Overview of ADA and the PROW and Roles for LTAP/TTAP Centers Ron W. Eck, P.E. West Virginia LTAP Morgantown, WV

Objectives Review key milestones in history of accessibility regulations Distinguish between ADAAG and PROWAG Identify roles for LTAP/TTAP in assisting communities with respect to accessibility

Significance 21% of U.S. population over the age of 15 has a disability (2010 Census) 8 million Americans have vision disability, ranging from low vision to total blindness NCD estimates that 70% of U.S. population will eventually have a temporary or permanent disability that makes climbing stairs impossible

Historical Background: Pre-1990 Architectural Barriers Act (1968) required facilities designed, constructed, altered or leased with Federal funds to comply with Accessible Design Standards Section 504 of Rehabilitation Act (1973) required curb ramps on Federal-aid projects

Americans with Disabilities Act--1990 Civil rights law that prohibits discrimination against persons with disabilities. Applies to all entities (public, private, et al.) regardless of funding source

Five Titles of ADA Title I Employment Title II State & Local Governments (28 CFR Part 35) Title III Public Accommodations (retail, commercial, sports complexes, movie theaters, et al) (28 CFR Part 36) Title IV Telecommunications Title V Misc., including requirements for US Access Board to develop design guidelines The ADA consists of five titles. Title II is specific to State and local governments and incorporates specific prohibitions of discrimination on the basis of disability from Titles I, III, and IV.

Title II - State and Local Governments Basic Requirements: Must ensure that individuals with disabilities are not excluded from programs, services, and activities (pedestrian facilities are an example of a program) Title II of the ADA applies to all programs, services and activities provided or made available by public entities (State & local governments) or any of their instrumentalities or agencies. Like the Civil Rights Act of 1964 that prohibits discrimination on the bases of race, color, national origin, and sex, the ADA seeks to ensure nondiscrimination - but on the basis of disability. All governmental activities of public entities are covered, even if they are carried out by contractors. In other words, similar to other nondiscrimination laws the scope of Title II coverage extends to the entire operations of a public entity. As clarified in Barden vs. City of Sacramento, sidewalks/pedestrian facilities are considered a “program” of a public entity.

Key Court Decision on Alterations--1993 DOJ and court decisions consider roadway resurfacing an alteration (1993) Roadway resurfacing triggers requirement for curb ramp installations/retrofits (to current standards) DOJ/DOT Joint Technical Assistance issued 7/8/13 Similar to new construction, each facility altered by or on behalf of a public entity must be readily accessible and usable by persons with disabilities (if the alteration commenced after January 26, 1992). Altered portions (including reconstruction) of facilities must meet new construction guidelines to the maximum extent feasible. There are numerous court cases around the country that could have been avoided had the entities included accessibility as part of their day-to-day operations. Two cases worth noting, that have directly impacted how State and local governments address ADA and alterations in the public right-of-way are Kinney v. Yerusalim and Barden v. the City of Sacramento. In Kinney v. Yerusalim (Pennsylvania DOT) the court’s conclusion was that roadway resurfacing is an alteration, which triggers the requirement for curb ramp installations/retrofits. In Barden v. the City of Sacramento the court’s conclusion was that sidewalks are a “program” under ADA, and resulted in a requirement for the City of Sacramento to annually dedicate 20% of its overall transportation budget to provide compliant curb ramps and to remove access barriers in the pedestrian rights-of-way for which the City has responsibility or authority over (includes sidewalks, curb ramps, crosswalks, pathways, et al). A key point to remember is that curb ramps are only usable if the sidewalk is also accessible. More recently, the California Department of Transportation (CalTrans) finally reached a settlement in a class action lawsuit that began in 2006. The settlement calls for CalTrans to dedicate $1.1 billion over 30 years, to stand-alone pedestrian projects that improve accessibility for persons with disabilities.

Title II – Maintaining Accessibility (28 CFR 35.133) State & local governments must maintain accessible features of facilities in operable working conditions Maintenance examples: -- sidewalks in disrepair -- overgrown vegetation -- snow accumulation -- broken elevator -- work zone accessibility Entities are obligated (under ADA) to ensure that facilities are readily accessible to and usable by persons with disabilities. This requirement extends to pedestrian facilities that are in disrepair, as well as blocked/restricted access due to obstructions (such as overgrown landscaping, street furniture, utilities, construction activities, snow accumulation, et al). In the case of construction activities that block/restrict use of pedestrian facilities, an alternate route should be provided if more than a temporary disruption).

