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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Assistant Secretary for Fair Housing and Equal Opportunity
24 CFR Part 100
Fair Housing Accessibility Guidelines
AGENCY: Office of the Assistant Secretary for Fair
Housing and Equal Opportunity, HUD.
ACTION: Notice of Adoption of Fair Housing Accessibility
Guidelines -- Final Guidelines.
SUMMARY: This document presents guidelines adopted by the Department of Housing
and Urban Development to provide builders and developers with technical guidance on how to
comply with the specific accessibility requirements of the Fair Housing Amendments Act of
1988. Issuance of this document follows consideration of public comment received on
proposed accessibility guidelines published in the Federal Register on June
15, 1990. The guidelines presented in this document are intended to provide technical
guidance only, and are not mandatory. The guidelines will be codified in the 1991 edition
of the Code of Federal Regulations as Appendix II to the Fair Housing regulations (24 CFR
Ch. I, Subch. A, App. II). The preamble to the guidelines will be codified in the 1991
edition of the Code of Federal Regulations as Appendix III to the Fair Housing regulations
(24 CFR Ch. I, Subch. A, App. III).
EFFECTIVE DATE: [Insert date of publication.]
FOR FURTHER INFORMATION CONTACT: Merle Morrow, Office of HUD Program Compliance,
Room 5204, Department of Housing and Urban Development, 451 Seventh Street, S.W.,
Washington, D.C. 20410-0500, telephone (202) 708-2618 (voice) or (202) 708-0015 (TDD).
(These are not toll-free numbers.)
I. Adoption of Final Guidelines
The Department of Housing and Urban Development (Department) is adopting as its Fair
Housing Accessibility Guidelines, the design and construction guidelines set forth in this
notice (Guidelines). Issuance of this document follows consideration of public comments
received in response to an advance notice of intention to develop and publish Fair Housing
Accessibility Guidelines, published in the Federal Register on August 2,
1989 (54 FR 31856), and in response to proposed accessibility guidelines published in the Federal
Register on June 15, 1990 (55 FR 24730).
The Department is adopting as final Guidelines, the guidelines designated as Option One
in the proposed guidelines published on June 15, 1990, with modifications to certain of
the Option One design specifications. In developing the final Guidelines, the Department
was cognizant of the need to provide technical guidance that appropriately implements the
specific accessibility requirements of the Fair Housing Amendments Act of 1988, while
avoiding design specifications that would impose an unreasonable burden on builders, and
significantly increase the cost of new multifamily construction. The Department believes
that the final Guidelines adopted by this notice
(1) are consistent with the level of accessibility envisioned by Congress;
(2) simplify compliance with the Fair Housing Amendments Act by providing guidance
concerning what constitutes acceptable compliance with the Act; and (3) maintain the
affordability of new multifamily construction by specifying reasonable design and
The Option One design specifications substantially revised in the final Guidelines
include the following:
(1) Site impracticality. The final Guidelines provide that covered multifamily
dwellings with elevators shall be designed and constructed to provide at least one
accessible entrance on an accessible route regardless of terrain or unusual
characteristics of the site. Every dwelling unit on a floor served by an elevator must be
on an accessible route, and must be made accessible in accordance with the Act's
requirements for covered dwelling units.
For covered multifamily dwellings without elevators, the final Guidelines
provide two alternative tests for determining site impracticality due to terrain. The
first test is an individual building test which involves a two-step process: measurement
of the slope of the undisturbed site between the planned entrance and all vehicular or
pedestrian arrival points; and measurement of the slope of the planned finished grade
between the entrance and all vehicular or pedestrian arrival points. The second test is a
site analysis test which involves an analysis of the existing natural terrain (before
grading) by topographic survey with 2 foot contour intervals, with slope determination
made between each successive contour interval.
A site with a single building (without an elevator), having a common entrance for all
units, may be analyzed only under the first test -- the individual building test. All
other sites, including a site with a single building having multiple entrances serving
either individual dwelling units or clusters of dwelling units, may be analyzed either
under the first test or the second test. For sites for which either test is applicable
(that is, all sites other than a site with a single nonelevator building having a common
entrance for all units), the final Guidelines provide that regardless of which test is
utilized by a builder or developer, at least 20% of the total ground floor units in
nonelevator buildings, on any site, must comply with the Act's accessibility requirements.
(2) An accessible route into and through covered dwelling units.
The final Guidelines distinguish between (i) single-story dwelling units, and (ii)
multistory dwelling units in elevator buildings, and provide guidance on designing an
accessible entrance into and through each of these two types of dwelling units.
