# Presentation: 809141

## Legal Perspective:Detectable Warning Devices:

- Lisa MacPhee, Attorney-Advisor
- Program Legal Services Office Federal Highway Administration Office of the Chief Counsel

## Detectable Warnings Issues

- What are detectable warnings?
- When are detectable warnings required on a public right-of-way?
- What should FHWA be doing regarding detectable warnings?

**Notes:**
These are combined legal and technical questions

## Outline: Detectable Warnings in Transition Plans and Alteration Projects

- Legal Context
- Detectable Warnings: general requirements
- FHWA responsibilities and requirements regarding detectable warnings
- Transition Plans
- Alteration Projects

## Legal Context: Statutes

- Section 504 of the Rehabilitation Act of 1973, 29 USC § 794 (Rehabilitation Act or Rehab Act):
- “No otherwise qualified individual with a disability in the United States . . . Shall solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial  Assistance or under any program or activity conducted by any Executive agency . . .” § 794 (a)

**Notes:**
Program or activity => In FHWA, that means access to the public right of way, as well as trails and rest stops, through which FHWA has oversight within the Federal-aid program, over states, cities and localities, and direct control within the Federal lands Highway program. 
29 USC  § 794(b)(1): “ ‘program or activity’ means all of the operations of –
	(1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or
	(B) the entity of such State government that distributes such assistance and each such department or agency ( and each other State or local government entity) to which assistance is extended, in the case of assistance to a State or local government;”

Standards => same as ADA

## Legal Context: Statutes

- Americans with Disabilities Act of 1990, 42 USC 12111 et seq (ADA):
- Title II, Part A: “ . . . no qualified individual with a disability shall , by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 USC § 12132

**Notes:**
In 1990, ADA expanded protection for persons with disabilities by requiring access for persons with disabilities to programs and service by all public entities, regardless of federal funding.  Title II, Part A of the ADA governs public entities, such as state and local governments.  Title II is short, leaving the details mostly to regulation by the US Department of Justice as the central enforcement agency, through 28 CFR part 35.

How? For FHWA purposes, by defining public entity to include “any state or local government . . Any department, agency special purpose district, or other instrumentality of a State or States or local government. . .” 42 USC § 12131(1)(A) – (B).
Who is a “qualified individual” ? For determining access to the public right of way, a qualified individual is a persons who needs assistance to walk, such as with a wheelchair, or a person who if blind or deaf to a degree to interfere with the ability to cross a street or navigate the sidewalk.
- Enforced how? Through the “remedies, procedures and rights” established by the Rehab Act at 29 USC § 794a (complaints, withholding federal funds) and ADA, 42 USC § 12133 (complaints and lawsuits against public entities, interpreted through 28 CFR 35.171 – 35.178) => answered in slide ___

NOTE: Other titles of ADA govern the public right of way only tangentially, at best: Title I governs employment, Title II governs public accommodations by private entities.  Access to the streets, etc is not defined as “designated public transportation” within the ADA, because Title II, Part B of the ADA defines “designated public transportation” to mean transport by wheel or rail.
42 USC § 12141: “transportation (other than public school transportation) by bus, rail, or any other conveyance (other than transportation by aircraft or intercity o commuter rail transportation. . . That provides the general public with general or special service (including charter service) on a regular and continuing basis.”
Regulations for designated public transportation governed by FTA regulations at 49 CFR part 37. 

## Legal Context: Combined Statutory Effect of “Nondiscrimination”:

-  The Rehabilitation Act and ADA require that where a public agency provides pedestrian access, that public agency must ensure that the pedestrian access meets ADAAG standards.
-  The Rehabilitation Act and ADA have parallel requirements for accessibility.
-  The Rehabilitation Act and ADA have overlapping enforcement powers over public agencies: (1) Rehabilitation Act covers public agencies spending federal funds; (2) ADA Title II covers public agencies with power over the public right-of-way.

**Notes:**
- Rehab Act and ADA compliance based on accessible pedestrian facilities, not upon pedestrian need.  In other words, the disability statutes do not require that public agencies provide sidewalks.  Rather, the statutes require that where public agencies provide sidewalks, those sidewalks are to be accessible to persons with disabilities.

## Legal Context: Statutes

- Detectable Warnings: Provide a method for a person who is blind to identify the location of a curb, to allow safe street crossings.
- Meets both statutory definitions for a requirement: With detectable warnings, the person who is blind :
- ADA = would not be excluded from participation in the program providing access to streets and other facilities within the public right of way.
- Rehab Act = would not be excluded from benefiting from the program of Federally funded streets and other facilities within the public right of way.

**Notes:**
How is the detectable warning requirement imposed? By regulations based on this statutory authority.  
	- Regulatory cites provided in appendix at end of this presentation
- Answers general question: What are detectable warnings?

