37.123  ADA paratransit eligibility - standards.

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.

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.

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.

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 given service on the basis of the particular route they would 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.

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.

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.

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.

(i) An individual is eligible under 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.

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.

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.

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.

(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.

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.

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.

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.

(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;

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).