Impacts of the Americans with Disabilities Act on Transit Agency Liability (2018)

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34 B. Regulations Applicable to Paratransit Service The ADA mandates that regulations must require that each public entity that operates a fixed route system provide paratransit and other special transportation services to any individual with a disability who is unable, as a result of a physical or mental impair- ment … to board, ride, or disembark from any vehicle on the system which is readily accessible to and usable by indi- viduals with disabilities; … who needs the assistance of a wheelchair lift or other boarding assistance device (and is able with such assistance) to board, ride, and disembark from any vehicle which is readily accessible to and usable by individuals with disabilities; … and … who has a specific impairment-related condition which prevents such individ- ual from traveling to a boarding location or from a disem- barking location on such system….485 Transit agencies may use a “feeder service” to transport some complementary paratransit riders to and from their fixed routes.486 The regulations establish also the paratransit service areas for agencies providing bus or rail ser- vice. Although a transit agency must “take all prac- ticable steps to provide paratransit service to any part of its service area,” it is not required “to provide paratransit service in an area outside the boundar- ies of the jurisdiction(s) in which it operates, if the entity does not have legal authority to operate in that area.”487 The paratransit service area for a transit agency that provides bus service is “service to origins and destinations within corridors with a width of three- fourths of a mile on each side of each fixed route.”488 Each corridor must “include an area with a three- fourths of a mile radius at the ends of each fixed route.”489 A entity providing paratransit service within the “core service area” must provide “service to small areas not inside any of the corridors but which are surrounded by corridors.”490 Outside its core service area, an “entity may designate corridors with widths from three fourths of a mile up to one and one half miles on each side of a fixed route, based on local circumstances.”491 The core service area is the area “in which corridors with a width of three-fourths of a mile on each side of each fixed route merge together such that, with few and small 485 42 U.S.C. § 12143(c)(1)(A)(i)-(iii) (2018). 486 FTA Circular, Ch. 8.3.2, p. 8-5 (discussing 49 C.F.R. § 37.129(b) and (c)). 487 49 C.F.R. § 37.131(a)(3) (2018). 488 Id. § 37.131(a)(1)(i). 489 Id. 490 Id. § 37.131(a)(1)(ii). 491 Id. § 37.131(a)(1)(iii). the past five years involving priority seating.477 Likewise, four agencies had a claim or case arising out of securement areas for wheelchairs.478 One agency had a claim or case involving adequate time for vehicle boarding and/or disembarking a vehi- cle.479 Appendix C summarizes the responses of transit agencies that reported claims or cases involv- ing the foregoing and other issues.480 VIII. PARATRANSIT SERVICE REQUIREMENTS UNDER TITLE II OF THE ADA A. ADA Requirements Applicable to Paratransit Service Because some individuals with disabilities are unable to use a fixed route system, Congress created a “safety net” in the form of complementary para- transit service. Forty-four of the forty-seven transit agencies responding to the survey provide comple- mentary paratransit service.481 Under the ADA, it is discrimination for a public entity which operates a fixed route system (other than a system which provides solely commuter bus service) to fail to provide with respect to the operations of its fixed route system, in accordance with this section, para- transit and other special transportation services to indi- viduals with disabilities, including individuals who use wheelchairs, that are sufficient to provide to such individu- als a level of service (1) which is comparable to the level of designated public transportation services provided to indi- viduals without disabilities using such system; or (2) in the case of response time, which is comparable, to the extent practicable, to the level of designated public transportation services provided to individuals without disabilities using such system.482 The ADA’s paratransit obligations do not apply to commuter bus, commuter rail, or intercity rail systems.483 Paratransit service enables individuals with dis- abilities to have transportation service “on the same basis as individuals using fixed route systems.”484 477 See id., Transit Agencies’ Responses to Question 10(a). 478 See id., Transit Agencies’ Responses to Question 10(b). 479 See id., Transit Agencies’ Responses to Question 10(c). See id. for information on claims or cases reported by transit agencies in response to Questions 10(a), (b), and/or (c). 480 See id., Transit Agencies’ Responses to Question 11. 481 See id., Transit Agencies’ Responses to Question 12. Three agencies reported that they do not. 482 42 U.S.C. § 12143(a) (2018). 483 49 C.F.R. § 37.121(c) (2018). 484 FTA Circular, Ch. 8.1, p. 8-1 (discussing 49 C.F.R. §§ 37.3 and 37.121(a)).

