37.125 ADA paratransit eligibility - process.
Each public entity required to provide complementary paratransit service
by 37.121 of this Part shall establish a process for determining ADA paratransit
(a) The process shall strictly limit ADA paratransit eligibility to individuals
specified in 37.123 of this Part.
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.
(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.
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.
(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
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
(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.
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.
(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, an expiration
date for eligibility, and any conditions or limitations on the individual's
eligibility including the use of a personal care attendant.
For people granted eligibility, the documentation of eligibility
shall include at least the following information:
(f) The entity may require recertification of the eligibility of ADA paratransit
eligible individuals at reasonable intervals.
-- 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
(g) The entity shall establish an administrative appeal process through
which individuals who are denied eligibility can obtain review of the denial.
- The entity may require that an appeal be filed within 60 days of the
denial of an individual's application.
- 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;
- 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.
(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
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.
- 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.
- 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
(iii) Provide the individual with written notification of the decision and
the reasons for it.
- 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.
(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
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.