State Highway Administration

Maryland State Highway Administration
Policy On Non-Discrimination And Equal Access
Under The Americans With Disabilities Act
(December 2005)

The Maryland State Highway Administration (MSHA) is committed to a policy of full accessibility and does not discriminate in the provision of any of its business activities. The Administration is committed to upholding the intent and spirit of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 to the fullest extent possible. This commitment extends to all programs, services and activities of SHA, such that no qualified individual with a disability shall be discriminated against on the basis of his or her disability.

It is SHA’s responsibility and desire that no person in the State of Maryland be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity supported by SHA based on their disability, as provided by the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973. It is also the responsibility of each and every SHA employee to work cooperatively to achieve the goals and objectives of this statement.

SHA is fully committed to the goal of achieving equal opportunity and non-discrimination for all persons in their interactions with SHA.

POLICY FOR ACCOMMODATING PERSONS WITH DISABILITIES ALONG STATE HIGHWAY
The State Highway Administration (SHA) shall make the accommodation of persons with disabilities a routine and integral element of its planning, design, construction, operations and maintenance activities for all projects as outlined herein.

DESIGN GUIDELINES FOR ACCOMMODATING PERSONS WITH DISABILITIES ALONG STATE HIGHWAYS
All projects, regardless of who is administering the contract, shall accommodate and provide accessibility for persons with disabilities where it is reasonable, feasible and appropriate to do so as described herein. This includes utility relocations, access permits and reimbursement projects. Providing accommodations is especially important where the existing and/or proposed land use supports pedestrians. This includes trip generators and destinations such as employment, education, residential, commercial, recreation and transit centers. Examples provided within this document are not intended to be inclusive of all possible situations, but are representative of typical situations.

Design Waivers
SHA is committed to providing American’s with Disabilities Act (ADA) accommodations on all projects. If it is determined that full ADA compliance is technically infeasible or determined to be unreasonable to the desired degree as described in the SHA ADA guidelines, a design waiver must be requested and approved for each element that is not in full compliance. The design waiver shall demonstrate that the element has been designed to meet full compliance to the maximum extent feasible. No blanket design waivers will be granted on a project-wide or program-wide basis. A project can only proceed to advertisement and/or construction if it has achieved full compliance with the ADA guidelines or has been granted a design waiver.

A design waiver may be considered for such things as impacts to right of way, utilities, existing structures (such as bridges and drainage structures) or environmentally or historically sensitive areas. Cost alone will not be a consideration for a design waiver unless it is of an extraordinary magnitude. The need to provide safety or capacity improvements to the roadway may also be considered. A waiver should not be requested until all reasonable alternatives to provide the desired degree of ADA accommodations have been exhausted. The significance of additional impact created by these alternatives over and above the basic project will be considered in the waiver decision. The documentation of these alternatives will be required to support the design waiver request.

Design waivers are not intended to eliminate the requirements for accommodating persons with disabilities as described in SHA’s ADA Guidelines. Even with a design waiver, a project shall be designed as close as practical to the desired design accommodations and still provide program access, that is access to all facilities, including mass transit.

For example:

• Due to physical constraints, five foot sidewalks cannot be provided throughout the entire project limits. A design exception will not be granted to provide four foot sidewalks throughout the entire project limits, only for the specific location where the physical constraint is present. The rest of the project must provide the five foot sidewalk width.
• Community opposition to providing the desirable degree of ADA compliance will not be grounds to request a design waiver.
• The fact that providing the desirable degree of ADA compliance on a project will have a significant cost impact on the project, by itself, will not be grounds to request a design waiver unless it is of an extraordinary magnitude. Right-of-way impacts, community impacts and other geographical, environmental and/or physical constraints must also be considered along with any other mitigating factors.
• Where a number of elements on a project qualify for a design waiver under the same rationale (i.e. right-of-way constraints), they may be lumped together in the design request so long as the same degree of mitigation and compliance holds true for each element.

IMPLEMENTATION
SHA understands the need to include ADA accommodations in our projects. We also understand what to provide regarding ADA elements, such as curb cuts, sidewalk ramps and detectable warning surfaces (DWS). The challenge is to know when to provide the accommodations and the scope of the accommodations.