35 eligible persons shall be origin-to-destination ser- vice.” Section 37.3 defines origin-to-destination ser- vice to mean “service from a passenger’s origin to the passenger’s destination” but states that an entity providing paratransit service may provide it “in a curb-to-curb or door-to-door mode.” If a pro- vider of paratransit service “chooses curb-to-curb as its primary means of providing service, it must pro- vide assistance to those passengers who need assis- tance beyond the curb in order to use the service unless such assistance would result in a fundamen- tal alteration or direct threat.”504 The FTA explains that [t]he goal behind [the] use of this particular language, rather than characterizing the service as ‘curb-to-curb’ or ‘door-to-door,’ is to emphasize the obligation of transit pro- viders to ensure that eligible passengers are able to travel from their point of origin to their point of destination. The particular factors involved will determine whether curb-to- curb or door-to-door service will be better for that individual or the location.505 Although a transit provider may establish either door-to-door or curb-to-curb service as the basic mode of paratransit service, “a paratransit policy must not be inflexible to the extent that service will not be pro- vided beyond the curb under any circumstance.”506 Thus, [p]aratransit providers must provide enhanced service on a case-by-case basis where necessary to meet the origin-to- destination requirement; some individuals or locations may require service that goes beyond curb-to-curb service. It should be recognized that transit providers are not required to accommodate individual passengers’ needs which would fundamentally alter the nature of the service or create an undue burden. Transit providers’ obligations do not extend to the provision of personal services, such as requiring a driver to go beyond a doorway into a building to assist a passenger or requiring a driver to lose visual contact with their vehicle.507 The foregoing material is consistent with the ADA regulations and the FTA Circular, which pro- vide that “[a] public entity providing … complemen- tary paratransit services[] shall respond to requests for reasonable modification to policies or practices consistent with this section.”508 A public entity must make information available on how to contact it to 504 49 C.F.R. § 37.3 (2018). 505 DePaRtment of tRansPoRtation, feDeRaL tRansit aDministRation, aRe PaRatRansit seRvice PRoviDeRs RequiReD to PRoviDe seRvice beyonD tHe cuRb? https://www.transit. dot.gov/are-paratransit-service-providers-required- provide-service-beyond-curb (last accessed June 20, 2018) (emphasis supplied). 506 Id. 507 Id. (emphasis supplied). 508 FTA Circular, Ch. 2.10.2, p. 2-23 (quoting 49 C.F.R. § 37.169(a)(1)). exceptions, all origins and destinations within the area would be served.”492 For an agency that provides rail service, the ser- vice area must “consist of a circle with a radius of 3/4 of a mile around each station,”493 but “[a]t end stations and other stations in outlying areas, the entity may designate circles with radii of up to 1 1/2 miles as part of its service area, based on local circumstances.”494 If a transit agency demonstrates to the satisfac- tion of the Secretary of Transportation that provid- ing paratransit and other special transportation services would impose an undue financial burden on the agency, the agency “shall only be required to pro- vide such services to the extent that providing such services would not impose such a burden.”495 When preparing its paratransit plan, a transit agency must hold a public hearing to allow the public an opportunity to comment on the agency’s plan, as well as consult with individuals with disabilities.496 A transit agency may provide more expansive para- transit or other special transportation service than the ADA requires, such as providing services that the ADA does not require or serving individuals that the ADA does not require to be served.497 Chapters 8 and 9 of the FTA Circular provide guidance on complementary paratransit service. As noted, the complementary paratransit require- ments do not apply to commuter bus, commuter rail, or intercity rail systems.498 Chapter 8 dis- cusses the required types of service,499 service criteria,500 trip reservations and response time,501 and fares.502 Importantly, a transit agency may not limit the availability of paratransit service by a “pattern or practice” of actions, referred to as “capacity constraints.”503 C. Meaning of “Origin-to Destination” Paratransit Service The regulations in 49 C.F.R. § 37.129(a) state that, “[e]xcept as provided in this section, comple- mentary paratransit service for ADA paratransit 492 Id. § 37.131(a)(1)(iv). 493 Id. § 37.131(a)(2)(i). 494 Id. § 37.131(a)(2)(ii). 495 42 U.S.C. § 12143(c)(4). 496 Id. § 12143(c)(6). 497 Id. § 12143(f). 498 FTA Circular, Ch. 8.2, p. 8-1 (discussing 49 C.F.R. § 37.121(c)). 499 Id. Ch. 8.3, p. 8-2. 500 Id. Ch. 8.4, p. 8-6. 501 Id. Ch. 8.4.5, p. 8-12. 502 Id. Ch. 8.4.6, p. 8-15. 503 Id. Ch. 8.5, p. 8-19 (discussing 49 C.F.R. § 37.13(f)).

36 according to the U.S. General Accounting Office, one the most common problems for transit agencies in implementing the ADA’s paratransit requirements is determining eligibility for paratransit service.516 It may be noted that forty of the forty-four transit agencies responding to the survey that provide paratransit service acknowledged that the federal regulations and/or FTA Circular 4710.1 provide a standard process and/or identify specific informa- tion needed for the agencies to determine an indi- vidual’s eligibility for paratransit service.517 Nevertheless, thirty-one agencies responding to the survey have adopted their own standard process and/or requirements for determining paratransit eligibility.518 Chapter 9 of the FTA Circular provides guidance on eligibility for complementary paratransit ser- vice.519 Under 49 C.F.R. § 37.123(e)(1): Any individual with a disability who is unable, as the result of a physical or mental impairment (including a vision impairment), and without the assistance of another indi- vidual (except the operator of a wheelchair lift or other boarding assistance device), to board, ride, or disembark from any vehicle on the system which is readily accessible to and usable by individuals with disabilities [is eligible for ADA paratransit].520 In general, individuals with disabilities are eligi- ble for paratransit service who have intellectual or cognitive disabilities that prevent them from being able independently to navigate or use accessible fixed route services;521 when there is a lack of acces- sible vehicles, stations, or bus stops for persons with disabilities;522 or when persons with disabilities are unable to reach a boarding point or final destina- tion.523 Persons with disabilities are not eligible for paratransit service only because it is “more difficult transit.dot.gov/regulations-and-guidance/civil-rights- ada/ada-compliance-review-final-reports (last accessed June 20, 2018). 516 u.s. geneRaL accounting office, gao-94-58, ameRicans witH DisabiLities act: cHaLLenges faceD by tRansit agencies in comPLying witH tHe act’s RequiRe- ments, 2 (1994), http://www.gao.gov/assets/220/219165. pdf (last accessed June 20, 2018). 517 See Appendix C, Transit Agencies’ Responses to Question 13(a). 518 See id., Transit Agencies’ Responses to Question 13(b). 519 FTA Circular, Ch. 9.1, p. 9-1 (discussing 49 C.F.R. pt. 37, subpt. F). 520 Id. Ch. 9.2.1, p. 9-2 (quoting 49 C.F.R. § 37.123(e) (1)). 521 Id. Ch. 9.2.1, pp. 9-2 and 9-5 (discussing 49 C.F.R. § 123(e)(1)). 