from a stop), the "feeder paratransit" option, under the conditions outlined above, is available. For some trips, it might be necessary to arrange for feeder service at both ends of the fixed route trip. Given the more complicated logistics of such arrangements, and the potential for a mistake that would seriously inconvenience the passenger, the transit provider should consider carefully whether such a "double feeder" system, while permissible, is truly workable in its system (as opposed to a simpler system that used feeder service only at one end of a trip when the bus let the person off at a place from which he or she could independently get to the destination). There may be some situations in which origin to destination service is easier and less expensive. --- 37.131 Service Criteria for Complementary Paratransit. Service Area This criterion was the subject of more comments than any of the others. The NPRM has proposed the "crustacean" approach to service area, in which service would be provided to origins and destinations within corridors of a given width on either side of a fixed route. The Advisory Committee, in its January meeting, supported this concept on the basis that it reflected most closely the intent of the ADA that complementary paratransit be a "safety net" as comparable as possible to fixed route service. A majority of comments on this concept favored the "circumferential" or "connect the dots" model of service area which was used in the Department's section 504 rule. This model was said to be easier to administer and to include more origins and destinations and hence serve the transportation needs of persons with disabilities more comprehensively. Of particular concern to some commenters was the possibility that some people who now get service would lose it. Commenters also expressed concern about isolated pockets left unserved. Some said that the rule should prohibit entities from reducing the size of their service area from what it was under the 1986 504 rule, or argued that "connect the dots" better implemented the ADA legislative history language that talked of paratransit service "throughout" the entity's service area. Commenters who preferred the corrider-based model emphasized its congruence with the ADA's emphasis on fixed route service as the primary mode of transportation for everyone, with paratransit as a safety net for people who cannot use fixed route service. The paratransit service is not intended under the ADA, these commenters said, to provide service that is better or more comprehensive than that available on the fixed route system. Some of these commenters also said that, with minor modifications, the corrider-based would provide adequate service to the vast majority of origins and destinations accessible by mass transit. Both disability group and transit industry representatives to the Advisory Committee strongly favored retaining this model. 37.131 Service criteria for complementary paratransit. The following service criteria apply to complementary paratransit required by 37.121 of this part. (a) Service Area. (1) Bus. (i) The entity shall provide complementary paratransit service to origins and destinations within corridors with a width of three-fourths of a mile on each side of each fixed route. The corridor shall include an area with a three-fourths of a mile radius at the ends of each fixed route. (ii) Within the core service area, the entity also shall provide service to small areas not inside any of the corridors but which are surrounded by corridors. (iii) Outside the core service area, the entity may designate corridors with widths from three fourths of a mile up to one and one half miles on each side of a fixed route, based on local circumstances. (iv) For purposes of this paragraph, the core service area is that area in which corridors with a width of three-fourths of a mile on each side of each fixed route merge together such that, with few and small exceptions, all origins and destinations within the area would be served. 37.131 Service Criteria for Complementary Paratransit Service Area The basic bus system service area is a corridor with a width of 3/4 of a mile on each side of each fixed route. At the end of a route, there is a semicircular "cap" on the corridor, consisting of a three-quarter mile radius from the end point of the route to the parallel sides of the corridor. Complementary paratransit must provide service to any origin or destination point within a corridor fitting this description around any route in the bus system. Note that this does not say that an eligible user must live within a corridor in order to be eligible. If an individual lives outside the corridor, and can find a way of getting to a pickup point within the corridor, the service must pick him up there. The same holds true at the destination end of the trip. Another concept involved in this service criterion is the core service area. Imagine a bus route map of a typical city. Color the bus routes and their corridors blue, against the white outline map. In the densely populated areas of the city, the routes (which, with their corridors attached, cut 1 1/2 mile swaths) merge together into a solid blue mass. There are few, if any, white spots left uncovered, and they are likely to be very small. Paratransit would serve all origins and destinations in the solid blue mass. But what of the little white spots surrounded by various bus corridors? Because it would not make sense to avoid providing service to such small isolated areas, the rule requires paratransit service there as well. So color them in too. A related issue was the appropriate width of the corridors. The NPRM asked comments on a variety of alternatives. Most transit providers suggested a width on either side of a route of either 1/4 (a distance often used for bus ridership planning purposes) or 1/2 mile. Disability groups tended to support wider corridors, of up to 1 or 1 1/2 miles on either side of a route, with some suggestions that there should be wider corridors in suburban areas than in the urban core (since people are likely to travel farther to get to a route in less densely populated areas). Some commenters supported substantially broader service areas for rail systems, in the view that the "catchment areas" for rail stations and lines are much bigger than the areas from which bus riders are drawn to stops. One member of the Advisory Committee produced an interesting and much remarked upon map showing how a five mile corridor and ten mile radius around end stations would look for one major urban rail system. The Department has decided to retain a modification of the corridor-based model, with a related but altered approach for the rail service area. We agree with the Advisory Committee that this approach better captures the intent of the ADA than the connect-the-dots-model, since it provides a closer analog to the actual area served by fixed route transit. We believe that, in many areas, this approach will be more efficient to administer, since it will not require long paratransit trips to areas well away from transit routes. Nor do we think that service throughout the service area necessarily implies a circumferential concept of service area. We meet this objective if we require service to origins and destinations throughout those areas which fixed route transit actually serves. There may be some currently served origins and destinations that are not required to be served under this service area concept, just as there are some currently served individuals who the eligibility criteria of the ADA do not require to be served. We emphasize that the rule does not prohibit an entity from serving any origin or destination it chooses. The costs of serving origins or destinations that are not mandated in the rule do not count with respect to undue financial burden waiver requests, however. (2) Rail (i) For rail systems, the service area shall consist of a circle with a radius of 3/4 of a mile around each station. (ii) At end stations and other stations in outlying areas, the entity may designate circles with radii of up to 1 1/2 miles as part of its service area, based on local circumstances. (3) Jurisdictional Boundaries. Notwithstanding any other provision of this paragraph, an entity is not required to provide paratransit service in an area outside the boundaries of the jurisdiction(s) in which it operates, if the entity does not have legal authority to operate in that area. The entity shall take all practicable steps to provide paratransit service to any part of its service area. Outside the core area, though, as bus routes follow radial arteries into the suburbs and exurbs (we know real bus route maps are more complicated than this, but we simplify for purposes of illustration), there are increasingly wide white areas between the blue corridors, which may have corridors on either side of them but are not small areas completely surrounded by corridors. These white spaces are not part of the paratransit service area and the entity does not have to serve origins and destinations there. However, if, through the planning process, the entity wants to enlarge the width of one or more of the blue corridors from the 3/4 of a mile width, it can do so, to a maximum of 1 1/2 miles on each side of a route. The cost of service provided within such an expanded corridor can be counted in connection with an undue financial burden waiver request. There may be a part of the service area where part of one of the corridors overlaps a political boundary, resulting in a requirement to serve origins and destinations in a neighboring jurisdiction which the entity lacks legal authority to service. The entity is not required to serve such origins and destinations, even though the area on the other side of the political boundary is within a corridor. This exception to the service area criterion does not automatically apply whenever there is a political boundary, only when there is a legal bar to the entity providing service on the other side of the boundary. The rule requires, in this situation, that the entity take all practicable steps to get around the problem so that it can provide service throughout its service area. The entity should work with the state or local governments involved, via coordination plans, reciprocity agreements, memoranda or understanding or other means to prevent political boundaries from becoming barriers to the travel of individuals with disabilities. The definition of the service area for rail systems is somewhat different, though many of the same concepts apply. With respect to corridor width, most members of the Advisory Committee favored 3/4 of a mile on either side of a fixed route. This distance was thought to be reasonable because it was sufficiently wide to take into account the likelihood that fixed route service would draw passengers with disabilities from a relatively wide distance on either side of a fixed route, because corridors of this width would minimize unserved pockets, because it was not so wide as to vitiate the corridor concept, and because it represented a fair middle ground between commenters' suggestions. The Department believes that this distance has merit, and will adopt it. The Department, in response to comments, has made two modifications to the corridor concept. First, if within the urban core area (i.e., the area in which the corridors merge together to make a nearly solid mass), there are pockets not within any corridor completely surrounded by corridors, the pockets will be served as well. (During the June Advisory Committee meetings, members often referred to the corridor model as the "handprint" approach). Second, outside the core area, the local entity, through the planning process, could increase corridor widths from 3/4 mile to as much as 1 1/2 miles, in order to serve additional origins and destinations in less densely populated areas. Around each station on the line (whether or not a key station), the entity would draw a circle with a radius of 3/4 mile. Some circles may touch or overlap. The series of circles is the rail system's service area. (We recognize that, in systems where stations are close together, this could result in a service area that approached being a corridor like that of a bus line.) The rail system would provide paratransit service from any point in one circle to any point in any other circle. The entity would not have to provide service to two points within the same circle, since a trip between two points in the vicinity of the same station is not a trip that typically would be taken by train. Nor would the entity have to provide service to spaces between the circles. For example, a train trip would not get close to point x; one would have to take a bus or other mode of transportation to get from station E or F to point x. A paratransit system comparable to the rail service area would not be required to take someone there either. Rail systems typically provide trips that are not made, or cannot be made conveniently, on bus systems. For example, many rail systems cross jurisdictional boundaries that bus systems often do not. One can travel from Station A to a relatively distant Station E on a rail system in a single trip, while a bus trip between the same points, if possible at all, may involve a number of indirect routings and transfers, on two bus systems that may not interface especially well. The issue of how to define the service area for rail systems is one of the most difficult in the rulemaking. Among the factors we considered in deciding how to address this issue were the following: Rail systems draw riders from farther away from stations than bus lines draw riders from bus routes. Members of the Advisory Committee presented information that some rail systems, for their own planning purposes, define their service areas in terms of circles around stations (e.g., a three-mile radius around most stations and a five-mile radius around end stations, in one system). Information available to the Department suggests that the walking distance from which people go to a train station is not substantially greater than the walking distance from which they go to a bus line. Access to the station from further away is typically by other modes (e.g., bus, for people who do not drive their own cars to a park-and-ride), which involve a transfer to the rail line. While rail systems have fixed routes, people do not access them from a corridor in the same sense that they do a bus route. For example, if stations are four miles apart, and someone lives within sight of the tracks halfway between the stations, one cannot access the system without going two miles to a station. The most important use of paratransit for rail service is not so much getting to stations as it is providing trips along the rail corridor-- especially longer trips -- for which there are not good bus parallels. Rail operators have an obligation to provide paratransit equivalents of trips between circles to persons who cannot use fixed route rail systems because they cannot navigate the system, because key stations or trains are not yet accessible, or because they cannot access stations from points within the circles because of a specific impairment-related condition. For individuals who are eligible in category 2 because they need an accessible key station to use the system, the paratransit obligation extends only to transportation among "circles" centered on designated key stations (since, even when the key station plan is fully implemented, these individuals will be unable to use non-key stations). It is not sufficient for a rail operator to refer persons with disabilities to an accessible bus system in the area. The obligation to provide paratransit for a rail system is independent of the operations of any bus system serving the same area, whether operated by the same entity that operates the rail system or a different entity. Obviously, it will be advantageous for bus and rail systems to coordinate their paratransit efforts, but a coordinated system would have to ensure coverage of trips comparable to rail trips that could not conveniently be taken on the fixed route bus system. On balance, we believe that the most reasonable approach to follow in defining the rail service area is to draw a circle around each rail station, with a radius of 3/4 of a mile (at end or outlying stations, the local planning process could decide to expand the radius to up to 1 1/2 miles, parallel to the bus corridor expansion described above). This appears to reflect more reasonably than a corridor-based approach the way people access and use rail systems. We judge the size of the circles to be a reasonable approximation of the distance from which people would go to a station without another transportation mode as an intermediary. The entity would provide service from any origin in any circle to any destination in any other circle. We note that some commenters favored, rather than either the corridor or circumferential approach to service area, requiring service to all of a political jurisdiction (e.g., a county) in which the transit system operates. While such a definition makes sense for a comprehensive social service-oriented system intended to meet all needs of persons with disabilities, it goes well beyond comparability to the area actually served by fixed route transit. Other commenters preferred local option with respect to defining a service area. There is a statutory requirement for paratransit service in the service area of the fixed route system, and we believe that local option would not adequately ensure that service was provided as the statute intended. The NPRM proposed that paratransit need not be provided outside the boundaries of the political jurisdiction in which the entity is authorized to operate, even if the corridor-based service area extended over the boundary. A substantial number of disability community commenters objected to this provision, saying that it would fragment service, require burdensome extra transfers or coordination, and not