Sometimes a case can have a huge impact on the ADA universe even though it is not an ADA case at all. Gross v. FBL Financial Services 557 U.S. 167 (2009) is one such case and today’s case is another. As is my usual practice, the blog entry has been divided into several categories: introduction; today’s case; the concurring opinions; the final rule from the Department of Transportation pertaining to transportation for individuals with disabilities…; The specific provisions of the final rule; highlights of the language of the final rule; why Perez matters; the appendix; and takeaways. The reader is free to concentrate on any or all of the categories.
Today’s case, Perez v. Mortgage Bankers Association, a unanimous decision from the United States Supreme Court decided on March 9, 2015 is another such case. In this case, the Department of Labor’s wage and hour division issued letters stating that it was their opinion that mortgage loan officers do not qualify for the administrative exemption to overtime pay requirements under the fair labor standards act. In 2006, the wage and hour division completely reversed course. In 2010, they reversed again. MBA file suit alleging that under the jurisprudence of the United States Court of Appeals for the District of Columbia, when an agency does something like this, it must go through the Administrative Procedure Act’s notice and comment procedures.
The United States Supreme Court in a unanimous opinion, said the terms of the Administrative Procedure Act were very clear when it states that the notice and comment requirement does not apply to interpretive rules, general statement of policy, or rules of agency organization, procedure, or practice. Therefore, an agency was not required to go through the notice and comment procedures when it issues interpretive rules regardless of its interpretation in the past, and the line of cases from the US Court of Appeals of the District of Columbia saying otherwise was in error.
In reaching this conclusion, the majority opinion made a few additional critical points that are useful here. First, interpretive rules do not have the force and effect of law and are not accorded that weight in the adjudicatory process. Second, prior case law from the United States Supreme Court merely meant that an agency may only change its interpretation if the revised interpretation is consistent with the underlying regulations and was not in support of the line of cases stating otherwise from the US Court of Appeals for the District of Columbia. Third, the Administrative Procedure Act does require an agency to provide more substantial justification when a new policy rests upon factual finding contradicting those underlying a prior policy or when a prior policy has led to serious reliance interests. To ignore both of those situations would be arbitrary and capricious.
The Concurring Opinions
That all may be true, but what is extremely significant about this case is the concurring opinions. The concurring opinions reveal that there are at least three justices of the United States Supreme Court that would go even further. To their view, it is simply not enough to say that interpretive rules do not have the effect of law because while they do not have the effect of law, there is a line of cases from the United States Supreme Court that requires deference to agency interpretations of regulations unless it is plainly erroneous or inconsistent with the regulation. The three justices (Scalia and Thomas explicitly and Alito signifying he is leaning that way), believe that doctrine should be overruled as well, which brings us to….
The Final Rule from the Department Of Transportation Pertaining to Transportation for Individuals with Disabilities; Reasonable Modification of Policies and Practices
On March 13, 2015, the Department of Transportation issued a final rule pertaining to Transportation for Individuals with Disabilities; Reasonable Modification of Policies and Practices. The final rule requires public transportation entities to make reasonable modifications/accommodation to their policies, practices, and procedures in order to ensure program accessibility. The necessity for the rules was mandated by case law that was finding against the Department of Transportation by holding that transportation entities were not obligated to make such modifications under the ADA because the Department of Transportation had no regulations explicitly requiring transportation entities to make reasonable modifications.
The Specific Provisions of the Final Rule:
1. Recipients of federal financial assistance are required to provide reasonable accommodation to policies, practices, or procedures when the accommodations are necessary to avoid discrimination on the basis of disability unless there exist a fundamental alteration to the nature of the service, program, or activity or there exist an undue financial and administrative burden.
What is interesting about this particular provision of the final rule is the requirement that a defense exist where there exist an undue financial AND administrative burden. When I first saw this, I said to myself this can’t be right and so I double checked it. It turns out that under the implementing regulations for title I of the ADA, it is clear that undue hardship, which is a title I term, can either be an undue hardship in the financial sense OR in the logistical sense. See 29 C.F.R. § 1630.2(p)(2). With respect to title III’s implementing regulations, it is clear that undue burden can be either financial or logistical. See 28 C.F.R. § 36.303(a). While I don’t have it handy at the moment, there is plenty of case law to support that undue hardship can either be financial or logistical and that undue burden under title II can either be financial or logistical. Nevertheless, the final regulations dealing with title II of the ADA, 28 C.F.R. § 35.150(a)(3) do refer to undue financial AND administrative burdens. It doesn’t seem that the Department of Transportation believes that both have to be satisfied because otherwise much of its appendix, more on that later, to this final rule would not make any sense.
