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Home / Programs / Civil Rights / Programs / ADA/Section 504 / ADA Resurfacing Webinar Transcript, March 1, 2016

 

ADA Resurfacing Webinar

ADA Requirements When Roads Are Resurfaced: Questions and Answers
March 1, 2016
Transcript

Event ID: 2858144
Event Started: 3/1/2016 1:50:52 PM ET

Please stand by for realtime captions

 


Ladies and gentlemen thank you for standing by. Welcome to the [Indiscernible] question and answers conference call. All participants are in a listen only mode. We will contact -- conduct a question and answer session. If you should require assistance during the call press start and zero. I would like to turn the call over to Candace [Indiscernible].

Welcome everyone and thank you for joining us today on this webinar for ADA and Roads are Resurfaced. All of the presenters today are with federal Highway and [Indiscernible] related to accessibility requirements including those applicable to resurfacing projects. You may have noticed on the first slide in the upper left-hand corner is the US Department of Justice's logo in reference to the civil rights division and disability rights section. DOJ will not be presenting today. This logo was included to emphasize and remind people that the 2013 joint technical assistance was issued by both federal Highway and DOJ as was the Q&A supplement. However, there may be some DOJ folks listening and today. The agenda for today is as follows. After my remarks and will be interesting the [Indiscernible] director of federal Highway civil right. Then [Indiscernible] with federal highways of chief counsel will provide the legal framework for the cues and is. Jim will be followed by Patrick Gomez. With federal resource center. Who will get an overview of the joint technical assistance issued by federal Highway and DOJ and 2013. Patrick will be followed by Elizabeth Helton for federal highways infrastructure. We are pleased to have book [Indiscernible] to help answer questions at the end of the webinar. Let's get started.

Good afternoon everyone. My name is Nicole [Indiscernible] I am the [Indiscernible] manager and the office of civil rights. I am happy to see so many participants on the webinar today. I hope it is helpful to you. I hope it is able to answer the questions that you might have. With me -- we are here in the office of civil rights to help with any questions that you may have. However due to the large number that we received we thought this might be helpful for those of you out in the field that are having to implement the resurfacing guidance. Without further ado thank you very much for attending. I would like to turn it over to Jim [Indiscernible]. He will start us off on the Q&A for the resurfacing guidance. Thank you very much.

Thank you Nicole. This is Jim [Indiscernible]. I wanted to start a giving you background on the joint technical assistance, and the Q&A's that were developed to further explain that technical assistance. I will provide background on legal framework, and history that led up to the technical assistance and ultimately to the Q&A's. The DOJ and Department of Transportation issued joint technical assistance in June 2013. I will get back into the history of that. When that was issued we held a couple of up webinars back in August we held a couple of up webinars back in August 2013 to give folks an opportunity to ask questions and get familiar with the information provided in the technical assistance. That webinar FHWA staff can have access to that through our connect DOT website. Starting again with the legal framework, Candace mentioned this technical assistance was issued jointly with the Department of Justice. The reason for that is that the statue, the Department of Justice federal agency is primarily tasked with enforcing and implementing the ADA. Since we are talking about legislation that applies to public entities that derives from title II of the ADA, and the Department of Justice regulation [Indiscernible] are found at 28 CFR part 35. Within those regulations the Department of Justice delegated responsibilities to the department of transportation for implementing those DOJ regulations with respect to program services and activities related to transportation. That is how we got to the Department of Transportation from DOT. That is further delegated to the federal Highway administration. Because the legal framework both the Department of Justice and the Department of Transportation have enforcement authority with respect to the ADA. Looking more closely at the DOJ regulations the regulations define and alteration to change the FX or could affect the usability of all or part of a facility. In this specific instance we are talking about we are looking at alterations to roads. That definition is found at 28 CFR 35.151. Must contain curb ramps where there are curbs or other barriers to a pedestrian walkway. This is a specific regulations that directs public entities to ensure provision of programs at the sidewalk and road intersections. With the regulation does not cover is that the regulation does not identify specific road treatments that qualify as alterations as opposed to the types of road treatments that qualify as maintenance. Early on after DOJ issued its regulation in 1991 a provided general guidance that essentially considered almost any type of resurfacing or repaving activity to be considered alterations. The original DOJ guidance considered just filling the pothole as a type of road activity or resurfacing activity that would be considered maintenance. DOT and other state DOT's developed some different approaches to looking at specific types of road treatments. This created confusion and questions that were presented both to DOJ and to DOT. To try to address this agencies met in 2012 and 2013 in an effort to provide clarity about what this regulation really means. This again was based on feedback that was received in an FHWA area from state DOT's and local governments. As well as disability rights advocates and citizens at large. Through those meetings we developed, we had to draw a line between the types of activities that would be considered maintenance versus those that would be considered alterations. At this point I will turn it over to Patrick Gomez from our resource center to go into more detail about that.

