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Implementing the U.S. DOT Reasonable Modification Rule (2019)

Chapter: Appendix C - Final Rule on Reasonable Modification of Policies and Practices Incorporating Current C.F.R. Language

« Previous: Appendix B - Prefatory Language from the March 13, 2015, Federal Register Notice on the DOT Final Rule on Transportation for Individuals with Disabilities; Reasonable Modification of Policies and Practices
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Suggested Citation:"Appendix C - Final Rule on Reasonable Modification of Policies and Practices Incorporating Current C.F.R. Language." National Academies of Sciences, Engineering, and Medicine. 2019. Implementing the U.S. DOT Reasonable Modification Rule. Washington, DC: The National Academies Press. doi: 10.17226/25430.
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Suggested Citation:"Appendix C - Final Rule on Reasonable Modification of Policies and Practices Incorporating Current C.F.R. Language." National Academies of Sciences, Engineering, and Medicine. 2019. Implementing the U.S. DOT Reasonable Modification Rule. Washington, DC: The National Academies Press. doi: 10.17226/25430.
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Suggested Citation:"Appendix C - Final Rule on Reasonable Modification of Policies and Practices Incorporating Current C.F.R. Language." National Academies of Sciences, Engineering, and Medicine. 2019. Implementing the U.S. DOT Reasonable Modification Rule. Washington, DC: The National Academies Press. doi: 10.17226/25430.
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Suggested Citation:"Appendix C - Final Rule on Reasonable Modification of Policies and Practices Incorporating Current C.F.R. Language." National Academies of Sciences, Engineering, and Medicine. 2019. Implementing the U.S. DOT Reasonable Modification Rule. Washington, DC: The National Academies Press. doi: 10.17226/25430.
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C-1 The following text is derived from: Transportation for Individuals with Disabilities; Reasonable Modification of Policies and Practices, 80 Fed. Reg. 13,260-13,263 (Mar. 13, 2015) (to be codified at 49 C.F.R. pts. 27, 37). Available: http://www.gpo.gov/fdsys/pkg/FR-2015-03-13/pdf/2015-05646.pdf [accessed June 15, 2018] Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance, 49 C.F.R. Part 27. Available: http://www.ecfr.gov/cgi-bin/text-idx?tpl=/ ecfrbrowse/Title49/49cfr27_main_02.tpl [accessed June 15, 2018] Transportation for Individuals with Disabilities (ADA), 49 C.F.R. Part 37. Available: http://www.ecfr.gov/cgi-bin/textidx?tpl=/ecfrbrowse/Title49/49cfr37_main_02.tpl [accessed June 15, 2018] PART 27—NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE • 1. The authority citation for part 27 is revised to read as follows: Authority: Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794); 49 U.S.C. 5332. • 2. Amend § 27.7 by adding a new paragraph (e) to read as follows: § 27.7 Discrimination prohibited. * * * * * (e) Reasonable accommodations. A recipient shall make reasonable accommodations in policies, practices, or procedures when such accommodations are necessary to avoid discrimination on the basis of disability unless the recipient can demonstrate that making the accommodations would fundamentally alter the nature of the service, program, or activity or result in an undue financial and administrative burden. For the purposes of this section, the term reasonable accommodation shall be interpreted in a manner consistent with the term ‘’reasonable modifications’’ as set forth in the Americans with Disabilities Act title II regulations at 28 C.F.R. 35.130(b)(7), and not as it is defined or interpreted for the purposes of employment discrimination under title I of the ADA (42 U.S.C. 12111–12112) and its implementing regulations at 29 C.F.R. Part 1630. A P P E N D I X C Final Rule on Reasonable Modification of Policies and Practices Incorporating Current C.F.R. Language

