ADA In Focus
Volume 13, Number 3
Fall 2008

In Focus this Issue:

ADA Issues:
ACCESSIBLE RIGHTS-OF-WAY: THE WAY TO GO

Training News and Events

Affiliates News:

• University Moves Mountains for Access

Web Sites

ADA IN FOCUS is published three times yearly by the DBTAC: Mid-Atlantic ADA Center. It is posted to the web on the "Publications" page at www.adainfo.org. It is also available by request in large print, Braille, audio cassette, and computer disk.

Richard G. Luecking, President
Marian Vessels, Director
Marissa Johnson, Director of Training
Maynor Guillen, Technical Assistance Specialist
David Stewart, Technical Assistance Specialist
Mark Derry, Training Consultant
Del Rae Conley, Office Manager

TransCen, Inc. is a Rockville, MD based firm specializing in human resources issues that impact workplace diversity. TransCen administers the DBTAC: Mid-Atlantic ADA Center, providing technical assistance to DE, DC, MD, PA, VA and WV.

This is a publication of the DBTAC: Mid-Atlantic ADA Center, funded by the National Institute on Disability and Rehabilitation Research of the U.S. Dept. of Ed. (Grant # H133A060085). The opinions contained in this publication are those of the grantee and do not necessarily reflect those of the Dept. of Education.

DBTAC: Mid-Atlantic ADA Center
451 Hungerford Dr., Suite 700
Rockville, MD 20850 4151
TEL: 301 217 0124 V/TTY
FAX: 301 217 0754
TOLL-FREE: 800 949 4232 V/TTY
E-MAIL: adainfo@transcen.org
URL: www.adainfo.org
© 2008 by TransCen, Inc.

ADA ISSUES:

ACCESSIBLE RIGHTS-OF-WAY: THE WAY TO GO

Rights-of-way - the great network of roads, streets, and sidewalks that enable us to venture easily and safely beyond our own front doors - are the roots that nourish our communities. These structures of stone and steel are among the most fundamental things we build to facilitate human interaction at a personal level.

Certain architectural features, such as curb ramps and accessible crosswalk signals, are needed for people with disabilities to participate as easily and safely as everyone else. Ongoing maintenance efforts (such as clearing the ice from those curb ramps and trimming eye-gouging tree branches) are equally important.

Advances in both awareness and technology have brought rights-of-way accessibility to the attention of designers, state and local governments, and people with disabilities themselves. The original ADA standards, published in 1991, with their focus on buildings, addressed rights-of-way somewhat peripherally. The U.S. Access Board, the federal agency responsible for the development of accessibility guidelines, has been working for many years on the development of guidelines specific to rights-of-way. The process has fostered intense study and lively debate.

Detectable Warnings on Curb Ramps

People with various types of disabilities sometimes have conflicting needs, as in the case of detectable warnings on curb ramps. The 1991 ADA standards call for a specific type of detectable warning surface on curb ramps (as well as other hazardous areas). This bumpy surface is designed to alert people who are blind or have low vision of an impending hazard (vehicular traffic, in the case of curb ramps). The standards require that this surface be applied to the full width and depth of a curb ramp in new construction and alterations covered by the ADA.1 Technical assistance material published by the Access Board illustrate the bumps ("truncated domes") arranged in offset rows that create a "diamond" pattern.2 Unfortunately, some wheelchair users find the surface jarring, at best.

Even people with similar needs have not necessarily been in agreement. Many people who are blind or have low vision, as well as organizations that represent them, disagree not only on how detectable warnings should be structured, but on more fundamental questions as well, such as where they should be used, or whether they should be used at all.

Research and debate have led the Access Board to develop draft rights-of-way guidelines that describe a revised type of detectable warning surface that is designed to be less jarring and still serve to alert pedestrians who are blind or have low vision. The bumps ("truncated domes") on the surface are aligned in a grid pattern, rather than offset, so that wheelchair users can potentially navigate between the rows. The draft guidelines also call for the surface to be applied only at the bottom 24" of curb ramps, rather than the full depth.3

Additionally, the Board's updated general guidelines for the ADA and the Architectural Barriers Act (ABA)4, describe a grid-patterned detectable warning surface, although the guidelines do not call for the detectable warning surfaces to be applied to curb ramps (since that issue is yet to be addressed in the rights-of-way rulemaking).

