ADA Requirements whe

Roads are Resurfaced

March 01, 2016
Agenda

Welcome – Candace Groudine

Introductory Remarks – Nichole McWhorte

Legal Framework – Jim Esselman

Overview of Joint Technical Assistance – Pa

Gomez

Highlights of Q&As – Elizabeth Hilton

Assisting with questions ‐ Brooke Struve
Background

DOJ and DOT issued joint technical assistance in Ju

FHWA held webinars on Aug. 20 and 21, 2013 that p

an overview of the joint technical assistance and hwas developed

FHWA staff can access the recorded webinar at

https://connectdot.connectsolutions.com/p2lz0u6
Joint DOJ/DOT Authority to Enf

Title II of the ADA

ADA Directs DOJ to effectuate Title II of ADA thro

regulations (28 CFR Part 35)

DOJ delegated responsibility for implementing D

Title II regulations to DOT for all programs, servicregulatory activities related to transportation

Both DOJ and DOT have enforcement authority
DOJ Regulations: Alteratio

Alteration is a change that affects or could affect 

usability of all or part of a facility (such as a road) 

CFR 35.151(b)]

Altered streets, roads, and highways must contai

ramps where there are curbs or other barriers to 

pedestrian walkway (i.e., sidewalk) [28 CFR 35.151

DOJ Regulation does not identify specific road

treatments that qualify as alterations versus treat

that qualify as maintenance
So Which Treatments are

Alterations?

Early DOJ guidance based on court decisions sta

o Paving, repaving, or resurfacing were genera

considered alterations

o Filling a pothole was not considered to be an

alteration

Early DOJ guidance did not provide more specif

examples of maintenance activities

Interpretations varied, introducing agency risk
Alterations vs. Maintenance

DOJ and DOT (FHWA) met in 2012 to 2013

Desire to provide clarity and consistency

Based on feedback (comments/questions) fro

States, local governments, disability rights ad

citizens

How Did This Joint DOJ/DO

Technical Assistance Come Ab
Joint TA distinguishes alterations fr

maintenance based on the type of road tr

Chip Seals Fog Seals Scrub Sealing

Crack Filling and Sealing Joint Crack Seals Slurry Seals

Diamond Grinding Joint repairs Spot High‐Frictio

Dowel Bar Retrofit Pavement Patching Surface Sealing

Addition of New Layer of Asphalt Mill & Fill / Mill & Overlay

Cape Seals New ConstructionHot In‐Place Recycling Open‐graded Surface Cou

Microsurfacing / Thin‐Lift Overlay Rehabilitation and Recon
Resurfacing Project

Maintenance

Proceed w/ Work

Alteration

Does resurfacing alter any crosswalks

(marked or unmarked)?

No

Proceed w/Work

Yes

Are curb ramps tha

standard in place 

construction pr

Yes

Proceed w/Work
Application of Technical Assis

 This is a single Federal policy that identifies specific

pavement treatments that are alterations:

o Alterations require the installation of curb ramps at the 

the resurfacing improvement

o Maintenance applications do not require curb ramps a

of the improvement

 Consistent approach among States Refer to the companion Glossary of Terms, on the w

 Update Pavement Preservation/Resurfacing Progra

 Update any existing resurfacing ADA policies
Responds to frequently asked questions

Applicable requirements of Section 504 of the Reha

Act of 1973 that apply to public entities receiving Fefunding from DOT, either directly or indirectly, are adiscussed.

Not a standalone document and should be read in c

with the 2013 Joint Technical Assistance.

Was coordinated with DOJ

https://www.fhwa.dot.gov/civilrights/programs/ada

Qs & As on Resurfacing TA rele

in December 2015
Q1: Do existing curb ramps have to be upgrad

meet current standards when the roadway is 

A: It depends on whether the existing curb ra

meets the appropriate accessibility standard t

in place at the time it was newly constructed 

altered.

Q&A Highlights
Q2: Is a “mill and fill” project that results in a f

pavement that is the same thickness as the orig

pavement considered an Alteration?

A: Mill and fill projects are considered Alterati

because they are a change to the road surface 

affects or could affect the usability of the ped

route (crosswalk). Affected crosswalks must b

accessible.

Q&A Highlights, cont’d.
Q3: If a roadway resurfacing alteration project 

span the full width of the road, do I have to put 

ramps?A: It depends on whether the resurfacing work 

pedestrian crosswalk. If the resurfacing affects 

crosswalk, then curb ramps must be provided a

ends of the crosswalk.

Q&A Highlights, cont’d.
Q4: What if the public entity doesn’t own the 

of‐way needed to install the required curb ram

A: Plan ahead when scoping the project! If th

public entity does not control sufficient right‐

it should seek to acquire the necessary right‐o

Q&A Highlights, cont’d.
Q11: When will utility trench work require com

with ADA curb ramp requirements?

A: Repaving to cover utility trench work limit

portion of the pavement, even including a po

the crosswalk, is typically be consideredmaintenance and would not require simultan

installation or upgrading of curb ramps. Repa

must not reduce accessibility.

Q&A Highlights, cont’d.
Q13: Are there any additional requirements fo

that receive Federal financial assistance from D

A: Yes, DOT’s Section 504 requirements apply 

the road alteration project at issue does not u

Federal funds.

Q&A Highlights, cont’d.
Q15: Other than road resurfacing, are there ot

requirements that trigger the obligation to pr

curb ramps?

A: Yes. Curb ramps must be provided:

 at newly constructed or altered roads or sid

to eliminate barriers between the two;

 as a means of providing program accessibili as a reasonable modification under title II or 

reasonable accommodation under Section 5

Q&A Highlights, cont’d.
Go to

https://www.fhwa.dot.gov/civilrights/programsto find the following documents:

2013 Joint Technical Assistance

Glossary of Terms

Questions/Answers

Discussion