C-2 Implementing the U.S. DOT Reasonable Modification Rule • 3. Revise § 27.13 to read as follows: § 27.13 Designation of responsible employee and adoption of complaint procedures. (a) Designation of responsible employee. Each recipient shall designate at least one person to coor- dinate its efforts to comply with this part. (b) Adoption of complaint procedures. A recipient shall adopt procedures that incorporate appro- priate due process standards and provide for the prompt and equitable resolution of complaints alleging any action prohibited by this part and 49 C.F.R. Parts 37, 38, and 39. The procedures shall meet the following requirements: (1) The process for filing a complaint, including the name, address, telephone number, and email address of the employee designated under paragraph (a) of this section, must be sufficiently advertised to the public, such as on the recipient’s Web site; (2) The procedures must be accessible to and usable by individuals with disabilities; (3) The recipient must promptly communicate its response to the complaint allegations, includ- ing its reasons for the response, to the complainant by a means that will result in documen- tation of the response. PART 37—TRANSPORTATION SERVICES FOR INDIVIDUALS WITH DISABILITIES (ADA) • 4. The authority citation for part 27 continues to read as follows: Authority: 42 U.S.C. 12101–12213; 49 U.S.C. 322. • 5. In § 37.3, add a definition of ‘’Origin-to-destination service’’ in alphabetical order to read as follows: § 37.3 Definitions. * * * * * Origin-to-destination service means providing service from a passenger’s origin to the passenger’s destination. A provider may provide ADA complementary paratransit in a curb-to-curb or door to door mode. When an ADA paratransit operator chooses curb-to-curb as its primary means of providing service, it must provide assistance to those passengers who need assistance beyond the curb in order to use the service unless such assistance would result in in a fundamental alteration or direct threat. * * * * * • 6. Amend § 37.5 by revising paragraph (h) and adding paragraph (i) to read as follows: § 37.5 Nondiscrimination. * * * * * (h) It is not discrimination under this part for an entity to refuse to provide service to an individual with disabilities because that individual engages in violent, seriously disruptive, or illegal con- duct, or represents a direct threat to the health or safety of others. However, an entity shall not refuse to provide service to an individual with disabilities solely because the individual’s dis- ability results in appearance or involuntary behavior that may offend, annoy, or inconvenience employees of the entity or other persons. (i) Public and private entity distinctions.— (1) Private entity–private transport. Private entities that are primarily engaged in the business of transporting people and whose operations affect commerce shall not discriminate against any individual on the basis of disability in the full and equal enjoyment of specified transportation services. This obligation includes, with respect to

Final Rule on Reasonable Modification of Policies and Practices Incorporating Current C.F.R. Language C-3 the provision of transportation services, compliance with the requirements of the rules of the Department of Justice concerning eligibility criteria, making reasonable modifications, provid- ing auxiliary aids and services, and removing barriers (28 C.F.R. 36.301–36.306). (2) Private entity–public transport. Private entities that provide specified public transportation shall make reasonable modifications in policies, practices, or procedures, when the modi- fications are necessary to afford goods, services, facilities, privileges, advantages, or accom- modations to individuals with disabilities, unless the entity can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations. (3) Public entity–public transport. Public entities that provide designated public transportation shall make reasonable modifications in policies, practices, or procedures when the modifica- tions are necessary to avoid discrimination on the basis of disability or to provide program accessibility to their services, subject to the limitations of § 37.169(c)(1)–(3). This require- ment applies to the means public entities use to meet their obligations under all provisions of this part. (4) In choosing among alternatives for meeting nondiscrimination and accessibility require- ments with respect to new, altered, or existing facilities, or designated or specified trans- portation services, public and private entities shall give priority to those methods that offer services, programs, and activities to qualified individuals with disabilities in the most inte- grated setting appropriate to the needs of individuals with disabilities. • 7. Add § 37.17 to read as follows: § 37.17 Designation of responsible employee and adoption of complaint procedures. (a) Designation of responsible employee. Each public or private entity subject to this part shall designate at least one person to coordinate its efforts to comply with this part. (b) Adoption of complaint procedures. An entity shall adopt procedures that incorporate appropriate due process standards and provide for the prompt and equitable resolution of complaints alleging any action prohibited by this part and 49 C.F.R. Parts 27, 38 and 39. The procedures shall meet the following requirements: (1) The process for filing a complaint, including the name, address, telephone number, and email address of the employee designated under paragraph (a) of this section, must be sufficiently advertised to the public, such as on the entity’s Web site; (2) The procedures must be accessible to and usable by individuals with disabilities; (3) The entity must promptly communicate its response to the complaint allegations, including its reasons for the response, to the complainant and must ensure that it has documented its response. • 8. Add § 37.169 to read as follows: § 37.169 Process to be used by public entities providing designated public transportation service in considering requests for reasonable modification. (a)(1) A public entity providing designated public transportation, in meeting the reasonable modi- fication requirement of § 37.5(i)(3) with respect to its fixed route, demand responsive, and complementary paratransit services, shall respond to requests for reasonable modification to policies and practices consistent with this section. (2) The public entity shall make information about how to contact the public entity to make requests for reasonable modifications readily available to the public through the same means it uses to inform the public about its policies and practices. (3) This process shall be in operation no later than July 13, 2015.