Thank you Jim. My name is Patrick Gomez and I may [Indiscernible] specialist from FHWA resource Center in Lakewood Colorado. I would like to give you some background information about the joint technical assistance and how it came about. And your expectations when you engage and work on our various roadways. Specifically the joint technical assistance only guidance considering -- concerning when you have the responsibility of [Indiscernible] accessible programs when you have deficient or non-[Indiscernible]. It is not guidance concerning other responsibilities within the scope of the project. The information I will be conveying with previously given in 2013 with supple -- several webinars were given on the subject to ensure that state agencies were here the -- adhering to their obligations [Indiscernible] when the roads were altered. How did this technical assistance come about. 2012 and 2013 we needed -- there was a desire to provide clarity and consistency. It was based on feedback. Hundreds of questions and comments from states and local governments, disability rights advocates, and citizens. People wanted answers white we the states and local government were fixing [Indiscernible] when they were fixing the roadway. The DOJ and the DOT met. Before I switch to the next slide, we understand there may be arguments for and against putting different road treatments on either side of the maintenance or alteration line. Ultimately this is a decision arrived at as a compromise to provide consistent guidance throughout the United States. The Department of Transportation and the Department of Justice did not see this technical assistance as creating any new obligation as the obligations [Indiscernible] when roads are altered has been an ongoing obligation under the regulation implementing title II of the ADA. This technical assistance was provided to respond to questions that arose largely due to the development of a variety of road treatments other than provisional road resurfacing. Which generally involves the addition of a new layer of asphalt. The next light does not encompass all treatments and all situations. Here is the slide containing the various treatment that it was arrived at. As you can see the 12 items above the line art maintenance items. The eight items below the line are deemed alteration. If you are engaging in any of the singular road treatments it is easy to categorize it as either maintenance or an alteration. The tricky part of this evaluation is when you engage in combine maintenance treatment that are listed or engaging combined treatment that are unlisted. Please understand in some cases the combination of several maintenance treatments occurring at or near the same time may qualify as an alteration, and would trigger the obligation to provide curb [Indiscernible]. The bottom line with regard to the combination of more than one maintenance treatment that takes place at or near the same time is if the combined treatment rises to the level of any of the treatments listed on the alteration side of the line, then the treatment essentially becomes an alteration. You would have the responsibility to provide curb [Indiscernible]. Please do not try to evade your ADA responsibilities, and try to think of ways around this guidance. We have seen many attempts from the beginning where entities were doing whatever they could not to have to either put in curb [Indiscernible] or fixed deficient curb [Indiscernible]. Entities have attempted to put in one maintenance treatment such as a chip seal under one project number on top of another maintenance treatment such as a [Indiscernible]. There is a project number at approximately the same time to try not to have to fix their ADA curb ramps. When the situation was ultimately assessed it was deemed to be the equivalent of the [Indiscernible] and therefore have the responsibility to fix the deficient curb ramps. Agencies attempted to pay -- pave entire roadway quarters but conveniently stop pave way -- pavement work. They do not affect crossing or curb ramps they did not have the obligation to fix curb ramps. Obviously they were attempting to [Indiscernible] technical assistance process and were ultimately told their processes were unacceptable. Please keep in mind that your responsibility are largely dependent upon this specifics -- specific matter at hand. Please note that previously established state definitions of what constituted maintenance of versus alterations should largely look at depth. All states and public local agencies must [Indiscernible]. We see a basic chart regarding how to determine [audio cut out] [audio cutting in and out] with the resurfacing project -- it's one of 12 items that are listed in the maintenance slide as we showed earlier, and it's one of these 12 items, it is pretty clear it is a maintenance treatment and therefore you do not have to responsibility of putting curb ramps or fixing your curb ramps. If it is one of the eight items listed on the alteration side, then you had to ask yourself a few questions before knowing whether you have to put in or fixture curb ramps. Does the resurfacing alter any crosswalks whether they are marked or unmarked? Does the surfacing -- resurfacing affect one of the curb ramps themselves, and do you have existing sidewalks? Do you have a prepared service that was meant for pedestrian travel. If the answers to one of those questions are no, then again it would not be deemed an alteration. You can proceed with your work without having to fixture curb ramp. If the answer to those questions are yes, then you have to ask yourself another question. Are curb ramps that meet the standard in place at time of construction present? If you have curb ramps that were designed under a previous standard, and they continue to meet that standard today, then they would be called safe harbor. Safe harbor curb ramps would not have the obligation and fixing those curb ramps. If those curb ramps that were designed under the 1991 standard, if they do not continue to meet the 1991 standard, then you would have the responsibility of fixing and bringing them up to curb standards. If you have the curb ramp that meet the safe harbor, they continue to meet the previous standard under which they were created, then they are safe harbor and you can proceed with your work, and do not have to fix the curb ramps at that point in time. I think it is important that the questions I get and the training I give you can always do more than 10 technical assistance requires. This is not a requirement but might be a good practice for you. Lastly, please remember that this is a single federal policy that identify specific pavement treatments that are alterations. The two bottom line principles are, one, all alterations require the installation of curb ramps at the time of the resurfacing improvement. We have received a lot of questions about what does at the time of resurfacing improvement mean? Simultaneously with the road work itself or before the road work that is taking place. Before the alteration that is taking place, but not after. Also curb ramps cannot be separated out and simply put into a transportation -- transition plan. Curb ramps can be's -- be a separate project as long as it is done before or simultaneously with the road work. The second principle to keep in mind as that maintenance applications do not require curb ramps at the time of the improvement. You would not have the obligation of fixing your curb ramps when engaging and maintenance treatment. However, you still have the obligation of assessing those curb ramps, if they are deficient, then you would still have to fix them. This creates a consistent approach amongst the states, and it takes away the state definition that referred to [Indiscernible] and their definition. Please refer to not only the joint technical assistance, but refer to the companion glossary of terms that are on the web. You need to be sure you update your pavement preservation and resurfacing programs, and any existing resurfacing ADA policies pursuant to the joint technical assistant. I will turn the webinar over to Elizabeth Helton who will go over specifics of some of the recently released Q&A's.

