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

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44 to such individuals equivalent to the level of service such system provides to individuals without disabilities.648 A public entity providing transportation service may seek temporary relief from § 12144, but it must demonstrate, for example, that required lifts were unavailable from any qualified manufacturer or for another reason permitted by the statute.649 B. Regulations Applicable to Demand Responsive Service DOT regulations apply to demand responsive trans portation systems.650 The term demand respon- sive system applies to “designated public transporta- tion service by public entities and the provision of transportation service by private entities, including but not limited to specified public transportation ser- vice, which is not a fixed route system.”651 Demand responsive services include dial-a-ride, taxi subsidy, vanpool, and route deviation services.652 For demand responsive service, riders must request service, such as by telephone.653 When public entities that operate demand respon- sive systems purchase or lease new buses or other new vehicles, they must ensure that the vehicles are readily accessible to and usable by individuals with disabilities, including those who use wheelchairs.654 However, the regulations allow public entities to pur- chase new vehicles that are not readily accessible when a system, if “viewed in its entirety, provides a level of service to individuals with disabilities, includ- ing individuals who use wheelchairs, equivalent to the level of service it provides to individuals without disabilities….”655 The FTA states that “[e]quivalent service is an underlying measure of nondiscrimina- tion for demand responsive service with inaccessible vehicles in the fleet.”656 C. Interpretation of Equivalent Service in the Context of Demand Responsive Service The FTA Circular discusses how transit agen- cies may determine equivalency with service 648 42 U.S.C. § 12144 (2018). The requirement applies to a solicitation for a vehicle made after the 30th day fol- lowing the effective date of the section on July 26, 1990. 649 Id. §§ 12145(a)(1)-(4). 650 FTA Circular, Ch. 7.1 (discussing 49 C.F.R. § 37.3). 651 Id. Ch. 7.1, p. 7-1 (quoting 49 C.F.R. § 37.3) (footnote omitted). 652 Id. Ch. 7.5, p. 7-7. 653 Id. Ch. 7.2, p. 7-1 (discussing 49 C.F.R. § 37.3, app. D). 654 Id. Ch. 7.3, p. 7.2 (discussing 49 C.F.R. § 37.77(a)). 655 Id. Ch. 7.3, p. 7-2 (quoting 49 C.F.R. § 37.77(b)). 656 Id. Ch. 7.4, p. 7-3 (discussing 49 C.F.R. § 37.77(c)). The plaintiff alleged that the defendants imple- mented substantial reductions in paratransit service without public participation, which the plaintiffs argued that the ADA regulations required, and failed to make reasonable modifications to existing services to “ameliorate” the effect of service reductions.642 The plaintiffs’ argument was that a DOT regulation required “public entities to provide an ‘ongoing mech- anism for the participation of individuals with dis- abilities in the continued development and assessment of services to persons with disabilities.’”643 First, the Second Circuit held that the plaintiffs did not have a private right of action to enforce the regulation at issue. Congress intended to confer a private right of action to enforce 42 U.S.C. § 12143, including the public participation requirements in § 12143(c)(6). However, the regulation promulgated pursuant to § 12143 imposed obligations not found in the statute. After the approval of a public entity’s initial paratransit plan, § 12143 does not require any other ongoing form of public participation.644 The requirement relied on by the plaintiffs in 49 C.F.R. § 37.137(c) was broader than what is required by § 12143 of the ADA and, therefore, was not enforceable in a private action based on § 12143.645 Second, because paratransit services are covered by Part B of Title II, the court held that transit agen- cies providing such services are not subject to the regulation requiring “reasonable modifications” that the Attorney General issued pursuant to Part A of Title II.646 The reason is that § 12134 of the ADA states that the DOJ regulations “shall not include any matter within the scope of the authority of the Secretary of Transportation.”647 IX. DEMAND RESPONSIVE SERVICE UNDER TITLE II OF THE ADA A. Section 12144 of the ADA Section 12144 of the ADA states that a public entity discriminates against individuals with dis- abilities when the public entity operates a demand responsive system and purchases or leases a new vehicle for use on such system … that is not readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, unless such sys- tem, when viewed in its entirety, provides a level of service 642 Id. at 112. 643 Id. at 113-14 (quoting 49 C.F.R. § 37.137(c)). 644 Id. at 119. 645 Id. at 120-21 (footnote omitted). 646 Id. at 120 (citations omitted). 647 Id. at 121 (citation omitted).