PAVEMENT MAINTENANCE: Accessible for all?

July 8, 2014

New ADA rules might be tough for agencies to meet

For David Ward, a 52-year-old management consultant from Orange County, Calif., getting around on local streets near his Tustin home is “a mixed bag.”

Ward, a quadriplegic for the past 25 years, uses a specially equipped van and wheelchair to get to appointments, shopping and visit relatives. In some cases, a curb or steep ramp might as well be the Berlin Wall.

“There are roads that are accessible and others that are not very well accessible,” he lamented. “The street I live on, I go up and down it, but the sidewalks are old and bumpy because of all the tree roots, and the ramps are steep and sometimes slippery. There are other roads that are not accessible at all and I have to go off the sidewalk to the shoulder of the road, and that can be dangerous when cars are whizzing by. That’s my biggest concern.”

Ward, like many who face mobility challenges, can recount a harrowing experience in which accessibility played a part.

“The reason I got a cell phone, in the 1990s, was after my car broke down on the shoulder of the 405 Freeway,” he recalled. “Because of my condition, I could not use the freeway call box, which must be operated with your hands. I needed help, so I got in my wheelchair and rolled down the shoulder of the 405 toward the off-ramp. I literally could not get off the freeway—the shoulder disappeared. I had to go back to my car, right past a call box. I turned on my blinkers and waited for a California Highway Patrol officer to come along to help me.”

When does it apply?

Nearly 25 years after it was signed into law by President George H.W. Bush, the Americans with Disabilities Act continues to loom large over the road-maintenance programs at public agencies and in the everyday lives of Ward and others it was designed to help.

Title II of the Americans with Disabilities Act (ADA) of 1990 requires public entities, including state and local governments, to ensure that persons with disabilities have access to the pedestrian routes in the public right-of-way. A key aspect of the act, according to supporters, is the obligation of agencies that are altering roadways to provide curb ramps where street-level pedestrian walkways cross curbs, making the routes accessible to those with disabilities. Design standards have evolved over the years so that some early curb cuts do not meet current ADA standards.

The latest chapter in the evolution of the act has come in the form of joint technical guidance published by the U.S. Department of Justice and the U.S. DOT that seeks to provide further clarification on what road-maintenance activities will trigger the requirement that curb ramps must be installed to modern standards.

The guidance was published in July 2013 as a Joint Technical Assistance (TA) memorandum on Title II of the ADA requirements to “provide curb ramps when streets, roads or highways are altered through resurfacing.” The crux of the issue is what defines “maintenance” vs. “alteration” of a roadway.

Among other things, the document divided up common pavement-preservation treatments, labeling some as routine maintenance and others as an alteration that will require the ADA upgrades. The Federal Highway Administration (FHWA) within the U.S. DOT has been publicizing the guidance in an effort to ensure that agencies know about it and are in compliance.

Under the guidance, the following activities are deemed regular maintenance: crack filling and sealing, surface sealing, chip seals, slurry seals, fog seals, scrub sealing, joint crack seals, joint repairs, dowel bar retrofit, spot high-friction treatments, diamond grinding and pavement patching.

Activities that are deemed alterations, triggering ADA modifications, include: addition of a new layer of asphalt, reconstruction, rehabilitation, resurfacing, widening, open-graded surface course, microsurfacing, thin-lift overlay, cape seals and in-place recycling.

“Alterations trigger wheelchair ramps in most circumstances,” according to a widely circulated chart on the subject. The chart also noted that resurfacing “from one intersection to another, includes overlay of additional material, with or without milling.”

Alteration, according to the guidance document, is “a change that affects the . . . structure, grade or use of all or part of a facility . . . and must include pedestrian-access improvements.” By contrast, the guidance defines maintenance as “treatments that serve solely to seal and protect the road surface, improve friction, control splash and spray . . . do not significantly affect public access or usability . . . and do not require simultaneous improvements to pedestrian accessibility.”

Engineering shortage

How some seemingly similar treatments were categorized differently was the focus of a trade association newsletter article published earlier this year and authored by Tracy Taylor and Jim Moulthrop of the Pavement Preservation Center and Scott Dmytrow of Telfer Oil, current president of the California Chip Seal Association.