Thank you Patrick. We are going to highlight some of the Q&A's and this next section. We will open it up for questions. Back in the December federal Highway published questions and answers related to the joint technical assistance on our website. These questions and answers respond to frequently asked questions that we have received since the technical assistance document was published in 2013. Development of the Q&A was coordinator with the Department of Justice. With applicable requirements of section 504 of the rehabilitation act of 1973 also discussed. DOT regulations implementing section 504 apply to public entities receiving federal funding from DOT. Either directly or indirectly, if federal [Indiscernible] are not used on a specific project. The Q&A's are not a stand-alone document and should be read in conjunction with the 2013 joint technical assistance. We will not go through all of the Q&A's here, but we will highlight if you during this webinar. We are presenting a summarized version of the questions and answers so please be sure to go to our website to read the full questions and answers online. We will start off with question number one in the Q&A document. To existing curb ramps have to be upgraded to meet current standards when the roadways altered? The answer is it depends. With DOJ and DOT adopted regulations under the ADA and section 504 both agencies included safe harbor provisions that allow prior construction that complies with the technical and scoping specifications in place at the time to remain in place until that facility is altered. When determining whether a particular facility meets the requirements in place at the time of construction it is very important to consider whether the entity was required to comply with the DOT's regulations under section 504. If the entity is a recipient of federal financial assistance from DOT they are subject to updated DOT regulations that went into effect in late 2006, while the DOJ regulations were updated in 2010 with an effective date of 2012. If you have more recent construction it could be that it should have complied with the revised standards of the access port published in 2004. Those were adopted in 2006. By the department of transportation for recipients of federal financial assistance. It is important to know whether you are subject to DOT regulations under section 504. Question number two -- is a male SL project that results in a final pavement that is the same thickness as the original pavement considered an alteration? The answer to that is when you perform a male and fill roadway it is considered an alteration of the roadway under the ADA. Even if the net height of the resulting pavement resurface is the same as before the work was performed. If such work affects the crosswalks on the project, then the crosswalks must be made accessible as part of that pavement work. Question number three if the roadway resurfacing alteration project is not spent the full width of the road do I have to put in curb ramps? It depends. If the resurfacing affects the crosswalk, the crosswalk must be made accessible. As Patrick mentioned [Indiscernible] should not structured the scope of work to avoid their ADA obligations on resurfacing projects. For example, resurfacing only between crosswalks may be regarded as an attempt to circumvent public entities obligation under the ADA. And could potentially result in legal challenges. In addition public entities are required to provide program access to their facilities. If curb ramp improvements are needed but not triggered by the resurfacing project it is often cost effective to address its needs as part of the alteration project rather than return at a later date and immobilized another contractor to perform the curb ramp work. Question for -- 4. What if the public entity doesn't own the right of way needed to install the require curb ramps? At the time the alteration project to scope the public entity should identify what ADA improvements will be necessary, and evaluate whether additional right-of-way will be needed to make such improvements. If the public entity does not control sufficient right-of-way, they need to take reasonable steps to acquire it. Ultimately if the complaint is filed the public entity will likely need to show that it made reasonable efforts to obtain access to the necessary right of way. We are going to skip to question 11. When will utility trench work require compliance with ADA curb ramp requirements? The answer to this question depends on the scope and location of the utility trench work being done. If the utility trench work is limited to a portion of the pavement, even including a portion of the crosswalk, repaving necessary to recover the trench would typically be considered maintenance. It would not require Simoneau status -- simultaneous installation of curb ramps. The ADA requires maintenance of accessible features. As such they must ensure the that when the trench is repaved or other road maintenance is performed the work does not result in a lesser level of accessibility. Also if the utility work impacts the curb at a pedestrian street crossing where no curb ramp exists or maybe the existing curb ramp is not compliant or covered under safe harbor, the work affecting the curb false within the definition of alteration, and a curb ramp must be constructed rather than simply replacing the curb. If the public entity is unsure whether the scope of specific trench work and repairs or repaving constitutes an alteration, the best practice is for the public entity to work together with the state Department of Transportation and the federal Highway division office to come to an agreement on how to consistently handle these situations and document their decisions. Question 13, are there any additional requirements for entities that receive federal financial assistance from DOT? Yes, as I mentioned before, if a public entity receives any federal assistance from DOT whether directly or indirectly through another DOT recipient, then the entity must also apply the DOT section 504 requirements even if a specific project does not use federal funds. As mentioned previously when determining whether a particular facility met the requirements in place at the time of construction, it's very important to consider whether the entity was required to comply with DOT's regulations under section 504, that may impact the date and what standard you need to be looking at. Question 15, other than for resurfacing, are there other requirements that trigger the application to provide for brands? The short answer is yes. The online Q&A contain a lot more detail. Regulations require that new reconstruction or altered roadways or sidewalks contain curb ramps to make sure there is no barrier between the sidewalk and the street environment. Program accessibility meaning that agencies need to develop plans to eliminate existing barriers, even if no construction work was otherwise planned on that court ordered. If an agency gets a request on behalf of someone with a disability asking for a curb ramp to be installed, the agency must appropriately consider the request, and may need to expedite the work to provide a reasonable accommodation for the individual. Those are some highlights from some of the questions and answers. We did not go into everyone. They are posted online. The answers are much more detailed their and give a lot of legal references that you may want to look up. At this time I would like to turn the webinar back over to Candace for questions and discussions.

Thank you Elizabeth. Thank you to our other presenters as well. We would like to go to the chat pod for questions. I do not see any questions there. is that correct operator? I do not see any questions.

No ma'am.

[Indiscernible-multiple speakers]

There is a lot of questions on the chat pod that should be on the left side of your screen.

That is what I am looking at. We have a question -- will the close caption transcript be available to attendees? I believe the answer to that is yes. Is that right Maria?

That is correct.

Somebody who is not familiar with the term Cape sale, could you define that?

Someone answered it later in the chat screen that a Cape seal is a chip seal followed by a [Indiscernible] seal.

In the glossary of terms that is on the screen right now gives the official definitions of all of the different terms that we have spoken about.

Somebody asked what if we had no right of way to meet standards, but can partially meet them?

This is Patrick. I would say it would be reasonable that a state or local agency would inquire about the property to determine whether they can acquire either a temporary permit or acquire the property for fair market value in order to adhere to the standard, and make it fully accessible. If you cannot, then you would have to document what you have done to show a good faith attempt. This will depend on the exact circumstances at hand. I do not believe you would have to go through condemnation or in the [Indiscernible] unless you are basically taking a lot of the area. Generally it is reasonable that you look into property that you do not currently own in order to determine whether you can make it fully accessible. If we have a curb space --

Them. The safe harbor applies to programs that were built in compliance with the 1991 standards, or with the uniform federal accessibility standards. Which were in place before 1991. You would have had to of met either one of those standards. If it was built before 1991 your only option would have been the [Indiscernible] standards. You can show that your curb ramp met those standards that were in place, then that would fall within the safe harbor that is provided under the regulations.

Is there an example of 19 -- 91 standard item that was changed or that had changed under PROWAG?

[Indiscernible] -- the with would be a three-foot standard and under the.

Someone from Arlington Washington asks why a chip seal maintenance and Cape sale and alteration, they seem very similar?

I think it goes back to what Patrick covered. Where the line was drawn -- anyone could argue one point or another. It represents a compromise. That is where the line is.

Someone asks what extent of alteration [Indiscernible] through a crosswalk triggers installation upgrades of ramps? That is work on a Lane, [Indiscernible] or utility work through crosswalks?