522 Id. Ch. 9.2.1, p. 9-3 (discussing 49 C.F.R. § 37.123(e) (2)). 523 Id. Ch. 9.2.1, p. 9-5 (discussing 49 C.F.R. § 37.123(e) (3)). make requests for reasonable modifications.509 Although 49 C.F.R. § 37.169(b)(3) encourages indi- viduals to make their requests “in advance of the need for modified service,”510 there may be situa- tions (e.g., an inaccessible path) when transit per- sonnel must make a determination at the time of the request on whether a modification should be provided.511 Requests for reasonable modifications may be denied when granting the request for a modification would fundamentally alter the provider’s services; granting the request for a modification would create a direct threat to the health or safety of others; or granting the request for a modification is not neces- sary to allow the passenger to fully use the entity’s services, programs, or activities for their intended purpose.512 Also, FTA recipients may deny a request for a modification when the modification, if granted, would create an undue financial or administrative burden.513 The FTA Circular notes that appendix E to part 37 provides examples of requests for a modification that transportation providers would not be required to grant. However, pursuant to 49 C.F.R. § 37.169(e), even when a transportation provider has a “sound basis” for denying a request for a reasonable modifi- cation for one of the above reasons, the transporta- tion provider should “do what it can to enable the requester to receive the services and benefits it provides….”514 D. Eligibility for Paratransit Service Under the ADA Because paratransit service is one of the most challenging areas for ADA compliance, the FTA peri- odically reviews transit agencies and publishes reports on their level of compliance.515 However, 509 Id. Ch. 2.10.2, p. 2-23 (discussing 49 C.F.R. § 37.169(a)(2)). 510 Id. Ch. 2.10.2, p. 2-24 (discussing 49 C.F.R. § 37.169(b)(3)). 511 Id. Ch. 2.10.2, p. 2-24 (discussing 49 C.F.R. § 37.169(b)(4)). 512 Id. Ch. 2.10.3, p. 2-25 (discussing 49 C.F.R. § 37.169(c)(1)-(3)). 513 Id. Ch. 2.10.3, p. 2-25 (discussing 49 C.F.R. § 27.7(e)). 514 Id. Ch. 2.10.3, p. 2-25 (discussing 49 C.F.R. § 37.169(e)). 515 See, e.g., u.s. DePaRtment of tRansPoRtation, feD- eRaL tRansit aDministRation, office of civiL RigHts, metRo PoLitan atLanta RaPiD tRansit autHoRity (maRta) aDa comPLementaRy PaRatRansit seRvice comPLiance Review Feb. 9-12, 2009, Final Report December 3, 2012, at 4, https://www.transit.dot.gov/sites/fta.dot.gov/files/ docs/MARTA_Final_Report_12.3.2012.pdf (last accessed June 20, 2018). See also feDeRaL tRansit aDministRation, aDa comPLiance Review finaL RePoRts, https://www.

37 Based on the “low threshold for a qualifying dis- ability under the amended ADA,” the court held that Deister met the ADA’s definition of disabled because he had an “episodic disability that substantially lim- its a major life activity when active.”535 Individuals with disabilities, including those with a temporary or episodic disability, presumably should not be subject to “unreasonable travel expec- tations” that impair their ability to travel to or from fixed transit stops and locations.536 For example, it would not be reasonable to expect an individual with a disability to navigate a route on crutches that require “considerable exertion” or to expect an indi- vidual with a disability to navigate a route when snow or icy conditions prevent the person from get- ting to or from stops and stations.537 As the FTA Cir- cular points out, in these and other situations requiring a decision on eligibility, complementary paratransit “[r]eviewers become the ‘reasonable people’ making such judgments.”538 F. Whether Paratransit Eligibility Is Restricted When a Transit Stop or Facility Is Accessible via a Network of Streets As for whether eligibility for paratransit service is affected when a transit stop or facility is accessi- ble to an individual with disabilities via a network of streets, the FTA Circular discusses three catego- ries of eligibility that seem to be relevant. It does not appear that a network of streets would necessarily have an impact on the eligibility of an individual with a disability for paratransit under the first category of eligibility—inability to navigate a system independently. Individuals are eligible for paratransit service when they have intellectual or cognitive disabilities that prevent them from navi- gating a transit system.539 Likewise, persons are eligible who are unable to make complex trips that require transfers between routes.540 The accessibility of a transit stop or facility via a network of streets seemingly would not affect the eligibility of an individual with a disability for 535 Id. at 918 (citation omitted). However, the court granted the Auto Club’s motion for summary judgment, because Deister did not meet his burden to propose an objectively reasonable accommodation, show that an accommodation was possible, or even request an accom- modation, and because the Auto Club had no reason to know that he needed an accommodation. Id. at 929. 536 FTA Circular, Ch. 9.2.1, pp 9-5–9-6 (discussing 49 C.F.R. § 37.123(e)(3)). 537 Id. Ch. 9.2.1, p. 9-6. 538 Id. 539 Id. Ch. 9.2.1, p. 9-2 (discussing 49 C.F.R. § 37.123(e) (1)). 540 Id. or inconvenient” for them to get to or from fixed route stops and stations.524 A person’s type of disability or diagnosis is not a basis of eligibility for paratransit service.525 Rather, eligibility depends on “the functional ability of indi- viduals with disabilities to use fixed route transit services.”526 An individual’s use of mobility aids is not a basis for eligibility; thus, it may not be pre- sumed that because a person uses a wheelchair the person has “automatic eligibility” for paratransit service.527 Public safety concerns of an individual with a disability, such as using fixed route transit late at night or in high-crime areas, are not bases that qualify an individual for paratransit service.528 The FTA Circular explains in more detail eligi- bility considerations,529 types of eligibility,530 the process for determining eligibility,531 and eligibility decisions.532 E. Effect of Temporary or Episodic Disability on Eligibility for Paratransit Individuals with a temporary or episodic disabil- ity are protected by the ADA from discrimination. As analyzed by a federal district court in Michigan in Deister v. AAA Auto Club of Michigan,533 An individual may not qualify as disabled … if the impair- ment is “transitory,” meaning “an impairment with an actual or expected duration of 6 months or less,” “and minor.” … But this requirement does not apply to an impair- ment that qualifies under the “actual disability” or “record of disability” prongs of the definition; as to those, “[t]he effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.” 29 C.F.R. § 1630.2(j)(1)(ix). … “[T]he ADA Amendments Act of 2008 added rules of con- struction that the definition of disability should “be con- strued in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.” … The new rules of construction also provide that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C. § 12102(4)(D).534 524 Id. Ch. 9.2.1, p. 9-5 (discussing 49 C.F.R. § 37.123(e) (3) and app. D). 525 Id. Ch. 9.2.1, p. 9-1 (discussing 49 C.F.R. § 37.123(a)). 526 Id. 527 Id. 528 Id. Ch. 9.2.1, p. 9-2 (discussing 49 C.F.R. § 37.123(e) (1)). 529 Id. Ch. 9.2.2, pp. 9-7–9-9. 530 Id. Ch. 9.3, pp. 9-9–9-11. 531 Id. Ch. 9.4, pp. 9-12–9-15 (discussing 49 C.F.R. § 37.125). 532 Id. Ch. 9.5, p. 9-15. 533 91 F. Supp. 3d 905 (E.D. Mich. 2015). 534 Id. at 916-17 (some citations omitted) (emphasis supplied).

