MAR 19 1997 The Honorable Jane Harman Member, U. S.

House of Representatives 1217 El Prado Avenue Torrance, California 90501 Dear Congresswoman Harman: I am responding to your letter on behalf of your constituent, David Raizman, asking for clarification of the requirements of the Americans with Disabilities Act of 1990 (ADA) with respect to the installation of accessible freeway call boxes. Mr. Raizman has asked you to determine if the ADA requires a public entity to modify or replace inaccessible call boxes in the absence of a specific Federal design standard for this type of equipment. Title II of the ADA prohibits discrimination on the basis of disability in the programs, activities, and services of public entities, including public agencies responsible for freeway design, maintenance, and operations. Therefore, programs and services offered to motorists must be accessible to motorists who have disabilities. This program access obligation applies regardless of whether a specific Federal design standard has been issued for unique elements such as emergency call boxes. In the absence of specific Federal requirements applicable to the design of emergency call boxes, a public entity may rely on the general accessible design criteria contained in the ADA Standards for Accessible Design (28 CFR pt. 36, Appendix A) and the Uniform Federal Accessibility Standards (41 CFR SS 101-19.600 to 101-19.607). Both of these standards provide guidance to public entities concerning design considerations for accessible routes, clear space, reach ranges, and operating mechanisms. In addition, the existing Federal standards and the enclosed Department of Justice regulations (28 CFR pts. 35 and 36) offer guidance about factors to consider in developing accessible emergency communication devices that will provide effective communication for people who have vision, speech, or hearing impairments. cc: Records, Chrono, Wodatch, McDowney, Blizard, FOIA n:\udd\blizard\drsltrs\harman\sc. young-parran

-2The ADA expressly provides that covered entities must comply with State or local laws or regulations that provide greater or equal access for individuals with disabilities. Therefore, if the State of California has established specific design standards for accessible call boxes, those standards should be followed unless or until they are superseded by more stringent Federal standards. Public entities should note that any Federal standards for the new construction or alteration of freeway call boxes will be prospective in application. They will not require the replacement of accessible equipment installed prior to the effective date of the standards. Existing equipment is required to be replaced only when the existing equipment fails to provide effective access to the public entity's program. I hope that this information is helpful to you in responding to your constituent. Sincerely, Isabelle Katz Pinzler Acting Assistant Attorney General Civil Rights Division Enclosures WLCDR The Western Law Center For Disability Rights 919 South Albany Street, Los Angeles, CA 90015, Phone & TDD (213) 736-1031 Fax (213) 736-1428 November 22, 1996 The Honorable Jane Harman Member, U.S. House of Representatives Torrance District Office 1217 El Prado Torrance, California 90501 Re: Inquiry to Department of Justice Dear Congresswoman Harman:

The Western Law Center for Disability Rights is a non-profit organization that provides legal and mediation services to persons with disabilities throughout California, including thousands in your district. Many of those we serve are concerned about Los Angeles County's 4,300 emergency freeway call boxes, all of which are inaccessible to persons with hearing and speech impairments and many of which are inaccessible to wheelchair users. As you know, the "public entity" provisions of the Americans with Disabilities Act ("ADA" -- 42 U.S.C. S 12133) and earlier federal (i.e., the Rehabilitation Act -- 29 U.S.C. S 794) and state civil rights laws (i.e., California Civil Code Section 54) guarantee persons with disabilities free and equal access to precisely these kinds of benefits and services of state and local governments. Nevertheless, the responsible State and County agencies have taken the position that they need not comply with these statutory mandates and the implementing regulations because of a specific, pending "guideline" proposed as an Interim Final Rule in June 1994 by the Architectural and Transportation Barriers Compliance Board (the "Access Board"). See 36 C.F.R. pt. 1191, App. A, S 14.2.6(4). Specifically, they say any dispute involving the pending call box guideline is "unripe" for adjudication because there can be no current obligation on their parts to do anything. Meanwhile, disabled motorists in Los Angeles County and across the State and nation continue to ride our freeways without the benefit of access to the emergency aid made available at the call boxes. The Honorable Jane Harman November 22, 1996 Those persons we serve would like to have a better understanding of whether the continued pendency of this guideline (we have learned from the Access Board that they no longer are pressing for its finalization) in fact abridges the free and equal access rights guaranteed under the ADA, Rehabilitation Act and California Civil Code Section 54. Specifically, they have the following questions of the appropriate interpretation of these laws: (1) What effect, if any, does the pendency of a specific

Access Board guideline have on obligations incurred or rights provided under: (a) 42 U.S.C. S 12133? (b) 28 C.F.R. pt. 35 (see, e.g., 28 C.F.R. SS 35.130(b) (1) (iii), 35.130(b) (4), 35.151, 35.161, 35.162)? (c) more general, but active and applicable accessibility guidelines under the ADA Accessibility Guidelines (36 C.F.R. pt. 1191, App. A) (see, e.g., 36 C.F.R. pt. 1191, App. A, SS 4.2, 4.2.1, 4.2.3, 4.2.5, 4.2.6, 4.3, 4.5, 4.6, 4.10.14, 4.27, 4.28, 4.31)? (d) more general, but active and applicable accessibility guideliness under the Uniform Accessibility Standards (41 C.F.R. pt. 101-19, subpt. 101-19.6, App. A) (see, e.g., 41 C.F.R. pt. 101-19, subpt. 101-19.6, App. A, SS 4.2, 4.2.1, 4.2.3, 4.2.5, 4.2.6, 4.3, 4.5, 4.6, 4.10.14, 4.27, 4.28, 4.31)? (e) preceding and broader mandates under California law (see, e.g., Cal. Civ. Code S 54)? (2) Does the answer to any question posed in Number (1) above change if it is shown that the pending guideline in the form of an Interim Final Rule has been withdrawn from consideration by the Access Board?

The Honorable Jane Harman November 22, 1996 (3) Assume for purposes of this question that the appropriate State and County agencies agreed to commence remediation of the call box system before the pending guideline was finalized, further assume that the guideline was finalized during the remediation process and further assume that the finalized guideline required additional or different standards than those undertaken by the governmental entities: could these governmental entities be made to comply with the new, finalized guideline on a retroactive basis either with respect to:

(a) those call boxes that they have already remediated? (b) those call boxes that they have yet to remediate, but have concrete plans and budgets to undertake that remediation? (4) Is there any obligation under 42 U.S.C. S 12204 for the Access Board to propose a design standard for any particular facility or device, such as a freeway call box? The answers to these questions would prove quite valuable to those we serve in assessing whether they must continue to wait for the Access Board to act or whether they have an immediate ability to enforce their rights dating back to 1968 and Section 54 of the California Civil Code. Thank you for considering this request. We would be glad to answer any questions posed by you or your staff, including any requests for further elaboration. Very truly yours, David H. Raizman Executive Director h:\raizwork\callbox\jharman