37.105  Equivalent service standard.  

For purposes of 37.101 and 37.103 of this Part, a fixed route system or demand responsive system, when viewed in its entirety, shall be deemed to provide equivalent service if the service available to individuals with disabilities, including individuals who use wheelchairs, is provided in the most integrated setting appropriate to the needs of the individual and is equivalent to the service provided other individuals with respect to the following service characteristics:

  1. Schedules/headways (if the system is fixed route);
  2. Response time (if the system is demand responsive);  
(b) Fares;

(c) Geographic area of service;

(d) Hours and days of service;

(e) Availability of information;

(f) Reservations capability (if the system is demand responsive)

(g) Any constraints on capacity or service availability;

(h) Restrictions priorities based on trip purpose (if the system  is demand responsive).
Equivalency, for purposes of these requirements, is spelled out in §37.105.  It is important to note that some portions of this section (referring to response time, reservations capacity, and restrictions on trip purpose) apply only to demand responsive systems.  Another provision (schedules/headways) applies only to fixed route systems.  This is because these points of comparison apply only to one or the other type system.  The remaining provisions apply to both kinds of systems.

In applying the provisions this section, it is important to note that they are only points of comparison, not substantive criteria.  For example, unlike the response time criterion of §37.131, this section does not require that a system provide any particular response time.  All it says is that, in order for there to be equivalency, if the demand responsive system gets a van to a non-disabled person in 2 hours, or 8 hours, or a week and a half after a call for service, the system must get an accessible van to a person with a disability in 2 hours, or 8 hours, or a week and a half.

The vehicle acquisition and equivalency provisions work together in the following way.  A private entity is about to acquire a vehicle for a transportation service in one of the categories to which equivalency is relevant.  The entity looks at its present service (considered without regard to the vehicle it plans to acquire).  Does the present service meet the equivalency standard? (In answering this question, the point of reference is the next potential customer who needs an accessible vehicle.  The fact that such persons have not called in the past is irrelevant).  If not, the entity is required to acquire an accessible vehicle.  If so, the entity may acquire an accessible or an inaccessible vehicle.  This process must be followed every time the entity purchases or leases a vehicle.  Given changes in the mixes of both customers and vehicles, the answer to the question about equivalency will probably not be the same for an entity every time it is asked.  One difference between the requirements for "private, not primarily" and "private, primarily" entities is that the requirements apply to all vehicles purchased or leased for the former, but only to new vehicles for the latter.  This means that entities in the latter category are not required to acquire accessible vehicles when they purchase or lease used vehicles.  Another oddity in the statute which entities should note is that the requirement for "private, primarily" entities to acquire accessible vans with less than eight passenger capacity (or provide equivalent service) does not become effective until after February 25, 2021 (This also date also applies no private entities "primarily engaged" which purchase passenger rail cars).  All other vehicle acquisition requirements became effective after August 25, 1990.

The Department views the line between "private, primarily" and "private, not primarily" entities as being drawn with respect to the bus, van, or other service which the entity is providing.  For example, there is an obvious sense in which an airline or car rental company is primarily engaged in the business of transporting people.  If the airline or car rental agency runs a shuttle bus from the airport terminal to a downtown location or a rental car lot, however, the Department views that shuttle service as covered by the "private, not primarily" requirements of the rule (see discussion of the Applicability sections above).  This is because the airline or car rental agency is not primarily engaged in the business of providing transportation by bus or van.  The relationship of the bus or van service to an airline's main business is analogous to that of a shuttle to a hotel.  For this purpose, it is of only incidental interest that the main business of the airline is flying people around the country instead of putting them up for the night.