38 Likewise, the agencies’ responses differed regarding who makes the determination whether an individual is eligible for paratransit service.549 Appendix C includes details provided by transit agencies on who conducts assessments and makes determinations of individuals’ eligibility for paratransit service. H. Paratransit Appeal Process for Denials of Eligibility Transit agencies must have a paratransit “admin- istrative appeal process through which individuals who are denied eligibility can obtain a review of the denial.”550 A transit agency “may require that an appeal be filed within 60 days of the denial of an individual’s application.”551 A transit agency need not “provide paratransit service to the individual pending the determination on appeal.”552 However, if an agency has not made a decision within thirty days of the completion of the appeal process, the agency must “provide paratransit service from that time until and unless a decision to deny the appeal is issued.”553 The FTA “encourages transit agencies to hold the appeal hearing promptly (i.e., within 30 days of the initial request).”554 The FTA Circular provides guidance on appeal rights, appeal requests, and the right to be heard in person;555 separation of functions, “meaning that, to the extent practicable,” the individuals who decide appeals are not the persons who were involved with an applicant’s initial determination of eligibility;556 and timely decisions on appeals.557 The Circular also makes suggestions regarding appeals practices and optional internal review practices.558 I. Claims Alleging that a Transit Agency’s Paratransit Service Violated the ADA Of forty transit agencies responding to the survey that provide paratransit service, nine agencies had claims or cases in the past five years alleging that 549 See id. Transit Agencies’ Responses to Question 14(d)(2). 550 FTA Circular, Ch. 9.7, p. 9-19 (quoting 49 C.F.R. § 37.125(g)). 551 Id. Ch. 9.7, p. 9-19 (quoting 49 C.F.R. § 37.125(g) (1)). 552 Id. Ch. 9.7, p. 9-19 (quoting 49 C.F.R. § 37.125(g) (3)). 553 Id. 554 Id. Ch. 9.7.1, p. 9-20 (discussing 49 C.F.R. § 37.125(g) (1) and (2)). 555 Id. 556 Id. Ch. 9.7.2, p. 9-20 (discussing 49 C.F.R. § 37.125(g) (2)). 557 Id. Ch. 9.7.3, pp. 9-20–9-21 (discussing 49 C.F.R. § 37.125(g)(3)). 558 Id. Ch. 9.7.4, p. 9-21. paratransit under the second category of eligibility— when there is a lack of accessible vehicles, stations, or bus stops. For example, even though a transit stop or station may be accessible via a network of streets, an individual with a disability is eligible for paratransit when the individual is precluded from boarding or disembarking from a vehicle, for exam- ple, because of the absence of an operable lift.541 The accessibility of a transit stop or facility via a network of streets arguably may affect eligibility under the third category of eligibility—the inability of an individual with disabilities to reach a boarding point or final destination. Under the third category, individuals with a disability are eligible for para- transit when they have a “‘specific impairment- related condition’ [that] prevents them from traveling to or from fixed route transit stops and stations.”542 As the FTA Circular notes, “[i]nevitably, some judgment is required to distinguish between situations in which travel is prevented and situa- tions in which it is merely more difficult.”543 The distance to a stop or facility or the presence of a steep hill and the extent of a person’s health or “ambulatory” disability are factors that affect a deci- sion on paratransit eligibility.544 G. Transit Agencies’ Approaches to Determining Eligibility Twenty-one transit agencies responding to the survey require an applicant to apply in person to provide his or her information for eligibility for paratransit service, but twenty-two of the respond- ing agencies do not.545 Although twenty-two agen- cies require a physical assessment of an applicant for paratransit service, nineteen agencies do not.546 Twenty-one agencies require a cognitive assessment of an applicant for paratransit service, whereas twenty agencies do not.547 As for who conducts a physical and/or cognitive assessment, the transit agencies’ responses varied.548 541 Id. Ch. 9.2.1, p. 9-3 (discussing 49 C.F.R. §§ 37.167(g) and 37.123(e)(2)). 542 Id. Ch. 9.2.1, p. 9-5 (discussing 49 C.F.R. § 37.123(e) (3)). 543 Id. Ch. 9.2.1, p. 9-5 (quoting 49 C.F.R. § 37.123, app. D). 544 Id. Ch. 9.2.1, p. 9-6. 545 See Appendix C, Transit Agencies’ Responses to Question 14(a). Four agencies did not respond to the ques- tion. 546 See id. Transit Agencies’ Responses to Question 14(b). Six agencies did not respond to the question. 547 See id. Transit Agencies’ Responses to Question 14(c). Six agencies did not respond to the question. 548 See id. Transit Agencies’ Responses to Question 14(d)(1).

