Federal Transit Administration November 4, 2015 Subject: americans with disabilities act (ada): guidance
Applicability of the DOT Regulations
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- Discussion
- 1.3.2Services Under Contract or Other Arrangement
- When the Stand-in-the-Shoes Requirements Do Not Apply
- Private Entities Receiving § 5311 Funding
- Private Entities Receiving § 5310 Funding
1.3Applicability of the DOT Regulations1.3.1Applicability in GeneralRequirement“[Part 37] applies to the following entities, whether or not they receive Federal financial assistance from the Department of Transportation: (1) Any public entity that provides designated public transportation or intercity or commuter rail transportation; (2) Any private entity that provides specified public transportation; and (3) Any private entity that is not primarily engaged in the business of transporting people but operates a demand responsive or fixed route system” (§ 37.21(a)). DiscussionThis requirement explains the entities covered by the DOT ADA regulations, noting that entities are subject to the regulations whether or not they receive Federal funds. Since FTA grantees primarily fall under the first category as public entities that provide designated public transportation, the DOT ADA regulations apply to them. Section 37.3 provides the following definitions:
A private entity may receive FTA funds to provide public transportation as either a subrecipient or a contractor. In those circumstances, specific provisions of the regulations will apply to these private entities. These provisions are discussed below. As stated earlier, the ADA and the DOT ADA regulations apply broadly to both public and private entities and to almost all types of transportation services. The discussion below describes how the various service arrangements determine which portions of the ADA regulations are applicable. 1.3.2Services Under Contract or Other ArrangementRequirement“When a public entity enters into a contractual or other arrangement (including, but not limited to, a grant, subgrant, or cooperative agreement) 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 [Part 37] that would apply to the public entity if the public entity itself provided the service” (§ 37.23(a)). “A private entity which purchases or leases new, used, or remanufactured vehicles, or remanufactures vehicles, for use, or in contemplation of use, in fixed route or demand responsive service under contract or other arrangement or relationship with a public entity, shall acquire accessible vehicles in all situations in which the public entity itself would be required to do so by [Part 37]” (§ 37.23(b)). “A public entity which enters into a contractual or other arrangement (including, but not limited to, a grant, subgrant, or cooperative agreement) or relationship with a private entity to provide fixed route service shall ensure that the percentage of accessible vehicles operated by the public entity in its overall fixed route or demand responsive fleet is not diminished as a result” (§ 37.23(c)). “A private entity that provides fixed route or demand responsive transportation service under contract or other arrangement (including, but not limited to, a grant, subgrant, or cooperative agreement) with another private entity shall be governed, for purposes of the transportation service involved, by the provisions of [Part 37] applicable to the other entity” (§ 37.23(d)). DiscussionMany public transit agencies use contractors to operate some or all of their services. Section 37.23 obligates these agencies to ensure their contractors comply with the same Part 37 requirements the transit agencies would need to follow if they were running the services themselves. As explained in Appendix D to § 37.23, private entities (e.g., contractors) “stand in the shoes” of public entities with whom they contract to provide transportation services. Section 37.23 ensures that, while a public entity may contract out its service, it may not contract away its ADA responsibilities. Commonly known as the “stand-in-the-shoes requirements,” § 37.23 primarily applies to (1) provision of service and (2) vehicle acquisition. Section 37.23 requires contractors to follow the public entity service requirements in Part 37 if they are operating service on behalf of a public entity. If a transit agency is using a contractor to run fixed route bus service, for example, the contractor would need to comply with the § 37.163 requirement to keep vehicle lifts in operative condition. As another example, consider a transit agency that uses a contractor to operate its commuter bus service. The requirements applicable to publicly operated commuter bus service take precedence over those that apply to over-the-road bus companies and services for the service provided on behalf of the public entity, even if the contractor also operates private intercity or charter/tour bus service. Section 37.23 also applies to the fleets contractors use, which means ensuring the percentage of accessible vehicles in a public transit agency’s fixed route or demand responsive fleet is not diminished as a result of using a contractor. For example, if a public entity’s demand responsive bus fleet is 85 percent accessible, then at least 85 percent of its contractor’s vehicles used for the contract must be accessible. This requirement applies whether the vehicles to be acquired are new, used, or remanufactured. (See Circular Section 4.1.3.) As discussed in Appendix D to § 37.23, the vehicle acquisition requirements may differ depending on the kind of service involved. For example, all new vehicles acquired for use in fixed route service must be accessible. In the case of demand responsive service, a public entity operating a demand responsive system is not required to buy an accessible vehicle if its system, when viewed in its entirety, provides service to individuals with disabilities equivalent to its service to other individuals. A private contractor providing a portion of demand responsive service would not necessarily have to acquire an accessible vehicle if this equivalency test is being met by the system