Public Rights-of-WayPublic Rights-of-Way

1/Accessibility Regulation

Lois Thibault, Research CoordinatorU.S. Access Board

Capital Region Council of Governments

Hartford, CT May 2, 2006

Part 1: The Regulatory Part 1: The Regulatory FoundationFoundation

1/Laws, regulations, and standards governing access to the public right-of-way

2/The rulemaking process

Three accessibility LAWS…Three accessibility LAWS…

► Architectural Barriers Act (ABAABA) of 1968

► Rehabilitation Act of 1973 (‘504504’)

► Americans with Disabilities Act (ADAADA)

of 1990

Federal agency construction: Federal agency construction: ABAABA

Federally-supported programs: Federally-supported programs: 504 504

State and local governments State and local governments and commercial facilities: and commercial facilities: ADAADA

The Americans with Disabilities The Americans with Disabilities Act (ADA)…Act (ADA)…

► covers State and local State and local governmentsgovernments (title II) and the private sector (title III) regardless of funding

► is civil rights law that prohibits discrimination

Laws require REGULATIONS…Laws require REGULATIONS…

► to implement the law;

► to provide standardsstandards for new new construction and alterations construction and alterations; and

► to cover other issues, such as existing facilities and enforcement.

Regulations apply STANDARDSRegulations apply STANDARDS

► to prescribe a means of achieving the required access in new and altered new and altered facilities facilities and ► to provide a safe harbor for designers.

► Title II entities may choose either UFASUFAS (1984)(1984) or ADAAG (1991ADAAG (1991)); title III entities must use ADAAG

Accessibility standards are…Accessibility standards are…

► a ‘goalgoal’ for alterations (meet new construction standards ‘to the

maximum extent feasible’), and

► a ‘guiding ideaguiding idea’ for existing facilities not otherwise being altered.

► a ‘gold standardgold standard’ for new construction;

Guidelines…? Standards…?Guidelines…? Standards…?

► the US Access Board is responsible for developing accessibility

guidelinesguidelines;

► other Federal agencies adopt the guidelines as standardsstandards

Title II of the ADA…Title II of the ADA… ► is an implementing regulation;

► covers State and local government State and local government services and facilitiesservices and facilities;

► covers existing facilities differentlyexisting facilities differently than new and altered facilities;

► applies even if there are no design/construction standards.

Because UFAS and ADAAG were developed for buildings

and facilities on sites, agencies designing and constructing

pedestrian facilities had to apply the requirements as best

they could to the very different environment of the

public right-of-way.

ON YOUR OWN…Title II of the ADA covers…Title II of the ADA covers…

Subpart A – GeneralSubpart B – General Subpart B – General RequirementsRequirementsSubpart C – EmploymentSubpart D – Program Subpart D – Program AccessibilityAccessibilitySubpart E – CommunicationsSubpart E – CommunicationsSubpart F – Compliance ProceduresSubpart G – Designated Agencies

Because UFAS and ADAAG were developed for buildings

and facilities on sites, agencies designing and constructing

pedestrian facilities had to apply the requirements as best

they could to the very different environment of the

public right-of-way.

ON YOUR OWN…Title II: Maintenance Title II: Maintenance 35.133 Maintenance of accessible features. “This section recognizes that it is not sufficient to provide features such as accessible routes…if those features are not maintained in a manner that maintained in a manner that enables persons with disabilities to use enables persons with disabilities to use themthem…[This section does not prohibit isolated or temporary interruptions in service due to maintenance or repairs].”

Because UFAS and ADAAG were developed for buildings

and facilities on sites, agencies designing and constructing

pedestrian facilities had to apply the requirements as best

they could to the very different environment of the

public right-of-way.

ON YOUR OWN…Title II: CommunicationsTitle II: Communications

Subpart E – Communications

35.160 General.

“A public entity shall take appropriate steps to ensure that communicationscommunications with applicants, participants, and members of the public with disabilities are as as effective aseffective as communication with others.”

Because UFAS and ADAAG were developed for buildings

and facilities on sites, agencies designing and constructing

pedestrian facilities had to apply the requirements as best

they could to the very different environment of the

public right-of-way.

