37.123 ADA paratransit eligibility - standards.
(a) Public entities required by 37.121 of this subpart to provide complementary
paratransit service shall provide the service to the ADA paratransit eligible
individuals described in paragraph (e) of this section.
This section sets forth the minimum requirements for eligibility
for complementary paratransit service. All fixed route operators providing
complementary paratransit must make service available at least to individuals
meeting these standards. The ADA does not prohibit providing paratransit
service to anyone. Entities may provide service to additional persons
as well. Since only service to ADA eligible persons is required by
the rule, however, only the costs of this service can be counted in the context
of a request for an undue financial burden waiver.
(b) If an individual meets the eligibility criteria of this section with
respect to some trips but not others, the individual shall be ADA paratransit
eligible only for those trips for which he or she meets the criteria.
(c) Individuals may be ADA paratransit eligible on the basis of a permanent
or temporary disability.
A person may be ADA paratransit eligible for some trips but not others.
Eligibility does not inhere in the individual or his or her disability, as
such, but in meeting the functional criteria of inability.to use the fixed
route system established by the ADA. This inability is likely to change
with differing circumstances.
For example, someone whose impairment-related condition is a severe sensitivity
to temperatures below 20 degrees is not prevented from using fixed route
transit when the temperature is 75 degrees. Someone whose impairment-related
condition is an inability to maneuver a wheelchair through snow is not prevented
from using fixed route transit when there is no snow on the ground.
Someone with a cognitive disability may have learned to take the same bus
route to a supported employment job every day. This individual is able
to navigate the system for work purposes and therefore would not be eligible
for paratransit for work trips. But the individual may be unable to
get to other destinations on the bus system without getting lost, and would
be eligible for paratransit for non-work trips. Someone who normally
drives his own car to a rail system park and ride lot may have a specific
impairment related condition preventing him from getting to the station when
is car is in the shop. A person who can use accessible fixed route
service can go to one destination on an accessible route; another destination
would require the use of an inaccessible route. The individual would
be eligible for the latter but not the former.
In many cases, though the person is eligible for some trips but not others,
eligibility determinations would not have to be made literally on a trip-by-trip
basis. It may often be possible to establish the conditions on eligibility
as part of the initial eligibility determination process. Someone with
a temperature sensitivity might be granted seasonal eligibility. Somebody
who is able to navigate the system for work but not non-work trips could
have this fact noted in his or her eligibility documentation.
Likewise, someone with a variable condition (e.g., multiple sclerosis, HIV
disease, need for kidney dialysis) could have their eligibility based on
the underlying condition, with paratransit need for a particular trip dependent
on self-assessment or a set of medical standards (e.g., trip within a certain
amount of time after a dialysis session). On the other hand, persons
in the second eligibility category (people who can use accessible fixed route
service where it exists) would to be given service on the basis of the particular
route they would use.for a given trip.
Because entities are not precluded from providing service beyond that required
by the rule, an entity that believes it is too difficult to administer a
program of trip-by-trip eligibility is not required to do so. Nothing
prevents an entity from providing all requested trips to a person whom the
ADA requires to receive service for only some trips. In this case,
if the entity intends to request an undue financial burden waiver, the entity,
as provided in the undue burden provisions of this rule, must estimate, by
a statistically valid technique, the percentage of its paratransit trips
that are mandated by the ADA. Only that percentage of its total costs
will be counted in considering the undue burden waiver request.
(d) Public entities may provide complementary paratransit service to persons
other than ADA paratransit eligible individuals. However, only the
cost of service to ADA paratransit eligible individuals may be considered
in a public entity's request for an undue financial burden waiver under 37.151
- 37.155 of this part.
Eligibility may be based on a temporary as well as a permanent disability.
The individual must meet one of the three eligibility criteria in any case,
but can do so for a limited period of time. For example, if an individual
breaks both legs and is in two casts for several weeks, becomes a wheelchair
user for the duration, and the bus route that would normally take him to
work is not accessible, the individual could be eligible under the second
eligibility category.In granting eligibility to such a person, the entity
should establish an expiration date for eligibility consistent with the expected
end of the period disability.