I think the questions and answers talk about that through the course of several different questions. If you are resurfacing the roadway and it affects the pedestrian crosswalk, even if it is not the full roadway with, then the curb brands need to be provided. That is under Question three. Utility work we have a little bit different. If it is simply a narrow trench down the roadway, and the purpose of the project is to access that utility line versus the purpose of the project being to resurface the roadway. There is always going to be cases that you can just not [Indiscernible] a document that covers every scenario. If you have questions the best practices to get together with the state DOT and federal Highway divisional office and talk through the scenario.

This is Patrick. I agree with everything you said. As I said earlier it depends on the circumstance at hand. The question -- several questions that potentially could have different answers depending on exactly what is taking place. As Elizabeth said, we do have questions and answers that specifically talk about the questions that you post here in the chat pod.

Question from the Tennessee division with regard to the 1991 standards, this is in regard to the physical geometrics of the ramps. Are [Indiscernible] treated the same with the applicability of installing at the time of the alteration versus it being maintenance?

Ultimately the bottom line is what's in regard [Indiscernible]. If you me a prior standard, but for the [Indiscernible] Dellums you do not have the responsibility of going back and putting in [Indiscernible] Dellums. You would not be required to do that. This is because [Indiscernible] were initially detectable warnings that were put out there. they were held in advance for about 10 years as they were studying what would be the best way to have a detectable warning. They came up with [Indiscernible]. 10 years later. If you have met the safe harbor [Indiscernible] for the detectable warning you would not have to go back and fix it at the time of the alteration.

[audio cut out] that is a fairly nuanced question and the weight the regulations inspect the [Indiscernible]. We were modified during the 1990s. They were originally required as part of the 1991 standards. They were put on hold for a little bit of time in the 90s. While additional investigation was done. I think we have some of that specific information available on FHWA's website about the various periods of time when the [Indiscernible] applied. It depends on whether or not at the time the curb ramp was installed. Did the [Indiscernible] requirement apply? It does depend on going back to look at what standards were actually in effect at the time that the curb ramps were constructed. If you did construct the curb ramp when the [Indiscernible] requirement did not apply you would not as a result of the road alteration, the 1990 standard -- she would not be required to install those [Indiscernible]. If a city

If the city has an agreement with the Department of Justice that says they do not have to do [Indiscernible] Dellums do they have to [Indiscernible] when resurfacing?

This touches the difference between the Department of Justice regulations and the Department of Transportation's regulations. The original [Indiscernible] standards as they were published in 1991 required [Indiscernible]. When the updated [Indiscernible] was published by the US access board in 2004 that set of guidelines was developed for building [Indiscernible] sites. At that time they were also working on a separate set of guidelines for the public rights of way. The PROWAG that we have discussed. It was anticipated that the PROWAG would discuss [Indiscernible] and those rules specifically. They were left out of the 2004 [Indiscernible]. When the Department of Justice adopted the 2004 [Indiscernible] that was done in 2010. The Department of Justice did not adopt regulations that included [Indiscernible]. However, when the trap -- the Department of Transportation adopted the [Indiscernible] which occurred in 2006, we added to that [Indiscernible] a requirement to include [Indiscernible]. If you are a public entity that receives public financial systems from the Department of -- you have an obligation to require with the section 504 regulations. That would include [Indiscernible] if you are constructing a new curb ramp. It can get confusing. There really is a separate obligation. These are separate statutes. The rehabilitation ramp in 1973 under section 504 of that act, and the ADA. Even if you have this understanding with the Department of Justice, there is a separate obligation under section 504. If you are a recipient of federal financial assistance from the Department of Transportation to comply with the [Indiscernible] warnings and regulations.

When you say crosswalk do you mean marked and unmarked crosswalks?

The answer is yes. We mean all crosswalks that are legal crosswalks. Based on the [Indiscernible]. That generally means marked and unmarked crosswalks at intersections. And any marks or crosswalks midblock.

When you say a project impacts the accessibility of a crosswalk, what is meant by accessibility?

Generally it would mean meeting all of the requirements. The [Indiscernible], the grade, the smoothness of the surface, that is if you are doing a patch. We've run into problems sometimes with this. Poor quality patching work. That would reduce the visibility of the cross work -- walk. It would make it difficult for someone using a cane or crutches to cross that crosswalk safely. We do not want to reduce the accessibility within the crosswalk.

This is Jim. I would add -- that gets to the heart of why this technical assistance was produced. States and localities needed clear guidance on what is meant by an alteration. If you go back to the definition there is a legal definition of alteration in the Department of Justice regulations. It talks about any type of activity that affects the usability accessibility of a facility. What this technical assistance tries to do is draw the line between the types of road treatments or road resurfacing activities that are deemed to meet that definition of alteration versus those that are -- those types of treatments that affect the usability of a crosswalk. If you look to the technical assistance itself that was issued in 2013, that goes into more detail about the difference between those types of concepts. It was a compromise between the Department of Justice and the Department of Transportation of where that line was drawn. The reason the line was drawn where it was is through that compromise process, but also to provide some clarity and make it easier to make determinations when something is an alteration versus maintenance.

Jim this may be for you. If condemning property would be required to obtain necessary right-of-way to provide or upgrade curb ramps is that required, or would that be an undue burden on the property owner that would justify omitting curb programs?

The guidance and the Q&A does not contain any kind of statement that says a public entity would be required to exercise [Indiscernible] domain or pursue condemnation proceedings. The intent of that question and the guidance there is more to echo what Patrick said in response -- the idea is to encourage public entities to make a reasonable effort to comply with the standards to the full extent. Certainly there may be situations where you have a nearby building that simply encroaches on the area. You would have to condemn the entire building in order to build a ramp that complies with the regulations. That is not intended. In other instances, it may be possible to ask the nearby property owner for a temporary easement. Maybe that would be something that a property owner would be interested in. It would provide better access to their business that is nearby. It is making those types of reasonable efforts to look into getting the necessary right-of-way to fully comply with the standard. There certainly is within the regulations within the guidance exceptions that allow you to comply with the standards to the maximum extent feasible. That is based on technical and physical obstacles. It will vary on a case-by-case basis. The idea is to encourage public entities when they are planning projects to look at what the circumstances are. If it looks like they need to get additional right away, make a reasonable attempt to get that, if you cannot, it is ultimately the public entity's responsibility to comply. If a complaint is brought it is up to that public entity to defend its action. That will be the decision of a court if there is a private lawsuit. It is not a requirement. We do encourage public entities to make reasonable effort. The other thing to note in terms of the undue burden component, there is some confusion with respect to that. That applies to situations where you are talking about program access, dealing with fixing issues within your facilities, that does not apply in the case of an alteration. Just wanted to make that distinction.