provide the service within the required service area. Although we recognize that jurisdictional boundaries can create problems with the provision of service, we have retained this provision in the final rule. As commenters suggested, coordination, reciprocal agreements or memoranda of understanding should be able to solve a great many boundary overlap problems, and the rule require efforts of this kind. In other cases, however, entities may simply lack the legal authority to operate beyond the bounds of a particular jurisdiction, and this provision recognizes that fact. Response Time. The NPRM proposed that an entity schedule paratransit so as to provide next-day service to users. The preamble asked about "real time scheduling" as well. A substantial majority of comments endorsed the proposal, believing that it was a realistic requirement that still provided reasonable convenient service to users. Some transit properties favored a 24-hour requirement, as opposed to next-day scheduling, and a number of commenters advocated real time scheduling, touting its faster response times and lower per-trip costs. Others were concerned that real time scheduling would increase demand substantially, raising costs and overloading capacity. The Department is retaining the next-day scheduling provision, on the grounds stated by the commenters. It is a good balance of minimizing inconvenience to users and allowing providers sufficient time to schedule trips to maximize efficiency. The regulation explicitly allows real time scheduling to be used, though it is not mandated. The NPRM said that reservation service must be made available during all business hours, and during times equivalent to normal business hours on days prior to a service day when the offices are not open. Many transit providers objected to this provision, saying that it would cause them to have to open their offices on weekends and increase administrative costs. It should be acceptable for people to call on Friday for Monday service, they thought. Some commenters also asked whether a reservation office had to be staffed at all such times or whether an answering machine or similar technology would do. Commenters also asked whether normal business hours meant hours when the transportation service was running, or administrative office hours. The relatively few disability group comments on this section supported the NPRM proposal. (c) Response Time. The entity shall schedule and provide paratransit service to any ADA paratransit eligible person at any requested time on a particular day in response to a request for service made the previous day. Reservations may be taken by reservation agents or by mechanical means. (1) The entity shall make reservation service available during at least all normal business hours of the entity's administrative offices, as well as during times, comparable to normal business hours, on a day when the entity's offices are not open.before a service day. (2) The entity may negotiate pickup times with the individual, but the entity shall not require an ADA paratransit eligible individual to schedule a trip to begin more than one hour before or after the individual's desired departure time. (3) The entity may use real-time scheduling in providing complementary paratransit service. (4) The entity shall permit advance reservations to be made up to 14 days in advance of an ADA paratransit eligible individual's desired trip. When an entity proposes to change its reservations system, it shall comply with the public participation requirements equivalent to those of 37.131 (b) and (c). Response Time Under this provision, an entity must make its reservation service available during the hours its administrative offices are open. It those offices are open 9 to 5, those are the hours during which the reservations service must be open, even if the entity's transit service operated 6 a.m. to midnight. On days prior to a service day on which the administrative offices are not open at all (e.g., a Sunday prior to a Monday service day), the reservation service would also be open 9 to 5. Note that the reservation service on any day does not have to be provided directly by a "real person." An answering machine or other technology can suffice. Any caller reaching the reservation service during the 9 to 5 period, in this example, could reserve service for any time during the next 6 a.m. to 12 midnight service day. This is the difference between "next day scheduling" and a system involving a 24-hour prior reservation requirement, in which a caller would have to reserve a trip at 7 a.m. today if he or she wanted to travel at 7 a.m. tomorrow. The latter approach is not adequate under this rule. Sometimes users want to schedule service well in advance, to be sure of traveling when they want to. The rule tells providers to permit reservations to be made as much as 14 days in advance. In addition, though an entity may negotiate with a user to adjust pickup and return trip times to make scheduling more efficient, the entity cannot insist on scheduling a trip more than one hour earlier or later than the individual desires to travel. Any greater deviation from desired trip time would exceed the bounds of comparability. With one clarification, the Department is retaining the NPRM provision. The clarification is to say that reservation service would be made available during the normal business hours of the provider's administrative offices. On days when those offices were not open, such as weekends and holidays, it would be acceptable to take reservations by answering machine or similar means. Consequently, the requirement to ensure next day scheduling for every service day -- even a day following a weekend or holiday -- should not be as onerous as some commenters believed. While some costs are involved (a scheduler would have to work, for example, on Sunday evening to schedule trips for Monday morning), this situation is more in keeping with the transportation system envisioned by the ADA than a system which included a major exception to the response time criterion. Under the ADA, response time is to be comparable to fixed route service to the extent practicable. We are confident that this provision is "practicable" for transit providers. A few commenters mentioned that people should be able to make reservations a long time in advance, even if real time scheduling or next day scheduling were the practice. We agree, and the rule tells transit providers to allow reservations up to 14 days in advance of the individual's desired trip. Some transit commenters asked for flexibility to establish pickup times in order to maximize efficiency. On the other hand, some disability community commenters asked for protection against what they regarded as the problem of transit authorities insisting on scheduling their travel at times very divergent from desired travel times. To address both sets of concerns, the Department is adding a provision to the rule that would allow transit authorities to negotiate pickup times with eligible persons. However, the provider could not insist on pickup times (at either end of the trip) that varied by more than an hour from the user's desired travel time. _____________________________________ DOT Final Rule 5/21/96 14-Day Advance Reservations. is a simple and straightforward requirement. There can be no restrictions or priorities based on trip purpose in a comparable complementary paratransit system. When a user reserves a trip, the entity will need to know the origin, destination, time of travel, and how many people are traveling. The entity does not need to know why the person is traveling, and should not even ask. The concept of prohibiting restrictions and priorities based on trip purpose is basic to any system of comparable paratransit service. Nobody asks why someone is getting on a bus or rates the significance of their travel. If someone asks why a passenger is getting on a paratransit van, let alone decides for the passenger the relative importance of his or her trip in the larger scheme of things, we do not have a comparable situation. To the extent that such priorities are imposed (e.g., because of a provider decision that medical trips are more important than other types of trips), we have a social service model of transportation rather than the system of service comparable to fixed route transportation that the ADA envisions. Hours and Days of Service The issue of subscription service is discussed below.in connection with 37.133. The NPRM proposed that paratransit service be available during the same hours and days as the fixed route service. Disability groups supported the provision as written, saying that it was necessary to ensure truly comparable service. A number of transit providers asked for more flexibility to devise service which efficiently served the most active periods of demand, but would not need to operate during periods of low demand (e.g., night-owl service). Several favored "averaging," in which entities would provide paratransit for a number of hours during the day equivalent to the number of hours, on average, that all routes ran. It would be more efficient to sacrifice night-owl paratransit and use the funds saved to provide more capacity in periods of higher demand, one commenter said. (e) Hours and Days of Service. The complementary paratransit service shall be available throughout the same hours and days as the entity's fixed route service. Hours and Days of Service This criterion says simply that if a person can travel to a given destination using a given fixed route at a given time of day, an ADA paratransit eligible person must be able to travel to that same destination on paratransit at that time of day. This criterion recognizes that the shape of the service area can change. Late at night, for example, it is common for certain routes not to be run. Those routes, and their paratransit corridors, do not need to be served with paratransit when the fixed route system is not running on them. One couldn't get to destinations in that corridor by fixed route at those times, so paratransit service is not necessary either. It should be pointed out that service during low-demand times need not be by the same paratransit mode as during higher usage periods. For example, if a provider uses its own paratransit vans during high demand periods, it could use a private contractor or user-side subsidy provider during low demand periods. This would presumably be a more efficient way of providing late night service. A call-forwarding device for communication with the auxiliary carrier during these low demand times would be perfectly acceptable, and could reduce administrative costs. Capacity Constraints The NPRM proposed prohibiting capacity constraints, including waiting lists, restrictions on the numbers of trips a person may take in a given period, or consistent trip denials or untimeliness. The relatively few disability community commenters speaking to this subject favored the requirement. The majority of comments on the criterion were from transit industry parties, virtually all.of whom opposed the idea. Some comments said that the provisions concerning consistent denials or untimeliness were too vague. Given fluctuations in demand, a system could not avoid some trip denials without having substantial excess capacity. Others said that it was unreasonable to expect any system to meet all demand, which would inevitably require the addition of more vehicles and keep costs spiraling upward. Several commenters pointed out that there are capacity constraints on fixed route systems (e.g., a full bus passes up people waiting at a stop), and capacity constraints were likewise reasonable for paratransit. A few commenters suggested a performance standard (e.g., meeting an average 98 percent of trip requests per day). Interestingly, few commenters spoke in favor of the two primary devices on which the proposal focused -- trip number limits and waiting lists. (f) Capacity Constraints. The entity shall not limit the availability of complementary paratransit service to ADA paratransit eligible individuals by any of the following: (1) Restrictions on the number of trips an individual will be provided; (2) Waiting lists for access to the service; or (3) Any operational pattern or practice that significantly limits the availability of service to ADA paratransit eligible persons. (i) Such patterns or practices include, but are not limited to, the following: (A) Substantial numbers of significantly untimely pickups for initial or return trips; (B) Substantial numbers of trip denials or missed trips; (C) Substantial numbers of trips with excessive trip lengths. (ii) Operational problems attributablle to causes beyond the control of the entity (including, but not limited to, weather or traffic conditions affecting all vehicular traffic that were not anticipated at the a trip was scheduled) shall not be a basis for determinig that such a patter or practice exists. Capacity Constraints This provision specifically prohibits two common mechanisms that limit use of a paratransit systems so as to constrain demand on its capacity. The first is a waiting list. Typically, a waiting list involves a determination by a provider that it can provide service only to a given number of eligible persons. Other eligible persons are not able to receive service until one of the people being served moves away or otherwise no longer uses the service. Then the persons on the waiting list can move up. The process is analogous to the wait that persons in some cities have to endure to be able to buy season tickets to a sold-out slate of professional football games. The second mechanism specifically mentioned is a number limit on the trips a passenger can take in a given period of time.It is a kind of rationing in which, for example, if one has taken his quota of 30 trips this month, he cannot take further trips for the rest of the month. In addition, this paragraph prohibits any operational pattern or practice that significantly limits the availability of service to ADA paratransit eligible persons. As discussed under 37.125 in the context of missed trips by passengers, a "pattern or practice" involves, regular, or repeated actions, not isolated, accidental, or singular incidents. A missed trip, late arrival, or trip denial now and then does not trigger this provision. It is true, of course, that there are capacity constraints on fixed route transit. Certain potential routes are not served, runs are not made at certain times of day, and these limits restrict everyone's ability to travel on the fixed route system. Capacity constraints of this kind are already reflected in the requirements for paratransit, given the service area and hours and days criteria. It is also true that packed buses pass by passengers waiting at stops and that full trains pull out of stations leaving passengers standing on the platform. In each of these cases, however (which are most likely to occur at peak travel periods when headways are shortest), all the passengers have to do is wait a little longer for the next bus or train to come. Certainly no system administrator tells such a passenger that he can forget about traveling that day because he has already ridden the bus 20 times that month or that he needs to work his way to the top of a waiting list before he can elbow his way onto a train. If the administrator of a paratransit system tells a similar story to a passenger, it is not a story about a comparable system. Capacity constraint mechanisms of this kind are incompatible with a comparable paratransit system, and the rule will continue to prohibit them. We are also modifying the chronic trip denials and untimeliness provisions of the NPRM. These provisions were generally supported by disability community commenters, but were criticized by transit industry commenters as vague and difficult to enforce. Anecdotal reports by disability group representatives, and surveys of some existing paratansit operations in several cities by the Department's Inspector General (IG), suggest that problems of this kind are a serious concern. In one city surveyed by the IG, for example, 26 percent of initial trips surveyed, and 32 percent of return trips, were one to five hours late. Nine percent of passengers had one-way trips that lasted between two and four hours, and involved up to 33 stops between origin and destination. Of a small sample of passengers interviewed by the IG in this city, more than half had quit using the system because of its unreliability. Operational problems outside the control of the entity do not count as part of a pattern or practice under this provision. For example, if the vehicle has an accident on the way to pick up a passenger, the late arrival would not count as part of a pattern or practice. If something that could not have been anticipated at the time the trip was scheduled (e.g., a snowstorm, an accident or hazardous materials incident that traps the paratransit vehicle, like all traffic on a certain highway, for hours), the resulting missed trip would not count as part of a pattern or practice. On the other hand, if the entity regularly does not maintain its vehicles well, such that frequent mechanical breakdowns result in missed trips or late arrivals, a pattern or practice may exist. This is also true in a situation in which scheduling practices fail to take into account regularly occurring traffic conditions (e.g., rush hour traffic jams), resulting in frequent late arrivals. The second example is substantial numbers of trip denials or missed trips. For example, if on a regular basis the reservation phone lines open at 5 a.m. and callers after 7 a.m. are all told that they cannot travel, or the phone lines shut down after 7 a.m. and a recorded message says to call back the next day, or the phone lines are always so busy that no one can get through, this provision would be triggered. (Practices of this kind would probably violate the response time criterion as well.) Also, if, on a regular basis, the entity misses a substantial