When the rule says that ADA paratransit eligibility shall be
strictly limited to persons in the eligible categories, then, it is not saying
that entities are in any way precluded from serving other people. It
is saying that the persons who must be provided service, and counting the
costs of providing them service, in context of an undue burden waiver, are
limited to the regulatory categories.
(e) The following individuals are ADA paratransit eligible:
(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 individual (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
Category 1 Eligibility
(2) Any individual with a disability 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 if the individual
wants to travel on a route on the system during the hours of operation of
the system at a time, or within a reasonable period of such time, when such
a vehicle is not being used to provide designated public transportation on
The first eligibility category includes, among others, persons with mental
or visual impairments who, as a result, cannot "navigate the system." This
eligibility category includes people who cannot board, ride, or disembark
from an accessible vehicles "without the assistance of another individual."
This means that, if an individual needs an attendant to board, ride, or disembark
from an accessible fixed route vehicles (including "navigating the system"),
the individual is eligible for paratransit. One implication of this
language is that an individual does not lose paratransit eligibility based
on "inability to navigate the system" because the individual chooses to travel
with a friend on the paratransit system (even if the friend could help the
person navigate the fixed route system). Eligibility in this category
is based on ability to board, ride, and disembark independently.
Mobility training (e.g., of persons with mental or visual impairments) may
help to improve the ability of persons to navigate the system or to get to
a bus stop. Someone who is successfully mobility trained to use the
fixed route system for all or some trips need not be provided paratransit
service for those trips. The Department encourages entities to sponsor
such training as a means of assisting individuals to use fixed route rather
(i) An individual is eligible under this paragraph with respect
to travel on an otherwise accessible route on which the boarding or disembarking
location which the individual would use is one at which boarding or disembarking
from the vehicle is precluded as provided in 37.167(g) of this Part.
(ii) An individual using a common wheelchair is eligible under this paragraph
if the individual's wheelchair cannot be accommodated on an existing vehicle
(e.g., because the vehicle's lift does not meet the standards of Part 38
of this title), even if that vehicle is accessible to other individuals with
disabilities and their mobility wheelchairs.
(iii) With respect to rail systems, an individual is eligible under this
paragraph if the individual could use an accessible rail system, but
(A) there is not yet one accessible car per train on the system;
(B) key stations have not yet been made accessible.
Category 2 Eligibility
(3) Any individual with a disability who has a specific impairment-related
condition which prevents such individual from traveling to a boarding location
or from a disembarking location on such system.
The second eligibility criterion is the broadest, with respect to persons
with mobility impairments, but its impact should be reduced over time as
transit systems become more accessible. This category applies to persons
who could use accessible fixed route transportation, but accessible transportation
is not being used at the time, and on the route, the persons would travel.
This concept is route based, not system based.
Speaking first of bus systems, if a person is traveling from Point A to Point
B on route 1, and route 1 is accessible, the person is not eligible for paratransit
for the trip. This is true even though other portions of the system
are still inaccessible. If the person is traveling from Point A to
Point C on route 2, which is not accessible, the person is eligible for that
trip. If the person is traveling from point A to Point B on accessible
route 1, with a transfer at B to go on inaccessible route 3 to Point D, then
the person is eligible for the second leg of the trip. (The entity could
choose to provide a paratransit trip from A to D or a paratransit or on-call
bus trip from B to D.)
For purposes of this standard, we view a route as accessible when all buses
scheduled on the route are accessible. Otherwise, it is unlikely that
an accessible vehicle could be provided "within a reasonable period of [a]
time" when the individual wants to travel, as the provision requires.
We recognize that some systems' operations may not be organized in a way
that permits determining whether a given route is accessible, even though
a route-by-route determination appears to be contemplated by the statute.
In such cases, it may be that category 2 eligibility would persist until
the entire system was eligible.