Can you define reasonable accommodation, and is only required when someone requested?

I am not sure -- that's towards the end of the Q&A. Reasonable accommodation will be based on an individual request. You may have a facility identified on a transition plan that you do not have scheduled until a few years out. That is program accessibility, looking at things on your transition plan versus when you undertake an alteration activity that requires addressing noncompliant curb ramps at the time of the alteration work. If there is a noncompliant work ramp on your transition plan, and you have an individual that has filed -- an individual files a complaint you should make every effort to provide a reasonable accommodation to that person who needs access to that area.

If an existing crosswalk is to be [Indiscernible] must the agency install a new curb ramp?

This is Elizabeth. I think we have determined that striping in and of itself is not regarded as an alteration under the ADA. It does not trigger immediate curb ramp improvement as part of the project.

That is right. That is something that is laid out in the technical assistance. Painting and striping is not considered to be an alteration.

Will the presentation be available for download? If you look in the upper right portion of your screen you will see a file share, and if you click on the file resurfacing to a webinar that will activate the upload file button. You can then download the presentation. Question 13, what if the funding recipient receives other types of federal non-USD oh funds? If they receive other types of [Indiscernible] are you asking whether or not the requirements that we have talked about still hold?

That is an interesting question. The section 504 regulations that we are talking about is issued by the department of transportation. That apply specifically to recipients of financial and federal financial assistance from the Department of Transportation. That goes beyond federal highways. If someone receives financial assistance from the federal transit administration or is received by state Department of transportation, Congress made very clear in 1987 that the requirements of the rehabilitation act of 1973 apply to all of the programs and activities of the recipient of federal financial assistance. It is more focused on receipt of financial assistance from the Department of Transportation to trigger the applicability of the DOP section 504.

[Indiscernible] presents the following situation. You have a four-way intersection with a ramp at each corner. The local agency wants to replace one ramp, but the other three do not need the current or 1999 1991 rags. Is the local agency required to replace all three ramps?

It depends. It does not have any information here that says what they are doing to the roads. If they have a project where they are not doing anything to the roadway, but they have [Indiscernible] fix one of the curb ramps. You will be looking at the scope of the job that you are doing. What are you doing when you fix that? Are you changing the crossing, or are you changing the curb ramp? It will depend on what exactly you are doing and the scope of your job. And if you are doing anything to the roadway to determine whether it is alteration or maintenance.

I would just add if you are talking about a situation where there is a road alteration project that is occurring, but it is only occurring on one of the roads, our guidance has been you are only required under the regulation to address those curb ramps -- where you had the intersection of the road that is undergoing resurfacing treatment. And those adjoining sidewalks. If you had 2 curb ramps perpendicular at each corner, and a total of eight curb ramps you would only be addressing the 4 curb routes that directly connect the sidewalk to the road that is being resurfaced. That is all that would be required. It may make sense for you to deal with all of the curb ramps at the same time. Again, the technical assistance applies to Road alterations at the point where they intersect at pedestrian access route.

This question comes up often. You are overlaying the main roads and not doing the side road [Indiscernible] that does not affect the perpendicular. If you are not affecting that crossing you would not have the responsibility of fixing those particular curb ramps.

What is the status of PROWAG?

The access board issue, the draft PROWAG in 2011, some updates to that with incorporate shared used [Indiscernible]. We are hopeful. That they would be issuing a final rule. It is still unclear to us when that may have been. I wish I could provide a clear answer to that. We do not know the access board. The access board is to -- the other complicating factor the office of management and budget gets more difficult to get something out the door as we get closer to the election or the end of this administration. We remain hopeful that we will see something this year. If the access board does issue a final rule that will be a great step. Both the Department of Justice and the Department of Transportation, we will have to go through our own rule making processes to formally adopt those guidelines into our regulations, and make them enforceable standards. It would be helpful to have better clarity on what those final guidelines are going to look like. There certainly will be changes from the draft. Guidelines issued in 2011, there will be some differences that we anticipate. Once the final guidelines are issued you will have a better sense of what those final guidelines look like. We point to the PROWAG as best practices for accessibility issues and the public rights weight that are not addressed by the [Indiscernible] itself. Things like accessible pedestrian signals are not addressed in the current [Indiscernible]. These are addressed in the PROWAG. We encourage public entities to look to that PROWAG for those types of issues.

Our driveways required to meet the current ADA standards with the street alterations?

I would say it depends on whether your alteration project impacts the driveway. If your alteration project does not wraparound, and impact the driveway crossings where the sandbox cross driveways, then generally know. If you are impacting that sidewalk of where it crosses the driveway, then yes it should be brought up to standard.

Yes. I agree with that. As a general matter driveways are not going to be considered a pedestrian -- where the driveway intersects the road is not considered pedestrian access route. Certainly as you are going parallel across that driveway you have a sidewalk there. that part is. The driveway is not treated in the same manner as the sidewalk that intersects a road at that 90° angle.

It is about whether you have a sidewalk crossing and whether you have impacted the pedestrian path.

What about projects that are not resurfacing projects? To the rules change?

That is going to depend on what type or scope of your sidewalk work is. You are fixing part of the sidewalk that is fixing midblock and are not affecting the curb ramps were that sidewalk intersects the road, then the scope of your project is limited. You would not need to be addressing curb ramps. If your sidewalk is also impacting curb ramps where it intersects the road or a curb, then you would need to ensure curb ramps are installed. That is reflected pretty clearly in the department of justice regulations. 2835.151. It basically says if you are altering a street or road where it intersects a pedestrian access route, you need to ensure compliance curb ramps. If you are altering a sidewalk where it intersects the roads, you need to ensure compliant curb ramps.

Would utility pothole explanation in a ramp trigger a ramp replacement?

