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34 on alleged violations of the ADA. One agency had re- individuals with disabilities.)496 However, the station ceived a complaint regarding a reduction in transit ser- that was closed was not a "key station." The court held vice that still was being processed at the time of this that it could not conclude, digest. A second agency reported that a USDOT "in- [B]ased on the record currently before it, ...that the selec- quiry" had been resolved. A third agency received com- tion of the key stations, or the exclusion of Center plaints from the elderly and the disabled regarding ser- Moriches from designation as a key station, was violative vice reductions and fare increases that were resolved in of the ADA. It does not appear that the ADA requires the the manner described in Section IX, infra, discussing MTA defendants to keep all of its stations open, or even transit agencies' best practices. to make all of its stations fully accessible to people with Lastly, one agency stated that it had had one fare in- disabilities. Rather, the ADA only requires that they make new stations and its designated key stations readily crease in the last 10 years and received ADA complaints 497 accessible to and usable by people with disabilities. that focused on the elimination of deeply discounted fare media. A majority of the complaints had to do with As seen in the Hassan case, the touchstone is even- the elimination of the most heavily discounted fare me- handedness whereby transit service is reduced for all dia of all, an Annual $52 Disabled Pass. According to commuters, including the disabled. "Hassan has not the agency, its revenue department researched the ADA shown, or even adequately alleged, that the MTA de- claims and concluded that the new fare structure was fendants excluded him, or any other disabled person, not discriminatory in its implementation or intent. No from the benefit of services on the basis of disability. On complaints were lodged at the FTA against the agency. this record, it appears that the Station closing affects all potential users, not merely disabled users."498 F. Judicial Claims Under the ADA for Reduction in With respect to fares, in Weinreich v. Los Angeles 499 Transit Service or Increase in Fares County Metropolitan Transportation Authority, the Ninth Circuit held that a public transit system was not One of the few cases having to do with the ADA and required under the ADA or the Rehabilitation Act to a reduction in transit service is Hassan v. Slater,492 in make reasonable modifications to its reduced fare pro- which a pro se plaintiff contested the decisions by the gram's eligibility requirements for a disabled partici- Long Island Railroad (LIRR) and the MTA to close a pant or to reasonably accommodate a participant's fi- train station that was more convenient to the plaintiff nancial inability to provide recertification of his than alternative stations. The court held that the plain- disability as required by a transit system policy. The tiff's complaint failed as a matter of law to state a court held that "[a] plaintiff proceeding under Title II of claim. the ADA must, similar to a Section 504 plaintiff, prove First, the court held that "[t]he blind, visually im- that the exclusion from participation in the program paired and otherwise disabled can still avail themselves was `solely by reason of disability.'"500 The court af- of train service at other LIRR stations" and that, al- firmed the district court's ruling that the agency had no though there was inconvenience to the plaintiff, the obligation under the ADA or the Rehabilitation Act to extra inconvenience did not rise "`to the level of irrepa- reasonably accommodate plaintiff's financial inability to rable harm such that the LIRR must be stopped from 493 provide updated recertification of his disability. implementing its plan.'" Hassan is not prevented from using any of the other LIRR G. Whether State Transit Agencies Have stations by reason of a disability. Nor has he adequately Sovereign Immunity alleged that he was discriminated against or prevented from participating in any mode of transportation because Under the ADA the issue has arisen whether a state of his disability. The fact that Hassan lives four and a agency such as a transportation department has sover- half miles away from the next closest train station, and eign immunity. In Everybody Counts, Inc. v. Northern that closure of the Center Moriches Station makes it Indiana Regional Planning Commission,501 a federal more difficult for him to travel to Manhattan, is not tan- district court in Indiana held that Congress had not tamount to stating a claim of exclusion or discrimination. properly abrogated Indiana's Eleventh Amendment The plaintiff's conclusory allegations that his rights un- immunity in a Title II ADA action that included the der the ADA were violated are thus insufficient to state a 494 Indiana Department of Transportation (INDOT) as a claim under the statute. defendant. The court held that, based on an analysis of Second, as the court noted, under the ADA, stations the U.S. Supreme Court's decision in Tennessee v. that are designated as key stations must be made ac- Lane,502 INDOT had sovereign immunity. The district cessible to individuals with disabilities.495 (For train stations constructed prior to the ADA, the Act requires only that designated key stations be made accessible to 496 Id. at 350 (citing 42 U.S.C. § 12147(b)). 497 Id. at 351 (citation omitted). 498 492 41 F. Supp. 2d 343 (E.D. N.Y. 1999). Id. (emphasis supplied). 499 493 Id. at 348 (quoting Molloy v. Metro. Trans. Auth., 94 F.3d 114 F.3d 976 (9th Cir. 1997). 500 808, 811 (2d Cir. 1996)). Id. at 97879 (citations omitted). 494 501 Id. at 35051 (emphasis supplied) (citation omitted). 2006 U.S. Dist. LEXIS 39607, at *1, 34 (N.D. Ind. 2006). 495 502 Id. at 345 (citing 49 C.F.R. § 37.47(a), (c)(1)). 541 U.S. 509, 124 S. Ct. 1978, 158 L. Ed. 2d 820 (2004).