C-4 Implementing the U.S. DOT Reasonable Modification Rule (b) The process shall provide a means, accessible to and usable by individuals with disabilities, to request a modification in the entity’s policies and practices applicable to its transportation services. (1) Individuals requesting modifications shall describe what they need in order to use the service. (2) Individuals requesting modifications are not required to use the term ‘’reasonable modifica- tion’’ when making a request. (3) Whenever feasible, requests for modifications shall be made and determined in advance, before the transportation provider is expected to provide the modified service, for example, during the paratransit eligibility process, through customer service inquiries, or through the entity’s complaint process. (4) Where a request for modification cannot practicably be made and determined in advance (e.g., because of a condition or barrier at the destination of a paratransit or fixed route trip of which the individual with a disability was unaware until arriving), operating personnel of the entity shall make a determination of whether the modification should be provided at the time of the request. Operating personnel may consult with the entity’s management before making a determination to grant or deny the request. (c) Requests for modification of a public entity’s policies and practices may be denied only on one or more of the following grounds: (1) Granting the request would fundamentally alter the nature of the entity’s services, pro- grams, or activities; (2) Granting the request would create a direct threat to the health or safety of others; (3) Without the requested modification, the individual with a disability is able to fully use the entity’s services, programs, or activities for their intended purpose. (d) In determining whether to grant a requested modification, public entities shall be guided by the provisions of Appendix E to this Part. (e) In any case in which a public entity denies a request for a reasonable modification, the entity shall take, to the maximum extent possible, any other actions (that would not result in a direct threat or fundamental alteration) to ensure that the individual with a disability receives the services or benefit provided by the entity. (f)(1) Public entities are not required to obtain prior approval from the Department of Transpor- tation for the process required by this section. (2) DOT agencies retain the authority to review an entity’s process as part of normal program oversight. • 9. Add a new Appendix E to Part 37 to read as follows: . . . The language of Appendix E to 49 C.F.R. Part 37 is included as Appendix D to this synthesis report.

Next: Appendix D - Current C.F.R. Language from Appendix E to Part 37 »
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TRB’s Transit Cooperative Research Program (TCRP) Synthesis 142: Implementing the U.S. DOT Reasonable Modification Rule provides an overview of the current state of practice regarding transit systems implementation of the U.S. Department of Transportation’s (DOT’s) Americans with Disabilities Act of 1990 (ADA) regulation 49 C.F.R Part 37.

The report describes the experiences of agencies as they make reasonable modifications to their practices and policies in order to both respond to the regulation and ensure service to people with disabilities. The report also includes case examples of six transit systems, which present an in-depth analysis of the issues, opportunities, challenges, lessons learned, and keys to success in implementation of reasonable modifications . The need for future research is also discussed.

Under the U.S. DOT regulations for implementing the ADA and Section 504 of the Rehabilitation Act of 1973 (49 C.F.R. Parts 37 and 27), transportation service providers and recipients of federal funding are required to ensure their services do not discriminate against people with disabilities.

In 2015, the U.S. DOT amended 49 C.F.R. Parts 27 and 37 to require transportation entities to make “reasonable modifications/accommodations to policies, practices, and procedures to avoid discrimination and ensure that their programs are accessible to individuals with disabilities.” Effective July 13, 2015, 49 C.F.R. §37.169 of this final rule requires that public entity transit providers develop their own processes for making decisions and for providing reasonable modifications to their policies and practices.

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