number of trips (e.g., a trip is scheduled, the passenger is waiting, but the vehicle never comes, goes to the wrong address, is extremely late, etc.), it would violate this provision. In another system surveyed by the IG, the reservation phone lines opened at 5:45 a.m. Capacity was filled by 5:53, and no more reservations were accepted. In another city, the IG checked 658 reports by passengers of "no-show" vehicles, learning that erroneous reports about the scheduled pickups had been made by drivers in 26 percent of the cases. The Department hopes that problems of this kind are not endemic to paratransit systems. But it is clear that patterns or practices of this kind have the effect of limiting the availability of paratransit service to eligible persons in a way not contemplated by the ADA. Consequently, the rule prohibits patterns or practices of this kind. As with the patterns or practices of individuals that adversely affect paratransit service delivery (see 37.125), problems that are not within the control of the provider (e.g., late service because of an accident that ties up the highway) would not form the basis for a forbidden pattern or practice. One issue that came up in the context of problems in service delivery was a suggestion by several disability community commenters that a paratransit provider should provide one or more free trips for missed trips, late arrivals, or trip durations that substantially exceeded fixed route travel time. This idea is attractive; it appears similar to a concept that has done good things for timely pizza delivery. Given the differences between pizza and paratransit, however, the practicability of the idea in this context is doubtful. There are, obviously, a number of reasons for service delivery problems that should not result in a financial penalty to the provider. The capacity constraints provision discussed above should, in our view, provide adequate redress for systemic problems in service delivery. The rule mentions three specific examples of operational patterns or practices that would violate this provision. The first is a pattern or practice of substantial numbers of significantly untimely pickups (either for initial or return trips). To violate this provision, there must be both a substantial number of late arrivals and the late arrivals in question must be significant in length. For example, a DOT Inspector General's (IG) report on one city's paratransit system disclosed that around 30 percent of trips were between one and five hours late. Such a situation would trigger this provision. On the other hand, only a few instances of trips one to five hours late, or many instances of trips a few minutes late, would not trigger this provision. The third example is substantial numbers of trips with excessive trip lengths. Since paratransit is a shared ride service, paratransit rides between Point A and Point B will usually take longer, and involve more intermediate stops, than a taxi ride between the same two points. However, when the number of intermediate stops and the total trip time for a given passenger grows so large as to make use of the system prohibitively inconvenient, then this provision would be triggered. For example, the IG report referred to above mentioned a situation in which 9 percent of riders had one way trips averaging between two and four hours, with an average of 16 intermediate stops. Such a situation would probably trigger this provision. Though these three examples probably cover the most frequently cited problems in paratransit operations that directly or indirectly limit the provision of service that is theoretically available to eligible persons, the list is not exhaustive. Other patterns or practices could trigger this provision. For example, the Department has heard about a situation in which an entity's paratransit contractor was paid on a per-trip basis, regardless of the length of the trip. The discussion of the capacity constraints requirement, like the discussions of all the other service criteria, assumes a situation in which service is provided without creating an undue financial burden. In cases where an entity is granted an undue financial burden waiver, the rule provides that limiting the number of trips per person per time period is a primary method of reducing costs, while keeping other criteria constant to ensure continued service quality. This point was one made emphatically by disability group representatives on the Advisory Committee. Given the phase-in period of up to five years permitted under this rule, the allowance of some negotiation of trip times, and the limitations on eligibility set forth in 37.123, the Department anticipates that many providers will find pressures to impose capacity constraints reduced. The contractor therefore had an economic incentive to provide as many trips as possible. As a result, the contractor accepted short trips and routinely denied longer trips.This would be a pattern or practice contrary to this provision (and contrary to the service area provision as well). Additional Service This section, like its counterpart in 37.123, specifies that the service criteria do not limit the activities of paratransit providers. As the legislative history of the ADA notes, these requirements establish a "minimum level of paratransit service to be provided." (H. Rept. 1 101-485, Pt. 1, at 30). Providers can do more than this section requires. However, the cost of doing more than the ADA requires cannot be regarded as a financial burden of compliance. Therefore, the costs of additional service cannot be counted in connection with an undue financial burden waiver request. A number of commenters on the capacity constraints and no restrictions and priorities on trip provisions of the rule asked about the role of subscription service. A number of these commenters asked for assurance that this service, which is useful for work trips and other repeated trips (e.g., to physical therapy sessions), would not be prohibited. Other commenters, though not opposed to subscription service, asked for assurance that it would not absorb all the capacity of a paratransit system, leaving little room for non-subscription trips. (Information available to the Department supports that this is a very real concern with some systems.) We believe that, because it provides assurance of regular trips and saves the trouble of repeated calls for service for a work trip or other regular trips, subscription service can be a valuable component of a complementary paratransit system. Therefore, we agree with commenters who wish us to specify that such a system is permissible. (g) Additional Service. Public entities may provide complementary paratransit service to ADA paratransit eligible individuals exceeding that provided for in this section. However, only the cost of service provided for in this section may be considered in a public entity's request for an undue financial burden waiver under 37.151-37.155 of this part. --- Additional Service This provision emphasizes that entities may go beyond the requirements of this section in providing service to ADA paratransit individuals. For example, no one is precluded from offering service in a larger service area, during greater hours than the fixed route system, or without charge. However, costs of such additional service do not count with respect to undue financial burden waiver requests. Where a service criterion itself incorporates a range of actions the entity may take (e.g., providing wide corridors outside the urban core, using real time scheduling), however, costs of providing that optional service may be counted for undue financial burden waiver request purposes. --- At the same time, we also agree that it would be inconsistent with the notion of a comparable paratransit system to let subscription service absorb the full capacity of the system, as it might at a given time of day (e.g., peak times for work trips). Consequently, the rule includes a maximum of 50 percent of system capacity that can be dedicated at any time of the day to subscription service. The one exception to this is if there is excess non-subscription capacity at a given time, so that system capacity goes begging. In that case, the subscription component of the service could be expanded. -- 37.133 Subscription Service. A number of these commenters asked for assurance that this service, which is useful for work trips and other repeated trips (e.g., to physical therapy sessions), would not be prohibited. Other commenters, though not opposed to subscription service, asked for assurance that it would not absorb all the capacity of a paratransit system, leaving little room for non-subscription trips. (Information available to the Department supports that this is a very real concern with some systems.) We believe that, because it provides assurance of regular trips and saves the trouble of repeated calls for service for a work trip or other regular trips, subscription service can be a valuable component of a complementary paratransit system. Therefore, we agree with commenters who wish us to specify that such a system is permissible. At the same time, we also agree that it would be inconsistent with the notion of a comparable paratransit system to let subscription service absorb the full capacity of the system, as it might at a given time of day (e.g., peak times for work trips). Consequently, the rule includes a maximum of 50 percent of system capacity that can be dedicated at any time of the day to subscription service. The one exception to this is if there is excess non-subscription capacity at a given time, so that system capacity goes begging. In that case, the subscription component of the service could be expanded. Since subscription service is a limited subcomponent of all paratransit service, we believe it is reasonable to permit some limits on its use. For subscription service only, a provider could establish trip purpose restrictions (e.g., work trips only during morning and evening peak work trip periods) or waiting lists for participation. --- 37.133 Subscription Service. (a) This part does not prohibit the use of subscription service by public entities as part of a complementary paratransit system, subject to the limitations in this section. (b) Subscription service may not absorb more than fifty percent of the number of trips available at a given time of day, unless there is excess non-subscription capacity (c) Notwithstanding any other provision of this Part, the entity may establish waiting lists or other capacity constraints and trip purpose restrictions or priorities for participation in the subscription service only. --- 37.133 Subscription Service As part of its paratransit service, an entity may include a subscription service component. However, at any given time of day, this component may not absorb more than 50 percent of available capacity on the total system. For example, if, at 8 a.m., the system can provide 400 trips, no more than 200 of these can be subscription trips. The one exception to this rule would occur in a situation in which there is excess non-subscription capacity available. For example, if over a long enough period of time to establish a pattern, there were only 150 non-subscription trips requested at 8 a.m., the provider could begin to provide 250 subscription trips at that time. Subsequently, if non-subscription demand increased over a period of time, such that the 50 trips were needed to satisfy a regular non-subscription demand at that time, and overall system capacity had not increased, the 50 trips would have to be returned to the non-subscription category. During times of high subscription demand, entities could use the trip time negotiation discretion of 37.131(c)(2) to shift some trips to other times. Because subscription service is a limited subcomponent of paratransit service, the rule permits restrictions to be imposed on its use that could not be imposed elsewhere. There may be a waiting list for provision of subscription service or the use of other capacity constraints. Also, there may be restrictions or priorities based on trip purpose. For example, subscription service during peak work trip times could be limited to work trips. We emphasize that these limitations apply only to subscription service. It is acceptable for a provider to put a person on a waiting list for access to subscription service at 8 a.m. for work trips; the same person could not be wait-listed for access to paratransit service in general. -- --- 37.135 Submission of Paratransit Plan. The NPRM's 37.113 contained certain provisions that are now new, separate sections. The description of these requirements as well as comments submitted on the proposal and the Department's response, are discussed below. (See 37.135, 37.145, and 37.149.) Section 37.113 of the NPRM proposed that each public entity providing fixed route service submit a plan by January 26, 1992, with annual submissions on each succeeding January 26th. The NPRM also proposed that section 18 recipients, small urbanized area recipients of section 9 funds administered by a state, and public entities who provide fixed route service that do not receive UMTA funds submit their plans to the appropriate state administering office. The submission of plans by January 26, 1992, drew a few comments -- all saying that this is an unrealistic date. One state department of transportation suggested that extensions be granted upon request, for cause. Unfortunately, the ADA contains a specific provision requiring that plans be submitted by January 26, 1992, and that plan implementation begin on that date also. While the Department does not believe it has flexibility in this area, there are new provisions regarding the submission of joint plans, as discussed below in 37.141. Sixteen commenters provided input on the proposal to have plans submitted and reviewed by states. All but a few were opposed to the idea. Most states that commented believe that the staffing and cost burden would be too great to bear. Disability groups recommended that the review remain with UMTA for consistency. One transit provider recommended that all plans go through the applicable funding agency for sign-off before being submitted to UMTA. One individual with a disability recommended that the states be allowed to act on behalf of UMTA, as in the section 18 program. 37.135 Submission of paratransit plan. (a) General. Each public entity operating fixed route transportation service, which is required by e37.121 to provide complementary paratransit service, shall develop a paratransit plan. (b) Initial Submission. Except as provided in e37.141 of this part, each entity shall submit its initial plan for compliance with the complementary paratransit service provision by January 26, 1992, to the appropriate location identified in paragraph (f) of this section. (c) Annual Updates. Except as provided in this paragraph, each entity shall submit an annual update to its plan on January 26 of each succeeding year. (1) If an entity has met and is continuing to meet all requirements for complementary paratransit in 37.121-37.133 of this part, the entity may submit to FTA an annual certification of continued compliance in lieu of a plan update. Entities that have submitted a joint plan under 37.141 may submit a joint certification under this paragraph. The requirements of 37.137-37.139 do not apply when a certification is submitted under this paragraph. (2) In the event of any change in circumstances that results in an entity which has submitted a certification of continued compliance falling short of compliance with 37.121-37.133, the entity shall immediately notify FTA in writing of the problem. In this case, the 37.135 Submission of paratransit plans This section contains the general requirements concerning the submission of paratransit plans. Each public entity operating fixed route service is required to develop and submit a plan for paratransit service. Where you send your plans depends on the type of entity you are. There are two categories of entities which should submit their plans to states -- (1) UMTA recipients and (2) entities who are administered by the state on behalf of UMTA. These UMTA grantees submit their plans to the states because the agency would like the benefit of the states' expertise before final review. The states' role is as a commenter, not as a reviewer. This section section also specifies annual progress reports concerning the meeting of previously approved milestones, any slippage (with the reasons for it and plans to catch up), and any significant changes in the operator's environment, such as the withdrawal from the marketplace of a private paratransit provider or whose service the entity has relied upon to provide part of its paratransit service. Paragraph (d) of this section specifies a maximum time period for the phase-in of the implementation of paratransit plans. The Department recognizes that it is not reasonable to expect paratransit systems to spring into existence fully formed, like Athena from the head of Zeus. Under this paragraph, all entities must be in full compliance with all paratransit provisions by January 26, 1997, unless the entity has received a waiver from UMTA based on undue financial burden (which applies only to the service criteria of 37.131, not to eligibility requirements or other paratransit provisions). entity shall also file a plan update meeting the requirements of 37.137-37.139 of this part on the next following January 26 and in each succeeding year until the entity returns to full compliance. (3) An entity that has demonstrated undue financial burden to the FTA shall file a plan update meeting the requirements of 37.137-37.139 of this part on each January 26 until full compliance with 37.121-37.133 is attained. (4) If FTA reasonably believes that an entity may not be fully complying with all service criteria, FTA may require the entity to provide an annual update to its plan. (d) Phase-in of Implementation. Each plan shall provide for full compliance by no later than