WHEN
The ADA Standards for Accessible Design uses the term alteration as the mechanism that would initiate the need to provide ADA compliance. Alteration is described as a change that affects or could affect access to or the usability of a facility (this includes roadways, park and ride lots, rest areas, buildings) or a part of a facility. That is, if a jurisdiction alters an existing facility or part of a facility, the altered area must be accessible to and usable by people who have disabilities to the maximum extent feasible. If a roadway, for example, is widened and the existing sidewalks are impacted, the sidewalks and other appropriate pedestrian facilities must be replaced and must meet full ADA compliance. Another example is if new sidewalks are installed where none existed before; these sidewalks must meet full ADA compliance.

It is important to understand that the term alteration, as defined by a Federal District Court of Appeals includes the resurfacing of a roadway. The Court stated that “if a street is to be altered to make it more usable by the general public, it must also be made more usable by those with ambulatory disabilities.” The decision goes on to state that, “If resurfacing affects the usability of a street for motor vehicles (or pedestrians at crosswalks), curb ramps must be included where pedestrian routes cross curbs or other barriers to use.” Therefore the answer to “when” do we include ADA compliance in a roadway project is basically any time we do anything to the roadway that would or could improve pedestrian access. Basic repair or maintenance activities such as repairing a pothole, restriping a roadway (in kind), repairing guard rail or even a spot sidewalk repair typically would not trigger ADA compliance. However, new construction, reconstruction and resurfacing the roadway will require full ADA compliance.

MAINTENANCE OF PEDESTRIAN ACCESS
It is incumbent on SHA, when developing contract documents for a project; to not only address maintenance of traffic for vehicles, but to address maintenance of pedestrian access as well. This includes ensuring that persons with disabilities are able to navigate the project site throughout all construction phases. Development of ADA compliant pedestrian access plans is strongly encouraged. Additional guidelines are being developed to clarify these requirements.

SCOPE
The scope and limits of ADA accessibility to be included in a project will typically be determined by the same scope and limits of the project and in most instances this is acceptable. The limits for ADA accessibility should not however, be set arbitrarily but based on connectivity and common sense. In some cases it may be incumbent on the project manager to take the initiative to maintain, modify or extend the limits or scope of a project in order to maintain existing accessibility, to provide the next level of pedestrian accessibility or to access logical termini. Examples of logical termini are; the end of a block, a bus stop, a school an existing stretch of sidewalk, a public-use facility, or a major commercial or residential area.

It is also important that the scope or limits of a project not result in a negative impact to existing accessibility. Negative impact is described in both Federal and State law as the permanent reduction, elimination or severing of existing accommodations. Negative impacts are unacceptable and will not be granted a waiver. They include both existing and future conditions.

For example:

• Based on pavement condition, one limit of a resurfacing project is set mid-block. Even though the pavement work stops short of the intersection, the installation/upgrades of the curb ramps should extend to the next intersection, within a reasonable distance (maximum 500 feet), and include every leg of the intersection.
• A turn lane is added at one quadrant of an intersection with existing sidewalks, requiring re-alignment of the sidewalk. The sidewalk should be upgraded to current ADA standards beyond the limits of the turn lane to the next logical termini, within a reasonable distance (maximum 500 feet). Curb cuts/curb ramps should be installed or upgraded to current standards at every leg of the intersection.
• One limit of a roadway reconstruction project is set just beyond an intersection. A school, public library or community center is located one more block up the road and the sidewalk between the school and the project limits does not meet ADA standards (or no sidewalk exists at all). Sidewalks should be installed/upgraded to current ADA standards to provide an accessible route from the project limits to the school.
• A signal pole was installed in the center of an existing 5 foot wide sidewalk resulting in the inability of a person in a wheelchair to pass the pole, thereby creating a barrier and violating ADA compliance. This is an unacceptable negative impact. An acceptable option would be to offset the signal pole to provide a 36 inch passable width for wheelchair users or provide additional sidewalk width in the area of the pole.
• A roadway is to be widened at an intersection to create a left turn lane. In order to not impact right of way, the project manager suggests reducing the existing five foot wide sidewalk to three feet for several hundred feet. This is an unacceptable negative impact. An acceptable solution would be to work with the appropriate District staff to reduce the lane widths and/or to secure a right of entry agreement or right-of-way from the adjacent property owner to shift the sidewalk outside of SHA right of way.

