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.

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.

Often, people tend to think of paratransit exclusively in terms of people with mobility impairments.  Under the ADA, this is not accurate.  Persons with visual impairments may be eligible under either the first or third eligibility categories.  To accommodate them, all documents concerning eligibility must be made available in one or more accessible formats, on request.  Accessible formats include computer disks, braille documents, audio cassettes, and large print documents.  A document does not necessarily need to be made available in the format a requester prefers, but it does have to be made available in a format the person can use.  There is no use giving a computer disk to someone who does not have a computer, for instance, or a braille document to a person who does not read braille.

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'seligibility, 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.

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.

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;
3. The entity is not required to provide paratransit service to the individual pending the determination on appeal.  However, if the entity has not made a decision within 30 days of the completion of the appeal process, the entity shall provide paratransit service from that time until and unless a decision to deny the appeal is issued.  

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.

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.

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.
(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.

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.

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.

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.