## Detectable Warnings: Specific Legal Requirements

- ADA Accessibility Guidelines (ADAAG) §§ 4.7.7, 4.29: suspension of requirement expired July 26, 2001.  _See_ www.ada.gov/detwarn.htm
- FHWA: Detectable Warnings memo dated May 6, 2002: suspension expired
- FHWA: ADAAG and Detectable Warnings memo dated July 30, 2004: reminder

**Notes:**
ADAAG Answers what and when question: Definitions of
 what a detectable warning is = truncated domes; and 
an explicit description of when detectable warnings need to be installed = within certain distance of curb line on curb ramps. 
FHWA memos: Provide dates and historical perspective on legal requirements: 
Detectable warnings were: 
required in ADAAG issued in 1991 by the Access Board
Suspended by USDOJ, Access Board and USDOT for curb ramps and hazardous vehicular ways: but not transit platforms between 1994 and 2001: 
1994: Initially suspended pending review of a research project on need for detectable warnings in the public right of way 59 FR 17442 (April 12, 1994)
1996: Suspension continued again in 1996 pending review of advisory committees recommendations 61 FR 39323 (July 29 1996).
1998: Joint final rule in November 23, 1998 federal register notice: continued suspension until July 26, 2001 Suspension expired July 26, 2001: suspension not renewed, so detectable warnings are again required after July 26, 2001. 

## Detectable Warnings: Design Criteria

- Raised truncated domes required by ADAAG §4.29
- Detectable Warnings: Synthesis of US and International Practice:
- Designing Sidewalks and Trails for Access: Part II, Best Practices Design Guide: Chapter 6, §§ 6.3 – 6.4.1, pages 6-5 to 6-11.
- Guide for the Planning, Design and Operation of Pedestrian Facilities: AASHTO, July 2004, pp. 83-89.

**Notes:**
Answers what and when questions with greater specificity regarding detectable warnings.

Location for Synthesis of US and International Practice: see www.access-board.gov/publications/. . . 
Location of Designing Sidewalks and Trails for Access: Part II:  see www.fhwa.dot.gov/environment/sidewalk2

## FHWA Responsibilities: Generally

- FHWA is responsible for preventing discrimination against persons with disabilities through two overlapping duties:
- oversight of Federal-aid and Federal Lands projects under the Rehabilitation Act
- oversight of public rights-of-way activities of public entities under Title II of the ADA

**Notes:**
The remaining slides answer the question: What should FHWA be doing regarding detectable warnings?

## FHWA Responsibilities: Enforcement

- Where noncompliance exists (usually revealed through a complaint):
- For Federal-aid recipient: FHWA can withhold federal money, after enforcement process required at 49 C.F.R. §§ 27.121 – 27.129. (Rehabilitation Act)
- For State or local government, regardless of federal funds: FHWA shall send seek voluntary compliance agreement with public agency, and if voluntary negotiations are unsuccessful, shall send case to the Attorney General for appropriate action.  28 C.F.R. §§ 35.173 – 35.174. (ADA)

**Notes:**
Details on 49 CFR 27.121 – 27.129: Subpart C – Enforcement to Part 27: Nondiscrimination on the basis of disability in programs or activities receiving federal financial assistance: Finding of noncompliance requires investigation, following explicit procedures under both federal and applicable State or local laws, and opportunity for a hearing, with a decision by an Administrative Law Judge.
- Note overlap between groups that can be subject to both Rehabilitation Act enforcement: withdrawal of federal money is option for State and local public rights-of-way enforcement using federal funds.  However, for state- and local–only funded public rights-of-way issues: investigation and referral to USDOJ are the only enforcement option.  This difference is caused by the differing reach of the Rehab act versus the ADA. 

## FHWA Responsibilities: Detectable Warnings

- FHWA is responsible for oversight of federal, state and locality planning and installation processes for public rights-of-way accessibility features, including detectable warnings.
- Oversight example: FHWA Divisions Actions:
- Review State and local transition plans and projects
- ADA/Rehabilitation Act complaint processing

## FHWA Responsibilities: Role of detectable warnings:

- _In transition plans_: FHWA must perform oversight of public agencies to ensure that transition plans include schedules to install or improve ADAAG-compliant detectable warnings wherever public agencies provide pedestrian access.
- _In alteration projects_: FHWA must perform oversight to ensure that alteration projects install or improve curb cuts that include ADAAG-compliant detectable warnings whenever curb cuts are within the scope of the alteration project.

**Notes:**
In transition plan review: When reviewing transition plans, keep in mind: Necessary part of appropriately scheduling ADA improvement work to be completed is identifying what facilities require ADA improvements.

## FHWA Responsibilities: Alteration Projects

- When resurfacing of a street alters the usability of a street, curb ramps within scope of the alteration project must be improved to the maximum extent feasible to meet ADAAG (including detectable warnings) at the same time that the project occurs.  *Kinney v. Yerusalim, *9 F.3d 1067 (3d Cir. 1993), *cert. denied*, 511 U.S. 1033 (1994); 28 C.F.R. § 35.151(b).