“A recent DOT/DOJ interpretation changing long-standing FHWA practices threatens to take away several cost-effective maintenance ‘tools’ for state agencies,” they wrote. “The TA issued in 2013 by the DOJ/FHWA applies to all roads, not just the federal ones. It will come into effect with new contracts in 2014 and will have substantial cost impact on public agencies.” While the impact of the guidance is still being assessed, some estimates have surfaced that 20% to 50% of dollars devoted to fixing roads could be consumed by ADA work.

In an interview, Dmytrow, a CalAPA member, said the guidance could wreak havoc with street-maintenance programs. “The ruling by the Department of Justice is going to put an unfunded mandate on agencies, which is going to force them to do less pavement maintenance and preservation,” he said. “The disappointing part of this ruling is the lack of engineering behind the selection of what triggers a needed ADA upgrade and what does not. You can do a chip seal and it doesn’t require an ADA upgrade. You can do a slurry seal and it doesn’t require an ADA upgrade. But if you do a microsurfacing, which is very similar, it will require the curb and ramp upgrades.”

Moulthrop, in a separate interview, added: “First and foremost, FP2 supports the notion of providing access to disabled people through the Americans with Disabilities Act. However, the DOJ-FHWA technical memo that was issued last July contained some very unreasonable engineering conclusions as to what is considered roadway maintenance and what is considered an alteration. We have been trying to point out the fact that very similar materials have been classified in one case as maintenance and in another as an alteration, such as slurry seal and microsurfacing. We think what they came up with is very unreasonable engineering-wise.”

FP2 Inc., a trade association formerly known as the Foundation for Pavement Preservation, is supported by the pavement-preservation industry, including contractors, material suppliers and equipment manufacturers. The group recently estimated that the DOJ-DOT guidance could “decrease the overall road miles that can be maintained by an estimated 20% and decrease local and state . . . decision-making authority with regard to how they should maintain their roads.” Others privately fear the percentage could be 50% or higher.

The Pavement Preservation Center at California State University, Chico, is another entity looking closely at the issue. Center Director Dr. DingXin Cheng, Ph.D., P.E., who also is an associate professor at the university’s Department of Civil Engineering, said, “While I support the ADA, some of the recent guidance doesn’t have a sound base. Microsurfacing and cape seal don’t increase the pavement-structural capacity. Therefore, they should be in the same maintenance category as slurry seal.” The Pavement Preservation Center is conducting an online survey of public agencies to help gauge the effect of the guidance on agency road-maintenance programs.

Standing their ground

The impact in a state as large as California could be staggering. The California Department of Transportation, the megastate transportation agency known as Caltrans, maintains more than 15,000 centerline-miles of freeways and highways that reach across mountains, deserts, valleys, sun-drenched coastlines and some of the most congested urban areas in the U.S. But that real estate portfolio is dwarfed by the roads maintained by cities and counties. A 2012 report, the California Statewide Local Streets and Roads Needs Assessment, found that California’s 58 counties and 482 cities own and maintain more than 143,000 centerline-miles of roadway, or 81% of the state’s publicly maintained roads. They serve more than 37 million residents, 24 million of whom are licensed to drive the state’s 32 million vehicles. The movement of goods and services on the system helps support the world’s eighth-largest economy.

Many local agency representatives contacted by California Asphalt were hesitant to be quoted by name, but privately worried about the new ADA guidance and the impact it could have on street-maintenance programs already stretched to the breaking point. One who was willing to go on the record represented county engineers.

“California’s counties have long been a strong advocate for disabled access and the implementation of the American Disabilities Act,” said Scott McGolpin, director of public works for the county of Santa Barbara and president of the County Engineers Association of California. “We recognize people with disabilities need and deserve safe access to freely move within their communities. Counties have adopted cost-effective strategies to maximize our limited financial resources to preserve all of our transportation infrastructure.”

The new federal guidance, however, places additional hardships on cities and counties, he said. “Unfortunately, the new ADA Joint Technical Assistance forces local governments to modify existing infrastructure at significant additional costs, including reconstructing existing ADA accommodations that met previous federal standards. Consequently, it will minimize counties’ abilities to provide new access to other areas of the community.

