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ADA in the Work Zone: A Legal Perspective. Janine C. Ashe, Ed.S ., Esq. Civil Rights Policy and Regulations Specialist Federal Highway Administration (FHWA) Office of Civil Rights. Presentation Objectives. Disabilities in the US ADA and Section 504 Public Entities Obligations

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ADA in the Work Zone: A Legal Perspective


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    1. ADA in the Work Zone: A Legal Perspective Janine C. Ashe, Ed.S., Esq. Civil Rights Policy and Regulations Specialist Federal Highway Administration (FHWA) Office of Civil Rights

    2. Presentation Objectives Disabilities in the US ADA and Section 504 Public Entities Obligations ADA Enforcement:Lawsuits/Settlement Work Zone Issues to Consider

    3. Impairments that affect the ability to access State Transportation Agency programs, services, and facilities include: 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

    4. Persons with Hearing Disabilities 17million Americans have serious hearing disabilities(2000 Census)

    5. Persons with Visual 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

    6. Disabilities in the U.S. 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.

    7. Disabilitiesin theU.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.

    8. The Need for Accessible Programs and Facilities

    9. Historical Roots of Disability Law: ADA and Section 504 • Civil Rights Act of 1964 • Architectural Barriers Act (1965) • Rehabilitation Act of 1973-Section 504

    10. Historical Roots of Disability Law: ADA and Section 504 • Grove City College v. Bell (1984) • Civil Rights Restoration Act of 1988

    11. Historical Roots of Disability Law: ADA and Section 504 • ADA signed into law 1990 • ADA Amendments Act of 2008 • (effective January 1, 2009)

    12. 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)

    13. Definition: Authority 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

    14. Accessibility Legislation Section 504 of the Rehabilitation Actof 1973 (29 USC 794(a)) Americans with Disabilities Act (ADA) of 1990 (42 USC 12111)

    15. Legal Context:Statutory language Section 504: 29 USC § 794 (1973) 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, beexcluded from participation in, be denied the benefits of, or be subjected to discriminationunder 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 besubjected to discrimination by any such entity.” 42 USC § 12132

    16. 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)

    17. Legal Context: Nondiscrimination Standards:ADA Covers areas that 504 does not • Signed into law in 1990 Regulations in effect since 1992 Jurisdiction is not tied to receipt of Federal funding or assistance US Department of Justice has ultimate compliance responsibility

    18. American with Disabilities Act (ADA) Title I –Employment Title II- Public Entities Title III – Public Accommodations (Private Entities) Title IV – Telecommunications Title V - Miscellaneous

    19. Public Entity Obligations under ADA Title II in the PROW Must not discriminate against qualified individuals with disabilities Maintain accessible features Provide equal access to programs and services

    20. 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

    21. Legal Context: Nondiscrimination Standards:ADA & Section 504 Section 504 & ADA Same Standards Different Enforcement

    22. Legal Context: ADA & Section 504:“Nondiscrimination” General Rules UFAS or ADAAG USDOJ Tech. Assist. In PROW, each public entity must 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

    23. 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: “Nondiscrimination” Corollary

    24. Legal Context: ADA & Section 504:Sources for Nondiscrimination Standards Reasonable & Consistent Everything else- Reasonable & Consistent Policy • Curb ramps • Sidewalks • Detectable • warnings Specified Standards: USDOJ Regulation/ ADAAG

    25. Legal Context: ADA & Section 504: Enforcement ADA & Section 504: Mixed federal & non-federal funding Section 504: Federal funding necessary ADA: Public entities with no federal funds

    26. Legal Context: ADA & Section 504:Enforcement:Ultimate Remedies 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)

    27. ADA & Section 504:Contractors’ Obligations: 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

    28. ADA & Section 504:Alteration Projects 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.

    29. 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.

    30. 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.

    31. 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).

    32. ADA & Section 504:FHWA Responsibilities 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.

    33. 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

    34. ADA & Section 504:Contractors’ Obligations: 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.

    35. ADA Enforcement: Lawsuits ADA allows individuals to enforce ADA obligations, including curb ramp obligations, through private action in federal district court against a public entity.

    36. Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993). Cert. Denied sub nom., Hoskins v. Kinney, 511 U.S. 1033 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.

    37. 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.

    38. KEY POINTSAlteration v. Maintenance 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. 

    39. Lonberg v. City of Riverside 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.

    40. 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 $1,000.00statutory 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 $5,000.00damages = $40,000.00

    41. Lonberg v. City of Riverside 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.

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

    43. Utah DOT Settlement 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.

    44. Lessons Learned from ADA State DOT Settlements 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

    45. Project Civic Access. A Title II compliance program that includes: 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

    46. Work Zone Issues in PROW • 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.

    47. ACCESS BOARD VIDEO

    48. Draft PROWAG (2005) • R205 Alternate Pedestrian Access RouteWhen an existing pedestrian access route is blocked by construction, alteration, maintenance, or other temporary conditions, an alternate pedestrian access route complying to the maximum extent feasible with R301, R302, and Section 6D.01 and 6D.02 of the MUTCD (incorporated by reference; see R104.2.1) shall be provided. • Advisory R205 Alternate Pedestrian Access Route. Same-side travel is preferred because it does not increase pedestrian exposure and risk of accident consequent upon added street crossings. A route that uses vehicle lane width may be shorter, safer, and more usable than one that requires two street crossings, even if the roadway surface is imperfect. Part 6D.01 of the MUTCD requires alternate routes to provide the best elements of accessibility provided in the pedestrian circulation route before its disruption.

    49. Key Work Zone Issues with Pedestrians with Disabilities

    50. Question 1: Is there an alternate route? • Is the route information in usable formats; • Will the route be on the same-side or do pedestrians need to cross (and re-cross)? • What is the extent of the detour? • Is the route defined? e. Is the route detectable?