36 CFR Parts 1190 and 1191 ADA and ABA Accessibility Guidelines - Preamble (Discussion of Comments and Changes)
233 Residential Facilities
Requirements for residential facilities address access for persons with disabilities, including persons with mobility impairments and those who are deaf or hard of hearing. This section specifies the minimum number of residential dwelling units required to be accessible. The term "residential dwelling units" pertains to facilities used as a residence. A revised definition for the term used in the final rule, "residential dwelling units," is provided in section 106.5. These facilities have been redefined to further distinguish them from other types of facilities, such as transient lodging, that provide living accommodations on a short-term basis. This section has been significantly revised in the final rule for consistency with other Federal regulations that address access to residential facilities, particularly those issued by the U.S. Department of Housing and Urban Development (HUD).
The ADA’s coverage of residential facilities extends primarily to entities subject to title II such as public housing and other types of housing constructed or altered by, on behalf of, or for the use of State or local governments. Title III of the ADA does not generally apply to private housing, including apartments and condominiums, except for spaces within that serve as places of public accommodations, such as sales and rental offices. HUD administers a variety of programs that fund or subsidize housing. Many of these programs are subject to section 504 of the Rehabilitation Act of 1973 20 which requires that those receiving Federal financial assistance be accessible to persons with disabilities. HUD’s section 504 regulations 21 apply access requirements to residential facilities and include specific provisions for the minimum number of dwelling units required to be accessible. Specifically, they require at least 5% of dwelling units in multi-family projects of 5 or more dwelling units to be accessible and at least 2% to be equipped with communication features accessible to persons with hearing impairments. While these requirements are consistent with those in the proposed guidelines, the HUD regulations further specify how this scoping is to be applied to housing "projects," a term specifically defined in the HUD regulations. To avoid any potential conflicts in this area, the Board has referenced HUD’s section 504 regulations for purposes of scoping (233.2). Thus, entities subject to HUD’s section 504 regulations are required to apply the technical requirements for new construction and alterations of this rule to the number of units required to be accessible under HUD’s regulations.
Scoping provisions for facilities not subject to HUD’s section 504 regulations are addressed in a separate section (233.3). Requirements for these residential facilities address new construction, dwelling units for sale, additions, alterations, and dispersion. Substantive revisions made in the final rule concern:
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residential facilities with a limited number of dwelling units (233.3.1, Exception)
In addition, references to technical requirements have been editorially revised consistent with the integration of a separate chapter on residential facilities (11) into other chapters of the guidelines.
New construction scoping for facilities not subject to HUD’s section 504 regulations is substantively consistent with the level specified in the proposed rule (233.3.1). At least 5% of the total number of residential dwelling units must be accessible to persons with mobility impairments and at least 2% must be equipped with communication features accessible to persons who are deaf or hard of hearing.
For newly constructed residential facilities with less than 5 units, the proposed rule provided an exception that allowed the minimum number to be applied to the total number of dwelling units constructed under a single contract, or developed as whole, whether or not located on a common site. In the final rule, this exception has been revised to apply to facilities with 15 or fewer units, a level which derives from UFAS, which the Board considered more appropriate (233.3.1, Exception).
The Board had considered adding a provision stipulating that units providing mobility access and those providing communication access are to be satisfied independently (i.e., both types of access cannot be provided in the same unit to satisfy the minimum number of each type required to be accessible). The Board did not include such a requirement in the final rule for consistency with requirements in the International Building Code (IBC). The IBC specifies that multi-family dwelling units required to have fire alarm systems also have the capability to support visible alarms. This requirement facilitates installation of visual alarms as needed, including in units providing access for persons with mobility impairments. To avoid any conflict with the IBC requirement, the Board has removed its provision prohibiting the location of required accessible communication features in dwelling units that are accessible to persons with mobility impairments.
The final rule includes a provision that specifically covers residential units that are constructed for purchase (233.3.2). This provision does not apply the scoping percentages otherwise required in new construction, but instead references regulations issued under the ADA or section 504 of the Rehabilitation Act. DOJ’s title II ADA regulation and section 504 regulations contain provisions that ensure access to programs and activities. These regulations require that each program or activity conducted by a covered entity or a program or activity receiving Federal financial assistance be readily accessible to and usable by individuals with disabilities when viewed in its entirety. A public entity that conducts a program to build housing for purchase by individual home buyers must provide access according to the requirements of the ADA regulations and, where Federal financial assistance is provided, the applicable section 504 regulation. The Board determined that access to dwelling units for purchase is better addressed by the program access obligation of these regulations instead of by the across-the-board scoping percentages of this rule.
Scoping for additions applies the minimum number according to the number of units added (233.3.3). No substantive changes have been made to this requirement in the final rule.
Scoping provisions for alterations have been revised in the final rule (233.3.4). The Board determined that applying requirements to dwelling units in alterations should be further tailored to conditions specific to residential facilities. As a result, the final rule focuses on alterations where the planned scope of work is extensive enough to achieve fully accessible units that are on accessible routes. Provisions are included that specifically address residential facilities vacated as part of an alteration and those that are substantially altered. Consistent with these provisions, the Board has included exceptions to the general scoping provisions for alterations, as discussed above (sections 202.3 and 202.4).
Where a building is vacated for purposes of alteration and has more than 15 dwelling units, at least 5 percent of the altered dwelling units are required to be accessible to persons with mobility impairments and to be located on an accessible route (233.3.4.1). In addition, at least 2 percent of the dwelling units are to be equipped with accessible communication features. Facilities vacated for purposes other than alteration, such as asbestos removal or pest control, are not subject to this requirement.
Where individual dwelling units are altered and, as a result, a bathroom or a kitchen is substantially altered and at least one other room is also altered, the dwelling unit is required to comply with the scoping requirements for new construction until the total number of accessible units is met (233.3.4.2). A substantial alteration to a kitchen or bathroom includes, but is not limited to, changes to or rearrangements in the plan configuration, or replacement of cabinetry. Substantial alterations do not include normal maintenance or appliance and fixture replacement, unless such maintenance or replacement requires changes to or rearrangements in the plan configuration, or replacement of cabinetry. As with new construction, the final rule permits facilities that contain 15 or fewer dwelling units to apply the scoping requirements to all the dwelling units that are altered under a single contract, or are developed as whole, whether or not located on a common site.
An exception to these alteration scoping requirements is provided in the final rule where full compliance is technically infeasible (233.3.4, Exception). Technical infeasibility, as defined in the rule, pertains to existing structural conditions or site constraints that effectively prohibit compliance in an alteration. Under this exception, where it is technically infeasible to provide a fully accessible unit or an accessible route to such a unit, then a comparable unit at a different location under an entity’s purview can be used as a substitute provided that it fully complies with the access requirements. A substituted dwelling unit must be comparable to the dwelling unit that is not made accessible. Factors to be considered in comparing one dwelling unit to another should include the number of bedrooms; amenities provided within the dwelling unit; types of common spaces provided within the facility; and location with respect to community resources and services, such as public transportation and civic, recreational, and mercantile facilities.
Dispersion of accessible units is required among the various types of units provided so that people with disabilities have choices of dwelling units comparable to and integrated with those available to other residents (233.3.5). Single-story units can substitute for multi-story units provided they have equivalent amenities and spaces. These provisions have not been substantively revised in the final rule.
20 29 U.S.C. § 794
21 24 CFR § 8.22 (b)
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