39 with disabilities.569 The plaintiffs sought to compel DART to make a reasonable modification to its para- transit services to require alley pick-up for Jason. The Meltons, who appealed the district court’s grant of a summary judgment to DART, argued that the district court should have applied a “‘meaningful access’ standard to evaluate the Meltons’ claims of denial of access.”570 First, because the Meltons failed to demonstrate that DART discriminated against Jason on the basis of his disability, the Fifth Circuit did not decide whether a meaningful access standard should be applied.571 Second, the appeals court held that the ADA does not require public transit agencies providing approved paratransit services to the public to accom- modate the individual needs of individuals with dis- abilities. As long as the FTA approves a transit agency’s plan for paratransit service, and the agency provides service in accordance with the approved plan, the transit agency is not discriminating under the ADA when it refuses to modify its plan to accom- modate the needs of individual riders with a disability. 2. Alleged Systemwide Pattern of Discrimination In 2015, in Martin v. Metropolitan Atlanta Rapid Transit,572 the plaintiffs alleged that the defendants had engaged in a systemwide pattern and practice of discrimination against people with disabilities. In 2002, the court granted a preliminary injunction that required the Metropolitan Atlanta Rapid Tran- sit (MARTA) to take a variety of actions to make its services comply with the ADA and the Rehabilita- tion Act. Regarding paratransit service, the court required MARTA, inter alia, to “make every effort to achieve and maintain an on-time performance rate of 100 percent” and to “provide a sufficient number of prepared Paratransit vehicles and operators so that all eligible persons requesting Paratransit ser- vices can receive it on a ‘next day’ basis.”573 However, in 2015, the court ruled that the plain- tiffs had made a clear case that MARTA was non- compliant by presenting “sufficient evidence that MARTA Paratransit’s on-time performance rate has actually decreased since 2002….”574 Although 569 Id. at 670. 570 Id. at 672. 571 Id. 572 No. 1:01-CV-3255-TWT, 2015 U.S. Dist. LEXIS 154298, at *1 (N.D. Ga. Nov. 16, 2015). 573 Id. at *5. 574 Id. at *6. their agency’s paratransit service violated the ADA.559 Nevertheless, as discussed in the following subparts, since the enactment of the ADA, other transit agencies have had cases in which the courts have had to rule on whether an agency’s paratransit service violated the ADA. 1. Accommodation of an Individual Rider’s Needs In Boose v. Tri-County Metro. Transp. Dist. of Or.,560 TriMet had approved the plaintiff ’s application to its LIFT Paratransit Program (LIFT). Because Boose experienced less dizziness and nausea in sedans and taxis, the plaintiff requested that LIFT accommodate her disability by scheduling rides only in sedans or taxis rather than in LIFT buses.561 The issue on appeal was whether LIFT had to accommodate Boose pursuant to a Justice Depart- ment regulation that required “public entities to ‘make reasonable modifications in policies, prac- tices, or procedures when the modifications are nec- essary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.’”562 The court held that only the Secretary of Transportation may make rules that determine the level of services that are required for paratransit;563 therefore, the Justice Department’s “reasonable modification” regulation did not apply.564 The court, rejecting the plaintiff ’s argument that 49 C.F.R. § 37.21(c) incorporated the DOT regulations “by reference,”565 held that the plaintiff failed to demonstrate a prima facie case of discrimination under the ADA or the Rehabilitation Act.566 In Melton v Dallas Area Rapid Transit,567 the plaintiffs argued that DART’s failure to modify its paratransit plan violated Title II of the ADA and Section 504 of the Rehabilitation Act.568 DART’s paratransit service previously had picked up Jason Melton in the alley directly behind his house. DART’s paratransit plan, which FTA approved, pro- vided for curb-to-curb, shared-ride service for people 559 See Appendix C, Transit Agencies’ Responses to Question 15. 560 587 F.3d 997 (9th Cir. 2009). 561 Id. at 999. 562 Id. at 1000 (quoting 28 C.F.R. § 35.130(b)(7)). 563 Id. at 1002. 564 Id. (citation omitted). 565 Id. at 1004-05. 566 Id. at 1006. 567 391 F.3d 669 (5th Cir. 2004), reh’g. en banc denied, 130 Fed. App’x. 705 (5th Cir. 2005), cert. denied, 544 U.S. 1034, 125 S. Ct. 2273, 161 L. Ed. 2d 1061 (2005). 568 Id. at 671.