With respect to a rail system, an individual is eligible under this standard
if, on the route or line he or she wants to use, there is not yet one car
per train accessible or if key stations are not yet accessible. This
eligibility remains even if bus systems covering the area served by the rail
system have become 100 percent accessible. This is necessary because
people use rail systems for different kinds of trips than bus systems. It
would often take much more in the way of time, trouble, and transfers for
a person to go on the buses of one or more transit authorities than to have
a direct trip provided by the rail operator. Since bus route systems
are often designed to feed rail systems rather than duplicate them, it may
often be true that "you can't get there from here" relying entirely on bus
routes or the paratransit service area that parallels them.
If the lift on a vehicle cannot be deployed at a particular stop, an individual
is eligible for paratransit under this category with respect to the service
to the inaccessible stop. If on otherwise accessible route 1, an individual
wants to travel from Point A to Point E, and the lift cannot be deployed
at E, the individual is eligible for paratransit for the trip. (On-call bus
would not work as a mode of providing this trip, since a bus lift will not
deploy at the stop.) This is true even though service from Point A to all
other points on the line is fully accessible. In this circumstance,
the entity should probably think seriously about working with the local government
involved to have the stop moved or made accessible.
When we say that a lift cannot be deployed, we mean literally that the mechanism
will not work at the location to permit a wheelchair user or other person
with a disability to disembark or that the lift will be damaged if it is
used there. It is not consistent with the rule for a transit provider
to declare a stop off-limits to someone who uses the lift while allowing
other passengers to use the stop. However, if temporary conditions
not under the operator's control (e.g., construction, an accident, a landslide)
make it so hazardous for anyone to disembark that the stop is temporarily
out of service forall passengers may the operator refuse to allow a passenger
to disembark using the lift.
(i) Only a specific impairment-related condition which prevents
the individual from traveling to a boarding location or from a disembarking
location is a basis for eligibility under this paragraph. A condition
which makes traveling to boarding location or from a disembarking location
more difficult for a person with a specific impairment-related condition
than for an individual who does not have the condition, but does not prevent
the travel, is not a basis for eligibility under this paragraph.
(ii) Architectural barriers not under the control of the public entity providing
fixed route service and environmental barriers (e.g., distance, terrain,
weather) do not, standing alone, form a basis for eligibility under this
paragraph. The interaction of such barriers with an individual's specific
impairment-related condition may form a basis for eligibility under this
paragraph, if the effect is to prevent the individual from traveling to a
boarding location or from a disembarking location.
Category 3 Eligibility
(f) Individuals accompanying an ADA paratransit eligible individual shall
be provided service as follows:
The third eligibility criterion concerns individuals who have a specific
impairment-related condition which prevents them from getting to or from
a stop or station. As noted in the legislative history of the ADA,
this is intended to be a "very narrow exception" to the general rule that
difficulty in traveling to or from boarding or disembarking locations is
not a basis for eligibility.
What is a specific impairment-related condition? The legislative history
mentions four examples: chronic fatigue, blindness, a lack of cognitive ability
to remember and follow directions, or a special sensitivity to temperature.
Impaired mobility, severe communications disabilities (e.g., a combination
of serious vision and hearing impairments), cardiopulmonary conditions, or
various other serious health problems may have similar effects. The
Department does not believe that it is appropriate, or even possible, to
create an exhaustive list.
What the rule uses as an eligibility criterion is not just the existence
of a specific impairment-related condition. To be a basis for eligibility,
the condition must prevent the individual from traveling to a boarding location
or from a disembarking location. The word "prevent" is very important.
For anyone, going to a bus stop and waiting for a bus is more difficult and
less comfortable than waiting for a vehicle at one's home. This is
likely to be all the more true for an individual with a disability.
But for many persons with disabilities, in many circumstances, getting to
a bus stop is possible. If an impairment related condition only makes
the job of accessing transit more difficult than it might otherwise be, but
does not prevent the travel, then the person is not eligible.