The U.S. Department of Transportation (DOT), when it adopted the Board's updated guidelines as standards for newly constructed and altered transportation facilities covered by the ADA, specifically added a provision to require detectable warning surfaces on curb ramps. DOT allows the grid-patterned surface to be applied either to the bottom 24" of a curb ramp, or to its full depth.5

The U.S. Department of Justice (DOJ) is still in the process of adopting new standards based on the Board's updated guidelines, so until that process is complete, the current DOJ standards continue to apply to the majority of facilities covered by the ADA. While the standards allow for "equivalent facilitation," or alternative designs that provide "substantially equivalent or greater" accessibility, DOJ cautions that the required surface is "unique."6

The Department does, however, recognize the application of DOT's standard to curb ramps "along public streets."7

Accessible Pedestrian Signals (APS)

There has been similar research and debate surrounding the issue of accessible pedestrian signals (APS), which are devices that use non-visual means (such as audible tones and messages, or vibrotactile surfaces) to communicate street crossing information to pedestrians who are blind or have low vision.

APS, combined with appropriate signage including raised and/or Braille indicators and information, can help pedestrians cross the street at the right time and in the right direction, particularly at complex intersections.

Technological development and practice in the field have combined to increase the range of features available and enhance the effectiveness of APS. Although not yet widely in use in the United States, some other countries, particularly Japan, Australia, Sweden, and Denmark, have many years of experience with APS. The Access Board's draft rights-of-way guidelines call for the installation of APS at new or altered crosswalks where pedestrian signals are provided.

Traffic Calming

Street crossing where no signals are provided can present challenges for pedestrians with disabilities. Traditionally, most intersections that lacked any kind of signage or signalization to stop traffic were small roads in quiet areas. But certain street design features that reduce or eliminate vehicle stops have gained popularity as "traffic calming" measures, even at busy urban intersections. Traffic calming is a term that refers to a variety of methods used to reduce motorized traffic volume and/or speed. The goal is to enhance safety, especially for pedestrians. Ironically, many of the physical measures used to promote traffic calming, such as roundabouts, traffic circles, and islands, can actually make it more difficult or confusing for pedestrians with disabilities to safely cross the streets.

Roundabouts, where vehicles circulate around a raised island in the center of an intersection, are often used in lieu of stop signs or signals. One of the advantages of roundabouts is that traffic slows down, but keeps moving, thereby reducing back-ups and congestion. However, many pedestrians have difficulty determining when it is safe to cross the street. Additionally, at some intersections the flow of traffic is so steady, at least at certain times of day, that it is difficult for those who cross slowly to find a suitable gap, particularly where multiple traffic lanes enter and exit the roundabout.

Certain design elements, such as audible and tactile cues, can help pedestrians who are blind or have low vision orient themselves to crossing locations. Pedestrian-activated signals can be used to stop traffic only when needed. Attention to surrounding structures and landscape features can help minimize noise that interferes with the ability of pedestrians who rely on their hearing to make judgments about traffic conditions. Signage (e.g. "yield to pedestrians") can encourage motorists to stop for individuals waiting to cross. More research and practice will be needed to develop successful designs and strategies.

Existing Rights-of-Way

Designers are developing some creative approaches to improving access in existing settings, which invariably present additional challenges. The majority of work in the public right-of-way consists of maintenance and improvements to existing environments,8 where vehicles and pedestrians compete for limited space, sandwiched between existing buildings, signal poles, street signs, bus stop shelters, and trees. Underground elements and connections to them (e.g. manholes, sewer inlets) can restrict accessibility improvements as well.

Existing rights-of-way, due to underlying terrain, often have steep slopes or cross slopes, which can be treacherous for people who use wheelchairs or other mobility devices. At the same time, good drainage is necessary to prevent build-up of standing water (or, worse yet, ice).

Creativity, compromise, and collaboration between public and private entities that share access to the right-of-way are often needed to advance accessibility in older streetscapes.

For more information on accessible rights-of-way, contact the U.S. Access Board (800-872-2253, voice; 800-993-2822, TTY), or visit their "Public Rights-of-Way" web page at www.access-board.gov/prowac/ for a great collection of resources and publications, including:

• Accessible Public Rights-of-Way: Planning and Design for Alterations
  
• Accessible Public Rights-of-Way: A Design Guide
  
• Pedestrian Access to Modern Roundabouts
  
• Accessible Sidewalks (DVD series)

Footnotes

ADA Standards for Accessible Design, U.S. Department of Justice, 1994 http://www.ada.gov/stdspdf.htm

ADAAG Manual, U.S. Access Board, 1998

Revised Draft Guidelines for Accessible Public Rights-of-Way, U.S. Access Board, 2005, http://www.access-board.gov/prowac/draft.htm

ADA and ABA Accessibility Guidelines for Buildings and Facilities, U.S. Access Board, 2004, http://www.access-board.gov/ada-aba/final.htm

Final Rule Adopting New Accessibility Standards (49 CFR Part 37), section 406.8, U.S. Department of Transportation, 2006, http://www.fta.dot.gov/civilrights/ada/civil_rights_5936.html

Technical Assistance Letter 269, U.S. Department of Justice, 1993, http://www.usdoj.gov/crt/foia/tal269.txt ("... the ADA Guidelines contains a general equivalent facilitation provision … However, it is important to point out that the detectable warning surface required by the ADA Guidelines has unique characteristics that make it readily identifiable as a warning surface."

