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33 the availability of paratransit service for eligible rid- different in regard to private entities. "With respect to ers."474 private entities, the DOT has promulgated a regulation The comparability-of-service requirement was ad- requiring their `compliance with the requirements of dressed in Boose v. Tri-County Metropolitan Transpor- the rules of the Department of Justice concerning eligi- tation District of Oregon.475 The issue was whether Tri- bility requirements, making reasonable modifications, County Metropolitan Transportation District of Oregon providing auxiliary aids and services, and removing (TriMet), Portland, Oregon, a public entity providing barriers....'"483 (emphasis added). mass transportation services, was required to provide The court held that the DOJ regulation did not apply the plaintiff with her requested mode (i.e., vehicle) of independently to TriMet; nor had the USDOT incorpo- paratransit service based on a DOJ regulation. rated the DOJ regulation so as to make it applicable to Boose used TriMet's paratransit service, the LIFT public entities' paratransit service.484 Paratransit Program (LIFT). In 2006 Boose requested that TriMet accommodate her disability by scheduling E. ADA Administrative Compliance and her rides only in sedans or taxis to alleviate the dizzi- Enforcement ness and nausea she experienced on LIFT buses.476 Public and private485 recipients of financial assis- Boose alleged in her complaint that TriMet's refusal tance from the USDOT486 are subject to the administra- 477 violated the ADA and the Rehabilitation Act of 1973. 487 tive enforcement provisions of USDOT regulations At issue was whether a Justice Department regulation issued under Section 504 of the Rehabilitation Act.488 was applicable. The Justice Department regulation re- The USDOT investigates any complaints that are filed. quired "public entities to `make reasonable modifica- Although the Department will attempt conciliation tions in policies, practices, or procedures when the among the parties, if conciliation is not possible, the modifications are necessary to avoid discrimination on Department may take further action under Section 504 the basis of disability, unless the public entity can dem- 489 of the Rehabilitation Act of 1973 or refer the matter to onstrate that making the modifications would funda- the Justice Department for possible action.490 The focus mentally alter the nature of the service, program, or of USDOT's enforcement concerns failures to comply activity.'"478 On several grounds, the court rejected the with the basic ADA requirements indicated by a series plaintiff's argument that the DOJ regulation applied to of problems rather than an occasional error. 491 a public entity such as TriMet. In July 2007, the Transportation Research Board First, Title II, Part A, of the ADA, which prohibits published The Americans with Disabilities Act: The discrimination against the disabled by public entities, Federal Transit Administration's Letters of Findings "prohibits the DOJ from making rules that `include any and Compliance Assessments as Legal Research Digest matter within the scope of the authority of the Secre- 23. The FTA's interpretations of the ADA may be found tary of Transportation under section 12143.'"479 in letter-findings, decisions on complaints, and compli- Second, the court explained that the USDOT has not ance assessments, all referenced in the digest. The di- promulgated a rule requiring a public entity to provide gest includes a CD and indexes of all FTA's letter- paratransit service by "vehicle type."480 Paratransit and findings on ADA complaints, including findings relating other special transportation services must be provided to fare increases at pages I-7778 and service cuts at to persons with disabilities so as to provide a level of pages I-99100. The materials collected and indexed service "comparable" to the level of service provided to demonstrate how FTA typically addresses such com- 481 persons without disabilities. For paratransit service, plaints. the ADA or the USDOT ADA regulations do not require Of the 64 agencies responding to the survey for this that public entities make "reasonable modifications in digest, 4 agencies reported receiving complaints based policies, practices, or procedures" as does the DOJ regu- lation.482 However, the court noted that the rule was transportation entities [providing] paratransit service[ ] must make reasonable modifications to their policies and practices to 474 Id. at 215. ensure program accessibility,'" (quoting 71 Fed. Reg. at 9762), 475 but that the DOT had not finalized the proposed rule). 587 F.3d 997 (9th Cir. 2009). 483 476 Id. at 1004 (quoting 28 C.F.R. 36.301306). Id. at 1000. 484 477 Id. at 100304. 29 U.S.C. 701, et seq. 485 478 49 C.F.R. 37.11, app. D (2009). Boose, 587 F.3d at 1000 (quoting 28 C.F.R. 486 35.130(b)(7)). Id. 37.11(a) (2009). 487 479 Id. at 1001. Id. 27.12127.129 (2009). 488 480 Id. at 1002. Id. 37.11(a) (2009); 29 U.S.C. 794 (2009). 489 481 Id. at 1001. 29 U.S.C. 794 (2009). 490 482 See id. at 1004 (stating that in a 2006 notice of proposed 49 C.F.R. 37.11, app. D (2009). 491 rulemaking that the DOT purported to "`clarify that...public Id.