Advocacy

Lois Thibault
Coordinator of Research (Retired)
U.D. Access Board



Dona Sauerburger, COMS
Certified Orientation and Mobility Specialist



Gene Lozano
Founder and First Chair
ACB Environmental Access Committee

We present this chapter as a resource for obtaining guidance about solving problems and advocating for your safety as a pedestrian who is blind or visually impaired. For example, perhaps there are streets where you are unable to figure out when to initiate a street crossing or even where the edge of the sidewalk ends and the street begins. The first step toward finding a solution is to identify the specific problem you are having. Then, you can refer to the specific chapters in this handbook that can help you address the safety issues you must confront, and advocate for solutions if need be. For example, if the problem is that you can’t be sure when it is time to cross at an intersection with a traffic signal, read the "Modern Signalized Intersections" Chapter. If you’re having difficulty knowing how to align to cross a certain street, or where the edge of the street is, or how to cross a roundabout, read the "Finding the Crosswalk and Aligning to Cross" Chapter. If you think it is too dangerous to cross a street where there is no stop sign or traffic signal, read the Crossing Where There is No Traffic Control Chapter.

As you read the chapter that deals with your specific issue or problem, consider whether the issue can be resolved simply by gaining an understanding about the specific kind of intersection, or whether you need to advocate for a modification to make the intersection more accessible to you. For example, if the issue is that sometimes you don’t have enough time to cross at intersections with traffic signals, you may need to push a pedestrian pushbutton to ensure enough time to cross. If you cannot hear enough traffic sounds to know when it’s appropriate to cross, you may benefit from installing an Accessible Pedestrian Signal (APS)

Each chapter explains various kinds of traffic control and intersection design, and then explains modifications that can address some of the issues pedestrians who are blind or visually impaired encounter when they try to negotiate those features. Some of the modifications address intersection design, and some provide information in a format that is accessible to people who are blind or visually impaired. Modifications to the intersection design can address issues such as blended curbs, diagonal crossing issues, roundabout and separate turning lanes, high traffic volumes or speed, wide streets, and drivers' turning into the path of pedestrians. APS are an example of a modification that can provide you with access to the information that sighted pedestrians have about the environment.

Once you determine that you need a modification to the environment, how do you make that happen? First, you need to find out who has jurisdiction for that intersection, street, or sidewalk. Although there are often exceptions, state departments of transportation (DOTs) are usually responsible for streets which have a route number and all the intersections along those streets. Counties and cities are usually responsible for all the streets and intersections within their jurisdiction which are not the responsibility of the state DOT, and these responsibilities are administered in the department of public works or transportation. Within each jurisdiction, responsibility for the signals, curbs and sidewalks may fall within different departments--a phone call to any of these departments will usually provide you with information about who is responsible for what.

When you contact the appropriate transportation professional or official, be specific about what the problem is, and what modifications would address it. Again, this information may be found in specific chapters of this handbook.

When you contact the appropriate transportation professional, he or she may be unaware of the needs of pedestrians who are blind or visually impaired, and even about the modifications that may be required to make the intersection or sidewalk accessible to these individuals. Sometimes, requests for accessibility modifications are misunderstood and/or referred to inappropriate departments. You may need to be patient, and to be very clear when describing what you need.

Thetransportation professional should inform you that the Americans with Disability Act (ADA) states that a public entity is required to apprise the public of the protections against discrimination afforded to them by Title II of the ADA, including information about how Title II requirements apply to its particular programs, services and activities (28 C.F.R. Part 35 § 35.106). A public entity also is required to provide an opportunity for interested persons, including individuals with disabilities or organizations representing individuals with disabilities, to participate in the development of policies and procedures that affect the implementation of an ADA transition plan by submitting comments and making specific recommendations.

You must ask thetransportation professional to provide you with the department’s grievance/complaint procedures so you can formally request the modification that is needed in the public right-of-way.

Whether the request is made by phone or email, the request should also be in writing, and you should keep records and notes about all communication with the jurisdiction.

You can find a template for writing a letter requesting the installation of an APS at the end of this chapter.