ADA Best Practices Tool Kit for State and Local Governments, Chapter 6 and Appendices, U.S. Department of Justice, 2007, http://www.ada.gov/pcatoolkit/toolkitmain.htm

Accessible Public Rights-of-Way: Planning and Design for Alterations, U.S. Access Board, 2007, http://www.access-board.gov/prowac/alterations/guide.htm

RESOURCES

Accessible Rights-of-Way: A Design Guide (1999)
U.S. Access Board
http://www.access-board.gov/prowac/guide/prowguide.htm

Accessible Public Rights-of-Way: Planning and Designing for Alterations
Transportation Research Board of the National Academy of Sciences
http://www.trb.org/news/blurb_detail.asp?id=8106

Electronic Toolbox for Making Intersections More Accessible for Pedestrians Who are Blind or Visually Impaired
Institute of Transportation Engineers
http://www.ite.org/accessible/

Policies - Public Rights-of-Way
Designing Accessible Communities
http://www.designingaccessiblecommunities.org/policies/right-of-way.php

TRAINING NEWS AND EVENTS

Maryland Statewide Transition Conference
Timonium, MD.................................................................................December 3-4, 2008
The statewide transition conference, "Navigating the Road from School to Adulthood for All Youth with Disabilities in Maryland," will be held Wednesday, December 3 to Thursday, December 4, 2008 at the Crowne Plaza Hotel, Timonium, Maryland

For more information, visit www.dors.state.md.us

DBTAC: Mid-Atlantic ADA Center Quarterly Trainings - ADA Basics
Rockville, MD...................................................................................December 11, 2008

This training will provide an overview of the ADA, including the history behind its landmark passage, a summary of the provisions of each of the five titles, a brief description of its relationship to other laws, and ways the ADA can benefit you and/or your customers or constituents.

Save the Date for other Quarterly Trainings: March 12th, June 11th & August 13th For more information, visit http://www.adainfo.org/training or contact Marissa Johnson at 1-800-949-4232 or 301-217-0124 V/TTY, or e-mail mjohnson@transcen.org

Webinar Series: ADA Audio Conference Series

The ADA Audio Conference Series provides in-depth information on the Americans with Disabilities Act (ADA). This program is designed to enhance an individual's existing knowledge base or facilitate continued learning regarding regulations and trends under the ADA. For more information, visit www.ada-audio.org

2008 Legal Issues Webinar Series: Employment and the ADA

This program is designed for individuals who have a working knowledge of the ADA and are familiar with its basic elements. Sessions are intended to support continued learning and focus on the knowledge that has been gained since the implementation of the law in terms of how the federal agencies and the courts are interpreting the law and subsequent regulations. For more information, visit www.ada-audio.org

Podcast Series: Disability Law Lowdown

This new, free program delivers the latest in disability rights information. You can subscribe and have shows automatically delivered, or you can listen to the show and read the transcripts online at dll.ada-podcast.com

For more information on ADA and disability-related training events, check the "Training" page at the DBTAC: Mid-Atlantic ADA Center Web site:
www.adainfo.org/training

AFFILIATES NEWS

West Virginia

Fairmont State University Moves Mountains for Access

Fairmont State University sits on a hill overlooking the town of Fairmont. The campus elevation rises 300 feet from the entrance on Locust Avenue to the newly renovated football field.

A creative approach was necessary to make it possible for people with disabilities to access the majority of the campus without encountering major obstacles. Starting as early as 1995, FSU officials began the planning process, with construction starting in May of 2007. The University invested $1.4 million in the project by selling bonds. More than a million tons of earth were moved, entrance stairs were demolished at several buildings, and the interior of the campus was closed to vehicular traffic.

The result of the one year construction project is a pedestrian-friendly inner campus which features wide sidewalks and no-step entrances, automatic door openers, benches both in the open and under shelter, a water feature, landscaping, and gradual slopes throughout most of the area.