January 26, 1997, unless the entity has received a waiver based on undue financial burden. If the date for full compliance specified in the plan is after January 26, 1993, the plan shall include milestones, providing for measured, proportional progress toward full compliance. (e) Plan Implementation. Each entity shall begin implementation of its plan on January 26, 1992. (f) Submission Locations. An entity shall submit its plan to one of the following offices, as appropriate: (1) The individual state administering agency, if it is -- (i) A section 18 recipient; The Advisory Committee discussed the issue of plan submission to states, and their recommendation was to have all plans submitted to UMTA. The Department has revised this section somewhat in response to comments. First, in this section, we direct only two categories of entities to submit their plans to states. These are (1) UMTA recipients and (2) entities who are administered by the state on behalf of UMTA. We have eliminated the requirement that public entities not funded by UMTA submit their plans to the states. As noted in 37.145, we have retained the provision that certain UMTA grantees submit their plans to the states because UMTA would like the benefit of the states' expertise before final review. However, we have changed the states' role from that of a reviewer to that of a commenter, so that UMTA may receive the benefit of each state's knowledge of the grantee without unduly burdening it with actual review of the plan. This section makes explicit a provision which was discussed in the preamble to the NPRM. The Department noted that some phase-in of implementation would probably be acceptable, but that phase-in would be determined based on individual circumstances. We asked if the final rule should be more specific. All commenters on this issue recommended that the Department be specific as to a phase-in period. Comments on how long a phase-in should be ranged from one year to ten years, with disability groups advocating a shorter period of time and transit providers advocating a longer period of time. (ii) A small urbanized area recipient of section 9 funds administered by the State. (iii) A participant in a coordinated plan, in which all of the participating entities are eligible to submit their plans to the State; or (2) The UMTA Regional Office (as listed in Appendix B to this part) for all other entities required to submit a paratransit plan. This includes an UMTA recipient under section 9 of the UMT Act; entities submitting a joint plan (unless they meet the requirements of paragraph (f)(1)(iii) of this section), and a public entity not an UMT Act recipient. --- While the rule assumes that most entities will take a year to fully implement these provisions, longer than a year requires the paratransit plans to submit milestones that are susceptible to objective verification. Not all plans will be approved with a five year lead-in period. Consistent with the proposed rule, the Department intends to look at each plan individually to see what is required for implementation in each case. DOT may approve only a shorter phase-in period in a given case. --- The final rule (37.135(d)) specifies maximum 5-year time period for phase-in. This paragraph specifies that all entities must be in full compliance with all paratransit provisions by January 26, 1997, unless the entity has received a waiver from UMTA based on undue financial burden. While the rule assumes that most entities will take a year to fully implement these provisions, longer than a year requires the paratransit plans to contain milestones that are susceptible to objective verification. Not all plans will be approved if they have a five year lead-in period. Consistent with the proposed rule, the Department intends to look at each plan individually, to determine what is required for implementation in each case. _______________________________________ DOT Final Rule 5/21/96 1. Reduction of Paperwork for Paratransit Plan Updates The NPRM proposed that transit authorities that had fully implemented the paratransit requirements of the rule would no longer have to send in annual updates to FTA. The thinking behind this proposal was that, once full compliance had been achieved, annual updates, and the process required to generate them, would become an unnecessary administrative burden. Instead, there would be a simple certification of compliance. If, for any reason, a transit authority slipped out of full compliance, it would have to inform FTA and file updates until it was once again in full compliance. Transit agencies generally supported the proposed change, citing the difficulty that many small providers have with annual paperwork submissions. Some of these commenters said, however, that there should be other means (e.g., additions to the National Transportation Database) of monitoring and reporting data on paratransit costs and service. Disability community commenters, on the other hand, favored retention of the existing requirement. Some were suspicious of claims by transit authorities that they were really in full compliance. -- they were really in full compliance. A common theme in these comments was that the public participation requirements accompanying the annual update was a good opportunity for the disability community to have input concerning service problems. Indeed, some commenters said, public participation provisions should be strengthened. Some of the comments also pointed to a statutory issue. 233(c)(7)(B) of the ADA provides that the Department's regulations shall require each public entity that operates fixed route service to submit a paratransit plan to the Secretary within 18 months after the effective date of the section and ``on an annual basis thereafter, submit to the Secretary, and commence implementation of, a plan for providing [paratransit] services.'' In its original ADA rule, the Department implemented this requirement by establishing the annual plan update requirement. This requirement makes sense during the phase-in period for paratransit service. While a transit authority is gradually building up its paratransit service to the point where it meets all service criteria, it is reasonable for the transit authority to send in annual progress reports that have been developed through the public participation process set forth in the rule. Once the transit authority has fully met all the service criteria, however, there is no new "progress'' to report. There is no implementation to ``commence,'' since the service required by the rule is already up and running, and need only be continued for the transit authority to meet its ADA paratransit obligations. Once the transit authority is fully meeting all service criteria (including the criterion concerning capacity constraints), submitting an annual certification that it is continuing to meet all these criteria as provided in its previously-approved plan meets the letter and intent of 223(c)(7)(B). Of course, should the transit authority fall below full compliance with all criteria, it would need to inform FTA and resume substantive annual updates until it was once again in full compliance. In response to comments, the Department will make two modifications to the proposed regulatory language. First, as noted above, there would need to be a report to FTA if the transit authority fell out of compliance. Second, we are adding a provision authorizing FTA to direct a transit authority to conduct a public participation process and submit a plan update if, in FTA's judgment (based, for example, on consumer complaints about service), there is a reasonable basis for concern about continuing full compliance. Because the regulation already requires a mechanism for continuing public participation (see 37.137(c)), the Department is not persuaded that the public participation process accompanying plan updates is essential to provide public input to providers about paratransit service. While changes to National Transit Database reporting concerning paratransit are outside the scope of this rulemaking, the Federal Transit Administration will consider whether some modifications to this report to provide more data about paratransit service are desirable. --- 37.137 Paratransit Plan Development The proposed rule contained three specific requirements during the development of the paratransit plan: first, that each entity ensure public participation in the development of the plan, which at a minimum would include a public hearing, the opportunity for public comment, and consultation with persons with disabilities. Second, this section would have required that each submitting entity survey existing services to determine what paratransit services are already being provided to ADA-paratransit eligible persons. Finally, the NPRM would have required that these requirements apply to each annual submission in addition to the initial submission. 37.137 Paratransit plan development. 37.137 Paratransit Plan Development Section 35.137 establishes three principal requirements in the development of paratransit plans. First is the requirement to survey existing paratransit services within the service area. This is required by section 223(c)(8) of the ADA.. While the ADA falls short of explicitly requiring coordination, clearly this is one of the goals. The purpose of the survey is to determine what is being provided already, so that a transit provider can accurately assess what additional service is needed to meet the service criteria for comparable paratransit service. The plan does not have to discuss private paratransit providers whose services will not be used to help meet paratransit requirements under this rule. However, the public entity will need to know specifically what services are being provided by whom if the entity is to count the transportation toward the overall need. Survey of Existing Services. Less than a dozen individuals and organizations submitted comments on this provision, with most focused on how the financial contributions of these providers should be counted and how to ensure that service included in the plan would be continued. Some private for profit providers thought they should be included in the survey and that they should be consulted in the preparation of the plan. One state human services agency recommended that formal agreements between fixed route operators and outside operators be required to ensure that services are coordinated and equally available from area to area. The concern of this commenter is that an entity could include service provided by other unrelated agencies in its service plan, which could result in little service being provided to individuals not connected to client-specific agencies. One trade association stated that the rule should require that the plan document that the entity has not only identified the services, but has made every effort to make use of existing paratransit resources, including those of for-profit providers. Section 223(c)(8) of the ADA specifically requires that each public entity submitting a paratransit plan survey existing services. While the ADA falls short of explicitly requiring coordination, clearly this is one of the goals. The purpose of the survey is to determine what is being provided already, so that a transit provider can accurately assess what additional service is needed to meet the service criteria for comparable paratransit service. In effect, the public entity will need to know specifically what services are being provided by whom if the entity is to count the transportation toward the overall need. (a) Survey of existing services. Each submitting entity shall survey the area to be covered by the plan to identify any person or entity (public or private) which provides a paratransit or other special transportation service for ADA paratransit eligible individuals in the service area to which the plan applies. (1) Outreach. Each submitting entity shall solicit participation in the development of its plan by the widest range of persons anticipated to use its paratransit service. Each entity shall develop contacts, mailing lists and other appropriate means for notification of opportunities to participate in the development of the paratransit plan. (2) Consultation with individuals with disabilities. Each entity shall contact individuals with disabilities and groups representing them in the community. Consultation shall begin at an early stage in the plan development and should involve persons with disabilities in all phases of plan development. All documents and other information concerning the planning procedure and the provision of service shall be available, upon request, to members of the pubic, except where disclosure would be an unwarranted invasion of personal privacy. Since the public entity is required to provide paratransit to all ADA paratransit eligible individuals, there is some concern that currently provided service may be cut back or eliminated. It is possible that this may happen and such action would have a negative effect on transportation provided to persons with disabilities in general. The Department urges each entity required to submit a plan to work with current providers of transportation, not only to determine what transportation services they provide, but also to continue to provide service into the foreseeable future. Second, 37.137 specifies requirements for public participation. First, the entity must perform outreach, to ensure that a wide range of persons anticipated to use the paratransit service know about and have the opportunity to participate in the development of the plan. Not only must the entity identify who these individuals or groups are, the entity also must contact the people at an early stage in the development process. The other public participation requirements are straightforward. There must be a public hearing and an opportunity to comment. The hearing must be accessible to those with disabilities, and notice of the hearing must be accessible as well. There is a special efforts test identified in this paragraph for comments concerning a multi-year phase-in of a paratransit plan. Since the public entity is required to provide paratransit to all ADA paratransit eligible individuals, there is some concern that currently provided service may be cut back or eliminated. It is possible that this may happen. The Department urges each entity required to submit a plan to work with current providers of transportation to determine not just what transportation services they provide, but to continue to provide it into the foreseeable future. Public Participation Requirements. Over a dozen commenters made suggestions on the NPRM's public participation requirements. Those expressing concern about the adequacy of the proposed requirements stated that they were concerned about the quality of the consultation. One commenter suggested that the consultation begin early in the development of the plan and that the regulation should "require that each public entity form an ongoing citizens participation committee which would be formed in the early stages of paratransit plan development and would participate in all stages of plan development and review as well as plan implementation." This thought was echoed in the Advisory Committee in June. Some commenters requested more specificity on the type and length of notice required. One transit provider suggested that for section 18 providers, the notice of intent to submit a plan should be adequate, with a hearing held only upon request. One disability group said that it would have a difficult time discerning who was the lead agency in the area, and that the lead agency should be designated and responsible for convening an advisory group. Finally, some commenters recommended that more elements of paratransit service (such as appeals from denial of service) be subject to a public hearing requirement. The public participation requirements do not mandate that service be provided to every person with disability. It does require that the entities providing paratransit service attempt to provide to the broadest range possible of persons with disabilities the opportunity to participate in what their future transportation options may look like. --- (3) Opportunity for public comment. The submitting entity shall make its plan available for review before the plan is finalized. In making the plan available for public review, the entity shall ensure that the plan is available upon request in accessible formats (4) Public hearing. The entity shall sponsor at a minimum one public hearing and shall provide adequate notice of the hearing, including advertisement in appropriate media, such as newspapers of general and special interest circulation and radio announcements; and (5) Special requirements. If the entity intends to phase-in its paratransit service over a multi-year period, or request a waiver based on undue financial burden, the public hearing shall afford the opportunity for interested citizens to express their views concerning the phase-in, the request, and which service criteria may be delayed in implementation. (c) Ongoing requirement. The entity shall create an ongoing mechanism for the participation of individuals with disabilities in the continued development and assessment of services to persons with disabilities. This includes, but is not limited to, the development of the initial plan, any request for an undue financial burden waiver, and each annual submission. --- The final general requirement of the section specifies that efforts at public participation must be made permanent through some mechanism that provides for participation in all phases of paratransit plan development and submission. The Department is not requiring that there be an advisory committee established, although this is one method of institutionalizing participation. The Department is not as interested in the specific structure used to ensure public participation as we are interested in the effectiveness of the effort. The Department believes that public participation is a key element in the effective implementation of the ADA. The ADA is an opportunity to develop programs that will ensure the integration of all persons into not just the transportation system of America, but all of the opportunities transportation makes possible. This opportunity is not without tremendous challenges to the transit providers. It is only through dialogue, over the long term, that usable, possible plans can be developed and implemented. --- 37.139 Plan Contents The NPRM proposed eight substantive categories of information to be contained in the paratransit plan: information on current and changing fixed route service; inventory of existing paratransit service; discussion of the discrepancy between existing paratransit and what is required under this regulation; a discussion of the public participation requirements and how they have been met; the plan for paratransit service; efforts to coordinate with other transportation providers; a description of the process in place or to be used to register ADA paratransit eligible individuals; and a request for a waiver based on undue financial burden, if applicable. Over fifty comments were received on this section, with two provisions drawing the most comment. First was the phase-in, and lack of specific dates for complete phase-in. Almost all commenters agreed that some phase-in would be necessary. While some felt that the timetable for phase-in was best left to the local decision making process and documented in the plan, most commenters recommended an implementation deadline. While three to five years were mentioned most often, the suggestions ranged from one to ten years. Some suggested different deadlines, depending on whether any paratransit service already existed. One commenter asked for a maintenance of effort provision for paratransit services existing as of July 26, 1990. Other commenters suggested that any reductions to existing services be phased in according to a timetable in the local plan. The second major area of comment concerned the need for and difficulty of accurately estimating demand for paratransit service. Many operators commented on the difficulty in accurately predicting the demand for the newly mandated paratransit service, particularly in light of the prohibition on capacity constraints. One commenter noted that estimation of the ADA paratransit eligible population should be included in the plan so that reviewers could determine whether the proposed service would be in compliance. 