It is always ideal but not necessary to obtain a letter of support from a certified orientation and mobility specialist (COMS) certified by the Academy for Certification of Vision Rehabilitation and Education Professionals (ACVREP) http://www.acvrep.org/ for the modification you are requesting.

The following are common responses to requests for modifications to provide accessibility:

1. “We don’t have the funds to provide that modification.”

• You can tell them that their jurisdiction is required to have ADA self-evaluation and transition plans outlining how they will make all their facilities accessible, and funds need to be set aside to achieve those plans. These plans can include a priority system that stipulates how those funds are to be allocated in response to requests like yours,

• Federal government money is available for signals – ask them how much of that money was allocated to make their intersections accessible.

You can file an ADA Title II and a Section 504 of the Rehabilitation Act of 1973 (RA) complaint with the U.S. Department of Justice (DOJ) http://www.ada.gov/t2cmpfrm.htm or a lawsuit to restore/provide accessibility, if they refuse to consider your request.

Your ADA and RA complaint or lawsuit will be strengthened if you have exhausted the grievance/complaint procedures of the jurisdiction that has the authority over signals, curbs and sidewalks in the area where you want a modification to be made.

2. Refusal to consider request.

• You can ask, i.e., "Tell me where to go where I can get a ‘yes’; who is responsible and can say ‘yes’?”

• explain about the law and standards for accessibility, and how it can be enforced;

• tell them that other people who are visually impaired have successfully sued other jurisdictions who refused to accommodate their accessibility needs.

3. "Before we can install an APS, we have to budget enough money to redesign and make the entire intersection accessible by installing curb ramps and other accommodations."

• A common misperception about ADA law is that if the TEs change even one little thing in an intersection, such as installing an APS, they must make the entire intersection accessible to all people with disabilities. The fact is that if TEs make any alterations to an intersection, they have to make only that alteration accessible.

The rule for them to understand is: If you put it in, make it accessible. If you add it, make it accessible. If you alter it, make it accessible. But you are not required to do any work elsewhere in the intersection as a consequence -- every project is limited by its scope of work. That means, if the project is to put in an APS, you just have to do what's necessary to put in these devices.

To substantiate your position, refer the transportation professional to 28 CFR Part 35 Section 35.151(b): “Alteration. Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992. “

So each PART that you alter must comply with the respective standard (or, if there isn't one, must be accessible to/usable by people who have disabilities). But there is no requirement to include other work.

There IS a requirement that says if you alter a SIDEWALK or a STREET, you must include curb ramps. However, Jones v. City of Houston, September 29, 2004, U.S. District Court for the Southern District of Texas Houston Division, Case 4:03-cv-02286 says that adding information to the pedestrian signal ISN'T an alteration to a sidewalk or street.

4. Other people who are blind or visually impaired oppose the requested modification.

• Those who philosophically oppose the use of APS need not use them…the rest of us want them, and will use them.

• This is a civil rights access and safety issue that must be addressed.

5. Neighbors will complain about the APS noise level.

• Tell them that modern APS, when correctly installed according to the Manual for Uniform Traffic Control Devices (MUTCD), are to be audible 6 to 12 feet from the pushbutton, or to the building line, whichever is less.

• APS are required to have automatic volume adjustment in response to ambient traffic sound level and that volume cannot exceed a maximum volume of 100 dBA.

• The volume of APS audible walk indications and pushbutton locator tones should be set to be a maximum of 5 dBA louder than ambient sound, except when audible beaconing is provided in response to an extended pushbutton press. Note: Beaconing is the use of an audible signal in such a way that pedestrians who are blind or visually impaired can home in on the signal from the opposite corner as they cross the street. This is intended to provide directional orientation.