Library before renovation

Library after renovation

TO CONTACT OUR AFFILIATES:

State ADA Coalitions:

MD - 800-949-4232 V/TTY
E-MAIL - adainfo@transcen.org

DC - 202-388-0033 or 202-388-0277 TTY
E-MAIL - hgalmore@dccil.org

DE - 302-335-5626
E-MAIL - carpent487@aol.com

WV - 800-946-9471 V/TTY
E-MAIL - WVADACoalition@msn.com

VA - 757-461-8007 V or 757-461-7527 TTY
E-MAIL - kgonzalez@endependence.org

PA - 570-327-9070 V or 570-327-5254 TTY
E-MAIL - mdion@cilncp.org

State Assistive Technology Programs:

MD - 800-832-4827 V or 866-881-7488 TTY
WEB - www.mdtap.org

DC - 202-547-0198 V or 202-547-2657 TTY
WEB - www.atpdc.org

DE - 800-870-3284 V/TTY
WEB - www.dati.org

WV - 800-841-8436 V or 800-518-1448 TTY
WEB - www.cedwvu.org/programs/wvats

VA - 800-552-5019 V/TTY
WEB - www.vats.org

PA - 800-204-7428 V or 866-268-0579 TTY
WEB - http://disabilities.temple.edu/piat/

COURT DECISIONS:

10th Circuit Court finds driving not a "major life activity" under ADA

Energy Safety Services (doing business as Oilind Safety L.L.C.) allegedly discriminated against Ireane Kellogg in violation of the ADA when it fired her after she was diagnosed with epilepsy. As part of her job, Ms. Kellogg traveled by company truck from Oilind's Worland, Wyoming office to oil fields to provide services to clients. However, after her diagnosis, Ms. Kellogg's doctor issued her a note ordering her not to drive until he decided it was safe.

Ms. Kellogg sued Oilind in U.S. District Court in 2006, alleging discrimination under the ADA as well as violations of the Fair Labor Standards Act (FLSA), claiming she was entitled to overtime compensation that had not been paid. The jury found on her behalf on both claims, citing that driving was a major life activity, and awarded her damages of prejudgment interest, front pay under the ADA, liquidated damages under the FLSA, and attorney's fees. Oilind then appealed and the 10th Circuit Court reversed the previous District Court verdict citing incorrect jury instructions as to the definition of "major life activity" and remanded the case for a new trial, but it upheld the FLSA verdict and the district court's award of liquidated damages.

The above case is Kellogg vs. Energy Safety Services Inc. The court's ruling is available online in PDF format at http://ca10.washburnlaw.edu/cases/2008/10/07-8072.pdf. The majority and dissenting opinion outline the debate about what constitutes a "major life activity" and related supporting activities, prior to broadened definitions going into effect January 1, 2009 under the ADA Amendments Act.

Absence of Interpreter and TTY Does Not Violate Rights

Three deaf members of the Tucker family became involved in a domestic dispute that resulted in the arrest of two of the family, who requested a TDD/TTY telephone to make a phone call to the third family member. The jail did not have the technology, but spent 45 minutes translating with a relay operator on behalf of the two men. The following day no interpreter was available but the judge made arrangements for proceedings to continue using written notes. Charges were ultimately dropped against one of the men, but the other pled guilty to reduced charges and later claimed he felt he had no choice but to enter the guilty plea because he felt no interpreter would be provided at a future hearing and was confused regarding the proceedings.

An ADA Title II suit was filed against the State and County, whereupon a determination was made in favor of the defendants, citing that the police did not have an opportunity to call for a sign language interpreter during the domestic dispute - nor would one have changed the events, that the arrested men suffered no harm from the lack of TTY at the jail, and that given their options the two men opted to proceed judicially without interpreter.

The above case is Tucker v. State of Tennessee. The court's ruling is available online in PDF format at http://caselaw.lp.findlaw.com/data2/circs/6th/066208pv3.pdf

Disabled Riders Settle Class Action Suit With Transit Authority

Users of the MetroAccess transit service for people with mobility impairments sued the Washington Metropolitan Area Transit Authority (WMATA) under ADA Title II and Section 504 of the Rehabilitation Act, alleging that they were subjected to a wide range of discriminatory behavior, including overly long trips, off-schedule service, rudeness and lack of customer response. After 4 years of litigation and negotiations, the parties reached a settlement agreement awarding $14 million to the plaintiffs and requiring WMATA/MetroAccess to offer free ride vouchers and other monetary compensation to affected customers, improve its service, and adhere to specific performance and service commitments subject to independent monitoring.

