37.155 Factors in decision to grant an undue financial burden waiver.

(a) In making an undue financial burden determination, the UMTA Administrator will consider the following factors:
  1. Effects on current fixed route service, including reallocation of accessible fixed route vehicles and potential reduction in service, measured by service miles;
  2. Average number of trips made by the entity's general population, on a per capita basis, compared with the average number of trips to be made by registered ADA paratransit eligible persons, on a per capita basis.
  3. Reductions in other services, including other special services;
  4. Increases in fares;
  5. Resources available to implement complementary paratransit service over the period covered by the plan.
  6. Percentage of budget needed  to implement the plan, both as a percentage of operating budget and a percentage of entire budget.
  7. The current level of accessible service, both fixed route and paratransit;
  8. Cooperation/coordination among area transportation providers;
  9. Evidence of increased efficiencies, that have been or could be effectuated, that would benefit the level and quality of available resources for complementary paratransit service; and
  10. Unique circumstances in the submitting entity's area that affect the ability of the entity to provide paratransit, that militate against the need to provide paratransit, or in some other respect create a circumstance considered exceptional by the submitting entity.
Factors the Administrator will consider in making a decision whether to grant an undue financial burden waiver request include effects on current fixed route service, reductions in other services, increases in fares, resources available to implement complementary paratransit over the period of the plan, current level of accessible service (fixed route and paratransit), cooperation among transit providers, evidence of increased efficiencies that have been or could be used, any unique circumstances that may affect the entity's ability to provide paratransit service, the level of per capita service being provided, both to the population as a whole and what is being or anticipated to be provided to persons who are eligible and registered to receive ADA paratransit service.
  1. Costs attributable to complementary paratransit shall be limited to costs of providing service specifically required by this part to ADA paratransit eligible individuals, by entities responsible under this part for providing such service.
  2. If the entity determines that it is impracticable to distinguish between trips mandated by the ADA and other trips on a trip-by-trip basis, the entity shall attribute to ADA complementary paratransit requirements a percentage of its overall paratransit costs.  This percentage shall be determined by a statistically valid methodology that determines the percentage of trips that are required by this Part.  The entity shall submit information concerning its methodology and the data on which its percentage is based with its request for a waiver.  Only costs attributable to ADA-mandated trips may be considered with respect to a request for an undue financial burden waiver.
  3. Funds to which the entity would be legally entitled, but which, as a matter of state or local funding arrangements, are provided to another entity and used by that entity to provide paratransit service which is part of a coordinated system of paratransit meeting the requirements of this Part, may be counted in determining the burden associated with the waiver request.
This final element allows some measure of comparability, regardless of the specific service criteria and should assist in a general assessment of level of effort.  It is only the costs associated with providing paratransit service to ADA-paratransit eligible persons that can be counted in assessing whether or not there is an undue financial burden.  Two cost factors are included in the considerations which enhance the Administrator's ability to assess real commitment to these paratransit provisions.

First, the Department will allow a statistically valid methodology for estimating number of trips mandated by the ADA.  While the regulation calls for a trip-by-trip determination of eligibility, this provision recognizes that this is not possible for some systems, particularly the larger systems.  Since only those trips provided to a person when he or she is ADA eligible may be counted in determining an undue financial burden, this provision is necessary.

Second, in determining costs to be counted toward providing paratransit service, paragraph (b)(3) allows an entity to include in its paratransit budget dollars to which it is legally entitled, but which, as a matter of state or local funding arrangements, are provided to another entity that is actually providing the paratransit service.

For example, a state government may provide a certain formula allocation of the revenue from a certain tax to each jurisdiction for use in providing transportation service at the local level.  The funds, depending on local arrangements, may flow either to a transit authority -- a regulated entity under this rule -- or to a city or county government.  If the funds go to the transit authority, they clearly may be counted in an undue burden calculation.  In addition, however, this provision also allows funds that flow through the city or county government to be counted in the undue burden calculation, since they are basically the same funds and should not be treated differently based on the accident of previously-determined local arrangements.  On the other hand, this provision does not allow funds of a private non-profit or other organization who uses Department of Health and Human Services grant or private contributions to be counted toward the entity's financial commitment to paratransit.