2. Those providing public transportation, including fixed route, demand responsive, and complementary paratransit services must implement their own processes for making decisions on providing reasonable modification to their policies and practices. There is freedom on how to go about it but certain things have to happen. First, information about the process and how to use it must be readily available to the public, including persons with disabilities. Second, the process must allow for accessible means by which persons with disabilities can request reasonable modifications/accommodations. Third, the process must also provide for those situations where an advance request and determination is not feasible.
3. Requested modification can be denied in any of three different situations: a fundamental alteration of the provider’s services exist; providing the modification results in a direct threat to the health or safety of others; providing the accommodation is not necessary to permit the passenger to use the entity’s services for their intended purpose in a nondiscriminatory fashion (that is, while the modification might make things more convenient for the passenger, the passenger could nevertheless use the services in a nondiscriminatory manner without the modification).
4. All public and private entities providing these transportation services must have a complaint process in place. The Department of Transportation will look to take action where a complaint process is not in place, the complaint process is not being operated properly, the complaint process is not being operated in good faith, or a particular case raises a federal interest.
Highlights of The Language of the Final Rule
5. With respect to an entity receiving federal financial assistance, what is really interesting is that the final rule itself uses a bit of different language. The final rule talks about reasonable accommodations and not reasonable modifications. Reasonable accommodations is a title I term, whereas reasonable modifications are the terms used in title II and title III. Nevertheless, the final rule specifically uses the term reasonable accommodations but then says that reasonable accommodations mean the same thing as reasonable modifications under title II of the ADA and not reasonable accommodations under title I of the ADA. I find this all strange. I do not know why the Department of Transportation does not stick with the term reasonable modifications instead of going through a complicated endeavor to use the term reasonable accommodations in the final rule.
6. Whether a public entity or a private entity, it must have at least one person designated to coordinate its efforts to comply with nondiscrimination on the part of persons with disabilities (recipients of federal financial assistance due to § 504 regulations should already have such a person).
7. The final rule specifically defines origin to destination service and mandates that where an ADA paratransit operator chooses curb to curb service as the primary means of providing service, assistance must be provided to passengers with disabilities beyond the curb unless such assistance results in a fundamental alteration or a direct threat.
8. Public and private entities must give priority to methods offering services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate to the needs of the person with a disability.
9. Public entities have until July 13, 2015 to get a complaint process in place.
10. In determining whether to grant a requested modification, public entities shall be guided by the provisions of appendix E, coming up next.
Why Perez Matters
11. Perez matters because in the world of the ADA you have guidances and interpretive rules everywhere. The decision puts everyone on notice that the guidances and interpretive rules are at considerable risk of subsequent litigation. Further, calling a guidance something else, such as in this case attaching an appendix, is also at considerable risk.
12. The provisions of the final rule clearly suggests that the appendix only applies to public entities (See new 49 C.F.R. 37.169(d)), yet the appendix itself doesn’t seem to make that distinction.
13. The appendix actually uses the term, “…explains the department’s interpretation of §§ 37.5(g) and 37.169 [and] is intended to be used as the official position of the department concerning the meaning and implementation of these provisions.”
Two points here. First, the rule as literally set up seems to suggest that private entities do not have to worry about the appendix. Second, it is clear that the appendix is the Department of Transportation’s interpretation of the final rule and as such may run into the problem of whether this interpretation will be granted deference per Scalia, Thomas, and presumably Alito, if their views prevail.
14. Things that the Department of Transportation will consider reasonable modifications:
A. A passenger’s request for a paratransit driver to walk over a pathway that has not been fully cleared of snow and ice where such request is to help the passenger with a disability navigate the pathway;
B. If snow or icy conditions at a bus stop make it difficult or impossible for a fixed route passenger with a disability to get to the lift or for the lift to deploy, moving the bus to a cleared area for boarding if moving the bus is available within reasonable proximity to the stop;
C. A paratransit rider’s request to be picked up at home but not at the front door of his or her home or to be dropped off at an entrance requested by a passenger to a frequently visited public place with multiple entrances so long as the requested pickup location did not pose a direct threat;
D. Picking up a paratransit passenger on private property in a gated community or parking lot, mobile home community, business or governmental facility where vehicle access requires it also pass through a security barrier so long as every reasonable effort to gain access to that area has been made;
E. Granting a passenger’s request for a driver to position the vehicle to avoid obstruction to the passenger’s ability to enter or leave the vehicle at a designated stop location, such as park cars, snowbanks, and construction so long as the vehicle avoiding the obstruction does not pose a direct threat;
F. Granting a passenger’s request for transit personnel to handle the fare when the passenger with a disability cannot pay the fare by the generally established means;
G. Granting a passenger with diabetes or another medical condition request to eat or drink aboard a vehicle or in a transit facility in order to avoid adverse health consequences;
H. Granting a passenger’s request to take medication while aboard a fixed route or paratransit vehicle or in a transit facility;
I. Granting a wheelchair user’s request aboard a fixed route or paratransit vehicle separately from his or her device when the occupied weight of the device exceed the design load of the vehicle lift;
J. A passenger’s request for the driver to open an exterior entry door to a building to provide boarding and/or alighting assistance to a passenger with a disability so long as such assistance does not pose a direct threat or leave the vehicle unattended or out of visual observation for a lengthy period of time;
K. A passenger requesting that a paratransit vehicle navigate to a pickup point where it is difficult to maneuver a vehicle so long as the passenger does not expose the vehicle to a hazard posing a direct threat.
