49 C.F.R. § A to Part 609
The definitions of the term elderly and handicapped as applied under FTA's elderly and handicapped half-fare program ( 49 CFR part 609 ) shall apply to this rule. This permits a broader class of handicapped persons to take advantage of the exception than would be permitted under the more restrictive definition applied to the non-discrimination provisions of the Department's section 504 program (49 CFR 27.5 ), which includes only handicapped persons otherwise unable to use the recipient's bus service for the general public.
Accordingly, for the purposes of this part, the definition of elderly persons may be determined by the FTA recipient but must, at a minimum, include all persons 65 years of age or over.
Similarly, the definition of handicapped persons is derived from the existing regulations at 49 CFR 609.3 which provide that Handicapped persons means those individuals who, by reason of illness, injury, age, congenital malfunction, or other permanent or temporary incapacity or disability, including those who are nonambulatory wheelchair-bound and those with semi-ambulatory capabilities, are unable without special facilities or special planning or design to utilize mass transportation facilities and services as effectively as persons who are not so affected.
To assist in understanding how the definitions might be applied to administration of the charter rule, the following questions and answers previously published by FTA for the half-fare program in FTA C 9060.1, April 20, 1978, are reproduced:
1. Question: Can the definition of elderly or handicapped be restricted on the basis of residency, citizenship, income, employment status, or the ability to operate an automobile?
Answer: No. Section 5(m) is applicable to elderly and handicapped persons. It is FTA's policy that such categorical exceptions are not permitted under the Act.
2. Question: Can the eligibility of temporary handicaps be restricted on the basis of their duration?
Answer: Handicaps of less than 90 days duration may be excluded. Handicaps of more than 90 days duration must be included.
3. Question: Can the definition of handicap be limited in any way?
Answer: FTA has allowed applicants to exclude some conditions which appear to meet the functional definition of handicap provided in section 5302(a)(5) of the Federal transit laws (49 U.S.C. Chapter 53). These include pregnancy, obesity, drug or alcohol addiction, and certain conditions which do not fall under the statutory definition (e.g., loss of a finger, some chronic heart or lung conditions, controlled epilepsy, etc.). Individuals may also be excluded whose handicap involves a contagious disease or poses a danger to the individual or other passengers. Other exceptions should be reviewed on a case-by-case basis.
4. Question: Is blindness considered a handicap under Section 5(m)?
Answer: Yes.
5. Question: Is deafness considered a handicap under section 5(m)?
Answer: As a rule, no, because deafness, especially on buses, is not considered a disability which requires special planning, facilities, or design. However, deafness is recognized as a handicap in the Department of Transportation's ADA regulation, and applicants for Section 5 assistance are encouraged to include the deaf as eligible for off-peak half-fares.
6. Question: Is mental illness considered a handicap under section 5(m)?
Answer: As a rule, no, because of the difficulty in establishing criteria or guidelines for defining eligibility. However, FTA encourages applicants to provide the broadest possible coverage in defining eligible handicaps, including mental illness.
7. Question: Can operators delegate the responsibility for certifying individuals as eligible to other agencies?
Answer: Yes, provided that such agencies administer the certification of individuals in an acceptable manner and are reasonably accessible to the elderly and handicapped. Many operators currently make extensive use of social service agencies (both public and private) to identify and certify eligible individuals.
8. Question: Can operators require elderly and handicapped individuals to be recognized by any existing agency (e.g., require that handicapped persons be receiving Social Service or Veterans' Administration benefits)?
Answer: Recognition by such agencies is commonly used to certify eligible individuals. However, such recognition should not be a mandatory prerequisite for eligibility. For example, many persons with eligible temporary handicaps may not be recognized as handicapped by social service agencies.
9. Question: Can the operator require that elderly and handicapped persons come to a central office to register for an off-peak half-fare program?
Answer: FTA strongly encourages operators to develop procedures which maximize the availability of off-peak half-fares to eligible individuals. Requiring individuals to travel to a single office which may be inconveniently located is not consistent with this policy, although it is not strictly prohibited. FTA reserves the right to review such local requirements on a case-by-case basis.
10. Question: Must ID cards issued by one operator be transferable to another?
Answer: No. However, FTA encourages consistency among off-peak procedures and the maximizing of availability to eligible individuals, especially among operators within a single urban area. Nevertheless, each operator is permitted to require its own certification of individuals using its service.
11. Question: Can an operator require an elderly or handicapped person to submit to a procedure certifying their eligibility before they can receive half-fare? For example, if an operator requires eligible individuals to have a special ID card, can the half-fare be denied to an individual who can otherwise give proof of age, etc, but does not have an ID card?
Answer: Yes, although FTA does not endorse this practice.
49 C.F.R. §A to Part 609