I am not really sure what exactly is meant by the utility pothole exploration. I suppose if you punch a hole through the ramp to do some subsurface exploring to see where exactly a utility line is, Jim, maybe you can help us out what that? Does that trigger upgrading the ramp?

I don't know. That is hard to answer on the fly.

Have not discussed that before.

If you had that particular situation, and you would like to explore that a little bit more, it would be helpful to have more information about that. Send an email. Do we have our contact information up at the end of this?

Yes.

You can email Elizabeth or Candace or whoever's contact information we have up. We can explore that with you.

Our EPS required at signalized intersection in an alteration project?

The general answer to that is no. If you are doing a road resurface alteration project, again, the requirement to address curb ramps is drawn from this specific Department of Justice regulation that specifically calls out curb ramps. That essentially draws into the scope of your road resurfacing project having to address the curb ramps. There is not a regulation with respect to adjust -- accessible pedestrian signals. That is typically outside the scope of road alteration projects. If you are altering the signal itself, then you would need to provide accessible pedestrian signals at that time. In the context that we are talking about with road resurfacing projects, again, unless your project involves installing accessible pedestrian signals that is typically outside of the scope of the project. Elizabeth, do you have anything to add to that?

No. I think you explained that clearly. If the question was talking about a role -- Road alteration project. If you are altering the signal it depends on what you were doing with the signal. If you were replacing the control work or replacing the entire signal, then there is a requirement under the ADA to provide effective communication. You would need to think about an address how your new signal is going to provide effective communication. While the PROWAG is not standard yet there is an obligation to comply with the nondiscrimination requirements of the law. APS is only -- the only technology that will provide that effective communication. It depends on the scope of your alteration project.

If a single upgrade does not affect pavement but affects pushbutton locations are ADA upgrades necessary?

I suspect that they mean do they have to upgrade the curb ramps at that corner? Again, it goes back to the scope of your project. If your project is simply to work on the signals, then that does not trigger the curb rent -- ramp improvements. Those needed improvements must be in your agencies transition plan to provide program access. As you know the curb ramps -- the interference -- interface between the curb ramp and a pushbutton is important. It might be difficult to do a good job if you do it at two different times, or if you do not think about where the curb ramp needs to be when you are placing that pushbutton.

Can you elaborate more on the safe harbor provision. Wouldn't every resurfacing project have to [Indiscernible] which would require curb ramps [Indiscernible] at all intersections.

That is what is meant by the safe harbor. The idea -- if your road alteration affects a crosswalk where there are curb ramps that comply or were built and comply with a prior standard, whether that is uniform federal accessibility standard or the 1991 ADA standards, the idea is that the public entity met its compliance obligations at that time. It is not intended with the new standards that were put in place in 2010 under the DOJ regulations. The idea was if you have a curb ramp that complied with that prior standard we will not make you make whatever changes the current standards require at the time that you did that road resurfacing project. If you later undertake a project that directly alters the curb ramp itself, and there is some sort of distinction between the standards that applied in 1991 and the standard from 2010, then yes you would need to make sure that that altered sidewalk complies with the current standards. That safe harbor is there to protect public entities who have previously complied so that you do not have to go back, and have to continue to try to upgrade as the standards change. It recognizes the effort that you made at the time to comply with the standards. I hope that helps.

[Indiscernible] are essentially the same except for the additive in the binder does the alteration treatment Marquis -- Micro servicing overlay mean something different than Micro servicing? I'm not sure I understand part of that question. [Indiscernible] does the alteration treatment Micro servicing overlay mean something different than Micro servicing? The definitions are set forth in the glossary.

The line needed to be drawn. The effort between the Department of Justice and transportation on this. The Micro servicing [Indiscernible] as described in the glossary. It falls on the alteration side. That is the best I can do with that.

I would just say to look at the definitions in the glossary. If you have further questions talk to a [Indiscernible] and your federal Highway division office.

Under the safe harbor what do you advise agencies to determine under what standard ramps were built?

That will be based on what documentation that you have on your prior projects. Knowing what time it ramp was constructed, and whatever design standards that were in place at that time. A public entity that was compliant with the ADA standards that were in place at the time would have had a design standard drawings that reflected those. It required ADA standards, and if you can determine when the curb ramp was constructed and what standard applied at that time, then you would have record. Otherwise you could -- it does depend on the timing. There is always measuring, but it will be part of your historical record. Any other thoughts Elizabeth?

You can look back and your historic records and contract documents. You would be able to determine which standard applied at the time.

If you are altering the signalized intersection that has full height, curb, [Indiscernible] no existing sidewalks, do you have to introduce new curb ramps?

If you do not have existing sidewalks, then you do not have an obligation to introduce curb ramps. The regulation talks about alterations to roadways that intersect. That is not equip something like a trail getting worn down by people. It is where you have a prepared surface. And absence of sidewalk or other prepared surface intended for pedestrian use you do not have an obligation to install curb ramps. There may be exceptions if you need to provide access to a pedestrian signal. The guidance is clear on where curb ramps are required and where they are not.

People that are walking [Indiscernible] that was not meant for pedestrian travel. This was not created for pedestrian travel.

Can you please comment on whether one or two ramps are required at [Indiscernible] intersections to provide ADA compliance.

It depends on the circumstance.

We had a question earlier about crosswalks, we can talk about T intersections for the rest of our time today, but if you have legal crosswalks whether they are marked or unmarked, then those crosswalks need to be accessible. They are for pedestrians. In order not to discriminate they need to be accessible. In most cases, if you have sidewalk coming up to the T intersection you will have a crosswalk on both sides of the minor roadway. Does need to be made accessible, or for some reason that you cannot make one of them accessible, then you could close that crosswalk to everyone.

Can you use a diagonal crosswalk -- curb ramp as opposed to the perpendicular or parallel curb ramps?

Since it was specific to T intersections I thought it was talking about the crossing themselves. As far as diagonal ramps they do not serve pedestrians very well. They often do not land fully and both crosswalks, and fully out of the path of parallel traffic. If you look at the PROWAG you will see that diagonal curb ramps would only be permitted in alterations, and only asked the last possible option when otherwise you could not get a curb ramp in at all. That is the guidance that federal Highway has been giving agencies for years.

