2. Public Rights-of-Way 1/Accessibility Regulation Lois Thibault, Research Coordinator U.S. Access Board Capital Region Council of Governments Hartford, CT May 2, 2006

3. Part 1: The Regulatory Foundation 1/Laws, regulations, and standards governing access to the public right-of-way 2/The rulemaking process

4. Three accessibility LAWS… ABA ► Architectural Barriers Act (ABA) of 1968 504 ► Rehabilitation Act of 1973 (‘504’) ADA ► Americans with Disabilities Act (ADA) of 1990

5. Federal agency construction: ABA

6. Federally-supported programs: 504 Federally-supported programs: 504

7. State and local governments and commercial facilities: ADA

8. The Americans with Disabilities Act (ADA)… State and local governments ► covers State and local governments (title II) and the private sector (title III) regardless of funding ► is civil rights law that prohibits discrimination

9. Laws require REGULATIONS… Laws require REGULATIONS… ► to implement the law; standardsnew construction and alterations ► to provide standards for new construction and alterations; and ► to cover other issues, such as existing facilities and enforcement.

10. Regulations apply STANDARDS ► to prescribe a means of achieving the new and altered required access in new and altered facilities facilities and ► to provide a safe harbor for designers. ► Title II entities may choose either UFAS (1984) ADAAG (1991) UFAS (1984) or ADAAG (1991); title III entities must use ADAAG

11. Accessibility standards are… goal ► a ‘goal’ for alterations (meet new construction standards ‘to the maximum extent feasible’), and guiding idea ► a ‘guiding idea’ for existing facilities not otherwise being altered. gold standard ► a ‘gold standard’ for new construction;

12. Guidelines…? Standards…? guidelines ► the US Access Board is responsible for developing accessibility guidelines; standards ► other Federal agencies adopt the guidelines as standards

13. Title II of the ADA… ► is an implementing regulation; State and local government services and facilities ► covers State and local government services and facilities; existing facilities differently ► covers existing facilities differently than new and altered facilities; ► applies even if there are no design/construction standards.

14. 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… Subpart A – General Subpart B – General Requirements Subpart C – Employment Subpart D – Program Accessibility Subpart E – Communications Subpart F – Compliance Procedures Subpart G – Designated Agencies

15. 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 maintained in a manner that enables persons with disabilities to use them 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 enables persons with disabilities to use them…[This section does not prohibit isolated or temporary interruptions in service due to maintenance or repairs].”

16. 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: Communications Subpart E – Communications 35.160 General. communications as effective as “A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communication with others.”

17. 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 accessibility Subpart D – Program Accessibility 35.150 Existing facilities. operate viewed in its entiretyreadily accessible to and usable by “A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities…”

18. 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 facilities “35.151 New construction and alterations. Eachfacility readily accessible to and usable by Each facility…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 usable by individuals with disabilities…”

19. 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 usable by…’ means: used easily and conveniently “...that it can be approached, entered, and used by individuals with disabilities (including mobility, sensory, and cognitive impairments) easily and conveniently… 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.”

20. 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… adapt current building standards Because ADAAG does not yet include provisions specific to the public right-of- way, designers today must adapt 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.

21. 1992 In 1992, 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, and we’re here to help…

22. Whatever happened to section 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 Facilities Section 12 Detention and Correctional Facilities Section 13 Residential Facilities Section 14 Public Rights-of-Way 1994 Technical assistance and outreach 1999 Advisory Committee 2001 Committee recommendations

23. Public Rights-of-Way Access Advisory Committee [PROWAAC] Advisory Committee [PROWAAC] Stakeholders included 53 transportation and disability representatives, including Federal, State, and local government agencies

24. Committee Report “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

25. Rulemaking is a 2-step process: The Access Board develops minimum guidelines: ADA ► under the ADA, DOJ and DOT adopt enforceable standards consistent with Board guidelines; ABA ► under the ABA, DOD, GSA, HUD and USPS adopt enforceable standards; Rehab Act ► Rehab Act standards are set by individual agency rulemaking.

26. Current rulemaking 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 2005) ► Prepare Regulatory Analysis for OMB approval (~Fall 2006) ► Publish NPRM for comment (~2007)

27. What are current right-of-way requirements? even if there are no adopted standards The ADA requires accessible new construction even if there are no adopted standards, so: ► use basic accessibility guidelines as they are applicable; ► seek out information on best practices (Draft 2), and ► document your decisionmaking.

28. For more information: Access Board website: www.access-board.govwww.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