FHWA Title II ADA/Section 504 FHWA Title II ADA/Section 504 ProgramProgram

Providing Access for Individuals with Disabilities

The Need for Accessible Programs and The Need for Accessible Programs and FacilitiesFacilities

• 20 Percent (54 million) of the U.S. Population over the age of 15 has a disability (2000 Census)

• 70 Percent of us will eventually have a temporary or permanent disability that makes climbing stairs impossible

General Approach to Providing Access to STA General Approach to Providing Access to STA Programs and ServicesPrograms and Services

• Identify barriers that restrict accessibility to STA programs, services and activities by individuals with various disabilities

• Identify accommodations and/or modifications that can be provided to make STA programs and services accessible

• Evaluate the effectiveness of the accommodations or modifications in providing accessibility

Section 504 of the Rehabilitation ActSection 504 of the Rehabilitation Act

• USDOT Regulation 49 CFR Part 27• Applies to recipients of Federal Financial

Assistance• USDOT has ultimate compliance responsibility• Requires accessible programs and services• Provide accessible STA facilities in

accordance with 49 CFR 27 Appendix A

Applicability of Section 504Applicability of Section 504

• Section 504 applies to all programs and operations of recipients and sub-recipients

• Compliance not affected by State/Local Laws

Americans with Disabilities Act (ADA)Americans with Disabilities Act (ADA)

• Signed into law in 1990 with ADA Amendments Act signed in September 2008

• Regulations in effect since 1992• Jurisdiction is not tied to receipt of Federal

Funding or assistance• U.S. Department of Justice has ultimate

compliance responsibility

American with Disabilities Act (ADA)American with Disabilities Act (ADA)

• TITLE I - Employment• TITLE II – Public Entities• TITLE III – Public Accommodations Private

Entities• TITLE IV – Telecommunications• TITLE V - Miscellaneous

Americans with Disabilities Act Americans with Disabilities Act Title II – Public EntitiesTitle II – Public Entities

• Any State or Local Government;

• Any department, Agency of a State or States or local government; and

• Amtrak and any commuter authority

Compliance Responsibilities for State and Compliance Responsibilities for State and Local GovernmentsLocal Governments

Institutions Section 504 ADA

STA Recipients (SDOTS) and Subrecipients (MPOs) X X

Local Governments that DO receive FHWA Funds X X

Local Governments that DO NOT receive FHWA Funds

X

Other Transportation – Other Transportation – Related Federal Disability LawsRelated Federal Disability Laws

• Transportation for Individuals With Disabilities (49 CFR Parts 37 and 38) – Covers accessible transportation facilities for buses, trains, airports, train stations

• FHWA Regulation 23 CFR §652.5 – Needs of individuals with disabilities shall be considered in all Federal-Aid projects that include pedestrian facilities

Public Entity Obligations Under ADA Title Public Entity Obligations Under ADA Title IIII

• Must not discriminate against qualified individuals with disabilities

• Maintain accessible features• Provide equal access to programs and

services• Must not discriminate in employment (Title I)

Prohibited DiscriminationProhibited Discrimination

• Denial of services, benefits or program participation

• Providing different, unequal or ineffective benefits or services

• Providing inaccessible programs, services and benefits

• Discriminate against person/entity associated with individuals with disabilities

Who is covered under the ADA and Who is covered under the ADA and Section 504Section 504

• Qualified Individuals with Disabilities!

““Individual with a Disability”Individual with a Disability”Regulatory Definition:Regulatory Definition:

(a)a physical or mental impairment that substantially limits one or more of the major life activities of such individual; or

(b)a record of such an impairment; or

(c)being regarded as having such an impairment

““Individual with a Disability”Individual with a Disability”

Under the ADA Amendments Act, which came into effect Jan. 1, 2009, “disability” is to be interpreted very broadly with little analysis.

Major life activities includes:• Walking, seeing, hearing, lifting, learning, etc..AND it also includes major bodily functions:• Normal cell growth, circulatory system, endocrine

system, bowel and bladder control, etc.

““Qualified Individual with a Disability” – Qualified Individual with a Disability” – Two Criteria:Two Criteria:

• Meets the essential eligibility requirements of the program or service with or without reasonable accommodations; and

• Participates in a program or service with or without reasonable accommodations, auxiliary aids or removal of barriers.

Essential Eligibility RequirementsEssential Eligibility Requirements

• Drivers License Examination• State or Local Residency Requirements• Use of a Facility or Service• Just Asking or Showing Up!

