36 CFR Parts 1190 and 1191 ADA and ABA Accessibility Guidelines - Preamble (Discussion of Comments and Changes)

Comment. Several commenters expressed concern about these requirements and their relationship to those issued by the Department of Housing and Urban Development under the Fair Housing Act.²⁶ These commenters urged the Board and the Department of Justice to clarify which types of housing facilities are subject to the ADA and to make the requirements consistent with the Fair Housing Accessibility Guidelines.²⁷ Other commenters recommended that the Board reconcile differences with the standards for residential facilities contained in the ANSI A117.1 standard.

Response. This rule updates guidelines used to enforce the design requirements of the ADA and the ABA. While the ADA does not generally cover private residential facilities, its coverage is interpreted as extending to housing owned and operated by State and local governments. Under the ADA, the Department of Justice determines the application of the guidelines to residential facilities. In addition, the ABA, which applies to federally funded facilities, may apply to public housing and other types of residential facilities that are designed, built, or altered with Federal funds. Section 809 serves to update the requirements for dwelling units contained in the current ABA requirements, the Uniform Federal Accessibility Standards (UFAS), while providing new criteria in the ADA guidelines. Both the ADA and ABA establish design requirements for new construction and alterations that ensure full access for persons with disabilities. This mandate is considerably different than that established by the Fair Housing Act, which applies to covered multi-family housing in the private and public sectors. Consequently, the level of access specified by the ADA and ABA guidelines differs from that specified by the Fair Housing Accessibility Guidelines. The requirements proposed by the Board derive from guidelines for residential facilities contained in the ANSI A117.1‒1998 standard. However, in both the proposed and final rule, the Board has found it necessary to deviate from the ANSI A117.1 in limited areas. The Board intends to continue to work with the ANSI A117 Committee to reconcile differences between both documents in this and other areas.

The proposed rule, consistent with the ANSI A117.1‒1998 standard, required all toilet and bathing facilities to comply in accessible dwelling units. The new ANSI standard requires that at least one toilet and bathing facility be accessible. The ANSI Committee adopted this change due to concerns about the impact of full scoping in light of revisions to its technical requirements for toilet and bathrooms. The technical revisions it approved are consistent with those finalized by the Board in this rule making. The Board also had concerns about the application of the proposed requirement to certain types of housing, such as group homes. In the final rule, the Board has revised the provision (809.4) to require access to at least one toilet and bathing facility, consistent with the ANSI A117.1‒2003 standard.

Other comments concerning provisions for residential dwelling units that have been relocated to other sections are discussed at the new location.