Legal E-Bulletin - January 2005

Paratransit System Not Required to Make Reasonable Modifications

Jason Melton uses a wheelchair. The front yard of his home has a steep slope that prevents him from getting to the street safely to wait for the bus. For the past seven years, the Dallas Area Rapid Transit (DART) paratransit service has allowed Melton to utilize a safer route, which is via a ramp in his garage that allows him access to an alley directly behind Melton's house.

In 1999, the paratransit service decided they would no longer pick him up in the alley citing health and safety concerns along with convenience.1 Instead, the service would pick him where the alley meets the street, about a block in distance.

Melton's parents sued DART for refusing to pick him up behind his house. They argued that the refusal was illegal discrimination under the Americans with Disabilities Act (ADA), and they wanted a court injunction requiring DART to make a reasonable modification to its policies and service to provide the alleyway pickup.

Title II of the ADA prohibits public entities like DART from denying the benefits of their services by reason of disability.2 Even though Jason could still technically use the service by being picked up a block away from his home, the Meltons argued that DART had denied Jason "meaningful access" to the service because DART's refusal to accommodate had made it more dangerous and difficult for him to use the system. That one-block alleyway that the paratransit service refused to go through due to "health and safety" concerns now has to be traversed by Jason.

The United Court of Appeals for the Fifth Circuit (Fifth Circuit) ruled in favor for DART. Does the ADA require a public transportation system to make reasonable modifications to its paratransit system? The court studied both the statutory and regulatory frameworks of the ADA and said no.

Title II of the ADA is divided into two parts. Part A covers all public entities while Part B covers specifically public transportation. The Department of Justice (DOJ) is responsible for promulgating regulations for Part A, while the Department of Transportation (DOT) is responsible for making Part B rules. The Meltons relied on a DOJ regulation that requires all public entities to make reasonable modifications in its policies and practices.3 However, another DOJ regulation exempts public transportation services that are covered by Part B from the DOJ regulations.4 The ADA specifically addresses the provision of paratransit services in Part B.5 Therefore, the DOJ regulation does not apply to DART's paratransit service. The DOT does not have any analogous regulation that requires public entities to make reasonable modifications.

The ADA requires that public entities who operate a fixed route bus system to complement it with paratransit and other special services to individuals with disabilities.6 They have to provide a level of paratransit service comparable to the services provided to users of the fixed route system.7 The public transportation entities annually submit a paratransit plan to the Federal Transit Authority (FTA), a part of the DOT.8 The FTA reviews whether the plan fits the requirement of the ADA.9 Once the plan is approved, the public entity is expected to follow it. Failing to provide the service as outlined by the plan is the prohibited discrimination under the ADA.10  The FTA periodically conducts periodic assessments to ensure compliance.

The Fifth Circuit reasoned that this comprehensive scheme set out by the ADA signaled that no extra modification is required if the public entity is properly operating under a FTA-approved plan. "The FTA-approved plan is in itself the accommodation to the disabled by the public entity. It is the violation of the plan itself that constitutes the prohibited discrimination under title II, not the failure to modify the plan to address particularized complaints."

DART's victory has serious implications to riders with disabilities. Should they need some type of accommodation or modification that falls outside the scope of the FTA-approved plan or DOT regulations, it is at the discretion of the public transportation system.11 Private entities that operate transportation services still have to provide reasonable modifications to its riders when necessary.12

The case citation is Melton v. Dallas Area Rapid Transit, __ F.3 __, WL 2632857 (5th Cir. Nov. 19, 2004). The reasonable modification in paratransit service issue was a matter of first impression for the courts. The Fifth Circuit's jurisdiction covers the states of Texas, Louisiana, and Mississippi, and this decision only applies to those states.

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1. DART's A Guide to Paratransit Services specifically prohibits alley pickup and droffs.

2. 42 U.S.C. § 12132:
No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity , or be subjected to discrimination by any such entity.

3. 28 C.F.R. § 35.130(b)(7):
A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary 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.

4. 28 C.F.R. § 35.102(b):
To the extent that public transportation services, programs, and activities of public entities are covered by subtitle B of title II of the ADA (42 U.S.C. 12141), they are not subject to the requirements of this part.

5. 42 U.S.C. § 12143(a):
It shall be considered discrimination for purposes of section 12132 of this title and section 794 of title 29 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, paratransit and other special transportation services to individuals with disabilities, including individuals who use wheelchairs, that are sufficient to provide to such individuals a level of service (1) which is comparable to the level of designated public transportation services provided to individuals 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.

6. Id.

7. 49 C.F.R. § 37.147.

8. 42 U.S.C. $ 12143(C)(7):
Plans - The regulations issued under this section shall require that each public entity which operates a fixed route system - (A) within 18 months after July 26, 1990, submit to the Secretary, and commence implementation of, a plan for providing paratransit and other special transportation services which meets the requirements of this section; and (B) on an annual basis thereafter, submit to the Secretary, and commence implementation of, a plan for providing such services.

9. 42 U.S.C. § 12143(d):

Review of plan

(1) General rule - The Secretary shall review a plan submitted under this section for the purpose of determining whether or not such plan meets the requirements of this section, including the regulations issued under this section.
(2) Disapproval - If the Secretary determines that a plan reviewed under this subsection fails to meet the requirements of this section, the Secretary shall disapprove the plan and notify the public entity, which submitted the plan of such disapproval and the reasons therefore.
(3) Modification of disapproved plan - Not later than 90 days after the date of disapproval of a plan under this subsection, the public entity which submitted the plan shall modify the plan to meet the requirements of this section and shall submit to the Secretary, and commence implementation of, such modified plan.

10. 42 U.S.C. § 12143(e)(4). The FTA periodically conducts periodic assessments to ensure compliance. A list of these compliance reviews can be found on the FTA website.

11. The FTA had stated in a letter of finding regarding alleyway pickup that, in curb-to-curb service, the "exact location of pick-up and drop-off sites are an operational issue not governed by the regulations". Utah Transit Authority, Salt Lake City, UT, 1-31-01.

12. 42 U.S.C. § 12184(b)(2)(A).

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