**Notes:**
=> Resurfacing = alteration project

## FHWA Future Guidance:

- Memorandum
- Discussion of Policy
- FHWA Responsibilities
- Questions and Answers
- Additional information
- Training Available
- Glossary
- References

## Access Board Future Guidance:

- - Notice of Proposed Rulemaking
- - Watch the Federal Register

## Legal Perspective: Detectable Warnings:

- Contact information:
- Lisa MacPhee, Attorney-Advisor
- Federal Highway Administration Office of Chief Counsel, Program Legal Services Division (HCC-30)
- Room 4230
- 400 7th St., S.W.
- Washington, D.C. 20590
- Office: 202-366-1392
- Fax: 202-366-7499
- E-mail: lisa.macphee@fhwa.dot.gov

## Appendix: Legal Context: Statutes

- FHWA Specific Authority:  Bicycle transportation and pedestrian walkways: Federal-Aid Highways Act, 23 U.S.C. § 217:
- Explicit federal funding sources to construct walkways for pedestrians, including those persons using a wheelchair.

## Appendix: Legal Context: Regulations

- US Department of Justice implements ADA through regulations at 28 CFR Parts 35 and 36.
- Detectable Warnings: ADA Accessibility Guidelines (ADAAG) §§ 3.5, 4.7.7, 4.29
- - ADAAG incorporated into the  US Department of Justice regulation implementing the ADA at 28 CFR Part 36, Appendix A.

## Appendix: Legal Context: Regulations

- US Department of Justice Regulations in volume 28 of the CFR:
- 28 C.F.R. Part 35: Implements ADA standards for state and local governments
- 28 C.F.R. Part 36: Implements ADA standards for public accommodation by private entities:  contains ADAAG as Appendix A
- ADAAG: incorporated as USDOT regulatory requirement at 49 C.F.R. Part 37, Appendix A:
- For purpose of governing transportation and related  provisions of title II, including FHWA public right of way criteria, in the absence of specific public right of way standards

**Notes:**
ADAAG: Old version of ADAAG is presently listed as Appendix A to 49 CFR Part 37.  USDOT is working on a Federal Register notice to incorporate new ADAAG.

## Appendix: Legal Context: Regulations

- FHWA specific regulations:
- 49 C.F.R. § 27.19(a): Compliance with ADA for Federal-aid recipients
- 49 CFR § 27.75: Governs FHWA  highway programs requirements under Rehab Act
- 23 CFR Part 652: Governs FHWA highway program for pedestrian and bicycle accommodation on Federal-aid projects established at 23 USC § 217.

**Notes:**
49 CFR § 27.75: Use with caution: has not been updated since 1986, so does not explicitly state FHWA responsibilities under the ADA.  Lack of ADA language in the regulation is not an excuse not to follow the ADA requirements, since ADA statutory authority overrides outdated regulation.

23 CFR Part 652: Use with caution, has not been updated since 1984: also authorized by 23 USC 109, 315, 402(b)(1)(F) and 49 CFR 1.48(b).

## Appendix: Legal Context: Guidance

- FHWA General Guidance: www.fhwa.dot.gov/environment/bikeped/guidance
- Design Guidance Accommodating Bicycle and Pedestrian Travel: A Recommended Approach, A USDOT Policy Statement . . .
- Designing Sidewalks and Trails for Access, Part I, A Review of Existing Guidelines
- Designing Sidewalks and Trails for Access: Part II, Best Practices Design Guide

## Appendix: Legal Context: Guidance

- USDOJ General Guidance:
- 	- ADA Title II Technical Assistance Manual, and 1994 Supplement: _[www.ada.gov/taman2.htlm](http://www.ada.gov/taman2.htlm)__ and __[www.ada.gov/taman2up.html](http://www.ada.gov/taman2up.html)_
- 	- Common Questions about Title II of the ADA: www.ada.gov/pubs/t2aq.txt

## Appendix: FHWA Responsibilities: Transition Plans

- Transition Plans: For public agencies with more than 50 employees, identify accessibility needs and schedule improvements in accessibility for persons with disabilities to public facilities, including the public right-of-way.
- Continuation of self-evaluation plans from Rehabilitation Act.
- Authority: 28 C.F.R. §§ 35.105, 35.150(d).

**Notes:**
ADA deadline for transition plans accessibility improvements to be completed was January 26, 1995. 28 CFR 35.150(d).

Is primary management tool to ensure access for the public rights-of-way for persons with disabilities, as expression of overall program and facilities management by public agencies
Is not “unnecessary” federal paperwork: Transition plan requirement has been approved by Office of Management and Budget (control number 1190-0006) as an appropriate state and local effort to implement ADA.  See  OMB number in notes at end of 28 CFR 28.105.