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Progress Toward Accessibility Standards for New Construction and Alterations in Public Right-of-Way

 

The Americans with Disabilities Act (ADA) of 1990 is a civil rights statute that prohibits discrimination against people with disabilities. ADA implementing regulations for Title II prohibit discrimination in the provision of services, programs, and activities by state and local governments. Designing and constructing pedestrian facilities in the public right-of-way that are not usable by people with disabilities may constitute discrimination. Section 504 of the Rehabilitation Act of 1973 (504) includes similar prohibitions in the conduct of federally-funded programs.

Thus, the accessibility objective in a new project is to design and build facilities that are ‘readily accessible to and usable by’ people with disabilities. Compliance is measured against the referenced standards. From the ADA Title II implementing regulation:

(c) Accessibility standards. Design, construction, or alteration of facilities in conformance with [UFAS] or [ADAAG] shall be deemed to comply with the requirements of this section with respect to those facilities …

Furthermore, equivalent facilitation—achieving accessibility’s objectives by other means than are described in the standard—is recognized:

… Departures from particular requirements of either standard by the use of other methods shall be permitted when it is clearly evident that equivalent access to the facility or part of the facility is thereby provided.

However, ADA standards for new construction and alterations promulgated (as guidelines) by the U.S. Access Board and adopted by the U.S. Department of Justice (DOJ) in 1991 were principally developed for buildings and site work and are not easily applicable to sidewalks, street crossings, and related pedestrian facilities in the public right-of-way. Similarly, Section 504 standards (UFAS or ADAAG for USDOT, depending on the agency) did not offer guidance appropriate for rights-of-way construction. The need to address rights-of-way accessibility in a more specific way is apparent from the difficulties practitioners and agencies have in applying ADAAG to this very different environment.

Progress Towards Accessibility Standards for New Construction and Alterations in the Public Right-of-Way

The Access Board is the Federal government’s specialist in accessible design. Under the ADA, the Board is responsible for developing the minimum accessibility guidelines needed to measure compliance with ADA obligations when new construction and alterations projects are planned and engineered.

In 1999, the Access Board started the rulemaking process for accessible pedestrian facilities in public rights-of-way by convening a Federal advisory committee of key stakeholders to develop recommendations that could supplement or replace the current standard. The Public Rights-of-Way Access Advisory Committee (PROWAAC) completed its initial work in 2000 and published its recommendations for new guidelines in a report, Building a True Community, which was presented at the 2001 Transportation Research Board Annual Meeting.

Resource: PROWAAC Report at: http://www.access-board.gov/prowac/commrept/index.htm

On June 17, 2002, the Access Board issued a Notice of Availability of Draft Public Rights-of-Way Accessibility Guidelines (PROWAG) based on the PROWAAC report. Comments from consumers and design professionals led to the issuance of a second draft on November 23, 2005. A Notice of Proposed Rulemaking (NPRM) will follow seeking public comment prior to publication of a final rule.

Resource: November 23, 2005 draft PROWAG at: http://www.access-board.gov/prowac/draft.htm.

The DOJ and U.S. Department of Transportation (DOT) are authorized by law to adopt standards consistent with the Access Board’s guidelines for use in enforcing the ADA. The DOT has a similar authority under its Rehabilitation Act/504 regulation. The DOJ reviews 504 regulations issued by Federal agencies. When standards consistent with the final PROWAG guidelines are adopted by the DOJ, they will become the new minimum design standards under the ADA for both new construction and alterations of pedestrian facilities in the public right-of-way. The DOT has already indicated its intent to adopt the PROWAG, when completed, into its 504 standard.

In the interim, jurisdictions must continue to design and construct new and altered pedestrian facilities that are accessible to and usable by people with disabilities. The 2005 draft PROWAG has been identified by DOT as the current best practice in accessible pedestrian design under the Federal Highway Administration’s Federal-aid (504) regulation.

For possible additional resources, please see our resources page or contact the Rocky Mountain ADA Center through our Technical Assistance Form or calling directly at 800-949-4232.
The Rocky Mountain ADA Center is not an enforcement agency nor does it provide advocacy services. The information and materials provided by the Center is intended solely as informal guidance and are not a determination of your legal rights or responsibilities. All communication with the Center is strictly confidential.

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