The Access Board has also provided guidance regarding scope by categorizing projects into levels, each with a progressively higher degree of obligation to integrate accessibility into a project and thereby increasing the scope of improvements. Their thought is that the obligation to provide access would be a function of the type of the work undertaken, the potential impact on usability to the pedestrian public and the opportunity to integrate accessibility features into the design.

The following categories were developed by the Access Board and adopted by the SHA. A project’s scope of work will determine the category ( Level 1, 2 or 3) it falls under rather than the funding source for the project. For example, a Fund 77 project for spot patching a roadway would be considered a Level 1 project; a Fund 77 project for roadway resurfacing that includes minor drainage or traffic barrier improvements would be considered a Level 2 project; and a Fund 77 project that included geometric improvements, new sidewalks, or roadway widening would be considered a Level 3 project.

Level 1
Level 1 is considered to be "repair in-kind or in-place." These projects include routine maintenance and repair work that generally does not impact, disturb or modify pedestrian usability. Resurfacing projects are not considered routine maintenance and do not fall under Level 1.

Examples of Level 1 activities include:

• Repair of drainage pipes or inlets that result in a small portion of sidewalk being removed and replaced. This type of work will require only that the sidewalk be repaired in kind and no additional installation/upgrade of sidewalk or curb ramps would be required. This would not be considered Level 1 if a significant length (=100 feet) of sidewalk is removed.
• Utility repairs or relocations that result in a small portion (
• Repair of damaged traffic barrier adjacent to sidewalk in an urban area would not require upgrade of the adjacent sidewalk or curb ramps.
• Repair of potholes, spot patching of roadway or crack sealing of roadway would not require any installation or upgrades to adjacent sidewalks or curb ramps.
• Installation of or modifications to existing traffic signals, roadway lighting, or cameras would not require any installation or upgrades to adjacent sidewalks or curb ramps, unless the modification creates a negative impact to the existing sidewalk, or there are existing pedestrian push buttons that are not accessible.
• Re-striping or modifications to the pavement markings on a roadway would not require installation or upgrade of existing sidewalk or curb ramps. This does not include projects where the entire roadway surface is being milled or ground to be replaced with a new surface for the purpose of re-striping the roadway. If the re-striping includes a crosswalk, and there are no existing ramps at the crossing, it shall be necessary to install ADA-compliant ramps with detectable warning surfaces.
• Spot patching or repair of existing sidewalk to correct buckling, cracking or other severely deteriorated conditions would not require installation of new or upgrade of existing sidewalk. However, as a rule of thumb, if more than 50% of a run of sidewalk is being repaired, the entire length should be upgraded to SHA’s standards for ADA compliance, curb ramps should be installed or upgraded, and detectable warning surfaces (DWS) should be provided at all street crossings and signalized entrances.
• Micro-surfacing (slurry seals) to correct surface friction or seal entire roadway to address cracking would not require upgrade of the curb ramps.
• Emergency repairs; such as, interim pavement patching, or thin overlays for severely distressed pavement due to a harsh winter, natural, or man-made disasters, or to address low surface friction pavement numbers would not require upgrade of the curb ramps.

For Level 1 activities, any negative impact to an existing pedestrian facility resulting in a condition below SHA’s standard for ADA compliance is not acceptable. A design waiver is required if SHA’s standards are not being met. The request must document that the standards are being complied with to the maximum extent feasible. For example:

• It would be permissible to reduce an existing 6 foot wide sidewalk to 5 feet. It would not be permissible to reduce an existing 5 foot wide sidewalk to 4 feet without an approved design waiver documenting the unfeasibility of maintaining the existing width. It would not be acceptable to reduce any existing feature below the current minimum acceptable ADA standards.

Level 2
Level 2 projects include alterations that affect pedestrian usability. That is, when an existing element is replaced, it must either meet new construction guidelines for full ADA compliance or a design waiver will be required for any element that does not meet full compliance. However, the work does not initiate any additional work in the surrounding vicinity. Resurfacing is considered a Level 2 activity.

