49 CFR Parts 37 and 38 -- Transportation for Individuals With Disabilities at Intercity, Commuter, and High Speed Passenger Railroad Station Platforms; Miscellaneous Amendments, Preamble

DOT Response

The Department has determined that in the transportation context the appropriate definition of direct threat is one that only considers safety threats to others. This approach is consistent with DOJ's regulations. Therefore, we will define direct threat as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services” and add this definition to our regulation.

We recognize that the situation of paratransit service to a person with dementia or another severe cognitive impairment presents unique problems. The primary risk (e.g., of becoming disoriented and wandering away) is to the passenger, rather than to others, but, in the absence of a personal care attendant or a contact with someone at the destination point, the risk to the safety, or even the life, of the passenger could be very high. This is an issue that should be addressed during the application process and eligibility interview. At that time, the paratransit provider, the applicant, and the person responsible for the applicant's well-being should discuss the parameters of paratransit service, the paratransit agency's policies regarding attended transfers, and the procedures that will be followed in the event that there is no one available to meet the applicant when the vehicle arrives.

The Department has added language to Appendix D of part 37 to make it clear that the concept of “direct threat” in this rule is intended to be interpreted consistently with the same term in DOJ rules.