A common question I’m trying to answer is “what type of project triggers ADA requirements and which projects don’t?” Since it’s a little more complicated than a quick Yes-No answer, here’s some Q&A Guidance we recently received:
Q: What projects must provide pedestrian access for persons with disabilities?
A: Any project for construction or alteration of a facility that provides access to pedestrians must be made accessible to persons with disabilities.
Q: What projects constitute an alteration to the public right-of-way?
A: An alteration is a change to a facility in the public right-of-way that affects or could affect access, circulation, or use. Projects altering the use of the public right-of-way must incorporate pedestrian access improvements within the scope of the project to meet the requirements of the ADA and Section 504. These projects have the potential to affect the structure, grade, or use of the roadway. Alterations include items such as reconstruction, major rehabilitation, widening, resurfacing (e.g. structural overlays and mill and fill), signal installation and upgrades, and projects of similar scale and effect.
Q: What activities are not considered to be alterations?
A: The DOJ does not consider maintenance activities, such as filling potholes, to be alterations. The DOJ does consider resurfacing beyond normal maintenance to be an alteration. The FHWA has determined that maintenance activities include actions that are intended to preserve the system, retard future deterioration, and maintain the functional condition of the roadway without increasing the structural capacity. These activities include, but are not limited to, thin surface treatments (nonstructural), joint repair, pavement patching (filling potholes), shoulder repair, signing, striping, minor signal upgrades, and repairs to drainage systems.
Q: Does a project altering a public right-of-way require simultaneous accessibility improvements?
A: Yes. An alteration project must be planned, designed, and constructed so that the accessibility improvements within the scope of the project occur at the same time as the alteration.
Q: When does the scope of an alteration project trigger accessibility improvements for people with disabilities?
A: The scope of an alteration project is determined by the extent the alteration project directly changes or affects the public right-of-way within the project limits. The public agency must improve the accessibility of only that portion of the public right-of-way changed or affected by the alteration. If a project resurfaces the street, for accessibility purposes the curbs and pavement at the pedestrian crosswalk are in the scope of the project, but the sidewalks are not. Any of the features disturbed by the construction must be replaced so that they are accessible. All remaining access improvements within the public right-of-way shall occur within the schedule provided in the public agency’s planning process.
Q: Do maintenance activities require simultaneous improvements of the facility to meet ADA standards?
A: No. Maintenance activities do not require simultaneous improvements to pedestrian accessibility under the ADA and Section 504. However, in the development of the maintenance scope of work identified accessibility needs should be incorporated into the transition process.
Q: When should accessible design elements be incorporated into projects in the public right-of-way?
A: FHWA encourages the consideration of pedestrian needs in all construction, reconstruction, and rehabilitation projects. If a public agency provides pedestrian facilities, those facilities must be accessible to persons with disabilities. This is true regardless of funding source.
Q: What should a public agency do when it does not control all of the public right-of-way required to provide access for persons with disabilities?
A: The public agency should work jointly with all others with interests in the highway, street, or walkway to ensure that pedestrian access improvements occur at the same time as any alteration or new project. The ADA encourages this cooperation by making each of the public agencies involved subject to complaints or lawsuits for failure to meet the ADA and Section 504 requirements.
DOJ is Department of Justice and they ultimately enforce ADA Standards; Section 504 is from the Rehabilitation Act.