as a whole. (See Circular Section 7.3.) The stand-in-the-shoes requirements extend to subcontractors as well. For example, if a transit agency engages a contractor to provide complementary paratransit service, the contractor might subcontract with a private taxi company for some trips. In these instances, both the transit agency’s contractor and the taxi subcontractor are subject to the same Part 37 requirements applicable to the agency for providing complementary paratransit service. The stand-in-the-shoes requirements not only apply to traditional contracts for service, but also apply to “other arrangements or relationships.” For example, a private utility company may have an agreement with a city to receive FTA funding as a subrecipient to the city to operate a fixed route service. As an FTA funding recipient, the city is responsible for ensuring the private utility company (the subrecipient) meets the DOT ADA requirements pertaining to fixed route service. When the Stand-in-the-Shoes Requirements Do Not ApplyThe stand-in-the-shoes requirements, referenced in Appendix D to § 37.23, do not apply if private entities are merely regulated by public entities or receive a franchise or permit to operate from these entities. For example, if private taxi or shared-ride van services are only regulated by, or receive permits to operate from, a state, county, or municipal government or authority, then they are not required to comply with public entity provisions. In those circumstances, they are not operating service on behalf of the public entity. However, if the public entity’s control of the taxi system extends beyond mere regulation, the taxi system may be considered part of the public entity’s demand responsive transit system and the stand-in-the-shoes requirements would apply. Similarly, the stand-in-the-shoes requirements do not apply in cases where public entities provide general subsidies to private companies to underwrite private transportation services. For example, a city may start a taxi voucher program for individuals 65 and older using local taxicabs. Accepting these vouchers does not mean the taxi companies stand in the shoes of the city. In operating such a program, however, to comply with the ADA general nondiscrimination requirements in § 37.5, the city—not the taxi company—would be required to ensure that its taxi voucher program does not discriminate against program participants with disabilities. (See Circular Section 2.2.) In this example, the city would have to ensure that program participants with disabilities, including those who use wheelchairs, have the same access to the program as nondisabled individuals during the same times and with the same fares and response times.1 Private Entities Receiving § 5311 FundingThe stand-in-the shoes requirements apply to private entities that receive § 5311 funding (Formula Grants for Rural Areas), whether through subgrant agreements directly with state agencies, or through subrecipients who then enter into agreements with private contractors for service. The state agency provides funding through these agreements for public transportation services in rural parts of the state. Because these private contractors are providing services on behalf of the state (or the state’s subrecipient), they are standing in the shoes of the state, and the public entity provisions apply. For example, state agencies using a private nonprofit provider to deliver demand responsive service are required under § 37.23 to ensure the provider’s services meet the general public demand responsive service requirements applicable to public entities contained in § 37.77. (See Circular Sections 4.2.4 and 7.2.) Similarly, for providers delivering fixed route service on their behalf, § 37.23 obligates state administering agencies to ensure the service meets the fixed route and complementary paratransit service requirements. (See Circular Chapter 8.) Private entities may also operate as contractors to a subrecipient or as a contractor to a Tribal Transit direct recipient. In these cases, the same provisions applying to private contractors above would apply.
These subrecipients are subject to the ADA requirements that apply to private entities, and in particular to Part 37 Subpart E, which covers vehicle acquisition by private entities. For example, for subrecipients purchasing inaccessible vehicles with § 5310 funds, this means being prepared to demonstrate they are providing equivalent levels of service to individuals with disabilities, including those who use wheelchairs. If an award to a subrecipient that provides closed-door service to its own clientele includes inaccessible vehicles, the subrecipient must have a process in place to ensure that equivalent service is provided as needed, either by the private nonprofit that alters its vehicle fleet composition, or through a third-party contract or other arrangement with another subrecipient or contractor. In contrast, private entities that receive § 5310 funding for projects that are open to the general public do stand in the shoes of the state or designated recipient and are subject to the requirements applicable to public entities providing fixed route or demand responsive services. If an award to a subrecipient that provides open-door service includes inaccessible vehicles, the state agency or designated recipient must have a process in place to ensure that equivalent service is provided, either by the private nonprofit that alters its vehicle fleet composition, or through a third-party contract or other arrangement with another subrecipient or contractor. In this case, the state or designated recipient is responsible for ensuring equivalent service in the service area. “Open-door service” includes service that is open to the general public or a segment of the general public defined by age, disability, or low-income, and thus includes public transportation service, as well as alternatives to public transportation that may require a passenger to be a senior or person with a disability but is not limited to clients or members of a particular agency.
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