Janine C. Ashe, Ed.S., Esq. Civil Rights Policy and Regulations Specialist Federal Highway...

Janine C. Ashe, Ed.S., Esq. Civil Rights Policy and Regulations SpecialistFederal Highway Administration (FHWA)Office of Civil Rights

ADA in the Work Zone: A Legal Perspective

• Disabilities in the US • ADA and Section 504• Public Entities Obligations• ADA Enforcement:Lawsuits/Settlement

• Work Zone Issues to Consider

Presentation Objectives

•Physical/Orthopedic-Requiring use of wheelchair, walker, cane, or prosthetic device

•Physical/Medical-Heart/Lung conditions, diabetes

•Visual-Blind, low vision

•Hearing-Deaf, Hearing impaired

•Cognitive/Neurological-Autism, Brain injury

Impairments that affect the ability to access State Transportation Agency

programs, services, and facilities include:

17 million Americans have serious hearing disabilities

(2000 Census)

Persons with Hearing Disabilities

•Approximately 10-12 million Americans have a visual disability according to the National Council on Disabilities.

•Visual disabilities can range from total blindness to low vision.

•People with visual disabilities are often overlooked

Persons with Visual Disabilities

•Approximately 54 million Americans over the age of 15 has a disability (2000 Census)

•The National Council on Disabilities estimates that 70 percent of Americans will eventually

have a temporary or permanent disability that makes climbing stairs impossible.

Disabilities in the U.S.

• People with disabilities constitute the nation's largest minority group, and the only group any of us can become a member of at any time.

• Between 1990 and 2000, the number of Americans with disabilities increased 25 percent, outpacing any other subgroup of the U.S. population.

• As our baby boomer population ages, more veterans return from war, and advances in medicine, this number is expected to double in the next 20 years.

Disabilities in theU.S.

The Need for Accessible Programs and Facilities

Historical Roots of Disability Law: ADA and

Section 504

•Civil Rights Act of 1964

•Architectural Barriers Act (1965)

•Rehabilitation Act of 1973-Section 504


Section 504

•Grove City College v. Bell (1984)

•Civil Rights Restoration Act of 1988


Section 504

•ADA signed into law 1990

•ADA Amendments Act of 2008 (effective January 1, 2009)

The PROW is the network of streets and sidewalks creating public pedestrian access within a public entity’s jurisdictional limits.

Definition: Public Rights-of-Way (PROW)

STATUTES: U.S.C.: UNITED STATES CODE: WWW.GPO.GOV AND WWW.GPOACCESS.GOV/USCODE

REGULATIONS: C.F.R.: CODE OF FEDERAL REGULATIONS:WWW.GPOACCESS.GOV/CFR/INDEX.HTML; WWW.ADA.GOV; WWW.DOT.GOV/REGULATIONS.HTML

GUIDANCE: USDOJ: WWW.ADA.GOV

FEDERAL HIGHWAY ADMINISTRATION: WWW.FHWA.DOT.GOV/CIVILRIGHTS/ADMIN.HTM#MEMORANDUMS

Definition: Authority

•Section 504 of the Rehabilitation Actof 1973 (29 USC 794(a))

•Americans with Disabilities Act (ADA) of 1990 (42 USC 12111)

Accessibility Legislation

Section 504: 29 USC § 794 (1973)Section 504: 29 USC § 794 (1973)ADA: 42 USC 12111 et seq: Title II, Part A (1990)

ADA: 42 USC 12111 et seq: Title II, Part A (1990)

“No otherwise qualified individual with a disability in the United States . . . Shall solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial Assistance or under any program or activity conducted by any Executive agency . . .” 29 USC § 794 (a)

“ . . . no qualified individual with a disability shall , by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

42 USC § 12132

Legal Context:

Statutory language

Legal Context: Nondiscrimination Standards:

Section 504 of the Rehabilitation Act

•USDOT regulation 49 CFR Part 27

•Applies to recipients of Federal financial assistance

•USDOT has ultimate compliance responsibilities

•Requires accessible programs and services

•Provide accessible STA facilities in accordance with 49 CFR Part 37 Appendix A (adopts ADAAG)