Examples of Level 2 activities include:

• A resurfacing project, including maintenance resurfacing, will trigger the need to include new curb cuts and/or curb ramps where any pedestrian route crosses a curb; to upgrade existing curb ramps to SHA’s standards for ADA compliance; and to provide detectable warning surfaces (DWS) at all street crossings and signalized entrances within or adjacent to the limits of the project. The project would not initiate the need to make the existing sidewalks within the limits of the project ADA compliant. A design waiver is required for any curb ramp that does not meet SHA’s standards for ADA compliance.
• A resurfacing project that includes any additional elements that would be considered Level 1 repair in kind activities by themselves, will not be required to make additional upgrades for ADA compliance beyond new curb cuts and/or sidewalk ramps. A design waiver is required for any curb ramp that does not meet SHA’s standards for ADA compliance.
• A utility company decides to underground its electric lines, requiring the reconstruction of a substantial (= 100 feet) length of existing sidewalk. The newly constructed sidewalk will need to meet SHA’s standards for ADA compliance. The limits of the sidewalk to be replaced must be extended to meet logical termini, curb ramps must be installed or upgraded and detectable warning surfaces (DWS) must be provided at all street crossings and signalized entrances. The limits will be determined by the District Utility Engineer using sound engineering judgment, considering factors such as ownership of the sidewalk, degree of impact, complexity of the solution and overall project scope. A design waiver is required for any element that does not meet SHA’s standards for ADA compliance.
• Minor widening or geometric improvements are being made to an open section roadway in a rural area with no evidence of existing pedestrian activity (i.e. worn dirt paths, visual observation of people walking in roadway, adjacent bus stops, adjacent pedestrian destinations such as schools or shopping centers, etc.). The project would not initiate any requirements to install new sidewalks, if it is not within a designated growth area or a pedestrian count study does not support the need.
• A substantial section of sidewalk is to be reconstructed under an area-wide sidewalk contract. The entire section will be required to be replaced to SHA’s standard for ADA compliance. The sidewalk must extend to logical termini and detectable warning surfaces (DWS) must be installed at all street crossings and signalized entrances. As a rule of thumb, if more than 50% of a run of sidewalk is being replaced, the entire length should be upgraded to SHA’s standards for ADA compliance. A design waiver is required for any element that does not meet SHA’s standards for ADA compliance.

Access to existing bus stops including placement of bus pads may not be required on Level 2 projects, if alternative access is provided. Alternative access must be verified to exist through local and transit agencies; such as MTA’s Mobility and Paratransit program.

Level 3
Level 3 projects are typically major projects including new construction, reconstruction, retrofit projects, sidewalk retrofit projects, community enhancement projects, etc. Level 3 projects will be held to the highest standards regarding pedestrian usability and ADA compliance. A design waiver will be required for any element that does not meet SHA’s standards for ADA compliance. These projects would be expected to provide a complete pedestrian route between logical termini. These projects too, may initiate something more to be done than the initial scope of work unless work outside the original scope of the project could be deemed unfeasible or unreasonable.

Examples of Level 3 activities include:

