Designing for ADA Compliance in the Public

Right-of-Way

Presented by

David Chandler, FHWA Civil Rights Specialist

Agenda

• FHWA’s Role in ADA Compliance

• Application of regulatory requirements & technical standards

• Process related issues and reasonable and consistent policies

• Common concerns with proposed PROWAG (2011)

FHWA Role

• US DOT designated by the US DOJ as responsible for oversight and compliance in all programs, services, and activities related to transportation; and

• FHWA has responsibility for implementation of

pedestrian access requirements from the ADA and Section 504 of the Rehabilitation Act (of 1973), including the conduct of investigations dealing with matters in the public right-of-way, whether or not federal funds are involved.

Regulations:

• 28 CFR Part 35—Implementing ADA regulations

• 49 CFR Part 27– Implementing regulations for Section 504 of the Rehabilitation Act of 1973

Technical Standards:

• ADA-ABA Accessibility Guidelines (July 23, 2004)

• 406.8—Modification to 406 of Appendix D to 36 CFR Part 1191; and

• Draft PROWAG (November 23, 2005) where not fully addressed by the 2004 Guidelines or as a reasonable and consistent policy where no legal standard exists

Authorities and Technical References

Definitions that Trigger Requirements

New Construction 28 CFR 35.151 Each facility or part of a facility constructed by, on behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable by individuals with disabilities, if the construction was commenced after January 26, 1992. (unless deemed structurally impracticable)

Alterations-- Alterations. (1) Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992.

Defining Alterations From FHWA ADA/504 Q & A (16 & 17)

An alteration is a change to a facility in the public right-of-way that affects or could affect access, circulation, or use. Projects altering the use of the public right-of-way must incorporate pedestrian access improvements within the scope of the project to meet the requirements of the ADA and Section 504. These projects have the potential to affect the structure, grade, or use of the roadway. Alterations include items such as reconstruction, major rehabilitation, widening, resurfacing (e.g. structural overlays and mill and fill), signal installation and upgrades, and projects of similar scale and effect. (9-12-06)

Defining Alterations From FHWA ADA/504 Q & A (16 & 17)

The DOJ does not consider maintenance activities, such as filling potholes, to be alterations. The DOJ does consider resurfacing beyond normal maintenance to be an alteration. DOJ's ADA Title II Technical Assistance Manual, § II-6.6000, 1993. The FHWA has determined that maintenance activities include actions that are intended to preserve the system, retard future deterioration, and maintain the functional condition of the roadway without increasing the structural capacity. These activities include, but are not limited to, thin surface treatments (nonstructural), joint repair, pavement patching (filling potholes), shoulder repair, signing, striping, minor signal upgrades, and repairs to drainage systems. (9-12-06) • FHWA is currently working with the US DOJ to clarify its definition

Maintenance or Alteration?

http://www.fhwa.dot.gov/pavement/preservation/091205.cfm

Pavement Preservation Guidelines

Type of Activity

Increase

Capacity

Increase

Strength Reduce

Aging

Restore

Serviceability

New Construction X X X X

Reconstruction X X X X

Major (Heavy)

Rehabilitation X X X

Structural Overlay X X X

Minor (Light) Rehabilitation X X Pavement

Preservation

Preventive Maintenance X X

Routine Maintenance X

Corrective (Reactive)

Maintenance X

Catastrophic Maintenance X

Non-structural System Preservation Activities

Other examples of preventive treatments include: Asphalt crack sealing, chip sealing, slurry or micro-surfacing, thin and ultra-thin hot-mix asphalt overlay, concrete joint sealing, diamond grinding, dowel-bar retrofit, and isolated, partial and/or full-depth concrete repairs to restore functionality of the slab; e.g., edge spalls, or corner breaks.

Alterations Requirement for Curb Ramps

28 CFR 35.151(i) Curb ramps. (1) Newly constructed or altered streets, roads, and highways must contain curb ramps or other sloped areas at any intersection having curbs or other barriers to entry from a street level pedestrian walkway.

Curb Ramps

Clarified in Proposed 2011 PROWAG: R207.1 General. A curb ramp, blended transition, or a combination of curb ramps and blended transitions complying with R304 shall connect the pedestrian access routes at each pedestrian street crossing. The curb ramp (excluding any flared sides)or blended transition shall be contained wholly within the width of the pedestrian street crossing served. Advisory R206 Pedestrian Street Crossings. All pedestrian street crossings must be accessible to pedestrians with disabilities. If pedestrian crossing is prohibited at certain locations, “No Pedestrian Crossing” signs should be provided along with detectable features, such as grass strips, landscaping, planters, chains, fencing, railings, or other barriers.

Curb Ramps continued

Advisory R206 Pedestrian Street Crossings. All pedestrian street crossings must be accessible to pedestrians with disabilities. If pedestrian crossing is prohibited at certain locations, “No Pedestrian Crossing” signs should be provided along with detectable features, such as grass strips, landscaping, planters, chains, fencing, railings, or other barriers.

Project vs. Program Access

• Technical Infeasibility or structural impracticability– Project by project and based on physical impossibility or the unique characteristics of terrain.

• Existing physical constraints include, but are not

limited to, underlying terrain, right-of-way availability, underground structures, adjacent developed facilities, drainage, or the presence of a notable natural or historic feature.

• Engineering directives, as a supplement design details

and instructions, help to ensure compliance with maximum extent feasible requirement during construction.

Project vs. Program Access

• Undue administrative or financial burden (28 CFR 35.164): refers strictly to programmatic impacts relative to ensuring the program as a whole is accessible, e.g. ADA Transition Plan to ensure existing facilities are made accessible

• Relative to existing facilities only

Process & Policy Related Issues

• Areas not covered by any legal standard require public entities to adopt reasonable and consistently applied policies or standards

• APS • Alternate pedestrian access routes during construction • Many of the new standards in the 2011 proposed PROWAG,

or variations thereof, should be considered

• Technical infeasibility determination process • Policy for ROW acquisitions to meet minimum sidewalk

width requirements • Sidewalk slope in PROW vs. those that meander

• R302.6.1 –Pedestrian Street Crossings Without Yield or Stop Control

• R306.3.2 –Pedestrian Activated Signals at Roundabouts with multiple lanes

• R302.3.1 (R208.2) —Pedestrian Refuge Islands

• R209—Accessible Pedestrian Signals (APS)

Common Concerns 2011

PROWAG

Summary & Questions