ADA

Title I –Employment

Title II- Public Entities

Title III – Public Accommodations (Private Entities)

Title IV – Telecommunications

Title V - Miscellaneous

American with Disabilities Act (ADA)

•Must not discriminate against qualified individuals with disabilities

•Maintain accessible features

•Provide equal access to programs and services

Public Entity Obligations under ADA Title II in the

PROW

Basic Requirements

•New Construction and altered facilities must be free of architectural and communication barriers•Existing facilities, policies and programs must be evaluated for discrimination and a plan for modification put in place

Public Entity Obligations under ADA Title II in the

PROW


ADA & Section 504

Section 504 & ADASame Standards

Different Enforcement

UFAS or ADAAGUFAS or ADAAG USDOJ Tech. Assist.USDOJ Tech. Assist.

In PROW, each public entitymust ensure that pedestrian

facilities meet: Uniform Federal Accessibility

Standards (UFAS) or ADA Accessibility Guidelines

(ADAAG) standards:

FHWA encourages ADAAG. 28 CFR 35.151( c);

USDOJ Technical Assistance II-6.2100.

Parallel requirements for accessibility. USDOJ Technical Assistance II-1.4100

Legal Context: ADA & Section 504: “Nondiscrimination” General Rules

Legal Context:

ADA & Section 504: “Nondiscriminatio

n” Corollary

Compliance requires that where public agencies provide pedestrian facilities, those facilities are to be accessible to persons with disabilities. 28 CFR 35.149 – 35.151

Pedestrian curb ramps required in facility where it is legal to walk. USDOJ Toolkit, Chapter 6, §3, ¶4

Therefore, review local law & remember:

Compliance does not require analysis of pedestrian need for placement of facilities.

Compliance does not require

that public agencies provide sidewalks and curb ramps everywhere.

Legal Context: ADA & Section 504:

Sources for Nondiscrimination Standards

Reasonable & Consistent

Specified Standards: USDOJ

Regulation/ ADAAG

Everything else- Reasonable & Consistent Policy

•Curb ramps

•Sidewalks

•Detectable warnings

Legal Context: ADA & Section 504: A

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ADA & Section 504:Mixed federal &

non-federal funding

Enforcement

WHERE NONCOMPLIANCE EXISTS:• For Federal-aid recipient: FHWA can withhold

federal money, after enforcement process required at 49 C.F.R. §§ 27.121 – 27.129. (Section 504)

• For State or local government, regardless of federal funds: FHWA shall seek voluntary compliance agreement with public agency, and if voluntary negotiations are unsuccessful, shall send case to the Attorney General for appropriate action. 28 C.F.R. §§ 35.173 – 35.174. (ADA)

Legal Context: ADA & Section 504: Enforcement:

Ultimate Remedies

•Ensure new and alterations projects provide minimum required accessibility under ADAAG, 28 C.F.R. Part 36, App. A.

•Look to public facility program access plans to identify projects planned to include access.

•Minimum access considerations on street with pedestrian “facility”/legal access:

Curb ramp with detectable warnings, ADAAG § 4.7, 4.29 Consider sidewalks Consider accessible pedestrian signals

ADA & Section 504:

Contractors’ Obligations:

ALTERATION DEFINITION:

• A change to a facility in the public right-of-way that affects, or could affect, access or use of the facility, including changes to structure, grade, or use of the facility.

• Examples: reconstruction, major rehabilitation, widening, resurfacing (such as structural overlays and mill and fill), signal installation and upgrades.

ADA & Section 504:

Alteration Projects

In an alteration project, a public entity must make accessible, any pedestrian facilities changed within

the scope of the project to the maximum extent feasible. 28 C.F.R. § 35.151(b).

Maximum extent feasible = technical feasibility, not cost. ADAAG § 4.1.6(1)(j); USDOJ Technical Assistance II-

6.3100(4).

Not primary method of improving accessibility.

ADA & Section 504:

Alteration Projects

MAINTENANCE IS NOT AN ALTERATION.MAINTENANCE DEFINITION:

• Activities intended to preserve the system, retard future deterioration, and maintain functional condition of the roadway without increasing structural capacity.