Standards, Regulations, and Enforcement

Use Section 504 of the Rehabilitation Act of 1973 amended 29 USC Section 794 Public Law 105-220 http://www.gpo.gov/fdsys/pkg/USCODE-1998-title29/html/USCODE-1998-title2... and ADA Title II, 28 CFR Part 35 Nondiscrimination on the Basis of Disability in State and Local Government Services when making a request for an APS http://www.ada.gov/reg2.html and after March 14th, 2012 http://www.ada.gov/regs2010/titleII_2010/titleII_2010_withbold.htm

It is sometimes more powerful to refer to Section 504 than to the ADA (it requires the agency to make reasonable accommodation, whereas Title II talks about wheelchairs access but not APS). For more background information regarding Section 504 refer to The Rehabilitation Act of 1973, Section 504. U.S. Department of Health and Human Services Office for Civil Rights fact sheet http://www.hhs.gov/ocr/civilrights/resources/factsheets/504.pdf, the Federal Highway Administration Office of Civil Rights Americans with Disabilities Act (ADA)/Section 504 of the Rehabilitation Act of 1973 (504) http://www.fhwa.dot.gov/civilrights/programs/ada.htm and Questions and Answers about ADA/Section504 http://www.fhwa.dot.gov/civilrights/programs/ada_sect504qa.htm

Some Words of Advice

• Realize that when you advocate for accommodation, it's not going to happen overnight.

• The first person you talk with probably won't be the last -- you're in this for the long haul.

• Don’t be shy about requesting accommodation for accessibility -- if more people like you make requests, there will be more awareness, more accessible features will be installed at new intersections, and costs will drop.

• It may help you (and the TEs) to realize that accommodations for pedestrians who are blind or visually impaired are not like those provided for people with physical disabilities, they usually involve providing information in an alternative format that is accessible without vision.

• Ped-bike coordinators (each state and local DOT has one of these positions) tend to be bicycle advocates and have a different point of view from the rest of DOT staff.

• Each jurisdiction is required to have an ADA coordinator. The DOJ can explain what ADA coordinators do and where to find them (there is no central list of where they are).

• The Federal Highway Administration (FHWA) has FAQ's and papers that may help explain and advocate for your cause. TEs tend to listen to publications and interpretations from FHWA. These FAQ’s include:

o What is your policy on APS?

o What is your process for handling requests for accommodation?

o Regulations regarding installation of detectable warnings.

Resources and contacts:

-- Accessible design for the blind http://www.accessforblind.org/
-- US Access board http://www.access-board.gov/
-- Association for the Education and Rehabilitation for the Blind and Visually Impaired, Orientation and Mobility, Division 9, http://www.aerbvi.org/modules.php?name=News&file=article&sid=1479
--San Francisco APS Agreement-Law Office of Lainey Feingold http://lflegal.com/2007/05/sf-aps-agreement

Template for the writing an APS request letter

Appendix A will assist the reader in the writing of a letter requesting the installation of an Accessible Pedestrian Signal. The same template can be modified to request other reasonable modifications in the public right-of-way, e.g. detectable warnings, curb ramps, etc.

For your letter to be considered a formal request, it is essential that you provide your signature or what is legally recognized as your signature.

Case Studies:

It may help if you learn what others have done to advocate successfully. Four examples of advocacy success in the form of case studies are found in Appendix B.

Bibliography

Americans with Disabilities Act of 1990. Americans with Disabilities Page. http://www.ada.gov/

Americans with Disabilities Act of 1990. Title II 28 CFR Part 35 Nondiscrimination on the Basis of Disability in State and Local Government Services. July 26, 1991. http://www.ada.gov/reg2.html http://www.ada.gov/regs2010/titleII_2010/titleII_2010_withbold.htm

Questions and answers aboutADA/Section504 http://www.fhwa.dot.gov/civilrights/programs/ada_sect504qa.htm

Section 504 of the Rehabilitation Act of 1973 amended 29 USC Section 794 Public Law 105-220 http://www.gpo.gov/fdsys/pkg/USCODE-1998-title29/html/USCODE-1998-title2...

The Federal Highway Administration Office of Civil Rights Americans with Disabilities Act (ADA)/Section 504 of the Rehabilitation Act of 1973 (504) http://www.fhwa.dot.gov/civilrights/programs/ada.htm

The Rehabilitation Act of 1973, Section 504. U.S. Department of Health and Human Services Office for Civil Rights. http://www.hhs.gov/ocr/civilrights/resources/factsheets/504.pdf.