DISABILITY LAW GUIDANCE
Where a state provides Federal Transit Administration §5311 funds to a private entity to operate a fixed route service, the requirement of the Department’s disability nondiscrimination regulations to provide complementary paratransit applies to this service.
These regulations (49 CFR Parts 27, 37 and 38) make it clear that, while state and local governments may delegate the performance of ADA functions to private entities, they must continue to fulfill their responsibilities to provide service to passengers. Section 37.23(a) of the Department’s ADA rule requires that:
When a public entity enters into a contract or other arrangement or relationship with a private entity to operate fixed route or demand responsive service, the public entity shall ensure that the private entity meets the requirements of this part that would apply to the public entity if the public entity itself provided the service. (emphasis added)
Here, the public entity involved is the state §5311 recipient. If the state itself provided fixed-route service in a locality, it would unquestionably have to provide ADA complementary paratransit service. The state must therefore ensure that a private entity that provides fixed route §5311 service either via contract or some “other arrangement or relationship” has the same obligation as the state itself would have: to provide ADA complementary paratransit service.
The term “other arrangement or relationship,” on its face, unambiguously refers to any means other than a contract through which a public entity works with a private entity to provide fixed route or demand responsive service. A private entity that receives a §5311 subgrant has an “arrangement or relationship” with the state agency involved. If the state provides funding to XYZ Nonprofit Transit Service, expects XYZ to perform certain tasks with those funds, and memorializes these expectations in a subgrant agreement, then there is obviously an arrangement or relationship between the state and XYZ Nonprofit Transit Service.
Not only is the language of §37.23(a) unambiguous, but its intent – to prevent the use of arrangements and relationships other than contracts to allow transit providers to avoid service obligations under the ADA – is clear.
If a state provides §5311 funding to a county government via a subgrant agreement, which then provides fixed route service, there is no dispute that eligible passengers must have ADA complementary paratransit service available. If a state provides §5311 funding to a private entity via a contract, which then provides fixed route service, there is no dispute that eligible passengers must have ADA complementary paratransit service available. Likewise, eligible passengers must have ADA complementary paratransit service available if a state provides §5311 funding to a private entity via a subgrant agreement; otherwise, passengers would be denied service solely on the basis of the state’s administrative choice of a provider and a funding mechanism. Making the availability of ADA complementary paratransit service wholly contingent on the state’s choice of administrative arrangements would be both arbitrary and inconsistent with the purpose of the ADA.
It is important to note that the ADA requires paratransit only as a complement to fixed-route service. There is no complementary paratransit requirement for demand-response systems serving the general public, such as dial-a-ride or route-deviation modes.
This bulletin has been approved through the Department of Transportation’s Disability Law Coordinating Council as representing the official views of the Department on this matter.
September 1, 2005
 Complementary paratransit would still be required for any portion of the system that continues to operate as a fixed-route service; see Appendix D to §37.3 for more information.