• Examples: Liquid applied sealing, thin surface treatments (nonstructural), joint repair, pavement patching (such as filling potholes), shoulder repair, signing, striping, minor signal upgrades, and repairs to drainage systems.

ADA & Section 504:

Alteration Projects

When resurfacing of a street alters the usability of a street, curb ramps within scope of the alteration project must be improved to the maximum extent feasible to meet ADAAG

standards (including detectable warnings) at the same time that the project occurs.

Kinney v. Yerusalim, 9 F.3d 1067, 1070, 1072 (3d Cir. 1993), cert. denied, 511 U.S. 1033 (1994); 28 C.F.R. § 35.151(b); ADAAG § 3.5 (alteration definition).

ADA & Section 504:

Alteration Projects

Regardless of funding source:FHWA must investigate complaints and

should investigate any cases where FHWA has reason to believe that accessibility problems exist.

Training:FHWA should provide and encourage

accessibility training for Federal, State and local agencies.

ADA & Section 504:

FHWA Responsibilities

FHWA is responsible for oversight of federal, state and locality planning, design and construction

processes for PROW accessibility, including transition plans.

Oversight example: FHWA Division’s Actions:

• Review State and local program access plans and projects

• ADA/Section 504 complaint processing

ADA & Section 504:

FHWA Responsibilities

Work zone accessibility requirements: • Provide “temporary safe pedestrian passageways

around a construction site”, ADAAG §4.1.1(1994) at 28 C.F.R. Part 36, Appendix A.

• Safe passage does NOT include “structures, sites and equipment directly associated with the actual processes of construction, such as scaffolding, bridging, materials hoists, or construction trailers. . .” ADAAG §4.1.1(1994) at 28 C.F.R. Part 36, Appendix A.

ADA & Section 504:

Contractors’ Obligations:

ADA allows individuals to enforce ADA obligations, including curb ramp

obligations, through private action in federal district court against a public

entity.

ADA Enforcement: Lawsuits

•The City of Philadelphia had engaged in an extensive program of resurfacing its streets.

•The contracts required the laying of at least 1½ inches of new asphalt.

•The City did not include installation of curb cuts in its milling and resurfacing contracts except in those instances when the curb in question was independently intended to be altered within the scope of the contract.

Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993). Cert. Denied sub

nom., Hoskins v. Kinney, 511 U.S. 1033

•The district court ordered the City to "install curb ramps or slopes on every City street, at any intersection having curbs or other barriers to access, where bids for resurfacing were let after January 26, 1992."

•The Third Circuit Court held that the resurfacing constituted an alteration that triggered an obligation to make the streets usable to individuals with disabilities.

•Consequently, the Court of Appeals found that the City was required as part of the resurfacing project to install ADA-compliant curb cuts.

Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993). Cert. Denied sub

nom., Hoskins v. Kinney, 511 U.S. 1033

KEY POINTS •Resurfacing is an alteration and require public entity to make facility accessible.

•FHWA does not set standard for what is structural (alteration) vs. what is non structural (maintenance).

•Public Entity needs to have reasonable and consistent policy to define what depth of additional material is structural when no milling occurs.

•However, anytime milling is part of the resurfacing project, an alteration has occurred, regardless of the depth of material replaced or added to a road surface.

KEY POINTSAlteration v. Maintenance

•1997 - 2007: Ten years of litigation•Reasoning: Exhibit A lists 189 curbs with multiple

design flaws. Lack of accessibility violated precepts of 28 CFR §35.151, Barden v. City of Sacramento, &

Kinney v. Yerusalim.•Ruling: City of Riverside discriminated against

plaintiff by failing to construct and alter compliant curb ramps and sidewalks.

Lonberg v. City of Riverside

California Damage Award Calculations:

Total $221,000.00

181 locations of unsafe curb ramps/no curb ramps used once between

Sept. 4, 1996 and February 12, 2007 x $1,000.00 statutory

minimum damages for one offense of denied or unsafe access = $181,000.00

8 locations of unsafe curb ramps/no curb ramps near plaintiff’s home used at least one hundred times between Sept. 4, 1996 and February 12, 2007

x $5,000.00 damages = $40,000.00


Damages were awarded because the City of Riverside’s lack of curb ramp access harmed the plaintiff’s dignity and ability to

become a self-reliant member of society.


