FHWA Title II ADA/Section 504 Program

1. FHWA Title II ADA/Section 504 Program Providing Access for Individuals with Disabilities

2. The Need for Accessible Programs and Facilities • 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

3. General Approach to Providing Access to STA Programs 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

4. Section 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

5. Applicability of Section 504 • Section 504 applies to all programs and operations of recipients and sub-recipients • Compliance not affected by State/Local Laws

6. 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

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

8. Any State or Local Government; Any department, Agency of a State or States or local government; and Amtrak and any commuter authority Americans with Disabilities Act Title II – Public Entities

9. Compliance Responsibilities for State and Local Governments

10. Other Transportation – Related 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

11. Public Entity Obligations Under ADA Title II • 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)

12. Prohibited 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

13. Who is covered under the ADA and Section 504 Qualified Individuals with Disabilities!

14. “Individual with a Disability”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

15. “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.

16. “Qualified Individual with a Disability” – 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.

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

18. Auxiliary Aids and Services (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)

19. Types 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

20. How are Auxiliary Aids and Services 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

21. Auxiliary Aids and Services - Situations • Public Meetings • Tourist Information Centers • Hotlines/Toll-free numbers (TTD/TTY)

22. Auxiliary Aids and Services - Situations • Public entities and recipients are NOT required to provide individuals personal aids or services (wheelchairs, personal attendants).

23. Additional Obligations Under ADA Title II and 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

24. Self-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

25. ADA 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

26. Transition Plans – Types of Buildings and Facilities 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

27. Transition 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

28. Transition Plan – STA Advisory Committee Members • 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

29. Transition Plans – Curb Ramp/Pedestrian Facilities 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)

30. Example: Texas DOT Transition Plan Initial Curb Ramp Prioritization Plan

31. The following factors should be considered in the development 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

32. Other Things to Consider for Transition Plan 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

33. Public 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)

34. STA Grievance Procedures for ADA/504 Complaints • 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

35. Relationship Between Title II and Title III (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

36. Accessibility 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

37. Alterations 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

38. Accessibility of Existing Facilities Undue Burden • 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!

39. Accessibility 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

40. Accessibility 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

41. Pedestrian Access Minimum Requirements (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’”

42. ADAAG – 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!

43. Title 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

44. Curb 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

45. Curb 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)

46. 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

47. …And what about the solutions? Can you Identify What’s Wrong?

48. …And what about the solutions? Can you Identify What’s Wrong?

49. Pedestrian 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.htm www.fhwa.dot.gov/environment/sidewalk2/pdf.htm

50. Clarification of FHWA’s Oversight Role in Accessibility • Memorandum issued in September, 2006 http://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 responsibilities New Construction and Alterations/Maintenance Transitions Plans Technical Feasibility and Cost Accessibility Design for Sidewalks, Street Crossings and Trails