For example, in many areas, there are not yet curb cuts. A wheelchair
user can often get around this problem by taking a less direct route to a
destination than an ambulatory person would take. That involves more
time, trouble, and effort than for someone without a mobility impairment.
But the person can still get to the bus stop. On the basis of these
architectural barriers, the person would not be eligible.
Entities are cautioned that, particularly in cases involving lack of curb
cuts and other architectural barrier problems, assertions of eligibility
should be given tight scrutiny. Only if it is apparent from the facts
of a particular case that an individual cannot find a reasonable alternative
path to a location should eligibility be granted.
If we add a foot of snow to the scenario, then the same person taking the
same route may be unable to get to the bus stop. If is not the snow
alone that stops him; it is the interaction of the snow and the fact that
the individual has a specific-impairment related condition that requires
him to push a wheelchair through the snow that prevents the travel.
Inevitably, some judgment is required to distinguish between situations in
which travel is prevented and situations in which it is merely made more
difficult. In the Department's view, a case of "prevented travel" can
be made not only where travel is literally impossible (e.g., someone cannot
find the bus stop, someone cannot push a wheelchair through the foot of snow
or up a steep hill) but also where the difficulties are so substantial that
a reasonable person with the impairment-related condition in question would
be deterred from making the trip.
The regulation makes the interaction between an impairment-related condition
and the environmental barrier (whether distance, weather, terrain, or architectural
barriers) the key to eligibility determinations. This is an individual
determination. Depending on the specifics of their impairment-related
conditions, one individual may be able to get from his home to a bus stop
under a given set of conditions, while his next-door neighbor may not.
(1) One other individual accompanying the ADA paratransit eligible individual
shall be provided service.
(i) If the ADA paratransit eligible individual is traveling with
a personal care attendant, the entity shall provide service to one
other individual in addition to the attendant who is accompanying the eligible
(2) Additional individuals accompanying the ADA paratransit eligible individual
shall be provided service, provided that space is available for them on the
paratransit vehicle carrying the ADA paratransit eligible individual and
that transportation of the additional individuals will not result in a denial
of service to ADA paratransit eligible individuals.
(ii) A family member or friend is regarded as a person accompanying the eligible
individual, and not as a personal care attendant, unless the family member
or friend registered is acting in the capacity of a personal care attendant;
(3) In order to be considered as "accompanying" the eligible individual for
purposes of this paragraph, the other individual(s) shall have the same origin
and destination as the eligible individual.
The ADA requires entities to provide paratransit to one person accompanying
the eligible individual, with others served on a space- available basis.
The one individual who is guaranteed space on the vehicle can be anyone --
family member, business associate, friend, date, etc. The provider
cannot limit the eligible individual's choice of type of companion.
The transit authority may require that the eligible individual reserve a
space for the companion when the individual reserves his or her own ride.
This one individual rides even if this means that there is less room for
other eligible individuals. Additional individuals beyond the first
companion are carried only on a space available basis; that is, they do not
displace other ADA paratransit eligible individuals.
A personal care attendant (i.e., someone designated or employed specifically
to help the eligible individual meet his or her personal needs) always may
ride with the eligible individual. If there is a personal care attendant
on the trip, the eligible individual may still bring a companion, plus additional
companions on a space available basis. The entity may require that,
in reserving the trip, the eligible individual reserve the space for the
To prevent potential abuse of this provision, the rule provides that a companion
(e.g., friend or family member) does not count as a personal care attendant
unless the eligible individual regularly makes use of a personal care attendant
and the companion is actually acting in that capacity. As noted under
§37.125, a provider may require that, as part of the initial eligibility
certification process, an individual indicate whether he or she travels with
a personal care attendant. If someone does not indicate the use of
an attendant, then any individual accompanying him or her would be regarded
simply as a companion.
To be viewed as "accompanying" the eligible individual, a companion must
have the same origin and destination points as the eligible individual.
In appropriate circumstances, entities may also wish to provide service to
a companion who has either an origin or destination, but not both, with the
eligible individual (e.g., the individual's date is dropped off at her own
residence on the return frip from a concert).