Auxiliary Aids and Services Auxiliary Aids and Services (accommodations)(accommodations)

• Communications with individuals with disabilities must be as effective as communications with others, including furnishing auxiliary aids and services when necessary (28 CFR 35.160)

• Public entity/recipient covers costs• Access for 17 million Americans who have

serious hearing disabilities (2000 Census)

Types of Auxiliary Aids and ServicesTypes of Auxiliary Aids and Services

• Notetakers, interpreters, readers

• Videotext displays• Captioning• Assistive listening

devices• Providing information in

Braille, in large print or on a CD

How are Auxiliary Aids and Services How are Auxiliary Aids and Services Provided?Provided?

• Public entity provides notice of how to request accommodations

• Individual initiates request for accommodations or modifications with adequate notice

• The accommodation must be necessary and effective with primary consideration being given to the actual accommodation requested by the individual

Auxiliary Aids and Services - Auxiliary Aids and Services - SituationsSituations

• Public Meetings• Tourist Information Centers• Hotlines/Toll-free numbers (TTD/TTY)

Auxiliary Aids and Services - Auxiliary Aids and Services - SituationsSituations• Public entities and recipients are NOT

required to provide individuals personal aids or services (wheelchairs, personal attendants).

Additional Obligations Under ADA Title II Additional Obligations Under ADA Title II and Section 504 for Public Entitiesand Section 504 for Public Entities

• Develop and implement a Self-Evaluation• Develop and implement a Transition Plan• Public notification of ADA/504 obligations• Designate an ADA/504 Coordinator• Develop complaint/grievance procedure

Self-EvaluationSelf-Evaluation

• Required by ADA and Section 504 to be completed by both public entities and recipients, respectively

• Identifies services, policies and practices that are not accessible

• Plan is retained for three years• Corrective action via Transition Plan

ADA Title II Transition PlansADA Title II Transition Plans

• Purpose: to eliminate structural barriers to program accessibility in state/local government buildings and facilities

• State and local government agencies that have a responsibility for roads, highways and pedestrian facilities must have a curb ramp installation schedule as part of the transition plan and may be used for other pedestrian facilities

Transition Plans – Types of Buildings and Transition Plans – Types of Buildings and Facilities to IncludeFacilities to Include

Include, but not limited to…• HQ, District, Region and Field Offices• Rest Areas• Picnic Areas/Parks/Historic Sites• Scenic Overlooks• Ferry Boats• Public Transit (bus, commuter rail)• Airports• Seaports; and• Pedestrian Right-of-Way Facilities

Transition Plans – Getting StartedTransition Plans – Getting Started

• Appoint someone to coordinate Plan development, implementation and completion (should be the organization’s ADA/504 Coordinator)

• Determine if a Self-Evaluation and Transition Plan was already done

• Form a committee representing all applicable sectors of the organization to assist in this effort

Transition Plan – STA Advisory Committee Transition Plan – STA Advisory Committee MembersMembers• ADA/504 Coordinator serves as the Committee Chair• Should also include staff from STA divisions, including: Design Construction Operations/Maintenance (highways) Building/Facility Management Planning ROW Finance Public Involvement Human Resources Bicycle/Pedestrian and Safe Streets to Schools Other Local Aid Programs Information Technology

Transition Plans – Curb Ramp/Pedestrian Transition Plans – Curb Ramp/Pedestrian Facilities InstallationFacilities Installation

• Compile an inventory of locations (streets, intersections) to be made accessible;

• Prioritization of locations to be modified• Location of government services (city hall, schools)• Locations of places of public accommodations (shops)• All other areas (residential)

• Identify type of modification (such as curb ramps)• Specify public involvement efforts:

– Groups, organizations, individuals contacted– Methods of public involvement (meetings, surveys)– Comments received should reflect the Transition Plan focus

and scope – provide contact information– Make the document available for public inspection (place on

website)

Example: Texas DOT Transition Plan Initial Curb Example: Texas DOT Transition Plan Initial Curb Ramp Prioritization PlanRamp Prioritization Plan

Priority Criteria

1A Existing curb ramp with running slope >12% AND Location near hospital, school, transit stop, government bldg., etc

1B No curb ramp where sidewalk or pedestrian path exists ANDLocation near hospital, school, transit stop, government bldg., etc

2A Existing curb ramp with running slope >12% (NOT located near hospitals, etc.)

2B No curb ramp where sidewalk or pedestrian path exists (NOT located near hospitals, etc.)