ON YOUR OWN…Title II: Program accessibilityTitle II: Program accessibility

Subpart D – Program Accessibility

35.150 Existing facilities.

“A public entity shall operateoperate each service, program, or activity so that the service, program, or activity, when viewed in its viewed in its entiretyentirety, is readily accessible to readily accessible to and usable byand usable by individuals with disabilities…”

Because UFAS and ADAAG were developed for buildings

and facilities on sites, agencies designing and constructing

pedestrian facilities had to apply the requirements as best

they could to the very different environment of the

public right-of-way.

ON YOUR OWN…Title II: New facilitiesTitle II: New facilities

“35.151 New construction and alterations.

EachEach facilityfacility…constructed by, on behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility …is readily accessible to and readily accessible to and usable byusable by individuals with disabilities…”

Because UFAS and ADAAG were developed for buildings

and facilities on sites, agencies designing and constructing

pedestrian facilities had to apply the requirements as best

they could to the very different environment of the

public right-of-way.

‘‘Readily accessible to and Readily accessible to and usable by…’ means:usable by…’ means:“...that it can be approached, entered, and usedused by individuals with disabilities (including mobility, sensory, and cognitive impairments) easily and easily and convenientlyconveniently… To the extent that a particular type or element of a facility is not specifically addressed by the standards, the language of this section is the safest guide.”

Because UFAS and ADAAG were developed for buildings

and facilities on sites, agencies designing and constructing

pedestrian facilities had to apply the requirements as best

they could to the very different environment of the

public right-of-way.

ON YOUR OWN…On your own…On your own…Because ADAAG does not yet include provisions specific to the public right-of-way, designers today must adapt adapt current building standards current building standards in order to meet the law’s requirements for accessibility. Results?

► uncertainty; ► complaints and lawsuits; ► court orders to re-do new

work.

In 19921992, as part of a larger rulemaking on state and local government facilities, the Board set out to adapt ADAAG to the particular constraints of sidewalks, street crossings, and related pedestrian facilities in the public right-of-way.

We’re from the government, We’re from the government, andandwe’re here to help…we’re here to help…

Whatever happened to section Whatever happened to section 14?14?

1992 Proposed Rule for State/Local Government Facilities

1994 Interim Final Rule

1998 Final Rule (sections 13 and 14 were reserved)

Section 11 Judicial, Legislative and Regulatory FacilitiesSection 12 Detention and Correctional FacilitiesSection 13 Residential FacilitiesSection 14 Public Rights-of-WaySection 14 Public Rights-of-Way

1994 Technical assistance and outreach

1999 Advisory Committee

2001 Committee recommendations

Public Rights-of-Way Access Public Rights-of-Way Access Advisory Committee Advisory Committee [PROWAAC][PROWAAC]

Stakeholders included 53 transportation and disability representatives, including Federal, State, and local government agencies

Committee ReportCommittee Report““Building a True Community” Building a True Community”

Recommendations for new guidelines for public rights-of-way presented at TRB in January 2001 by PROWAAC, including FHWA, ITE, AASHTO, APWA, and APTA

Rulemaking is a 2-step Rulemaking is a 2-step process:process:The Access Board develops minimum guidelines:

► under the ADAADA, DOJ and DOT adopt enforceable standards consistent with Board guidelines;

► under the ABAABA, DOD, GSA, HUD and USPS adopt enforceable standards;

► Rehab ActRehab Act standards are set by individual agency rulemaking.

Current rulemaking Current rulemaking milestones…milestones…► Draft rule (June 17, 2002)

► Public comment (October 28, 2002)► Review/analyze comments (completed)► Present recommendations for Board

approval (just completed)

►► Publish revised draft (November Publish revised draft (November 2005)2005)► Prepare Regulatory Analysis for OMB

approval (~Fall 2006)► Publish NPRM for comment (~2007)

What are current right-of-way What are current right-of-way requirements?requirements?

The ADA requires accessible new construction even if there are no even if there are no adopted standardsadopted standards, so:

► use basic accessibility guidelines as

they are applicable; ► seek out information on best practices (Draft 2), and► document your decisionmaking.

For more information:For more information:

Access Board website: www.access-board.gov

Technical assistance hotline: 800/872-2253 (v)

800/993-2822 (tty)Publications: --accessible sidewalks design manual--accessible sidewalks videotape--synthesis on detectable warnings--research on controllers and APS--bulletin on roundabout accessibility