•Ninth Circuit ruled that sidewalks constitute a city “program, service or activity” under both the ADA and Section 504

•ADA applies to the maintenance of public sidewalks

•USDOJ brief supported ruling

•Sacramento will spend 20% of transportation budget over 30 years for sidewalk work.

Barden, et.al. v. City of Sacramento, Case No. CIV-S-99-497 MCE/JFM

•Lawsuit against Utah DOT regarding curb ramps •Resulted in a settlement of $1 Million/year for 10 years.•Utah did not have a transition plan

Lessons Learned: •Transition plans help avoid lawsuits. •Transition plans should address and document the approach to correct deficiencies and compliance issues, as well as dedicate funding for projects and programs. •Transition plans should be used as a tool to plan and project the use of funds and how projects will be implemented.

Utah DOT Settlement

•Address issues immediately•Be proactive, rather than reactive

•Develop a plan that keeps in mind the spirit and intent of ADA•Involve the disability community

•Have funds dedicated to addressing ADA non-compliance issues•Establish ADA performance goals

•Provide ADA training to all employees

Lessons Learned from ADA State DOT Settlements

Settlement agreements with over 150 towns, cities, counties, and States: •www.ada.gov/civicac.htm

•Fact sheets:

www.ada.gov/civicfac.htm

•Tool Kit for State and Local Governments (Chapter 6 covers curb ramps):

www.ada.gov/pcatoolkit/chap6toolkit.htm

Project Civic Access. A Title II compliance program that

includes:

Work Zone Issues in Work Zone Issues in PROWPROW

14% of work zone fatalities are pedestrians (US DOT Statistics)

No single set of traffic control devices can satisfy all conditions

When planning for the work zone, consider the type of work being done, amount of time involved, location , road type, traffic volume, pedestrian demand.

ADA requires that pedestrians with physical and /or mental disabilities be accommodated not only in completed facilities, but also during times of construction.

Persons with visual impairments are often overlooked.

ACCESS BOARD VIDEO

Draft PROWAG (2005)Draft PROWAG (2005) R205 Alternate Pedestrian Access RouteR205 Alternate Pedestrian Access Route

When an existing pedestrian access route is blocked by When an existing pedestrian access route is blocked by construction, alteration, maintenance, or other temporary construction, alteration, maintenance, or other temporary conditions, an alternate pedestrian access route complying to conditions, an alternate pedestrian access route complying to the maximum extent feasible with R301, R302, and Section the maximum extent feasible with R301, R302, and Section 6D.01 and 6D.02 of the MUTCD (incorporated by reference; see 6D.01 and 6D.02 of the MUTCD (incorporated by reference; see R104.2.1) shall be provided.R104.2.1) shall be provided.

Advisory R205 Alternate Pedestrian Access Route. Same-side Advisory R205 Alternate Pedestrian Access Route. Same-side travel is preferred because it does not increase pedestrian travel is preferred because it does not increase pedestrian exposure and risk of accident consequent upon added street exposure and risk of accident consequent upon added street crossings. A route that uses vehicle lane width may be shorter, crossings. A route that uses vehicle lane width may be shorter, safer, and more usable than one that requires two street safer, and more usable than one that requires two street crossings, even if the roadway surface is imperfect. Part 6D.01 crossings, even if the roadway surface is imperfect. Part 6D.01 of the MUTCD requires alternate routes to provide the best of the MUTCD requires alternate routes to provide the best elements of accessibility provided in the pedestrian circulation elements of accessibility provided in the pedestrian circulation route before its disruption.route before its disruption.