37.139 Plan contents. Each plan shall contain the following information: (1) Name and address; and (2) Contact person for the plan, with telephone number and facsimile telephone number (FAX), if applicable. (b) A description of the fixed route system as of January 26, 1992 (or subsequent year for annual updates), including - (1) A description of the service area, route structure, days and hours of service, fare structure, and population served. This includes maps and tables, if appropriate; (2) The total number of vehicles (bus, van, or rail) operated in fixed route service (including contracted service), and percentage of accessible vehicles and percentage of routes accessible to and usable by persons with disabilities, including persons who use wheelchairs. (3) Any other information about the fixed route service that is relevant to establishing the basis for comparability of fixed route and paratransit service. (c) A description of existing paratransit services, including: (1) An inventory of service provided by the public entity submitting the plan; (2) An inventory of service provided by other agencies or organizations, which may in whole or in part be used to meet the requirement for complementary paratransit service; and 37.139 Plan Contents This section contains substantive categories of information to be contained in the paratransit plan: information on current and changing fixed route service; inventory of existing paratransit service; discussion of the discrepancies between existing paratransit and what is required under this regulation; a discussion of the public participation requirements and how they have been met; the plan for paratransit service; the budget for paratransit services; efforts to coordinate with other transportation providers; a description of the process in place or to be used to register ADA paratransit eligible individuals; a description of the documentation provided to each individual verifying eligibility; and a request for a waiver based on undue financial burden, if applicable. The final rule contains a reorganized and slightly expanded section on plan contents, reflecting requests to be more explicit, rather than less explicit. The list of required elements is the same for all entities required to submit paratransit plans. There is no document length requirement, however. Each entity (or group plan) is unique and we expect the plans to reflect this. While we would like the plan elements presented in the order listed in this section, the contents most likely will vary greatly, depending on the size, geographic area, budget, complexity of issues, etc. of the particular submitting agency. This section and 37.139 provide for a maximum phase-in period of five years, with an assumed one-year phase-in for all paratransit programs. (The required budget has been changed to five years as well.) The Department has established a maximum five-year phase-in in the belief that not all systems will require that long, but that some, particularly those who had chosen to meet compliance with section 504 requirements with accessible fixed route service, may indeed need five years. Other comments included the perceived difficulty with identifying "unmet demand", with commenters indicating that this information was difficult and expensive to obtain. Other comments included a recommendation to reduce the six-year budget specified in the proposed rule to a five-year budget. The requirement to include a sign-off by the Metropolitan Planning Organization covered by the plan drew negative comment from a transit provider and a transit trade association. The transit provider suggested an exemption from MPO review if the entity was a statewide organization or if the entity was not an UMTA recipient. The final rule contains a reorganized and slightly expanded section on plan contents. This reflects commenters' requests to be more explicit, rather than less explicit. This section, as well as 37.135, provides for a maximum phase-in period of five years, with an assumed one-year phase-in for all paratransit programs. The required budget has been changed to five years as well. The Department has established a five-year phase-in in the belief that not all systems will require that long, but that some, particularly those who chose to comply with section 504 requirements with accessible fixed route service may indeed need five years. We recognize the need to begin providing access to transportation immediately. We are confident that, through the public participation process, a realistic plan for full compliance with the ADA wlll develop.. To help ensure this, the paratransit plan contents section now requires that any plan which projects full compliance after January 26, 1993 must include milestones which can be measured and which result in steady progress toward full compliance. (3) A description of the available paratransit services in paragraphs (c)(2) and (c)(3) of this section as they relate to the service criteria described in 37.131 of this part of service area, response time, fares, restrictions on trip purpose, hours and days of service, and capacity constraints; and to the requirements of ADA paratransit eligibility. (d) A description of the plan to provide comparable paratransit, including: (1) An estimate of demand for comparable paratransit service by ADA eligible individuals and a brief description of the demand estimation methodology used; (2) An analysis of differences between the paratransit service currently provided and what is required under this part by the entity(ies) submitting the plan and other entities, as described in paragraph (c) of this section; (3) A brief description of planned modifications to existing paratransit and fixed route service and the new paratransit service planned to comply with the ADA paratransit service criteria; (4) A description of the planned comparable paratransit service as it relates to each of the service criteria described in 37.131 of this part - service area, absence of restrictions or priorities based on trip purpose, response time, fares, hours and days of service, and lack of capacity constraints. If the paratransit plan is to be phased in, this paragraph shall be coordinated with the information being provided in paragraphs (d)(5) and (d)(6) of this paragraph. We are confident that, through the public participation process, entities can develop a realistic plan for full compliance with the ADA. To help ensure this, the paratransit plan contents section now requires that any plan which projects full compliance after January 26, 1993 must include milestones which can be measured and which result in steady progress toward full compliance. For example, it is possible that the first part of year one is used to ensure comprehensive registration of all eligible persons with disabilities, training of transit provider staffs and the development and dissemination of information to users and potential users in accessible formats and some modest increase in paratransit service is provided. A plan would not be permitted to indicate that no activity was possible in the first year, but proportionately more progress could be planned for later years than for the first year. Implementation must begin in January 1992. Each plan, including its proposed phase-in period, will be the subject of examination by UMTA. Not all providers who request a five year phase-in will receive approval for a five-year phase-in. The plan must be careful, therefore, to explain what current services are, what the projections are, and what methods are in place to determine and provide accountability for progress toward full compliance. We have been asked for assistance in assessing what the demand for paratransit service will be. UMTA's ADA Paratransit Manual provides detailed assistance in this and many other areas of the plan development process. For example, it is possible that the first part of year one is used to ensure comprehensive registration of all eligible persons with disabilities, training of transit provider staffs, and the development and dissemination of information to users and potential users in accessible formats and some small increase in the current level of paratransit service being provided. It would not be possible to indicate in the plan that no activity was possible in the first year, but a plan could provide for proportionately more progress to be made in later years. Implementation must begin in January 1992. Each plan, including its phase-in will be the subject of examination by UMTA. Not all providers will receive approval for a five-year phase-in. The plan must be careful, therefore, to explain what current services are, what the plans are, and include methods to discern the advance of progress toward compliance. These kinds of decisions are best made through the public participation process. (5) A timetable for implementing comparable paratransit service, with a specific date indicating when the planned service will be completely operational. In no case may full implementation be completed later than January 26, 1997. The plan shall include milestones for implementing phases of the plan, with progress that can be objectively measured yearly. (6) A budget for comparable paratransit service, including capital and operating expenditures over five years. (e) A description of the process used to certify individuals with disabilities as ADA paratransit eligible. At a minimum, this must include - (1) A description of the application and certification process, including - (i) The availability of information about the process and application materials in accessible formats; (ii) The process for determining eligibility according to the provisions of 37.123 - 37.125 of this part and notifying individuals of the determination made; (iii) The entity's system and timetable for processing applications and allowing presumptive eligibility; and The ADA itself contained a figure of 43 million persons with disabilities. It should be pointed out that many of these may not necessarily be eligible for ADA paratransit service. The Department's regulatory impact analysis discussing the probable costs involved in implementing this rule place the possible percentage of population who would be eligible for paratransit service at between 1.4 and 1.9 percent. This figure can vary depending on the type and variety of services you have available, or on such things as climate, proximity to medical care, family, etc. that a person with a disability may need. Clearly estimating demand is one of the most critical elements in the plan, since it will be used to make decisions about all of the various service criteria.The ADA itself contained a figure of 43 million persons with disabilities. It should be pointed out that many of these may not necessarily be eligible for ADA paratransit service. The Department's regulatory impact analysis discussing the probable costs involved in implementing this rule place the possible percentage of population who would be eligible for paratransit service at between 1.4 and 1.9 percent. This figure can vary depending on the type and variety of services you have available, or on such things as climate, proximity to medical care, family, etc. that a person with a disability may need. Clearly estimating demand is one of the most critical elements in the plan, since it will be used to make decisions about all of the various service criteria. Several commenters indicate a real difficulty in estimating the demand for paratransit service. We are hopeful that the planning process will be enlightening. In an effort to assist in this area, UMTA is publishing a handbook for use by transit providers in developing their paratransit plans and service. This handbook should be available a couple of weeks after the final rule is published. (You may request it by calling the UMTA number in the FOR FURTHER INFORMATION section of this preamble.) The ADA itself contained a figure of 43 million persons with disabilities, although it should be pointed out that many of these would not necessarily be eligible for ADA paratransit service. The Department's regulatory impact analysis, in discussing the probable costs involved in implementing this rule, estimates the likely percentage of population who would be eligible for paratransit as service between 1.4 and 1.9 percent. This figure can vary depending on the type and variety of services an entity has available or climate, or proximity to medical care and other services that a person with a disability may need. Clearly estimating demand is one of the most critical elements in the plan, since it will be used to make decisions about all of the various service criteria. We are explicitly requiring that the plan include a demand estimate, using demand estimation methodology appropriate to the kind of system submitting the plan. In response to comments, the Department has dropped the explicit requirement to identify unmet demand, although paragraph (b)(3) can be used to provide that information if it is available. Unmet demand becomes important in relation to service an entity provides on its fixed route. For example, if the entity could establish that its unmet demand on fixed route system was three percent, then comparable paratransit service also could have an unmet demand of three percent, not zero. (iv) The documentation given to eligible individuals. (2) A description of the administrative appeals process for individuals denied eligibility. (3) A policy for visitors, consistent with 37.127 of this part. (f) Description of the public participation process including - (1) Notice given of opportunity for public comment, the date(s) of completed public hearing(s), availability of the plan in accessible formats, outreach efforts, and consultation with persons with disabilities. (2) A summary of significant issues raised during the public comment period, along with a a response to significant comments and discussion of how the issues were resolved. (g) Efforts to coordinate service with other entities subject to the complementary paratransit requirements of this part which have overlapping or contiguous service areas or jurisdictions. (h) The following endorsements or certifications: (1) A resolution adopted by the board of the entity authorizing the plan, as submitted. If more than one entity is submitting the plan there must be an authorizing resolution from each board. If the entity does not function with a board, a statement shall be submitted by the entity's chief executive; Section 37.139 contains a new paragraph (j), spelling out in more detail requirements related to the annual submission of plans. Since there is now the possibility for five-year phase-ins, the annual plan demonstrates the progress made to date, and explains any delays. --- Finally, 37.139 contains a new paragraph (j), spelling out in more detail requirements related to the annual submission of plans (i.e., update). While the Department has no intention of requiring duplicative filings, and specifically states that only new information need be provided, the annual plan takes on new significance since the NPRM. Since there may be multi-year phase in, it is the annual plan that demonstrates the progress made to date, explains any delays, and projects the time for full compliance. --- (2) In urbanized areas, certification by the Metropolitan Planning Organization (MPO) that it has reviewed the plan and that the plan is in conformance with the transportation plan developed under the Urban Mass Transportation/Federal Highway Administration joint planning regulation (49 CFR part 613 and 23 CFR part 450). In a service area which is covered by more than one MPO, each applicable MPO shall certify conformity of the entity's plan. The provisions of this paragraph do not apply to non-UMTA recipients; (3) A certification that the survey of existing paratransit service was conducted as required in 37.137(a) of this part; (4) To the extent service provided by other entities is included in the entity's plan for comparable paratransit service, the entity must certify that: (i) ADA paratransit eligible individuals have access to the service; (ii) The service is provided in the manner represented; and (iii) Efforts will be made to coordinate the provision of paratransit service by other providers. (i) A request for a waiver based on undue financial burden, if applicable. The waiver request should include information sufficient for UMTA to consider the factors in 37.155 of this part. If a request for an undue financial burden waiver is made, the plan must include a description of additional paratransit services that would be provided to achieve full compliance with the requirement for comparable paratransit in the event the waiver is not granted, and the timetable for the implementation of these additional services. (j) Annual plan updates. (2) If the paratransit service is being phased in over more than one year, the entity must demonstrate that the milestones identified in the current paratransit plans have been achieved. If the milestones have not been achieved, the plan must explain any slippage and what actions are being taken to compensate for the slippage. (3) The annual plan must describe specifically the means used to comply with the public participation requirements, as described in 37.137 of this Part. --- 37.141 Requirements if joint plan is submitted. This section is new, and revises the general provision in the proposed rule allowing joint plans to be submitted, so long as they were submitted on January 26, 1992. Commenters had asked for provisions to facilitate joint plans. Joint planning for coordinated paratransit service is consistent with the ADA (see, e.g., H.Rpt. 101-485, Pt. 1, at 30). Section 37.141 lays out a staged submission plan for entities who are participating in a joint plan. Every effort must be made to develop and submit every element identified in 37.139, by January 26, 1992, to the extent practicable. However, the section recognizes that there may be some cases in which bureaucratic red tape (the Federal government is familiar with this concept) delays the ability of willing parties to formally participate in plan finalization. When the final plan cannot be submitted by January 26, 1992, the final rule allows the entities participating in the joint plan to submit a final plan by July 26, 1992, if they do the following: (1) Submit a general statement that they intend to file a joint coordinated plan; (2) Submit a certification from each participating entity that they are committed to providing paratransit as a part of a coordinated plan; (3) Submit a certification from each participating entity that it will maintain current levels of paratransit service until the joint plan begins; 37.141 Requirements for a joint paratransit plan. (a) Two or more entities with overlapping or contiguous service areas or jurisdictions may develop and submit a joint plan providing for coordinated paratransit service. Joint plans shall identify the participating entities and indicate their commitment to participate in the plan. (b) To the maximum extent feasible, all elements of the coordinated plan shall be submitted on January 26, 1992. If a coordinated plan is not completed by January 26, 1992, those entities intending to coordinate paratransit service must submit a general statement declaring their intention to provide coordinated service and each element of the plan specified in 37.139 to the extent practicable. In addition, the plan must include the following certifications from each entity involved in the coordination effort: (1) A certification that the entity is committed to providing ADA paratransit service as part of a coordinated plan. (2) A certification from each public entity participating in the plan that it will maintain current levels of paratransit service until the coordinated plan goes into effect. 37.141. Requirements if a joint plan is submitted. The Department believes that, particularly in large, multi-provider regions, a coordinated regional paratransit plan and system are extremely important. Such coordination can do much to ensure that the most comprehensive transportation can be provided with the most efficient use of available resources. We recognize that the effort of putting together such a coordinated system can be a lengthy one. This section is intended to facilitate the process of forming such a coordinated system. If a number of entities wish to submit a joint plan for a coordinated system, they must, like other entities, submit a document by January 26, 1992. At a minimum, this document must include the following: (1) A general statement that the participating entities intend to file a joint coordinated plan; (2) A certification from each participating entity that it is committed to providing paratransit as a part of a coordinated plan; (3) A certification from each participating entity that it will maintain at least current levels of paratransit service until the coordinated paratransit service called for by the joint plan is implemented; (4) As many elements of the plan as possible. These provisions ensure that significant planning will precede, and plan implementation will begin by, January 26, 1992, without precluding entities from cooperating because it was not possible to complete coordinating different public entities by that date. The entities involved in a joint plan are required to submit all elements of their plan by July 26, 1992. (4) Provide as many elements of the plan as possible. These provisions ensure that significant planning and plan implementation will begin by January 26, 1992, without precluding entities from cooperating because it was not possible to coordinate different public entities by January of 1992. The Department believes that this provision is consistent with the overall objective of the statute to provide transportation service to persons with disabilities in the most integrated setting possible. In no case will complete compliance for a coordinated plan be later than it would be for an individual plan -- that is, all plans must provide for full compliance by January 26, 1997. The final provision in the section notes that an entity may later join a coordinated plan, even if it has its separate plan on January 26, 1992. To do so, the entity must provide the assurances and certifications required of all of the other participating entities. (c) Entities submitting the above certifications and plan elements in lieu of a completed plan on January 26, 1992, must submit a complete plan by July 26, 1992. (d) Filing of an individual plan does not preclude an entity from cooperating with other entities in the development or implementation of a joint plan. An entity wishing to join with other entities after its initial submission may do so by meeting the filing requirements of this section. The final provision in the section notes that an entity may later join a coordinated plan, even if it has filed its own plan on January 26, 1992. (An entity must submit its own plan by January 26, 1992, if it has not provided a certification of participation in a joint plan.). In this case, the entity must provide the assurances and certifications required of all of the other participating entities. The Department fully expects that many jurisdictions filing joint plans will be able to do so by January 26, 1992. For those who cannot, the regulatory provision ensures that there will be no decrease in paratransit service. Further, since we anticipate coordinated service areas to provide more cost effective service, complete implementation of a joint plan could be more rapid than if each entity was providing service on its own. Entities submitting a joint plan do not have any longer than any other entities to fully implement complementary paratransit service. In any case, all plans (joint or single) must be fully implemented by January 26, 1997, absent a waiver for undue financial burden. (which would, in the case of a joint plan, be considered on a joint basis). 37.143 Paratransit Plan Implementation Proposed rule 37.121 of the NPRM would have required each entity to begin implementation of its plan, pending any notice from UMTA. It also specified that an entity was to begin implementation of its plan, even if the plan includes a request for a waiver based on undue financial burden. Many transit providers commented that it would be impossible to implement paratransit plans without additional funding. Other commenters supported the requirement to begin implementation immediately. One commenter noted that if entities had begun implementing the plan after the proposed rule was published, as suggested by the Department in the NPRM, they would be well on their way to being able to implement the plan after January 26, 1992. The final rule provision remains unchanged from the proposed rule. As noted in the proposed rule, the ADA is landmark civil rights legislation, and the responsibilities of public entities to provide transportation service to persons with disabilities extends beyond their responsibilities as UMTA grantees. 37.143 Paratransit plan implementation. (a) Each entity shall begin implementation of its complementary paratransit plan, pending notice from UMTA. The implementation of the plan shall be consistent with the terms of the plan, including any specified phase-in period. (b) If the plan contains a request for a waiver based on undue financial burden, the entity shall begin implementation of its plan, pending a determination on its waiver request. 37.143 Paratransit Plan Implementation As already discussed under 37.135, the states will receive UMTA recipient plans for section 18 recipients administered by the State or any small urbanized area recipient of section 9 funds administered by a state. Public entities who do not receive UMTA funds will submit their plans directly to the applicable Regional Office (listed in Appendix B to the rule). The role of the state is to accept the plans on behalf of UMTA, to ensure that all plans are submitted to it and forward the plans, with any comments on the plans, to UMTA. This comment is very important for UMTA to receive, since states administer these programs on behalf of UMTA. Each state's specific knowledge of UMTA grantees it administers will provide helpful information to UMTA in making its decisions. The rule lists five questions the states must answer when they forward the plans. These questions are gauged to capitalize on the working knowledge the states possess on the grantees. UMTA will send a more specific letter of instruction to each state explaining its role. 37.145 State comment on paratransit plans The NPRM required each state to review each paratransit plan that was submitted to it, and to forward the plans to UMTA with a recommendation to approve or disapprove the plan. The states were to use the criteria UMTA will use in reviewing the paratransit plans submitted to it. Sixteen commenters provided input on this provision, and almost all were opposed. One trade association was in favor of the requirement, while almost every state that commented was opposed. Review of the plans by the states was viewed as a costly administrative task for which no funding was being provided. Some states were willing to undertake the task if funding were provided, although some did not want to review non-UMTA recipients under any circumstances. Disability groups commenting also were opposed, indicating that the time and priority needed to be placed on review of the plans could not be guaranteed at the state level, and that the responsibility should be centralized in UMTA. 37.145 State comment on plans. Each state required to receive plans under 37.135 of this part shall: (a) Ensure that all applicable section 18 and section 9 recipients have submitted plans. (b) Certify to UMTA that all plans have been received. (c) Forward the required certification with comments on each plan to UMTA. The plans, with comments, shall be submitted to UMTA no later than April 1, 1992, for the first year and April 1 annually thereafter. (d) The State shall develop comments on each plan, responding to the following points: (1) Was the plan filed on time? (2) Does the plan appear reasonable? [N/A] The sentiments of the commenters were echoed in the June Advisory Committee meeting. The Department has revised the proposed provision in two ways in response to comments. As already discussed under 37.135, the states will receive only UMTA recipient plans -- from section 18 recipients that they administer and a small urbanized area recipients of section 9 funds administered by the state. Public entities who do not receive UMTA funds will submit plans directly to the applicable UMTA Regional Office (listed in Appendix B to the rule). Second, the Department has modified the role of the state. Each state will not longer be required to conduct a complete review of the plan and submit it with recommendations to UMTA. However, each state will be required to comment on the plans. This comment is very important for UMTA to receive, since these states administer these programs on behalf of UMTA. Each state's specific knowledge of the UMTA grantees it administers will provide helpful information to UMTA in making its decisions. Accordingly, the final rule provision requires that the state collect all of the plans required to be submitted to it, certify that it has received all of the plans required to be submitted to it, and comment on the plan, responding to five questions identified in the rule. (3) Are there circumstances that bear on the ability of the grantee to carry out the plan as represented? If yes, please elaborate. (4) Is the plan consistent with statewide planning activities? (5) Are the necessary anticipated financial and capital resources identified in the plan accurately estimated? In reviewing each plan, at a minimum UMTA will consider the following: (a) Whether the plan was filed on time; (b) Comments submitted by the state, if applicable; (c) Whether the plan contains responsive elements for each component required under 37.139 of this part; (d) Whether the plan, when viewed in its entirety, provides for paratransit service comparable to the entity's fixed route service; and (e) Whether the entity complied with the public participation efforts required by this part. (f) The extent to which efforts were made to coordinate with other public entities with overlapping or contiguous service areas or jurisdictions. 37.147 Considerations during UMTA review of plans The proposed provision spelled out three factors UMTA would consider in reviewing each plan, emphasizing the elements they thought most important. These include a complete submission, with all of the elements of the plan, that the plan complies with the substance of the ADA regulation, and that the entity complied with the public participation requirements in developing the plan. Few comments were submitted on these elements, although some commenters asked for the Department to state a timeframe within which it will complete review of the paratransit plans. One disability group recommended that specific staff be dedicated to paratransit plan review, criticism and assistance to transit providers to conform their plans to ADA mandates. The Department has made minor changes to this provision, by adding that UMTA also will look at comments submitted by the states and will look at efforts by the entity to coordinate with other entities in a plan submission. These elements are not the only items that will be reviewed by UMTA. Every portion of the plan will be reviewed and assessed for compliance with the regulation. This section merely highlights those provisions thought most important by the Department. 37.147 Considerations during UMTA review. In reviewing each plan, at a minimum UMTA will consider the following: (a) Whether the plan was filed on time; (b) Comments submitted by the state, if applicable; (c) Whether the plan contains responsive elements for each component required under 37.139 of this part; (d) Whether the plan, when viewed in its entirety, provides for paratransit service comparable to the entity's fixed route service; and (e) Whether the entity complied with the public participation efforts required by this part. (f) The extent to which efforts were made to coordinate with other public entities with overlapping or contiguous service areas or jurisdictions. 37.147 UMTA Review of Plans This provision spells out factors UMTA will consider in reviewing each plan, including whether the submission is complete, whether the plan complies with the substance of the ADA regulation, whether the entity complied with the public participation requirements in developing the plan, efforts by the entity to coordinate with other entities in a plan submission, and any comments submitted by the states. These elements are not the only items that will be reviewed by UMTA. Every portion of the plan will be reviewed and assessed for compliance with the regulation. This section merely highlights those provisions thought most important by the Department. 37.149 Disapproved Plans The proposed rule required an entity to resubmit its revised plan within 90 days of receipt of a letter of disapproval from UMTA. There were no comments on this provision. The final rule adds an explicit reference to the requirement that the public participation requirements continue to apply to the amendment of a paratransit plan. This is the only change to the section. 