40 The court noted that, pursuant to the Act, see 42 U.S.C. § 12143(b) and (c), the Secretary of Transportation has issued regulations pre- scribing minimum service criteria for paratransit service. See 49 C.F.R. § 37.121 et seq. Two of the Secretary’s imple- menting regulations are of particular relevance here. They are in some tension with each other because one seemingly requires next-day service for every user every time without fail, while the other contemplates a lesser level of service so long as the failures are not substantial in number.582 That is, one regulation requires paratransit pro- viders to “‘schedule and provide paratransit service to any ADA paratransit eligible person at any requested time on a particular day in response to a request for service made the previous day….’”583 The regulation seems to require providers to meet 100% of all next-day ride requests. The other regula- tion, by prohibiting only the denial of “substantial numbers” of rides, seems to “contemplate some per- missible number of ride denials.”584 The Second Circuit held that the text of the regu- lations did not support the district court’s opinion that the regulations require “unfailing service.”585 For the Second Circuit, “§ 37.131(b) requires the formulation and implementation of a plan to meet 100% of the demand for next-day ride requests by eligible riders, while § 37.131(f) grants limited lee- way for occasional failures of such well-laid plans to meet demand.”586 A provider must “rethink its plan and implement changes whenever a pattern of non- compliance develops.”587 Under § 37.131(f), although a well-conceived and funded paratransit service occasionally may have “trip denials,” “‘substantial numbers of trip denials can establish that a para- transit service—no matter how well-designed, funded, or implemented in theory—is inadequate as a matter of actual operation.’”588 The court held that, although the FTA expects paratransit pro- viders to meet their full next-day ride demand, “§ 37.131(f) permits an insubstantial number of trip denials, so long as those denials are unplanned and do not result from the provider’s operational decisions.”589 Nevertheless, a service provider’s goal must be to achieve a “100% service level.”590 The issue was whether the defendants violated 42 U.S.C. § 12143(a)(2) and 49 C.F.R. § 37.131(b) by 582 Id. at 207. 583 Id. at 208 (quoting 49 C.F.R. § 37.131(b)) (emphasis in original). 584 Id. (citing 49 C.F.R. § 37.131(f)(i)). 585 Id. 586 Id. 587 Id. 588 Id. at 210 (citation omitted). 589 Id. 590 Id. at 212. MARTA may have increased its number of Paratransit vehicles and operators, this increase [was] not sufficient to demonstrate that the Defendants are complying with this Court’s Order that MARTA provide a sufficient number of Paratransit vehicles and operators so that all eligible per- sons requesting the Paratransit service can receive it on a “next day” basis.575 Even if MARTA had provided accommodations to paratransit riders that are not required by the ADA, the accommodations did not “excuse MARTA para- transit’s declining on-time performance rate.”576 The court ordered the defendants to show cause why they should not be held in contempt. In Anderson v. Rochester-Genesee Regional Transportation Authority,577 the plaintiffs alleged that a substantial number of eligible riders who called the defendant Rochester-Genesee Regional Transportation Authority (RGRTA) to schedule rides one or more days in advance were not accom- modated because of the Authority’s lack of capacity. Through a subsidiary, the RGRTA operated a fixed route system of bus lines in the Rochester, New York area.578 RGRTA used a second subsidiary, defendant Lift Line, Inc. (Lift Line), to operate a complementary paratransit system for individuals with disabilities.579 The plaintiffs selected a period at random to col- lect data to support their claims. During the sample period, Lift Line scheduled 94.4% of requests for rides, but the scheduling rate of rides declined when there was less advance notice.580 The plaintiffs alleged that the defendants failed to provide next- day service to eligible persons in violation of 42 U.S.C. § 12143(a)(2) and 49 C.F.R. § 37.131(b); required riders to call a second time to confirm ride availability; maintained a waiting list for paratran- sit service in violation of 49 C.F.R. § 37.131(f)(2); engaged in an “operational pattern or practice” that significantly limited the availability of paratransit service in violation of 49 C.F.R. § 37.131(f)(3); and violated 42 U.S.C. § 12143(e)(4) by failing to provide paratransit service in accordance with the plan that the defendants submitted to the Secretary of Transportation.581 575 Id. at *7-8. 576 Id. at *8. 577 337 F.3d 201 (2d Cir. 2003). 578 Id. at 202 (citation omitted) 579 Id. 580 Id. at 203-04. 581 Id. at 204. In an earlier decision, the district court denied the defendants’ motion and granted a summary judgment in favor of the plaintiffs, except for their waiting list claim on which they did not seek judgment as a matter of law and on which the court ordered the parties to con- duct discovery. Id. at 204-05.

41 the trial court applied a “flawed analytical frame- work….”600 The court contrasted Washington state’s “vague standards” with the “specific” federal stan- dards.601 Important for the court was that “[t]he ADA addresses discrimination in public transporta- tion by requiring public transit agencies operating fixed route systems to provide paratransit and other special service transportation to disabled persons on a comparable level to the service provided for non- disabled users.”602 Moreover, “[t]he ADA provides that local transit entities must provide paratransit services to the extent that providing such services would not impose an undue financial burden on such entities” or seek a waiver.603 Second, the Washington Supreme Court held that the trial court’s “reasonably possible” test was “unworkable.”604 Lacking a comparability test, the trial court’s opinion stood “for the proposition that an agency violates RCW 49.60 if it fails to provide services to disabled people in excess of the services it provides to the nondisabled”605 and that, “[a]bsent the touchstone of comparable treatment, there is no limiting principle to the reach of RCW 49.60.215.”606 Third, the court ruled that, because Washington’s statute does not include the term paratransit or the concept of providing paratransit service for individuals with disabilities, it was not clear how the Washington statute could provide a basis for a discrimination lawsuit when the STA had complied with the ADA.607 4. Inability of Individuals with Disabilities to Use Fixed Route Service In Storman v. Sacramento Regional Transit District,608 the plaintiff challenged the district court’s dismissal of his case for failure to state a claim. Storman alleged that on some occasions, because of his disabilities, he could not walk more than one block or walk the mile between one of his treating physicians’ offices and the nearest fixed-route bus stop and, thus, had to forgo “trips that he used to make when he was deemed eligible for paratransit 600 Id. at 626, 911 P.2d at 1322. 601 Id. at 628, 911 P.2d at 1324 (citation omitted) (foot- note omitted). 602 Id. (citing 42 U.S.C.A. § 12143(a) (1995)) (emphasis omitted) (footnote omitted). 603 Id. at 629, 911 P.2d at 1324. 604 Id. at 630, 911 P.2d at 1325. 605 Id. at 631, 911 P.2d at 1325. 606 Id. 607 Id. at 644, 911 P.2d at 1332. 