“Despite this impractical update,” McGolpin added, “counties will strive to reach substantial compliance without any additional resources to meet this unfunded federal mandate. Counties welcome the opportunity to work with our federal partners to come up with a sensible solution.”

So far, however, the criticism has not swayed the U.S. Department of Justice or the FHWA. An FHWA spokesman in Washington, Doug Hecox, responding to written questions, wrote that the joint guidance was released “after extensive discussion between the two agencies.”

“The Department of Justice is the federal agency responsible for coordinating the activities of federal agencies with respect to state and local government compliance with Title II of the ADA,” Hecox wrote. “The DOJ provides policy guidance and interpretations to designated agencies to ensure the consistent and effective implementation of the ADA [28 CFR 35.190(a)]. The DOJ has rulemaking authority and enforcement responsibility for ADA Title II. The DOJ delegated to DOT responsibility for implementing DOJ’s ADA regulations for state and local governments with respect to transportation issues. As a result, both DOJ and DOT have authority to administer and enforce DOJ’s regulations in the transportation area.”

Prior to the release of the guidance, Hecox wrote, “input was sought from a broad range of stakeholders and people working in the field, including highway engineers. Prior to the release of the Joint TA, DOJ regarded most resurfacing treatments as an alteration. The Joint TA allows some full-width treatments that DOJ previously categorized as an alteration to be considered as maintenance.”

“It is worth noting,” he continued, “that public agencies are required to have program access plans under Section 504 of the Rehabilitation Act of 1973, and that DOJ regulations at 28 CFR 35.150(c) and (d) require that agencies with authority over streets, roads or walkways develop a transition plan and complete structural changes by Jan. 26, 1995. If agencies have complied with these long-standing program access regulations, most needed curb ramps will already be in place. The Joint TA addresses remaining barriers between sidewalks and streets to provide access to pedestrian facilities for over 30 million people with disabilities based on the 2010 Census data.”

Given that California is home to nearly 12% of the nation’s population, the U.S. Census data suggests that hundreds of thousands of people, if not millions, could potentially be impacted when they travel. That is the view of Mark Perriello, president and CEO of the American Association of People with Disabilities, which prominently features on the organization’s website a picture of President Bush signing the ADA into law as a group of supporters, including one in a wheelchair, look on. “Everyone is inconvenienced by road maintenance, but for people with disabilities the challenges can be insurmountable, unless ADA-compliant ramps are installed,” he said. “These new rules offer clarification to the industry, and ensure that all roads and walkways remain accessible when maintenance work is undertaken.”

“Imagine not being able to get to work because of routine road maintenance,” he said. “That is exactly the type of challenge that people with disabilities could face, when steps aren’t taken to ensure ADA compliance during maintenance projects. To say that these new rules will increase costs by 20-50% is disingenuous.”

Hecox, the FHWA spokesman, had similarly firm words, “We do not anticipate the need to revise the list.”

“Public entities that undertake road resurfacing work identified as an alteration under the Joint TA are subject to complaints and enforcement if they do not comply contemporaneously with required curb ramp installation or upgrading to current accessibility standards,” he said, adding that “complaints and enforcement” would fall under the jurisdiction of the U.S. Department of Justice.

Getting sideways with federal prosecutors is not the only risk. According to the FHWA, there are more than 1,000 ADA-related civil lawsuits in California each year and more than 20 ADA complaints filed against state and local agencies. Caltrans said it responds to more than 200 ADA grievances and access requests a year.

FHWA also is warning agencies not to “play games,” as the agency’s Robert Mooney put it in a recent presentation, such as trying to circumvent the guidance with scheduling. He cited an example of an agency performing a chip seal and later coming back to do a slurry seal, which in the eyes of the FHWA is still a cape seal and falls in the “alteration” category.

Those who follow the issue closely lament in private that the FHWA did not take a firmer stand on engineering grounds in meetings with DOJ lawyers. Said one, “It’s obvious to us that FHWA got rolled by the DOJ.”

Caltrans, the state agency that has delegated authority by the federal government to oversee local street programs, weighed in earlier this year with its own guidance released on March 17, 2014, through its Division of Local Assistance. The office bulletin is titled “ADA Requirements for Curb Ramps.”