37.149 Disapproved plans (a) If a plan is disapproved in whole or in part, UMTA will specify which provisions are disapproved. Each entity shall amend its plan consistent with this information and resubmit the plan to the appropriate UMTA Regional Office within 90 days of receipt of the disapproval letter. (b) Each entity revising its plan shall continue to comply with the public participation requirements applicable to the initial development of the plan (set out in 37.137 of this part). [N/A] 37.151 Waiver for Undue Financial Burden Section 37.123(a) of the NPRM stated that a public entity required to provided comparable paratransit service under this regulation could apply for an undue financial burden waiver from providing that service, if the entity met one of three conditions set out in proposed 37.125. Section 37.125 proposed options for a trigger mechanism, designed to prevent entities from requesting a waiver for undue financial burden, unless the entity had attained a specific measure of performance. All three performance triggers are described below. Option I provided that an entity would meet all of the service criteria. If the entity could not do so without a significant adverse effect on its overall service, then it may apply for an undue financial burden waiver. This option would permit any entity that believed providing complementary paratransit meeting the criteria would have a significant adverse impact on its overall service to apply for a waiver. Option II was based on a trips per capita concept: the entity would be eligible to request a waiver if the entity could not provide as many trips per registered ADA-paratransit eligible person as it does for its fixed route trips per capita, based on general population, without there being a significant adverse effect on overall service. In this second option, the entity first calculates trips per capita based on the population of the service area divided into the number of fixed route transit trips provided. Second, the entity provides this same number of paratransit trips to persons registered and meeting the eligibility requirements of the part, on a per capita basis. 37.151 Waiver for undue financial burden. If compliance with the service criteria of 37.131 of this part creates an undue financial burden, an entity may request a waiver from all or some of the provisions if the entity has complied with the public participation requirements in 37.137 of this Part and if the following conditions apply: (a) At the time of submission of the initial plan on January 26, 1992, (1) The entity determines that it cannot meet all of the service criteria by January 26, 1997; or (2) The entity determines that it cannot make measured progress toward compliance in any year before full compliance is required. For purposes of this part, measured progress means implementing milestones as scheduled, such as incorporating an additional paratransit service criterion or improving an aspect of a specific service criterion. (b) At the time of its annual plan update submission, if the entity believes that circumstances have changed since its last submission, and it is no longer able to comply by January 26, 1997, or make measured progress in any year before 1997, as described in paragraph (a)(2) of this section. 37.151 Waiver for undue financial burden. The Department has adopted a five-year phase-in for paratransit service. Under this scheme, each entity required to provide paratransit service will be able to design a phase-in of its service specifically geared to local circumstances. While all jurisdictions will not receive approval for plans with a five year phase-in, each entity will be able to request what it needs based on local circumstances. Generally, the section allows an entity to request a waiver at any time it determines that it will not be able to meet a five-year phase-in or make measured progress toward its full compliance date specified in its original plan. A waiver for undue financial burden should be requested if one of the following circumstances applies. First, when the entity submits its first plan on January 26, 1992, if the entity knows it will not be able to reach full compliance within five years, or if the entity cannot make measured progress the first year it may submit a waiver request. The entity also should apply for a waiver, if, during plan implementation, there are changed circumstances which make it unlikely that compliance will be possible. The concept of measured progress should be given its plain meaning. It is not acceptable to submit a plan which shows significant progress in implementing a plan in years four and five, but no progress in years one and two. Similarly, the progress must be susceptible to objective verification. An entity cannot merely "work toward" developing a particular aspect of a plan. For example, if the population of the service area is one million persons, and the fixed route service provides 50 million annual trips, then the system provides 50 trips per capita. In this example, the trigger for this entity requesting an undue financial burden waiver request would be the inability to provide 50 trips per ADA-eligible and registered capita without a significant adverse effect on its overall service. (See 56 FR 13873). Option III was based on the entity exceeding the average cost of providing comparable paratransit, as determined by data provided by the Department breaking costs down by average city size. For example, in cities with populations between 500,000 and 1 million, the Department's estimate for the average annual cost to provide paratransit service meeting the service criteria of the regulation at the time of the proposed rule was $5,782,000. If an entity in this city size category determined that its average annual cost for providing paratransit exceeded this amount, it would be eligible to apply for an undue financial burden waiver. As noted in the preamble, once more data was available from entities actually providing paratransit service, the model could be refined and actual average costs could change. Over 100 comments were submitted on undue financial burden. Of those commenting on the triggers, commenters both liked and disliked all of the options, with Option I being the only option to receive more favorable than negative comments. There was not a pattern to the comments -- each option was considered either objective or arbitrary by commenters and each option had supporters and detractors among both disability groups and transit providers. The Department intends that undue burden waiver requests will be given close scrutiny, and waiver will not be granted highly. In reviewing requests, however, as the legislative history indicates, UMTA will look at the individual financial constraints within which each public entity operates its fixed route system. "Any determination of undue financial burden cannot have assumed the collection of additional revenues, such as those received through increases in local taxes or legislative appropriations, which would not have otherwise been made available to the fixed route operator." (H.Rept. 101-485, Pt. 1, at 31) There were thirteen commenters in favor of Option I and eleven opposed. Those commenters in favor felt that it was the most fair, flexible and reasonable option proposed. One commenter stated that Option I was preferable, since expenses for transportation vary widely throughout the country. Another commenter favored this option because it allows for input from the local community. One commenter stated that this option better followed Executive Order 12612 on Federalism, because each urban area has different resources and limitations. Criticism of this option focused on its perceived vagueness which could result in difficulty in administration and lack of consistency in application. One commenter cautioned against the premise of measuring undue financial burden by what is taken away from fixed route transit. Nine commenters favored Option II and thirteen opposed it. The comments related to this option were more varied. The minority of commenters who favored this approach stated that it was clear and objective and utilized a definitive standard. Several who supported this option recommended that the final rule provide that "linked" passenger trips were the appropriate measure. (a different meaning of the term that we use in the eligibility section). One commenter proposed that a cost cap be added to option two. Opponents of Option II had a variety of reasons. The option was criticized for being too vague and having no relationship to cost. A few commenters stated that it encouraged discrimination by allowing a waiver application when a transit entity has more eligible or approved paratransit riders than expected. Several comments focused on the variables surrounding the statistics for per capita ridership for the general population and for persons eligible for ADA complementary paratransit service. One commenter stated that, depending on which variables were used, their costs for paratransit ranged from 7 percent to 100 percent of their fixed route budget. Another stated that, depending on which variables were used, its costs for paratransit ranged from $60 million per year to $500 million per year for the Option II (trips per capita) comparison, because the recent census did not include questions which could have provided this information. Another commenter stated that this option would be flawed if Section 15 data was used for comparison purposes, because previous record keeping was on the basis of 504, and transit systems have counted a larger universe than ADA paratransit eligible as eligible. One commenter said that the comparison should be between the number of paratransit trips afforded to each person registered for paratransit and the number of trips taken on the regular transit system by average, typical riders of that system. A private transit provider stated that Option II assumed (incorrectly) proportionality. According to this commenter, research has shown that per capita paratransit ridership decreases with population, while per capita general transit ridership increases with population. Finally, one commenter stated that the frequency of travel on transit on a per capita basis would significantly understate demand. This was true, it was stated, because of the many modes of travel available to the traveler without disabilities in comparison to the lack of transit alternatives available to travelers with disabilities. There were seven commenters in favor of Option III (city size) and twenty against. Commenters in favor noted that it was an objective criterion. The single largest criticism of Option III was that it was based on research from "fundamentally flawed" data which did not include data from most paratransit systems. Less specific criticisms stated that the estimates were arbitrary and unsupported. Others noted that the Department's preliminary estimates did not include estimates for cities under a population of 250,000; a few commenters included sample data for cities below the 250,000 population level, showing that costs for both fixed route and paratransit services varied widely, with specialized transit costs ranging from 3 percent to 15 percent of the totals. Based on this data, a commenter stated that average expenditure was not meaningful or relevant. Other objections were based on the fact that UMTA formula funds are distributed to urbanized areas, not cities, and that the city size categories were overly broad. For instance, an area of 1.1 million population would have a threshold nearly twice as high as an area with a population of .9 million. Some commenters stated that the estimates for providing paratransit for their city size were greater than their annual Federal operating assistance. Two transit authorities requested that New York be removed from the over 1 million city size category, since it weighted the average disproportionately for the other cities. One commenter stated that in order to make Option III workable, a uniform manner of reporting costs and levels of service was needed. More general criticism of option three came from a state department of transportation, stating that population size is not always the issue for determining costs; in rural areas, geographic area and the entity's operation were important considerations. Another critic stated that Option three did not take into consideration unique factors for a particular area. One trade association recommended that Option III be revised to require an entity's cost to exceed the average cost of providing complementary paratransit by more than 10 percent of the average before a request for a waiver based on undue financial burden would be considered. n addition to these options, the Department specifically requested comments on other possible measures of performance that could be used as a trigger mechanism for requesting an undue financial burden request. In response, one commenter suggested that a combination of the above options would be most suitable. Several commenters suggested a cost cap based on various percentages of an entity's operating budget including, in one case, three percent (a number with some historical resonance). One transit authority suggested a flexible numerical formula, such as that discussed in the legislative history, which takes into account local characteristics such as population, population density, level of paratransit service currently being provided, residential patterns, and the interim degree of accessibility for fixed route service. Because of the diversity of comments received on this topic, we made the issue one of the focuses of the June Advisory Committee meeting. The Advisory Committee used working groups for two days to focus on four principal areas of the rulemaking, including undue financial burden. (The other three groups discussed the technical standards for accessible vehicles and facilities, ADA paratransit eligibility criteria, and ADA paratransit service criteria.) The consensus of the working group on undue financial burden was to support Option II, the per capita model. The working group took examples of service currently being provided around the country and developed estimates of trips per capita to be provided to ADA paratransit registered persons, based on a national estimate of two percent of the population having a disability that would make them eligible for paratransit service. Both representatives from disability groups and transit providers believed that this represented a fair measure of service (except for perhaps New York) that could be used to prevent entities who didn't need a waiver from applying for a waiver based on undue financial burden. The Department has considered all of the comments, and the recommendations from the Advisory Committee. For purposes of this final rule, the Department has decided to eliminate triggers from the provision for determining when an entity can request a waiver. The Department does not believe that a trigger is necessary, since it has adopted a five-year phase-in for paratransit service. The intent of the triggers was to develop a measure of service that could be required to be demonstrated before an entity was eligible to request waiver relief. In the final rule, the information contained in the triggers will be elements of the undue financial burden waiver request. Since entities will be able to propose implementation over a five year period, the Department believes that requests for undue financial burden waivers will be significantly reduceed. Each locality can develop a plan specifically geared to local circumstances. While not all jurisdictions will receive five years, each entity will be able to describe their unique circumstances. Data from both Option I and Option II have been included as factors that the UMTA Administrator will consider when making his decision about whether to grant or deny a request for an undue financial burden waiver. The data available in Option III is information that will be used by the Department in assessing paratransit plans in general. Returning to a discussion of the section at issue, 37.151, the Department has revised this section to be consistent with the decision to eliminate the section on triggers. Thus, new 37.151 lays out the circumstances in which an entity may request a waiver from paratransit service. Generally, the section allows an entity to request a waiver at any time it believes that it will not be able to meet a five-year phase-in or make measured progress toward its full compliance date specified in its original plan. --- 37.153 UMTA Waiver Determination 37.153 UMTA waiver determination. 