608 70 Fed. App’x. 439 (9th Cir. 2003). failing to provide next-day paratransit rides to all eligible individuals who requested rides. Based on the record, the court ruled that the defendants “declined to institute reforms that would allow them to meet 100% of the eligible next-day ride demand” and “failed to comply with the baseline requirement of § 37.131(b)’s next-day service provision.”591 The court held that the defendants violated 49 C.F.R. § 37.131(f)(3) “by engaging in an ‘operational pattern or practice’ that significantly limited the availability of paratransit service.”592 However, because § 37.131(f) provides no guid- ance on how many trip denials are “substantial,” the court ruled that a factual case-by-case determina- tion was required.593 For such a determination, the “[r]elevant factors … include the time period over which the denials occurred, changes implemented by the provider to address them, the trend and per- sistence of denials, foreseeability of the denials, causes of the denials, and the reasonableness of the provider’s demand estimates and plans.”594 Based on a review of Lift Line’s success rate dur- ing the sample period, and on how the success rate declined with the number of days of advance notice, the court held that “the defendants violated § 37.131(f) by maintaining a pattern or practice that significantly limit[ed] the availability of paratransit service for eligible riders.”595 3. Comparable Service In Fell v. Spokane Transit Authority,596 the Spo- kane Transit Authority (STA) adopted a new plan for paratransit service that complied with the ADA. A class action sought an injunction to prohibit the implementation of the new plan on the basis that it discriminated against individuals with disabilities in violation of a state law, RCW 49.60.215. The trial court granted the plaintiffs a summary judgment based on the state law against discrimination in public accommodations597 and enjoined the STA’s paratransit plan because the STA “failed to show its prior service was ‘no longer reasonably possible.’”598 In reversing, the Supreme Court of Washington, first, held that, because a “‘reasonably possible’ test for a case of discrimination in public accommoda- tions is without precedent under Washington law,”599 591 Id. at 213. 592 Id. (citation omitted). 593 Id. at 214. 594 Id. (citation omitted) (footnote omitted). 595 Id. at 215. 596 128 Wash. 2d 618, 911 P.2d 1319 (1996). 597 Id. at 624, 911 P.2d at 1322. 598 Id. at 624-25, 911 P.2d at 1322 (footnote omitted). 599 Id. at 626, 911 P.2d at 1323.

42 accessible.”618 Thus, “if an individual wishes to take trips that require her to use key stations which have not been made accessible, she is eligible for para- transit under 49 C.F.R. § 37.123(e)(2)(iii)(B).”619 6. Failure to Show Transit Agency’s Noncompliance with an Approved Paratransit Plan In Anderson v. Rochester-Genesee Regional Trans- portation,620 the plaintiffs alleged that the defen- dants failed to comply with the paratransit plan that they submitted to the Secretary of Transporta- tion. The Second Circuit, reversing the district court’s grant of a summary judgment in favor of the plaintiffs, stated: “The DOT approved the defen- dants’ 1995 plan update even though it included information about trip denial rates that did not materially differ from those now at issue in this litigation.”621 The court ruled that the plaintiffs failed to identify a specific action or procedure in the defendants’ submissions to the DOT that the defen- dants failed to implement. Moreover, the defendants’ “affirmations of ADA compliance constituted legal conclusions with which the DOT at one time agreed.”622 7. Lack of Proper Training and Supervision of Transit Employees In Hulihan v. Regional Transportation Commis- sion of Southern Nevada,623 a paratransit case, the plaintiff alleged that the Regional Transportation Commission of Southern Nevada (RTC) violated the ADA and Section 504 of the Rehabilitation Act, as well as state law, for failing to train, supervise, and manage its employees.624 First, a federal district court in Nevada rejected the defendants’ argument that the plaintiff lacked standing to seek declara- tory and injunctive relief under Title II of the ADA and Section 504 of the Rehabilitation Act.625 Second, however, the plaintiff ’s evidence of a “few ‘frustrat- ing, but isolated instances’ of inadequate service” or improper treatment by a few individual operators 618 Id. at 358 (citation omitted). 619 Id. at 359 (footnote omitted). 620 337 F.3d 201 (2d Cir. 2003), on remand, complaint dismissed, No. 00-CV-6275L, 2004 U.S. Dist. LEXIS 17051 (W.D.N.Y., Aug. 9, 2004). 621 Id. at 216. 622 Id. 623 No. 2:09-cv-01096-ECR-RJJ, 2012 U.S. Dist. LEXIS 79055 (D. Nev. June 7, 2012), certificate of appealability denied as moot, No. 2:09-cv-01096-ECR-RJJ, 2012 U.S. Dist. LEXIS 107198 (D. Nev., Aug. 1, 2012), aff’d by, motion granted by, motion denied by, as moot, 582 Fed. App’x. 727 (9th Cir. 2014). 624 Id. at *3-4. 625 Id. at *11. services.”609 The Ninth Circuit stated that the ADA regulations required the transit district to provide such services to Storman if he has “a specific impairment-related condition which prevents [him] from traveling to a boarding location or from a disembarking location” … and … that “a case of ‘prevented travel’ can be made not only where travel is literally impossible … but also where the difficulties are so substantial that a reason- able person with the impairment-related condition in ques- tion would be deterred from making the trip.”610 The court held that Storman’s allegations were “sufficient to state a claim that a reasonable person with his disabilities would be deterred from riding a fixed-route bus for at least some trips.”611 5. Eligibility for Paratransit Service Because of Inaccessible Key Stations In Walter v. Southeastern Pennsylvania Trans- portation Authority,612 the plaintiffs received trans- portation services via CCT Connect, a paratransit service provided by the defendant Southeastern Pennsylvania Transportation Authority (SEPTA). In July 2004, SEPTA changed its eligibility criteria for paratransit service. As a result, the plaintiffs became eligible for paratransit service only during inclement weather.613 However, to take a bus to their destinations in Center City, Philadelphia, the plaintiffs had to use and transfer among several dif- ferent bus routes.614 A federal district court in Pennsylvania ruled that, based on the statutory language and its inter- pretation by the U.S. DOT, the requirement to pro- vide paratransit service applies to public transit entities that operate bus and/or rail systems.615 The DOT’s Category 2 definition intentionally broadens the class of persons eligible for paratransit.… While not stated explicitly, it appears that in crafting the paratransit regula- tory provisions, the DOT took a statute which was drafted with bus systems in mind and applied it to rail systems by using the “key stations” language found in other parts of the ADA.616 The court held that DOT’s interpretation of the statutory Category 2 paratransit eligibility was rea- sonable.617 The most reasonable construction of the ADA was that “an individual is eligible for paratran- sit if she cannot use a rail system because key sta- tions necessary for her trip have not been made 609 Id. at 439. 610 Id. (quoting 49 C.F.R. § 37.123(e)(3)). 611 Id. 612 434 F. Supp. 2d 346 (E.D. Pa. 2006). 613 Id. at 348. 614 Id. at 349. 615 Id. at 354. 616 Id. at 356 (citations omitted). 617 Id. at 356-57.