Our state standard show in Goddard [Indiscernible] to be 5%, but the street has a much greater cross slope, how should we deal with this issue when we are not doing a reconstruction just in an overlay?

You may need to do some milling to get your cross slope on the roadway down below 5%. What you alter that crosswalk that grade should be limited to 5%. As part of your scoping the project I would recommend looking at whether you need to do some milling to perhaps remove where the ground is built up over the decades of overlays.

Does roadway resurfacing obligate crosswalk and curb ramp improvements to parallel sidewalks if the crosswalk resurface is not resurfaced?

The address this earlier. The technical assistance is directed towards the crosswalks that are directly affected by the resurfacing work. If you are resurfacing the mainline, and not resurfacing the side streets you typically would not be addressing the curb ramps on the side streets unless you are resurfacing work edges onto the side streets and affects those crosswalks. It may be a good idea to deal with all of the curb ramps at the same time, but the regulation would only require you to address the curb ramps that provide access to that crosswalk that is being directly affected by the resurfacing project.

From the Washington division how does standing water [Indiscernible], in the pedestrian path affect the curb ramps compliance with ADA requirements, and what options are allowed to correct such problems considering the significant safety issues during sub freezing winter weather?

I do not know.

We might need more information on specific issues to be able to answer that. The old standard used to say something about preventing water from Ponting at the base of the ramp. What we emphasize and training is that the drainage design needs to be thought about early along as does the accessibility part of the design. That way those two can be made to work together to work -- avoid ponding water.

If you're adding a right turn lane on one contract -- quadrant of an intersection that has curb ramps to all quadrants have to be reproved -- improved if you're not touching them?

We need more information there.

When you at the right turn lane you are going to be resurfacing at least that Lane of the roadway. That would be through the crosswalk. That would then trigger curb ramps for that crosswalk. We need more specific information on that.

Theoretically it is possible to re-stripe lanes to create a right turn lane. If you are adding a lane it is different. We would need more information about that.

How do we deal with the street that is steep. Like 10%. We have a requirement to install a ramp. There will be no way to get a 2% landing without exasperate the good -- exasperate.

I would like to PROWAG for guidance on how to deal with that. That is one advantage of referencing a document that was written with the street environment at mind. Versus the ADA standards that are written for buildings and facilities. The PROWAG does a good job about suggesting how to deal with those kinds of situations. They provide a maximum limit on how long that curb ramp has to be. I would caution that the PROWAG is not the adopted standard at this moment. If you are going to invoke some of those you might want to do some documentation of how you try to meet the standard that is in the 2010 ADA standards. If that is not possible, how you comply to the maximum extent feasible, and referring to PROWAG for some guidance. Just in case you get a complaint about your design.

If determining the applicable standard is impossible considering time and resources, how should an entity deal with this?

If you look at your ramp and take measurements to see if it actually complies with one of the prior standards that is the only way I can think of addressing that.

What is the case for an unimproved [Indiscernible] pedestrian pathway, for example a dirt path alongside a curb?

I think we were trying to address that. That goes to intent of the public entity that owns the right of way. I believe in many jurisdictions there are sidewalks that are made out of -- it's the intent of the agency that pedestrians use that facility as a sidewalk even though it is not concrete or asphalt. Those types of situations we would consider those situations. We have [Indiscernible] and technical assistance where [Indiscernible]. Will the ADA does not require installation of ramps or curb ramps and the abstinence -- absence of a pedestrian walkway. We are trying to address the situations where there is intent on part of the agency that there is a pedestrian walkway there. as opposed to an instance where it is a goat trail. There is a curb line and grass and there is not the intention that the pedestrians use that area as a walkway. Individuals have worn down a path there.

Is the addition of a protected by claim considered an alteration?

I think that depends on how you are doing it.

Much like the right turn lane.

We could reconsider restriping in a lane. Who typically would not -- there may be other ways of installing a protected by claim. We might need additional discussion on that.

The DOJ [Indiscernible] additional cost of alterations to provide an accessible pass to travel to the altered area. [Indiscernible] when it exceeds 20% of the cost of the alterations. Does that total percent -- is that 20% of the current construction cost only?

If you are referring to disproportionality for having to put an curb ramps is not applicable to to the pedestrian environment. It is in the rules specifically for buildings and [Indiscernible] facilities. As opposed to the pedestrian environment.

I was going to say the same thing Patrick. If you look at the draft -- PROWAG . It talks about the disproportionality concept and the [Indiscernible] to buildings and sites is not applicable.

If we replace the damage [Indiscernible] to the ramps need to be upgraded? What about changing the [Indiscernible]?

Those would not be considered alterations.

We are seeing many more of the following question. Can we discuss construction tolerances, 0%, 5%, etc. the access board says there may be construction tolerances but not one a limit [Indiscernible]. Is 3% okay?

From our perspective it is clear and how that is addressed in the [Indiscernible]. Our guidance is that construction tolerances should be taken into consideration in the design of the work that you are undertaking. If you are looking at 2% cross slopes for a curb ramp when you are designing that project to construct the curb ramp you should be designing to allow for the construction tolerance. You should be designing for a 1.5% cross slope that will allow that construction tolerance that might leave you with a 2% cross flow. The standard whether it's cross slope, or slope, it's the numbers that are identified in the standards. The construction tolerance should be built into your design.

The maximum's that should not be exceeded -- is 2% really 2%? Yes, [audio cut out].

Can you please elaborate on ADA inventory requirements for projects receiving federal aid?

I am not sure that I understand that. If an entity is developing a transition plan it does not matter where your funding is coming from. The ADA applies to all of your facilities. Regardless of whether you received federal financial assistance. That was the big change that the ADA brought in. From section 504, the rehabilitation act, that apply to only two recipients of federal financial assistance. If you are are doing and undertaking self-evaluation for facilities -- that includes a wide range of facilities from curb ramps to sidewalks. To accessible pedestrian signals and bus stops. The concept -- the ADA applies to all of the services programs and activities of the public entity. Case law is pretty clear. The courts interpret that to cover a wide range of facilities that are in the public right of way. It is pretty broad application. It is not tied to an entity's receipt of federal financial assistance. You can use federal financial assistance to help you address ADA compliance projects. Under the surface transportation program, pretty broad applicability of covering costs in addressing compliance with ADA. What types of activities would be eligible for federal reimbursement you can chat more specifically with your FHWA division. How far --

How far would you have to chase the sidewalk back to make it compliant?

