28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities NPRM: Preamble (2008 Title III NPRM Preamble)

Section 36.406(d) Social Service Establishments (Section-by-Section Analysis)

The Department is proposing a new § 36.406(d) that provides that group homes, halfway houses, shelters, or similar social service establishments that provide temporary sleeping accommodations or residential dwelling units shall comply with the provisions of the proposed standards applicable to residential facilities, including, but not limited to, the provisions in sections 233 and 809 of the 2004 ADAAG.

The reasons for this proposal are based on two important changes in the 2004 ADAAG.  For the first time, residential dwellings are explicitly covered in section 233 of the 2004 ADAAG. Second, the language addressing scoping and technical requirements for homeless shelters, group homes, and similar social service establishments is eliminated.  Currently, such establishments are covered in the transient lodging section (section 9.5) of the 1991 Standards.  The deletion of section 9.5 creates ambiguity of coverage that must be addressed.

The Department proposed in the ANPRM that the establishments currently covered by section 9.5 be covered as residential dwelling units, which are covered in section 233 of the 2004 ADAAG, rather than as transient lodging guest rooms in section 224 of the 2004 ADAAG.  The Department considers this is a prudent action based on its effect on social service providers.  Transferring coverage of social service establishments from transient lodging to residential dwellings will alleviate conflicting requirements for social service providers.  The Department believes that a substantial percentage of social service providers are recipients of federal financial assistance from HUD.  The Department of Health and Human Services (HHS) also provides financial assistance for the operation of shelters through the Administration for Children and Families programs.  As such, they are covered both by the ADA (including section 9.5 of the 1991 Standards) and section 504.  The two design standards for accessibility (i.e., the 1991 Standards and UFAS) have confronted many social service providers with separate, sometimes conflicting requirements for the design and construction of facilities.  To resolve the conflicts, the residential dwelling standards in the 2004 ADAAG have been coordinated with the section 504 requirements.  The transient lodging standards, however, are not similarly coordinated.  The deletion of section 9.5 of the 1991 Standards from the proposed standards presents two options:  (1) Require coverage under the transient lodging standards, and subject such facilities to separate, conflicting requirements for design and construction; or (2) require coverage under the residential dwelling section, which harmonizes the regulatory requirements under the ADA and section 504. The Department chose the option that harmonizes the regulatory requirements.

In response to its request for public comments on this issue, the Department received a total of eleven responses from industry and disability rights groups and advocates. Some commenters representing disability rights groups expressed concern that the residential dwelling requirements in the 2004 ADAAG are less stringent than the revised transient lodging requirements and would result in diminished access for people with disabilities.

The commenters are correct that in some circumstances, the residential requirements are less stringent, particularly with respect to accessibility for people with communication-related disabilities.  Other differences are that the residential guidelines do not require elevator access to upper floors if the required accessible features can be provided on a single, accessible level, and the residential guidelines do not expressly require roll-in showers.  Despite this, the Department still believes that applying the residential dwelling unit requirements to homeless shelters and similar social service establishments is appropriate to the nature of the services being offered at those facilities, and because it will harmonize the ADA and section 504 requirements applicable to those facilities.  In addition, the Department believes that the proposal is consistent with its obligations under the Regulatory Flexibility Act to provide some regulatory relief to small entities that operate on limited budgets.

Nevertheless, the Department is requesting information from providers who operate homeless shelters, transient group homes, halfway houses, and other social service establishments, and from the clients of these facilities who would be affected by this proposed change.

Question 56:  To what extent have conflicts between the ADA and section 504 affected these facilities?  What would be the effect of applying the residential dwelling unit requirements to these facilities, rather than the requirements for transient lodging guest rooms?

Another commenter expressed concern about how the Department would address dormitory-style settings in homeless shelters, transient group homes, halfway houses, and other social service establishments if they are scoped as residential dwelling units.  The commenter noted that the transient lodging requirements include a specific provision, § 224.3, that in guest rooms with more than twenty-five beds, at least five percent (5%) of the beds must have parallel clear floor space enabling a person using a wheelchair to access and transfer to the bed. The residential dwelling unit section does not explicitly include a similar provision.

In response to this concern, the Department has added § 36.406(d)(1), which states that in settings in which the sleeping areas include more than twenty-five beds, and in which the residential dwelling unit requirements apply, five percent (5%) of the beds must comply with section 806.2.3 of the 2004 ADAAG (i.e., at least five percent (5%) must have parallel clear floor space on both sides of the bed enabling a person using a wheelchair to access and transfer to the bed).

Definitions of residential facilities and transient lodging. (Section-by-Section Analysis)

The 2004 ADAAG adds a definition of "residential dwelling unit" and modifies the current definition of "transient lodging" in the 1991 Standards.  Under section 106.5 of the 2004 ADAAG, a "residential dwelling unit" is defined as "a unit intended to be used as a residence, that is primarily long-term in nature" and does not include transient lodging, inpatient medical care, licensed long-term care, and detention or correctional facilities.  Additionally, section 106.5 of the 2004 ADAAG, changes the definition of "transient lodging" to a building or facility "containing one or more guest room[s] for sleeping that provides accommodations that are primarily short-term in nature" and does not include residential dwelling units intended to be used as a residence.  The references to "dwelling units" and "dormitories" in the 1991 Standards definition are omitted in the 2004 ADAAG definition of transient lodging.

The Department said in the ANPRM that by applying the 2004 ADAAG residential facility guidelines to transient group homes, homeless shelters, halfway houses, and other social service establishments, these facilities would be more appropriately classified according to the nature of the services they provide, rather than the duration of those services.  Participants in these programs may be housed on either a short-term or long-term basis in such facilities, and variation occurs even within the same programs and same facility.  Therefore, duration can be an inconsistent way of classifying facilities.

Several commenters stated that the definitions of residential dwellings and transient lodging are not clear and will confuse social service providers.  They noted that including "primarily long-term" and "primarily short-term" in the respective definitions creates confusion when applied to the listed facilities because they serve people for widely varying lengths of time.

The Department is aware of the wide range of services and duration of services provided by social service establishments.  Therefore, rather than focus on the length of a person's stay at a facility, it makes more sense to look at a facility according to the type of services provided.  For that reason, rather than saying that social service establishments are residential facilities, the Department has drafted the proposed § 36.406(d) to provide that group homes and other listed facilities shall comply with the provisions in the 2004 ADAAG that would apply to residential facilities. 

Finally, the Department received comments from code developers and architects commending the decision to coordinate the 2004 ADAAG with the requirements of section 504, and asking it to coordinate the 2004 ADAAG with the Fair Housing Act's accessibility requirements.  The Department believes that the coordination of the Fair Housing Act with other applicable disability rights statutes is within the jurisdiction of HUD, which is the agency charged with the responsibility to develop regulations to implement the Fair Housing Act, the Architectural Barriers Act, and the provisions of section 504 applicable to federally funded housing programs.