ADA Accessibility Guidelines (ADAAG) Developed primarily for buildings & on-site facilities Do not address all situations (especially those that are unique to the public right-of-way) The ADA Accessibility Guidelines (1991 ADAAG) and the subsequent ADA-ABA Accessibility Guidelines (2005) were developed primarily for buildings and on-site facilities. While they address certain features that may be common to public sidewalks, they do not adequately cover elements that are unique to the public right-of-way.

Public Right-of-Way Accessibility Guidelines (PROWAG) Originally intended to supplement ADAAG to provide standards specific to public rights-of-way; most recently formatted as a stand-alone document Applicable to new construction and alterations (of existing facilities) Undergoing the rulemaking process (2011 NPRM published w/ updated guidelines.) The Public Right-of-Way Accessibility Guidelines (PROWAG) were originally intended to supplement the ADAAG, providing standards specific to the public rights-of-way. More recently, however, it was decided that the PROWAG will be a stand-alone document as the primary focus is the pedestrian environment within the public right-of-way. The PROWAG are currently in the rulemaking process. These guidelines become enforceable when they are adopted by the standard setting agency, in this case USDOT and USDOJ. Many entities are/have been hesitant to use the PROWAG until they become standards. Until such time as the PROWAG is adopted as standards, entities should use the PROWAG when designing and constructing facilities in the public right-of-way. The Public Right-of-Way Accessibility Guidelines are consistent with the ADA’s requirement that all new facilities (and altered facilities to the maximum extent feasible) be designed and constructed to be accessible and useable by persons with disabilities. Further, Title II regulations and implementing standards (the original ADAAG and the updated ADA-ABA Accessibility Guidelines) allow for the use of PROWAG – under the Equivalent Facilitation provision.

Issues in Draft PROWAG Not Adequately Addressed in ADAAG Pedestrian Access Route (e.g. allows sidewalk running slope to match roadway grade) Curb ramps – more design options Detectable warnings Crosswalks APS (Accessible Pedestrian Signals) On-street parking Roundabouts The Public Right-of-Way Accessibility Guidelines essentially pick up where the ADAAG leaves off. For instance, the PROWAG allows sidewalk running slope to match the roadway grade; provides more curb ramp design options; provides more details regarding detectable warnings (truncated domes); contains provisions for crosswalks, accessible pedestrian signals, on-street parking, roundabouts and more.

Pedestrian Access Route Components: Walkways Ramps Curb ramps (excluding flared sides) & landings Blended transitions Crosswalks Pedestrian overpasses & underpasses Elevators and platform lifts The components of a pedestrian access route shall consist of one or more of the following components: walkways, ramps, curb ramps (excluding flared sides) and landings, blended transitions, crosswalks, pedestrian overpasses and underpasses, elevators, and platform lifts.

Everyone Benefits from Curb Ramps

Roles for LTAP/TTAP Centers Information Dissemination -- information resources -- newsletter articles -- “executive” briefings Technical Assistance

Roles (cont’d) Training One/two hour focused sessions Half-day sessions Full-day “Designing Pedestrian Facilities for Accessibility” (DPFA) workshop 1.5-day DPFA workshop with field activities Customized sessions

Several LTAP staffers attended FHWA 3-day DPFA train-the-trainer sessions in mid-Atlantic and northwest in summer 2010 No LTAP/TTAP attendance at week-long DPFA train-the-trainer session in late April 2013 in Lakewood, CO Therefore, are some qualified LTAP trainers who can assist

Modules Making Up DPFA Class Laws, Regulations, and Pedestrian Characteristics Pedestrian Access Route Curb Ramps and Other Transitions Detectable Warning Surfaces Pedestrian Crossings Accessible Pedestrian Signals Street Furniture and Parking Work Zones & Maintenance Wrap up

Questions? Ron W. Eck, P.E. West Virginia LTAP Morgantown, WV 304-293-9931 Ronald.Eck@mail.wvu.edu