The above case is Equal Rights Center v. Washington Metropolitan Area Transit Authority. The court's ruling is available online at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv0498-187

WHAT'S NEW

EEOC Addresses Workplace Performance And Conduct Standards Under The ADA

This September, the Equal Employment Opportunity Commission (EEOC) issued its Performance and Conduct Standards Guide addressing how the ADA applies to various issues. Title I of the ADA and Section 501 of the Rehabilitation Act generally do not impinge on the right of employers to define jobs and to evaluate their employees according to consistently applied standards governing performance and conduct. Under both laws, employees with disabilities must meet qualification standards that are job-related and consistent with business necessity and must be able to perform the essential functions of the position, with or without reasonable accommodation.

The Guide is available at the EEOC's website at http://www.eeoc.gov/facts/performance-conduct.html

New FMLA Rules To Arrive Soon

The Department of Labor submitted its final draft of new Family and Medical Leave Act regulations to the OMB on October 20, 2008. The new regulations are based on the February 2008 proposal and public commentary. If the OMB approves the regulations, they could be published as early as November.

In February 2008, the department proposed new Family and Medical Leave Act regulations and asked the public to comment on them. The department hasn't disclosed to what extent it changed the regulations based on feedback from the public, however the February 2008 proposed regulations addressed several areas of FMLA, including the impact of "light duty" assignments, ability to waive rights, definition of serious health conditions, substitution of paid leave, employer/employee notice obligations, medical certification process, fitness for duty and military family leave. You can read more about the proposal in the following articles:

Full Text of Proposed Regulations:
http://www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf

Fact Sheet on the Proposed Regulations:
http://www.dol.gov/esa/whd/regs/compliance/whdfs_FMLA_NPRM.pdf

Microsoft Unveils Showroom Demonstrating Accessible and Assistive Technology

Microsoft Corporation recently opened the Inclusive Innovation Showroom, a new facility designed to demonstrate how accessibility features in Microsoft products and assistive technology solutions developed by Microsoft partners can make it easier for anyone to see, hear and use a computer at work or at home.

Spearheaded by the Microsoft Accessibility Business Unit (ABU), the Inclusive Innovation Showroom uses real-world scenarios to illustrate how people of all abilities - including those with vision, mobility, learning and hearing disabilities - can use accessible and assistive technology to customize their computing experience according to their own preferences and needs.

More information on the Inclusive Innovation Showroom and the Microsoft Accessibility Business Unit can be found at http://www.microsoft.com/enable

JAN Launches New Website

To celebrate Job Accommodation Network's 25th anniversary, they have launched an updated website. This new website is easy to navigate and extremely functional. It has tools such as JAN on Demand and the Searchable Online Accommodation Resource. Find accommodation examples, Americans with Disabilities Act resources, online guides, testimonials, informational articles, and much more. JAN's website is http://www.jan.wvu.edu/index.htm

No Internet Access?
If you are not able to obtain online publications,
call the DBTAC: Mid-Atlantic ADA Center,
1-800-949-4232 V/TTY.
We will be happy to assist you!

COOL WEB SITES:

http://www.netreach.net/~abrejcha/websites.htm
Internet Disability Resources offers a broad and eclectic website on various disability issues and information, newspaper and magazine articles and a "links" page with hundreds of categorized, described, and linked web sites (leading to a couple of thousand other sites) for internet disability resources including products, services and organizations for all manner of disabilities and health conditions.

http://www.washingtonpost.com/wp-dyn/content/linkset/2006/04/19/LI2006041901286.html
How to Deal: Employment Issues Discussed - Join Lily Garcia on Tuesdays at 11 a.m. ET for How to Deal Live. Lily Garcia has offered employment and human resources (including disability) advice for more than 10 years. To submit a question, e-mail HRadvice@washingtonpost.com.

http://www.ataccess.org
The Alliance for Technology Access. The ATA is a network of community-based resource centers, product developers, vendors, service providers, and individuals providing information and support services to those with disabilities, and work to increase their use of technology.

http://www.workingdogs.com/articles_serv.htm
Working Dogs - The magazine for and about working dogs. This Archive includes the best of the Service Dog articles featured on Working Dogs Cyberzine since 1996.

ADA In Focus is intended for use by individuals, state and local governments, businesses, legal entities, and others interested in developments in the Americans with Disabilities Act. This publication is intended solely as an informal guidance and should not be construed as legally binding. ADA In Focus does not serve as determination of the legal rights or responsibilities under the ADA for any individual, business or entity.

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