37.153 UMTA Waiver determination In the proposed rule, this section laid out what would happen if the UMTA Administrator grants a waiver for undue financial burden. Specifically, the NPRM stated that the waiver would be for a specified period and that the entity would be required to do something to meet its responsibilities under the ADA. The Administrator would make a determination of what was appropriate on a case-by-case basis. The Department received little comment on this provision, with one individual with disabilities stating that an entity should not receive a waiver for undue financial burden if only a minimum amount of paratransit service is being provided. Groups representing persons with disabilities were interested in the basic complementary paratransit service which must be provided by a public entity even though an undue financial burden waiver is granted. One individual felt that the waiver should not be granted to an entity meeting only minimum service criteria. A disability group felt that there were certain service characteristics which cannot be compromised even when a waiver is granted. (a) The Administrator will determine whether to grant a waiver for undue financial burden on a case-by-case basis, after considering the factors identified in 37.155 of this part and the information accompanying the request. If necessary, the Administrator will return the application with a request for additional information. (b) Any waiver granted will be for a limited and specified period of time. (c) If the Administrator grants the applicant a waiver, the Administrator will do one of the following: If the UMTA Administrator grants a waiver for undue financial burden, the waiver will be for a specified period of time and the Administrator will determine what the entity must do to meet its responsibilities under the ADA, Each determination will involve a judgment of what is appropriate on a case-by-case basis. Since each waiver will be granted based on individual circumstances, the Department does not deem it appropriate to specify a generally applicable duration for a waiver. When a waiver is granted, the rule calls for entities to look first at limiting the number of trips provided to each individual as a means of providing service that does not create an undue burden. This capacity constraint, unlike manipulations of other service criteria, will not result in a degradation of the quality of service. An entity intending to submit an undue burden waiver request should take this approach into account in its planning process. A transit operator contended that if minimum service is defined as "along key routes during core service hours," it will result in displacement of service to current passengers. It urged the Department to allow decisions as to minimum service level to remain with the local planning participation process. A member of the Advisory Committee recommended that the community be given real choices among service to be provided. One operator wanted to know if special provisions were being considered for small entities which operate less than five paratransit vehicles. A transit provider suggested that there should be a time limit for the validity of undue financial burden waivers (perhaps one to three years) and their circumstances should be reviewed frequently. This section already specifies that any waiver will be of a limited and specified duration. Since each waiver will be granted based on individual circumstances, the Department does not deem it appropriate to specify a generally applicable time period. Some of these comments have been adopted in other sections of the regulations. For example, the Department requires entities to look at number of trips provided to each person on a monthly basis first, when determining where it would propose a lesser level of service. As discussed elsewhere in this preamble, the Department has strengthened, as a general matter, the public participation requirements involved in every aspect of the paratransit plan development, execution, and evaluation. (1) Require the public entity to provide complementary paratransit to the extent it can do so without incurring an undue financial burden. The entity shall make changes in its plan that the Administrator determines are appropriate to maximize the complementary paratransit service that is provided to ADA paratransit eligible individuals. When making changes to its plan, the entity shall use the public participation process specified for plan development and shall consider first a reduction in number of trips provided to each ADA paratransit eligible person per month, while attempting to meet all other service criteria. (2) Require the pubic entity to provide basic complementary paratransit services to all ADA paratransit eligible individuals, even if doing so would cause the public entity to incur an undue financial burden. Basic complementary paratransit service shall include at least complementary paratransit service in corridors defined as provided in 37.131(a) along the public entity's key routes during core service hours. It should be noted that requiring an entity to provide paratransit service at least during core hours along key routes is one option that the Administrator has available in making a decision about the service to be provided. This requirement stems from the statutory provision that the Administrator can require the entity to provide a some minimum level of service, even if to do so would be an undue financial burden. Certainly part of a request for a waiver could be a locally endorsed alternative to this description of basic service. The rule states explicitly the Administrator's discretion to return the application for more information if necessary. --- Concerning the comment that service along key routes would result in displacement of service to current passengers, we are not sure if the commenter understood the proposed rule as drafted. Requiring that an entity provide paratransit service at least during core hours along key routes is one option that the Administrator has available to him in making a decision about the service to be provided. This requirement stems from the statutory provision that the Administrator can require the entity to provide some minimum level of service, even if to do so would be an undue financial burden. Certainly part of a request for a waiver could be a locally endorsed alternative to this description of basic service. Accordingly, the only change in this section from the proposed rule (other than renumbering) is to include a specific provision that the Administrator can return the application for more information if necessary. --- (i) For purposes of this section, key routes are defined as routes along which there is service at least hourly throughout the day. (ii) For purposes of this section, core service hours encompass at least peak periods, as these periods are defined locally for fixed route service, consistent with industry practice.(3) If the Administrator determines that the public entity will incur an undue financial burden as the result of providing basic complementary paratransit service, such that it is infeasible for the entity to provide basic complementary paratransit service, the Administrator shall require the public entity to coordinate with other available providers of demand responsive service in the area served by the public entity to maximize the service to ADA paratransit eligible individuals to the maximum extent feasible. --- 37.155 Factors in Decision to Grant an Undue Financial Burden Waiver The proposed rule listed nine factors the Administrator would consider in making his decision whether to grant an undue financial burden waiver request. These included effects on current fixed route service, reductions in other services, increases in fares, resources available to implement complementary paratransit over the period of the plan, current level of accessible service (fixed route and paratransit), cooperation among transit providers, evidence of increased efficiencies that have been or could be used, and any unique circumstances that may affect the entity's ability to provide paratransit service. The proposal also included an explicit statement that costs attributable to complementary paratransit were limited to service provided to persons who are ADA paratransit eligible under this part. Many commenters discussed these factors, with the most comments on attributable costs. Groups representing persons with disabilities believe that the UMTA Administrator should not consider costs attributable to the provision of non-ADA eligible transit. A state health and human services department commented that a cost element that should be considered is the cost to the community of not providing the proposed services, i.e., the cost of institutionalization and community support. Public transit providers believed that they should be able to count funds other than their own in meeting their financial obligation. One transit provider stated that the cost of transporting a companion should count toward the undue financial burden waiver. Other transit providers expressed concern that individuals who are not ADA-eligible will be denied their customary service because funds will necessarily go to the higher cost of paratransit service. Another cost related factor which received considerable comment was the issue of available resources. Several commenters pointed out that consideration of this factor penalized those transit providers which were successful in raising or identifying revenue sources for transit. 37.155 Factors in decision to grant an undue financial burden waiver. (a) In making an undue financial burden determination, the UMTA Administrator will consider the following factors: (1) Effects on current fixed route service, including reallocation of accessible fixed route vehicles and potential reduction in service, measured by service miles; (2) Average number of trips made by the entity's general population, on a per capita basis, compared with the average number of trips to be made by registered ADA paratransit eligible persons, on a per capita basis. (b)(1) Costs attributable to complementary paratransit shall be limited to costs of providing service specifically required by this part to ADA paratransit eligible individuals, by entities responsible under this part for providing such service. (2) If the entity determines that it is impracticable to distinguish between trips mandated by the ADA and other trips on a trip-by-trip basis, the entity shall attribute to ADA complementary paratransit requirements a percentage of its overall paratransit costs. This percentage shall be determined by a statistically valid methodology that determines the percentage of trips that are required by this Part. The entity shall submit information concerning its methodology and the data on which its percentage is based with its request for a waiver. Only costs attributable to ADA-mandated trips may be considered with respect to a request for an undue financial burden waiver. 37.155 Factors in Decision to Grant an Undue Financial Burden Waiver Factors the Administrator will consider in making a decision whether to grant an undue financial burden waiver request include effects on current fixed route service, reductions in other services, increases in fares, resources available to implement complementary paratransit over the period of the plan, current level of accessible service (fixed route and paratransit), cooperation among transit providers, evidence of increased efficiencies that have been or could be used, any unique circumstances that may affect the entity's ability to provide paratransit service, the level of per capita service being provided, both to the population as a whole and what is being or anticipated to be provided to persons who are eligible and registered to receive ADA paratransit service. This final element allows some measure of comparability, regardless of the specific service criteria and should assist in a general assessment of level of effort. It is only the costs associated with providing paratransit service to ADA-paratransit eligible persons that can be counted in assessing whether or not there is an undue financial burden. Two cost factors are included in the considerations which enhance the Administrator's ability to assess real commitment to these paratransit provisions. First, the Department will allow a statistically valid methodology for estimating number of trips mandated by the ADA. While the regulation calls for a trip-by-trip determination of eligibility, this provision recognizes that this is not possible for some systems, particularly the larger systems. Since only those trips provided to a person when he or she is ADA eligible may be counted in determining an undue financial burden, this provision is necessary. Several disability group commenters endorsed the NPRM's "efficiency" factor, noting that there is waste in large systems and management issues which must be examined. One transit agency questioned how UMTA could ensure that agencies were completely open with their cost records and cautioned that such a provision would require an on-going audit process beyond UMTA's resources. As an alternative, a self-certification, which would be subject to challenge and audit, was suggested. Several commenters focused on the field of public participation. One disability group stated that the regulation should provide explicitly for public participation in the review of an entity's request for an undue financial burden waiver and the decision whether to grant a waiver. Another stated that the regulation should require that public comments and testimony on the waiver application become part of the record. Another disability group suggested that the regulation should require a transit authority to publish notices of its intent to seek an undue financial burden waiver and seek public comment. Conversely, a transit provider stated that it was not necessary to hold a public hearing before applying for an undue financial burden waiver. The proposal of fare increases as a factor in the consideration of undue financial burden waivers was endorsed by transit providers. All of the factors that were proposed have been included in the final rule, since the Department continues to believe that they are adequate indicators in level of effort. In response to some of the comments, we have added additional factors that the Administrator will consider. First, as already mentioned, we have added as a factor the level of per capita service being provided, both for.the population as a whole and what is being or anticipated to be provided to persons who are eligible and registered to receive ADA paratransit service. This statistic measures comparability to some extent, regardless of the specific service criteria, and should assist in a general assessment of level of effort. (b)(1) Costs attributable to complementary paratransit shall be limited to costs of providing service specifically required by this part to ADA paratransit eligible individuals, by entities responsible under this part for providing such service. (2) If the entity determines that it is impracticable to distinguish between trips mandated by the ADA and other trips on a trip-by-trip basis, the entity shall attribute to ADA complementary paratransit requirements a percentage of its overall paratransit costs. This percentage shall be determined by a statistically valid methodology that determines the percentage of trips that are required by this Part. The entity shall submit information concerning its methodology and the data on which its percentage is based with its request for a waiver. Only costs attributable to ADA-mandated trips may be considered with respect to a request for an undue financial burden waiver. Second, in determining costs to be counted toward providing paratransit service, paragraph (b)(3) allows an entity to include in its paratransit budget dollars to which it is legally entitled, but which, as a matter of state or local funding arrangements, are provided to another entity that is actually providing the paratransit service. For example, a state government may provide a certain formula allocation of the revenue from a certain tax to each jurisdiction for use in providing transportation service at the local level. The funds, depending on local arrangements, may flow either to a transit authority -- a regulated entity under this rule -- or to a city or county government. If the funds go to the transit authority, they clearly may be counted in an undue burden calculation. In addition, however, this provision also allows funds that flow through the city or county government to be counted in the undue burden calculation, since they are basically the same funds and should not be treated differently based on the accident of previously-determined local arrangements. On the other hand, this provision does not allow funds of a private non-profit or other organization who uses Department of Health and Human Services grant or private contributions to be counted toward the entity's financial commitment to paratransit. The Department affirms that it is only the costs associated with providing paratransit service to ADA-paratransit eligible persons that can be counted in assessing whether or not there is an undue financial burden. Two cost factors have been added, however, which we believe enhance the Department's ability to assess real commitment to these paratransit provisions. First, the Department will require a statistically valid methodology for estimating the number of trips provided by a paratransit system that are not mandated by the ADA. While the regulation calls for a trip-by-trip determination of eligibility, this provision recognizes that this is not possible for some systems, particularly some larger systems. Since only those trips provided to a person when he or she is ADA eligible may be counted in determining an undue financial burden, this provision is necessary. Second, in determining costs to be counted toward providing paratransit service, paragraph (b)(3) allows an entity to include in its paratransit budget dollars to which it is legally entitled, but which, as a matter of state or local funding arrangements, are provided to another entity that is actually providing the paratransit service. The section is intended to cover those few jurisdictions that have what amounts to constructive receipt of funds, but when the funds do not flow through their treasury before being allocated to another entity providing paratransit service. This provision does not allow funds of a private non-profit or other organization which uses Department of Health and Human Services grant or private contributions to be counted toward the entity's financial commitment to paratransit. An example of this is a state which has a statewide tax or levy which is set aside for transportation needs, with service provided at the local level. While each county or other taxing jurisdicition is allocated a certain percentage or amount set aside for this purpose, the actual recipient of the funds may not be the transit provider. Funds could flow directly to the county or other provider. Since the funds are intended for use in a specific area, and the transit provider is responsible for providing paratransit in the area, and it is only because of some administrative determination that the money is not being put in the entity's treasury, this money is considered part of the resources available to the public entity, and may be counted. ---------- End of Document