Reasonable modification: when the ADA requires a NEMT company to bend a policy for one rider

Which rule applies to your company

Which rule applies depends on whom you drive for. A private company whose main business is carrying people must follow the Justice Department’s rules on reasonable modifications, auxiliary aids, and barrier removal (49 CFR 37.5(f), pointing to 28 CFR 36.301 to 36.306). Under 28 CFR 36.302(a), it must change a policy, practice, or procedure when a rider with a disability needs the change, unless it can show the change would fundamentally alter its service.

A company that runs paratransit or other demand-response service under contract with a transit agency stands in the agency’s shoes for that work (37.23). It then follows the public-entity rule in 37.5(i)(3) and the request process in 37.169, which DOT added in a final rule published March 13, 2015 and required to be running by July 13, 2015. The rest of your ADA duties, from lifts to securement, are in ADA requirements for NEMT, and contract work is covered in working as an ADA paratransit contractor.

How a request should be handled

Section 37.169 sets the process for transit agencies and their contractors:

1. Tell the public how to ask, through the same channels you use to publish your policies.
2. Let riders describe what they need, without requiring the words “reasonable modification.”
3. Settle requests in advance where you can, at eligibility, reservation, or through customer service.
4. When a need shows up only at the curb, such as a blocked entrance, the driver decides on the spot and may call a manager first.
5. If you deny a request, do whatever else you can, short of a direct threat or a fundamental alteration, so the rider still gets the trip.

Private companies are not bound by those steps, but the same order works for any dispatch office.

When you may say no

DOT’s Appendix E lists four grounds for denying a request:

• Fundamental alteration. The change would alter the nature of the service.
• Direct threat. It would create a direct threat to the health or safety of others.
• Not needed. The rider can fully use the service without it.
• Undue burden. It would cause an undue financial and administrative burden, a ground open only to recipients of federal financial assistance.

What DOT’s examples say

Appendix E gives 27 examples. Requests that should generally be granted, within safety limits such as a direct threat or leaving the van out of sight for a long time, include:

• Help over a path that has not been cleared of snow or ice, and around obstacles or up a driveway incline.
• Pickup and drop-off at the entrance the rider asks for, and reasonable efforts to get access to private property.
• Handling the fare for a rider who cannot, eating or drinking to manage diabetes, and taking medication such as insulin aboard.
• Boarding separately from a wheelchair when the occupied chair is too heavy for the lift.
• Opening an exterior building door, help to the door in extreme weather, and a call five minutes before arrival.
• Help on a return trip the rider did not need on the way in. The door-to-door entry covers the dialysis example.

Requests that may be denied include special equipment or a dedicated vehicle, a sedan instead of a van, an exclusive trip, service outside your area or hours, a driver who stays with the rider as an attendant, door-through-door help, minding a service animal, a specific driver, avoiding certain passengers, and lifting a rider out of a mobility device except in an emergency.

In HealthRide, the wheelchair, stretcher, and oxygen needs entered at booking stay with the trip on the dispatch board and are matched to the vehicle, so a change agreed when the ride was booked is still there on the day of the ride.