Key Work Zone Issues with Pedestrians with Disabilities

Question 1: Question 1: Is there an alternate route? Is there an alternate route?

a.a.Is the route information in usable Is the route information in usable

formats;formats;

b.b.Will the route be on the same-side or do Will the route be on the same-side or do pedestrians need to cross (and re-cross)?pedestrians need to cross (and re-cross)?

c.c.What is the extent of the detour?What is the extent of the detour?

d.d.Is the route defined? Is the route defined?

e. Is the route detectable?

a. Information in usable formats…

““The north sidewalk continuing The north sidewalk continuing along Main St is closed between along Main St is closed between First and Second Sts. until May First and Second Sts. until May 1. To use the south sidewalk on 1. To use the south sidewalk on Main St, activate signal to cross Main St, activate signal to cross First Street here. To re-cross at First Street here. To re-cross at a signalized intersection, a signalized intersection, continue to Third Street.”continue to Third Street.”

b. Same-side route…or cross?

Better barrier to block crossing

Curb Ramp Barricade for Cane Detection

Effective method of providing information at crosswalk closing.

c. What is the extent of the detour? Where does it start? Where does it end?

d. Is the alternate route defined?

d. Is the route defined?

Parallel placement of footing prevents tripping

Turn protruding blocks and make them visible

Protruding blocks- tripping hazard

Effective Channelizing Devices

Effective channelizing Effective channelizing devicesdevices• fully defines route from fully defines route from beginning to end;beginning to end;• continuous; continuous; • smooth, detectable by cane smooth, detectable by cane near near ground; ground; • no gaps to trap cane tip;no gaps to trap cane tip;• easy on the hands.easy on the hands.

Other useful featuresOther useful features• contrast; contrast; • stability.stability.

Barricades for Cane Detection

Provide Effective Accessible Barriers

Solid and continuous, 36-42 inches high

Crash Resistant Barriers Temporary Pedestrian routes in the roadway

Crash Resistant Barrier

Crash Resistant Barrier

X X

Extend Barrier Around Entire Area of Construction

Effective barrier around construction

Ineffective Barriers

Ineffective barriers (plastic tape) around the site

Fails to provide detection around site

Ineffective Barriers

Question 2: Is the alternate route accessible?

a. Obvious, so no need to retrace?

b. Usable curb ramps at both ends?

c. Wide enough to get by?

Is the alternate route obvious?

b. Will there be a usable curb ramp on both ends?

Temporary Curb Ramp

Good ideas from practice

Is the route continuous and unobstructed?

Wide enough to get by? Safe?

Detectable? Obvious? Wide Enough?

Detectable route? Wide enough?

Path Obstruction

Is this safe? Accessible to all?

Ineffective Barrier

Repair Utility Work ASAP

Hold companies accountable for timely repairs

Provide smooth patching for utility work

Secure Utility Lines: Safety

Recommended source for reasonable policies on issues not governed by ADAAG standards.

•Notice of Availability (Nov. 23, 2005): http://www.access-

board.gov/prowac/noa.htm

•PROW Draft Guidelines:

•http://www.access-board.gov/prowac/draft.htm#304

ADA & Section 504:

Access Board Draft Guidance

USDOJ Toolkit: www.usdoj.gov/crt/ada/pcatoolkit/chap6toolkit.htm

FHWA Guidance: www.fhwa.dot.gov/civilrights/ada_memo_clarifications.htm and www.fhwa.dot.gov/civilrights/ada_qa.htm

Lonberg v. City of Riverside summary: http://www.latimes.com/news/printedition/california/la-me-sidewalks17may17,1,4740830.story?coll=la-headlines-pe-california

Accessibility in the Public Right-of-Way: Legal Update

•Lisa MacPhee, FHWA Attorney Advisior, Legal Presentation Materials

•Lois Thibault, Access Board for pictures, slides, video, participant materials

Special thanks to:

Janine C. Ashe, Ed.S., Esq. Civil Rights Policy and Regulations SpecialistFederal Highway AdministrationOffice of Civil Rights, E-81-1251200 New Jersey Ave., S.E.Washington, D.C. 20590Office: 202-366-9057Fax: 202-366-1599E-mail: [email protected]

Accessibility in the Public Right-of-Way: Legal Update

Janine C. Ashe, Ed.S., Esq. Civil Rights Policy and Regulations Specialist Federal Highway...

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