In the bulletin, Caltrans said, “Diligent efforts should be made to comply with this clarification and the local agencies need to ensure their internal programs and guidance conform to this guidance.”

Specifically, the Caltrans bulletin said that implementation should be for all resurfacing projects that are scheduled to go out to bid for construction prior to July 1, 2014. “Projects may be completed as initially scoped without incorporating the clarification provided in the Technical Assistance. Within the project limits, any curb ramp improvements that are not scoped into the project and do not comply with the 1991 or current ADA standards will need to be listed in the local agency’s transition plan.”

Further, the Caltrans bulletin stated that “for all resurfacing projects that will go out to bid for construction on or after July 1, 2014, alteration projects identified per the clarification provided in the Technical Assistance guidance must incorporate required curb ramps. Any existing nonconforming curb ramps within the project limits must be upgraded to comply with the current ADA standards.”

Regarding “indefinite delivery/indefinite quantity (on call) contracts,” the Caltrans bulletin stated that “contracts must be immediately modified so future task orders reflect this clarification.”

Darold Heikens, chief of the ADA Infrastructure Program at Caltrans, sees merit to both sides of the debate. “For years, public works officials at all levels have been asking the Department of Justice and highway officials for a better definition of roadway alterations that triggers ADA upgrades on adjoining facilities,” he said. “The response from DOJ/DOT expanded the alteration definition from reconstruction, rehabilitation and widening to also include resurfacing.

“This clarification,” he said, “will require major changes to the way our highway-maintenance projects are funded and delivered. The additional ADA work outside the limits of the pavement will potentially add a full year or more to our project-development process in order to obtain the necessary right-of-way, move conflicting utilities and design the access improvements. “

Heikens said agencies that have not been aggressive in tackling ADA barriers will have it much worse than Caltrans. “The impact to local agencies will be even greater due to their reliance on the pavement-preservation techniques now considered alterations. However as we approach the 25th anniversary of the ADA in 2015, it is hard to defend the lack of progress, nationwide, on improving our pedestrian infrastructure for persons with disabilities. More focused effort and funding needs to be directed to removing access barriers, and this clarification may be the wake-up call that was needed.”

Within days of his comments in May, however, Democratic Gov. Jerry Brown released a revised state budget that trims $21.8 million from the Caltrans budget, or about 125 full-time positions in 2014-15. The state’s nonpartisan Legislative Analyst Office, meanwhile, projected that because of declining transportation dollars, Caltrans may be overstaffed by 3,500 full-time positions in the 2014-15 fiscal year at a cost of $500 million. Carving out funds for ADA-access projects when the state is in budget-cutting mode would seem to be yet another obstacle to overcome.

“Our current funding level for pavement preservation is addressing approximately 2,000 lane-miles of pavement per year,” said Tony Tavares, the head of the Division of Maintenance for Caltrans. “To be proactive in preserving the state highway system, we need to be addressing at least 5,000 lane-miles per year. We need more money for pavement preservation.

“Ensuring the state is in compliance with all ADA requirements is very important, and it’s the law. However, redirecting a portion of our current pavement-preservation funds to ADA is going to mean there is less money for pavements.” He said his department is conducting a review of the impact the guidance will have on his $200 million program, but he did not yet have any firm figures. His rough estimate was that adding ADA requirements to the pavement-preservation projects could have an impact of between 10% and 15% of the current budgeted funding level.

All of the debate over policy and funding, meanwhile, is of little consolation to Ward, the management consultant who uses a wheelchair to get around Orange County and elsewhere. He recently found himself looking for work, another casualty of the Great Recession, and worries about the unexpected obstacle that could make him late for his next job interview.

“I’m not the kind of person who makes a fuss about these things,” he said. “I understand that you have to weigh the feasibility of the change with the goal of accessibility. I think in general the local governments in southern California have done a pretty good job on accessibility. But I find that accessibility challenges are more often encountered on sidewalks than the curb cuts or the streets themselves. If it’s not a familiar route, you never know when you’ll run into a problem.” R&B

About The Author: Snyder is the executive director of the California Asphalt Pavement Association, West Sacramento, Calif.