I would look at the PROWAG. If you are talking about resurfacing project and not a road alteration you need to get in the curb [Indiscernible]. From that point you have to have some kind of transitional segment back to the existing pedestrian facility. There is some flexibility in that. Of course you want to make it usable.

Is the term technical and feasible associated with ADA?

It is associated with the Department of Justice's regulations under the ADA. It requires compliance with the standards when you are undertaking alterations to the maximum extent feasible.

Do we have to address traffic signal pushbutton locations where we are upgrading curb ramps, not including signal work?

I am trying to catch up to what question we are on.

Do we have to address traffic signal pushbutton locations where we are upgrading curb ramps, not including signal work?

I don't believe so. It would be outside of the scope of your project. If those pushbuttons are inaccessible, then that should be on your agencies transition plan. Is there a timeframe to ensure all curb ramps are upgraded? Understanding --

You should [audio cut out]. You are upgrading all of your curb ramps in your transition planning. You have the obligation of fixing the applicable curb ramp. As you are altering the roadway. You are going to be fixing them in [Indiscernible] when you are doing something or altering the roadway. You still have the responsibility of planning state and local public entity [Indiscernible].

When the Department of Justice issued its regulations for title II and 1991 they included in that regulation the time. For compliance. They expected all public entities to address issues and their existing facilities by January 26 by January 26, 1995. It was recognized early on that was an unrealistic target. That is still included in the regulation. There are two ways of getting at this. When you do alterations you need to address your curb ramps. Otherwise alteration -- you still have an obligation under the regulations to address noncompliant curb ramps and your existing facilities. You need to have a transition plan that allows you or has you doing work to address the facilities on your transition plan year by year. Even though the old regulation required compliance by 1995 that has gone by the wayside. The measure that we use is are you doing work on an annual basis to address deficiencies and your existing facilities. In addition to are you doing the proper thing when you are doing road resurfacing and alteration projects like we are discussing today.

Elizabeth Helton has put up contact information for all of us there. people can rest assure that if and when they get an answer from one of us they do not have to go forum shopping and contact someone else on that list. The four of us are in contact the most daily. About a variety of issues and the ADA 504 area. If you ask one of us a question and we get back to you, don't feel you need to check [Indiscernible]. Somebody said I missed a few questions. It was intentional because of the limited time. We will get some questions at our more common -- I skip questions in part or in whole. They were repetitious of previous questions. With regards to resurfacing projects that involve pedestrian facilities with flesh sidewalks that do not have Kirks, it is [audio cut out] morning services a requirement under the DOJ and DOT joint technical agreement?

That is an interesting question. I do not know if you address that Patrick. Technically the DOT regulation talks about including the technical warnings on curb ramps. Our guidance would be to provide -- the idea is you have an obligation to provide the same level of communication to individuals with disabilities, [Indiscernible]. We would offer the guidance to include the technical warnings. Patrick would you agree with that?

I would agree with that. There has to be something that alerts individuals who are blind or have low vision to note they are going to be leaving the sidewalk and going into the hazard. There should be something in place. [audio cut out]

Elizabeth Helton answered a question. Whether a double [Indiscernible] constitutes an alteration. Her answer says a double chip seal is an alteration.

That question has come up quite a few times previously.

She answers a question -- I may go back to the one just before her answer here. Regarding a question about temporary easements. You would want a permanent easement or another tool that gives the road owner control of the property to maintain the facility in the future. If it is determined during this resurfacing project that they ramps that are present for completed and compliance with the standards in effect when they were installed for the purposes of an ADA transition plan, are these ramps compliant? Or does the plan need to reconsider reconstructing these ramps at some point in order to bring it into current compliance?

They are covered by the safe harbor. It is only if you alter that facility at some point in the future. They would be covered.

Will the transcripts of the Q&A be available online after the webinar?

I am not sure.

At what slope is a curb ramp built to the maximum extent feasible considered a barrier?

I do not think there is any definition of any slope other than the maximum 8.3% allowed by the standard. In general anything over that would be considered a barrier. If that is the maximum extent you can comply to, then it is what it is. It is still a barrier.

That is a technical feasibility that we are talking about. That is something that is addressed. In terms of what is meant by feasibility, are you physically able to comply as opposed to other types of feasibility. It is technical, physical, feasibility.

We are talking about the structural environment. We physically cannot make it fully compliant or are we saying it is just going to take too long? [audio cut out] can we physically make something fully compliant or not? [audio cut out]

Please provide -- guidance for the requirement for ramps to be aligned with the opposing ramps.

I'm not sure what that means. The ramps have to land in the crosswalk. The crosswalk has to connect with the two ramps. It may or may not be exactly lined up with each other. Especially if you have a skewed intersection. They both have the land and the crosswalk with the 4 x 4 area at the bottom.

I agree with that. It has to be -- that is key. Sometimes what I call creative striping. They striping to make it look like it is within the crosswalk when it really is not.

Estimate block sidewalk is not ADA compliant, example given 3% cross slope or more, and the obligation is to update ramps only will federal Highway pay for transition stones to match 2% walk to 4% walk?

I'm not positive what is meant by transition stones. Certainly you would have to have some sort of transition between the two different cross slope's. I do not see any reason that would not be and eligible expense from a federal Highway perspective.

Thank you all for joining us today. Thank you for your very interesting questions. For those of you who do not have your question answered please feel free to contact any one of us for that. If questions come to mind feel free to contact any one of us. We will get back to you with an answer. With one of our presenters like to say anything else before we wrap up?

Thank you everybody for attending the webinar. It is a useful way for us to reach a lot of people at one time. The idea behind these Q&A's is to get out guidance that a number of people have been asking us about. We appreciate your paying attention to the webinar, and doing everything you can to make sure that you are following your obligations.

Thank you all. If you want to download the presentation you can go to the file share box and click on resurfacing Q&A. Take care.

That does conclude our conference for today. Thank you for your participation. You may now disconnect.

[event concluded]

 

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