3 No curb ramp and striped crosswalk exists

4 One curb ramp per corner and another is needed to serve the other crossing direction

5A Existing curb ramp with either running slope >1:12 or insufficient landing

5B Existing curb ramp with obstruction in the ramp or landing

5C Existing curb ramp with any of the following conditions:a) cross slope >3%b) width <36 inchesc) no flush transition, OR

5D Median/island crossing that are inaccessible

5E Existing diagonal curb without the 48” extension in the crosswalk

5F Existing curb ramp without truncated dome texture contract OR without color contrast

6 Pedestrian push button is not accessible from the sidewalk and/or ramp

The following factors should be considered in the The following factors should be considered in the development of the PROW portion of the Transition Plandevelopment of the PROW portion of the Transition Plan

• Pedestrian Level of Services (PLOS) analysis• Specific project demand• Population density• Presence of individuals with disability

population• Existence of accessible features• Cost

Other Things to Consider for Transition Other Things to Consider for Transition Plan DevelopmentPlan Development

• Developing a procedure for installation of accessible facilities

• Monitoring the transition plan via milestones• Providing an avenue for citizens to request

curb ramps, APS, sidewalk repair• Coordinating or incorporating Transition Plan

with Pedestrian Master Plan or Bike-Pedestrian Plan, as well as the STIP and TIP

Public Notification of ADA/504 ObligationsPublic Notification of ADA/504 Obligations

• Recipients and Public Entities must inform the public in publicly disseminated materials that:

It does not discriminate on the basis of disability in its programs, services or activities.

Title II ADA/Section 504 obligations

The name, office address and office phone number of its ADA/504 Coordinator

The Notification is available in alternative formats (Braille, large-type texts, audio recording)

STA Grievance Procedures for ADA/504 STA Grievance Procedures for ADA/504 ComplaintsComplaints

• STAs must develop and implement grievance procedures for the investigation and adjudication of ADA/504 complaints that they receive

• STA can use its existing discrimination complaint procedures

• No obligation for a complainant to file with Federal Agency first

• FHWA does not require the complainant to file with the STA first before filing with FHWA

Relationship Between Title II and Title III Relationship Between Title II and Title III (Public Accommodations)(Public Accommodations)

• Title III Enterprises (Concessionaires) in public entity facilities follow Title III in their immediate leased space

• Title II Entities in commercial facilities (office buildings) follow Title II in their immediate leased space

• Barrier-free access vs. program access

Accessibility of Existing FacilitiesAccessibility of Existing Facilities

• Public entities are not necessarily required to renovate each and every facility for accessibility

• Public entities must achieve “program accessibility”, which means that programs, when viewed in their entirety, must be accessible

Alterations to Existing FacilitiesAlterations to Existing Facilities

• When an existing facility or part of an existing facility is altered, it must be made readily accessible to and usable by individuals with disabilities, to the maximum extent feasible

• Applies to facilities altered after January 26, 1992

Accessibility of Existing Facilities Undue Accessibility of Existing Facilities Undue BurdenBurden

• Public entities do not need to take actions that would result in fundamental alteration in programs or undue financial or administrative burdens, or…

• Destroy the historic significance of historical sites to achieve accessibility

• Always document these determinations!

Accessibility of New FacilitiesAccessibility of New Facilities

• Facilities or parts of facilities that are newly constructed after January 26, 1992 must be readily accessible and usable by individuals with disabilities

• Temporary Structures/Construction Zones must also be accessible

Accessibility GuidelinesAccessibility Guidelines

• Americans with Disabilities Act Accessibility Guidelines (ADAAG)– January 2004 – Access Board approved revised ADAAG, now

in rule making process

• Uniform Federal Accessibility Standards (UFAS) – To be phased out once revised ADAAG is adopted by USDOT and US Department of Justice

Pedestrian Access Minimum Requirements Pedestrian Access Minimum Requirements (ADAAG)(ADAAG)

• One accessible route linking all facilities and services

• Sidewalks 36” minimum clear width• Ramps required if grade exceeds 8.33%• Cross-slope no greater than 2%• Curb ramp or other method required if

change in levels is greater than 1/2’”

ADAAG – Technical InfeasibilityADAAG – Technical Infeasibility

• New Construction – Structurally impractical due to terrain

• Alterations – Jeopardize structural integrity• Historical Sites – threaten or destroy the

historic significance of the building or facility• Still provide alternate access route,

accessible services or accessible facilities to the “maximum extent feasible”

• Document all exception requests and decisions!

Title II – Maintaining AccessibilityTitle II – Maintaining Accessibility

Maintaining Accessibility 28 CFR 35.133• State and local governments must maintain

the accessible features of facilities in operable working conditions (for example: curb ramps, sidewalk breaks, buckled bricks)

• Poorly maintained facilities are not accessible or safe

Curb RampsCurb Ramps

• Required when streets, roads or highways are newly built or altered; or sidewalks, crosswalks and paths are newly built or altered, when they intersect roads

• Installed on existing facilities by way of the transition plan

Curb RampsCurb Ramps

• The ADA specifically requires curb ramps for new construction and modification of existing facilities

• Also required under the Federal-Aid Highway Act of 1973, USDOT’s Section 504 implementing regulations (when Federal Aid is used to construct pedestrian crosswalks)

Curb Ramps (Cont.)Curb Ramps (Cont.)