• New construction or reconstruction of a closed section roadway would require adding new or upgrading sidewalks and curb ramps to SHA’s standards for ADA compliance and providing detectable warning surfaces (DWS) at all street crossings and signalized entrances. A design waiver is required for any element that does not meet SHA’s standards for ADA compliance.
• New construction or reconstruction of a bridge in an urban area or an area with evidence of existing pedestrian activity (i.e. worn dirt paths, visual observation of people walking in roadway, adjacent bus stops, adjacent pedestrian destinations such as schools or shopping centers, etc.) would require adding new or upgrading sidewalks and curb ramps to SHA’s standards for ADA compliance and providing detectable warning surfaces (DWS) at all street crossings and signalized entrances. A design waiver is required for any element that does not meet SHA’s standards for ADA compliance.
• A community enhancement project would be expected to include new or improve the existing sidewalk and curb ramps to SHA’s standards for ADA compliance within the project limits and extending the limits to logical termini. Detectable warning surfaces (DWS) must be provided at all street crossings and signalized entrances. If aerial utilities are to be moved to support the project, they must be either relocated entirely outside the new sidewalk or within the sidewalk, as a last resort, to ensure compliance to the maximum extent feasible. A design waiver is required for any element that does not meet SHA’s standards for ADA compliance.
• A park and ride lot or an expansion to an existing park and ride lot will be required to provide or upgrade sidewalks and curb ramps that meet SHA’s standards for ADA compliance to access adjacent sidewalks, bus stops or transit stations. Detectable warning surfaces (DWS) must be provided at all street crossings and signalized entrances. Suitable bus loading areas shall be included in the project. A design waiver is required for any element that does not meet SHA’s standards for ADA compliance.
• Minor widening or geometric improvements are being made at an intersection with curb, but no existing sidewalk. If there is any evidence of existing pedestrian activity (i.e. worn dirt paths, visual observation of people walking in roadway, adjacent bus stops, adjacent pedestrian destinations such as schools or shopping centers, etc.) new sidewalk meeting SHA’s ADA standards will need to be installed in the area of the widening and extend to a logical termini, and curb cuts/curb ramps must be installed or upgraded at every leg of the intersection. A design waiver is required for any element that does not meet this standard.
• A resurfacing project on a closed section roadway includes minor widening to add shoulders or provide accommodations for bicyclists. This project must include new or upgrade sidewalks and curb ramps to SHA’s standards for ADA compliance throughout the project limits and extending to logical termini. Detectable warning surfaces (DWS) must be provided at all street crossings and signalized entrances. A design waiver is required for any element that does not meet this standard.
• A resurfacing project includes the addition of new sidewalk within the project limits. All new sidewalk and curb ramps within the project limits must meet SHA’s standards for ADA compliance. Detectable warning surfaces (DWS) must be provided at all street crossings and signalized entrances. A design waiver is required for any element that does not meet this standard.
• A developer widens the roadway to provide an auxiliary lane. As a result, the existing sidewalks are impacted. The developer must replace the impacted sidewalk along their frontage, and may need to replace the remaining sections of sidewalk/curb ramps within the project limits to SHA’s standard for ADA compliance. The developer shall provide detectable warning surfaces (DWS) at all street crossings and signalized entrances. A design waiver is required for any element that does not meet this standard.
• A developer wants to modify their existing access onto SHA right-of-way. There currently is no sidewalk along the property frontage and there is evidence of existing pedestrian activity and/or existing sidewalk along the frontage of adjacent businesses. The developer will be required to install new sidewalk, curb ramps and detectable warning surfaces (DWS) at all street crossings and signalized entrances along the property frontage. The developer may be required to extend the improvements beyond the frontage to logical termini. A design waiver is required for any element that does not meet this standard.
• New construction or reconstruction of hiker/biker trails will be required to meet SHA’s standards for ADA compliance, which includes providing curb ramps wherever a trail crosses a curb. Detectable warning surfaces (DWS) shall be placed at all street crossings and signalized intersections. A design waiver is required for any element that does not meet this standard.

DESIGN WAIVERS FOR AMERICANS WITH DISABILITIES (ADA) ACCOMMODATIONS
It is SHA’s intent to provide full ADA compliance on all roadway projects. However, if it is determined that full ADA compliance cannot be provided on Level 2 and Level 3 projects, a design waiver must be requested and approved. A project can only proceed to advertisement or construction (construction includes maintenance activities) if the project provides full ADA compliance or has been granted a design waiver, for elements of the project as described below. No blanket design waivers will be granted on a project-wide or program-wide basis. If during construction, a project element cannot be constructed to meet ADA compliance, then a design waiver must be requested.

A design waiver will be considered for such things as impacts to right of way, utilities, structures (such as bridges and drainage structures), cost and environmentally or historically sensitive areas. Cost alone will not be a consideration for a design waiver. The need to provide safety or capacity improvements to the roadway may also be considered. A waiver should not be requested until all reasonable alternatives to provide full ADA compliance have been exhausted and documented. The significance of additional impact created by these alternatives over and above the basic project will be considered in the waiver decision. The documentation of these alternatives will be required to support the design waiver request.

Design waivers are not intended to exclude the implementation of ADA facilities as part of a project. Even with the design waiver, a project should still be designed as close as practical to full ADA compliance.