The U.S. Department of Transportation ("DOT") has issued new rules effective July 13, 2015 requiring transportation entities to modify their operating practices in certain circumstances to accommodate disabled passengers.¹  Department of Justice ("DOJ") ADA regulations (which cover public services generally) require modification of operating practices.² Although DOT always intended its regulations (which cover transportation entities) to incorporate this DOJ requirement, the DOT regulations expressly excluded transportation entities from the requirements of the DOJ regulations.  The new rules were promulgated to close the gap between what DOT intended and what the prior rules said.

The gap in the prior rule surfaced in a 2004 case involving the paratransit service of Dallas Area Rapid Transit ("DART").³  The plaintiff in that case was a wheel-chair bound patron of DART's paratransit service.  There was a steep incline in front of the passenger's house that could not accommodate a wheelchair, so for many years DART picked up the passenger in a public alley behind his house.⁴ Citing safety concerns, DART changed the pick-up location from the alley to a location a block away from the passenger's house.  The passenger sued, arguing that DART's refusal to modify its paratransit plan to pick up the plaintiff in the alley was a violation of (inter alia) the ADA.  The district court ruled in favor of DART and the Fifth Circuit affirmed, reasoning that paratransit services covered by DOT's ADA regulations were expressly not subject to the requirements of DOJ's ADA regulations.⁵

The new rule requires transportation entities to modify their operating practices when necessary to avoid discrimination and ensure that their programs are accessible to individuals with disabilities.  The challenge for transportation entities, of course, is to determine when modifications are necessary.  Thankfully, DOT provides numerous examples of modifications that it believes are reasonable (presuming the modification provides no direct threat to the driver or others) and those that are not required, including those listed below:

Reasonable Modifications that Transit Entities May Accommodate

• A driver should modify a pick up location if blocked by snow or ice.
• A driver should assist a blind passenger to navigate a sidewalk covered in snow or ice from a door to the vehicle.
• A paratransit agency should be flexible as to which entrance of the building it provides pickup and drop off depending on the needs of the passenger.
• For fixed route services, a passenger's request to a driver to position a vehicle to avoid obstructions such as parked cars or construction should be granted.
• Transit personnel can assist a passenger with handling money, tokens, or other payment media.  However, transit personnel are not required to reach into pockets or backpacks in order to retrieve the fare.
• An agency should grant a passenger's request to take medication while aboard a fixed route or paratransit vehicle or in a transit facility.
• A driver should grant a wheel chair user's request to board a vehicle separately from the device when the occupied weight of the device exceeds the design load of the vehicle lift.
• A driver may open an exterior building door for a passenger.
• A driver may assist a passenger navigating an incline or an obstacle (e.g., one where tree roots have made the sidewalk impassible for a wheelchair).

Requested Modifications Transit Entities May Reject

• An agency may deny a passenger's request for special equipment, as long as the requested equipment is not already required by the ADA.
• A passenger is not entitled to an exclusive trip.
• Transit agencies need not provide a personal care attendant to assist the passenger at the destination.
• A request that exposes a vehicle to hazards may be denied.
• Passengers are not entitled to free transportation.\
• A driver is not required to care for a service animal.\
• An agency may deny a request for a specific driver.

1. Transportation for Individuals with Disabilities; Reasonable Modification of Policies and Practices, 80 Fed. Reg. 13253 (Mar. 13, 2015) (to be codified at 49 C.F.R. Parts 27 and 37).\
2. See 28 C.F.R. § 35.130(b)(7).
3. Melton v. Dallas Area Rapid Transit, 391 F.3d 669 (5th Cir. 2004) ("Melton").
4. The plaintiff's family had constructed a ramp from the house to reach the alley.
5. Melton , 391 F.3d at 675 (citing 49 § C.F.R. 35.102(b)).