43 standard and delete[d] the sentence concerning ‘common wheelchair’ from the part 37 definition of wheelchair, as well as from section 37.165(b) and the Appendix D explanatory text.”633 Under the final rule, when a lift is able to accommodate the size and weight of an individual’s wheelchair and its occupant, and there is space on the vehicle for the wheelchair, a transportation provider must trans- port the wheelchair and its user.634 Nevertheless, legitimate safety requirements may permit a trans- portation provider not to carry a wheelchair and its user on a lift or in a vehicle.635 9. Suspension of Paratransit Service In Sway v. Spokane Paratransit,636 the plaintiff alleged that the defendants violated Title II of the ADA, inter alia, when they imposed a 20-day sus- pension of her access to paratransit services based on a pattern of no-shows, on their administering of the appeal process relating to her suspension, and when they provided “a number of rides to the plain- tiff that allegedly were problematic on a variety of grounds.”637 In denying the defendant’s motion to dismiss, the court ruled that the plaintiff ’s third amended complaint stated a plausible claim. The paratransit services the plaintiff received were “not comparable to the level of service provided to indi- viduals without disabilities and … the [Spokane Transit Authority] did not appropriately determine the amount of access Plaintiff would have to para- transit services.”638 10. Transit Agency’s Reduction in Paratransit Service In Abrahams v. MTA Long Island Bus,639 the defendants’ paratransit service, Able-Ride, provided door-to-door service to individuals with disabilities to areas outside the defendants’ service area,640 thus exceeding the level of service the ADA requires. However, because of budget shortfalls, service reduc- tions became necessary. Although the proposed changes did not require a public hearing, the MTA distributed notices to the public of the proposed changes to the MTA’s level of paratransit service.641 633 Id. 634 Id. at 57,929-30. 635 Id. at 57,930. 636 No. 2:16-CV-310-RMP, 2017 U.S. Dist. LEXIS 206716 (E.D. Wash. Dec. 15, 2017). 637 Id. at *8. 638 Id. 639 644 F.3d 110 (2d Cir. 2011). 640 Id. at 113. 641 Id. failed to prove a violation of the ADA or section 504.626 Third, the court rejected the plaintiff ’s claim for injunctive relief, because the evidence was insuf- ficient to show that the plaintiff faced “‘an immedi- ate threat of substantial injury.’”627 8. Restriction on the Use of Mobility Devices In Keirnan v. Utah Transit Authority,628 the plain- tiff, a paratransit rider, did not have a common wheelchair but used one weighing over 600 pounds. The plaintiff alleged that the Utah Transit Author- ity (UTA) was violating Title II of the ADA because it had restricted the size of mobility devices. A fed- eral district court in Utah denied the paratransit rider’s motion for a preliminary injunction. On appeal, the Tenth Circuit affirmed the district court’s decision, holding that the UTA did not violate the ADA when it changed its policy regarding wheel- chairs.629 The court relied on DOT Interpretative Guidance that stated that “devices used by individu- als with disabilities that do not fit this [common wheelchair] envelope (e.g., many ‘gurneys’) do not have to be carried.”630 However, after the Keirnan case, in September 2011, the DOT gave notice in the Federal Register of a rule change that responded to the Keirnan deci- sion. As the DOT notice explains, under the depart- ment’s then current ADA rule, transportation providers were required to permit wheelchairs on their vehicles that met the definition of a “common wheelchair,” i.e., a wheelchair having a weight of not more than 600 pounds, including the occupant, and having a dimension of 30 × 48 inches. The DOT explained that the definition of a common wheel- chair was originally a “design concept” that applied to what a lift should be designed to accommodate.631 However, the definition became an “operational con- cept” that resulted in some transit operators exclud- ing wheelchairs that did not meet the criteria for weight and dimension, such as happened in Keirnan, even when a vehicle could accommodate a passen- ger’s non-conforming wheelchair.632 The DOT final rule in 2011 deleted “the opera- tional role of the ‘common wheelchair’ design 626 Id. at *12-13 (citation omitted). 627 Id. at *15 (citation omitted). 628 339 F.3d 1217 (10th Cir. 2003). 629 Id. at 1218-19. 630 Id. at 1222 (quoting 49 C.F.R. pt. 37, app. D (2003)) (internal citation omitted). 631 U.S. DOT, Final Rule, Transportation for Individu- als with Disabilities at Intercity, Commuter, and High Speed Passenger Railroad Station Platforms; Miscella- neous Amendments, 76 Fed. Reg. 57,924, 57,929 (Sept. 19, 2011). 632 Id.