L. A paratransit passenger’s request for a driver to help him or her navigate an incline with the passenger’s wheel device. Same goes for assistance in traversing a difficult sidewalk or getting around obstacles between the vehicle and a door to a passenger’s house or destination unless such assistance results in a direct threat or leaves the vehicle unattended or out of visual observation for a lengthy period of time.
M. A passenger’s request to be assisted from his or her door to a vehicle during extreme weather conditions so long as the driver leaving the vehicle to assist would not pose a direct threat or leave the vehicle unattended or out of visual observation for a lengthy period of time;
N. Where a passenger’s request for assistance means that the driver will need to leave passengers aboard a vehicle unattended or out of visual observation for a lengthy period of time, unless accommodating the request is a direct threat to the health or safety of the unattended passengers, which the Department of Transportation says “could involve direct threat,” in that situation.
The use of the term “could involve direct threat…,” Is extremely problematic in terms of what it might mean.
O. Accommodating a passenger with a disability on a return trip when they did not need that assistance on the initial trip;
P. A passenger’s request for a telephone call five minutes in advance or at time of vehicle arrival.
What is not a reasonable modification/accommodation:
1. Fixed route operators having to establish flag stop or route deviation policies;
2. Reaching into pockets or backpacks of the passenger with a disability in order to extract the fare;
3. A paratransit passenger’s request for special equipment so long as that requested equipment is not required by the ADA or Department of Transportation rules. Same goes for a dedicated vehicle or a specific type or appearance of vehicle;
4. A person’s request to have the transportation provider travel outside of its service area or to operate outside of its operating hours;
5. Providing a personal care attendant or a personal care attendant services to meet the needs of passengers with disabilities on paratransit or fixed route trips;
6. Providing the passenger with a disability free fixed route or paratransit driver services;
7. Being asked to follow a path to a pickup or drop-off point that exposes the vehicle and its occupant to hazards;
8. A passenger’s request for a specific driver;
9. A passenger’s request for a fixed route or paratransit driver to assist with luggage or packages where it is not the normal policy or practice of the transportation agency to do that;
10. A paratransit passenger’s request not to ride with certain riders.
11. Unless an emergency exists, a passenger’s request for a driver to lift the passenger out of his or her mobility device.
1. Granting a paratransit passenger’s request for a driver to make an intermediate stop where the driver would be required to wait is something the paratransit operator can or cannot do at their option.
1. A paratransit or fixed route passenger’s request that the driver take charge of the service animal may be denied. Caring for a service animal is the responsibility of the passenger or a personal care assistant.
True enough. But what does caring for the animal mean. See this blog entry of mine.
1. Guidances and interpretive rules when it comes to the world of the ADA are absolutely everywhere. Perez is putting everyone on notice that the ability of agencies to issue the guidances and interpretive rules is unfettered, but the days of such interpretive guidances and rules being given a great deal of discretion by the court may be coming to an end. Thus, agencies may have won the battle in Perez, but may be on the verge of losing the war.
2. These Department of Transportation regulations may be the perfect case for the Supreme Court to evaluate whether interpretive rules and guidances must be given deference by the courts. Apendix E is clearly an interpretive rule regardless of what you might call it, and the very nature of the rule takes away the individual case by case analysis that the ADA requires.
3. Apendix E on its face only applies to public entities. Therefore, if you are a private entity, a plausible argument can certainly be made that appendix E is not applicable. Also, nothing in the final regulation seems to suggest that appendix E would apply to a private entity accepting federal funds either.
4. Despite what the title II regulations say, I am not aware of any case law that says for something to be an undue burden it has to be both financial and administrative.
5. As I have mentioned before, with rare exceptions, I don’t like guidances and interpretive rules for many reasons. First, the guidances and interpretive rules avoid the notice and commenting process of the Administrative Procedure Act. Second, such guidances and rules can create their own problems (example-what does caring for an animal mean? What does it mean to say that an intermediate stop is optional but could rise to a fundamental alteration?). Finally, the guidances and rules are used as a crutch by attorneys so that attorneys don’t have to go through the individual analysis to figure out whether an undue burden/hardship or fundamental alteration exists. It won’t surprise me in the least if appendix E is used as a vehicle to test whether the doctrine of giving deference to interpretive rules and guidances is still good law.