Office of Civil Rights Volume 2
Is a transit operator permitted to establish "premium charges" for complementary paratransit services that exceed the minimum requirements established by the Department of Transportation’s ADA regulations?
In general, any paratransit services that a transit operator provides above and beyond its regulatory obligations, including service to individuals who do not fall under one of the three categories of eligibility established under the ADA, are not subject to the service criteria for ADA complementary paratransit (i.e., service area, response time, fares, trip purpose, hours and days, and capacity constraints). Transit operators may therefore elect to establish "premium charges" for such services.
Under the ADA, paratransit functions as a "safety net" for people with disabilities who are unable to make use of the fixed-route – e.g. "mainstream" – transit system (bus or rail). It is not intended to be a comprehensive system of transportation that meets all of the travel needs of persons with disabilities. As such, the level of service is required to be comparable to the fixed-route system, and service is required only for individuals whose disability – permanent or temporary – prevents them from using the fixed-route system. The eligibility requirements are incorporated into §37.123 of the Department’s regulations, and the service criteria are established by §37.131.
Section 37.131 establishes the minimum requirements for complementary paratransit provided under the ADA; transit operators are free to provide any level of additional service that they or their communities find necessary. This could include providing paratransit service to individuals who do not meet the eligibility criteria, operating paratransit service beyond the fixed-route service area, providing service when the fixed-route system is not running, or by exceeding the basic next-day service requirement. In such cases, the operator would not be bound by the service criteria for ADA complementary paratransit, including the requirement that limits the fare to no more than twice the fare for a comparable trip on the fixed-route system.
While "premium charges" would therefore be permitted for such services, transit operators who wish to do so are strongly advised to thoroughly review Subpart F of the Department’s ADA implementing regulations before making any changes to the operations, eligibility, or fare structure of their existing ADA complementary paratransit systems. Not only must transit operators ensure that any proposed changes are consistent with the basic ADA requirements, but they must also meet the applicable public participation requirements.
With regard to public participation, §37.137(c) requires a paratransit operator to create an "ongoing mechanism" for the participation of individuals with disabilities in the continued development and assessment of services to persons with disabilities. While this provision does not require a transit operator to conduct a public hearing for minor adjustments to its ADA paratransit service, the use of some form of public participation process in the establishment of "premium services" is strongly advised.
A public hearing is required, however, for changes to the paratransit reservations system. Under §37.131(b)(4), any changes to the reservation system must comply with the public participation requirements in §§37.137(b) and (c) of the Department’s ADA implementing regulations.* These require that public participation include: outreach, consultation with individuals with disabilities, opportunity for public comment, a public hearing and the creation of a mechanism for continued participation of persons with disabilities in the development and assessment of services to persons with disabilities.
Transit operators are also advised that they must still meet the basic ADA paratransit service criteria, and should avoid any practice by which eligible riders are "steered" into a service category to which "premium charges" are applied. Furthermore, transit operators should not look to "premium services" as a means of relieving demand for ADA complementary paratransit services by eligible riders.
*Note: §37.131(b)(4) of the Department’s ADA regulations, as amended, contains a typographical error; reference to §37.131(b) and (c) should read "37.137 (b) and (c)."