Kinney v. Yerusalem 1993• Curb ramps must be constructed when

roadway is altered (milling and/or repaving)• Not required when routine maintenance tasks

(pothole repair) are performed

Can you Identify What’s Wrong?Can you Identify What’s Wrong?

…And what about the solutions?

Can you Identify What’s Wrong?Can you Identify What’s Wrong?

…And what about the solutions?

Pedestrian Accessibility ResourcesPedestrian Accessibility Resources

• FHWA’s Parts I and II of “Designing Sidewalks and Trails for Access” is accessed on line at:

www/fhwa.dot.gov/environment/bideped/ access-1.htmwww.fhwa.dot.gov/environment/sidewalk2/pdf.htm

Clarification of FHWA’s Oversight Role in Clarification of FHWA’s Oversight Role in AccessibilityAccessibility

• Memorandum issued in September, 2006http://www.fhwa.dot.gov/civilrights/

ada_memoclarificationa.htm

• Also includes Questions and Answers (Q&A) section

http://www.fhwa.dot.gov/civilrights/ada_qa.htm

• Covers the following:FHWA responsibilitiesNew Construction and Alterations/MaintenanceTransitions PlansTechnical Feasibility and CostAccessibility Design for Sidewalks, Street Crossings and Trails

Pedestrian Rights-of-Way Accessibility Pedestrian Rights-of-Way Accessibility Guidelines (PROWAG)Guidelines (PROWAG)

• Currently on second draft version, released in November, 2005

• PROWAG supplements ADAAG, which actually covers building and facilities

• FHWA endorses the second draft as a “best practice” for situations where ADAAG does not fully address accessibility issues.

• Covers curb ramps, APS, signage and more

Barden v. SacramentoBarden v. Sacramento (2002 and 2003)(2002 and 2003)

• 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

Detectable WarningsDetectable Warnings

• FHWA May 6, 2002 Memorandum ADAAG Detectable Warnings (Truncated Domes)

• ADAAG Requirements for Detectable Warnings (March, 2003)

Detectable WarningsDetectable Warnings

• Original design as per ADAAG Standards are currently in effect (4.29.2)

• FHWA and Access Board endorse using the new design in the PROW Guidelines

• Equivalent Facilitation Clause in ADAAG permits usage of the new design now

• Departure from ADAAG permitted if there is equal or greater access than ADAAG Standard

Accessible Pedestrian Signals (APS)Accessible Pedestrian Signals (APS)

• Access Board Report (April, 2003)• Four Types of Signals• Pedhead - Mounted• Pushbutton – Integrated• Vibrotactile – Only• Receiver - Based

RoundaboutsRoundabouts

• Replacing traditional intersections across the US• Access Board Report (August, 2003)• Accessible Pedestrian Signals at Crosswalks• Balancing vehicular and pedestrian mobility

Parking Placards/License Plates for Parking Placards/License Plates for Individuals with DisabilitiesIndividuals with Disabilities

• FHWA Regulations 23 CFR 1235• Defines standards for license plates and

placards• Eligibility requirements to obtain plates and

placards • Reciprocity

Parking Placards for Individuals with Parking Placards for Individuals with Disabilities - ConcernsDisabilities - Concerns

• Too easy to obtain• “Inherited” placards• Misuse by individuals who do not have

disabilities or impairments• Users with non-visible impairments• Parking meters• Residential parking

Parking Guidelines for Individuals with Parking Guidelines for Individuals with DisabilitiesDisabilities

• 23 CFR 1235• ADAAG/UFAS• 1:25 ration of accessible/total spaces• 96” wide/marked with signage• Next to access aisle on accessible route

Manual of Uniform Traffic Control Devises Manual of Uniform Traffic Control Devises (MUTCD)(MUTCD)

2003 Edition provides accessibility guidelines for pedestrians with disabilities in a variety of situations such as:

• Temporary Traffic Control• Signage Standards• Accessible Pedestrian Signals

ComplaintsComplaints

• Title II ADA complaints may be filed with USDOT (FHWA)

• Individual or class complaints• Filed within 180 days of most recent incident• Can’t retaliate against complainants or

investigation participants (witnesses)

Complaints (Cont.)Complaints (Cont.)

• ADA complaints against STA or public entities are investigated by FHWA

• ADA complaints against STA sub-recipients are investigated by STA

• Voluntary compliance for violations• If no voluntary compliance, FHWA may refer

complaint to Justice Department

For More InformationFor More Information

• US Department of Justicewww.ada.gov

• Access Boardwww.access-board.gove

• Equal Employment Opportunity Comm.www.eeoc.gov

• US Department of Transportation/FHWAhttp://www.dot.gov/ost/docrhttp://www.fhwa.dot.gov