(a) Single-story dwelling units. For single-story dwelling units, the final Guidelines
specify the same design specifications as presented in the proposed Option One guidelines,
except that design features within the single-story dwelling unit, such as a loft or a
sunken living room, are exempt from the access specifications, subject to certain
requirements. Lofts are exempt provided that all other space within the unit is on an
accessible route. Sunken or raised functional areas, such as a sunken living room, are
also exempt from access specifications, provided that such areas do not interrupt the
accessible route through the remainder of the unit. However, split-level entries or areas
will need ramps or other means of providing an accessible route.
(b) Multistory dwelling units in buildings with elevators. For multistory dwelling
units in buildings with elevators, the final Guidelines specify that only the story served
by the building elevator must comply with the accessible features for dwelling units
required by the Fair Housing Act. The other stories of the multistory dwelling unit are
exempt from access specifications, provided that the story of the unit that is
served by the building elevator (1) is the primary entry to the unit; (2) complies with
Requirements 2 through 7 with respect to the rooms located on the entry/accessible level;
and (3) contains a bathroom or powder room which complies with Requirement 7.
(c) Thresholds at patio, deck or balcony doors. The final Guidelines provide that
exterior deck, patio, or balcony surfaces should be no more than 1/2 inch below the floor
level of the interior of the dwelling unit, unless they are constructed of impervious
materials such as concrete, brick or
flagstone, in which case the surface should be no more than 4 inches below the floor
level of the interior dwelling unit, unless the local building code requires a lower drop.
This provision and the following provision were included in order to minimize the
possibility of interior water damage when exterior surfaces are constructed of impervious
(d) Outside surface at entry door. The final Guidelines also provide that at the
primary entry door to a dwelling units with direct exterior access, outside landing
surfaces constructed of impervious materials such as concrete, brick, or flagstone should
be no more than 1/2 inch below the interior of the dwelling unit. The Guidelines further
provide that the finished surface of this area, located immediately outside the entry
door, may be sloped for drainage, but the sloping may be no more than 1/8 inch per foot.
(3) Usable bathrooms. The final Guidelines provide two alternative sets of
specifications for making bathrooms accessible in accordance with the Act's requirements.
The Act requires that an accessible or "usable" bathroom is one which provides
sufficient space for an individual in a wheelchair to maneuver about. The two sets of
specifications provide different approaches as to how compliance with this maneuvering
space requirement may be achieved. The final Guidelines for usable bathrooms also provide
that the usable bathroom specifications (either set of specifications) are applicable to
powder rooms (i.e., a room with only a toilet and a sink) when the powder room is the only
toilet facility on the accessible level of a covered multistory dwelling unit.
The details about, and the reasons for these modifications, and additional minor
technical modifications made to certain design specifications of the Option One
guidelines, are discussed more fully in the section-by-section analysis which appears
later in this preamble.
Principal features of the Option One guidelines that were not changed in the final
Guidelines include the following:
(1) Accessible entrance and an accessible route. The Option One guidelines for these
two requirements remain unchanged in the final Guidelines.
(2) Accessible and usable public and common use areas. The Option One guidelines for
public and common use areas remain unchanged in the final Guidelines.
(3) Doors within individual dwelling units. The final Guidelines recommend that doors
intended for user passage within individual dwelling units have a clear opening of at
least 32 inches nominal width when the door is open 90 degrees.
(4) Doors to public and common use areas. The final Guidelines continued to provide
that on accessible routes in public and common use areas, and for primary entry doors to
covered units, doors that comply with ANSI 4.13 meet the Act's requirement for
(4) Thresholds at exterior doors. Subject to the exceptions for thresholds and changes
in level at exterior areas constructed of impervious materials, the final Guidelines
continue to specify that thresholds at exterior doors, including sliding door tracks, be
no higher than 3/4 inch.
(5) Reinforced walls for grab bars. The final Guidelines for bathroom wall
reinforcement remains essentially unchanged from the Option One guidelines. The only
change made to these guidelines has been to subject powder rooms to the reinforced wall
requirement when the powder room is the only toilet facility on the accessible floor of a
covered multistory dwelling unit.
The text of the final Guidelines follows the preamble, which includes a discussion of
the public comments received on the proposed guidelines, and the section-by-section
analysis referenced above.
The design specifications presented in the Fair Housing Accessibility Guidelines
provide technical guidance to builders and developers in complying with the specific
accessibility requirements of the Fair Housing Amendments Act of 1988. The Guidelines are
intended to provide a safe harbor for compliance with the accessibility requirements of
the Fair Housing Amendments Act, as implemented by 24 CFR 100.205 of the Department's Fair
Housing regulations. THE GUIDELINES ARE NOT MANDATORY. Additionally, the Guidelines
DO NOT prescribe specific requirements which must be met, and which, if not met,
would constitute unlawful discrimination under the Fair Housing Amendments Act. Builders
and developers may choose to depart from the Guidelines, and seek alternate ways to
demonstrate that they have met the requirements of the Fair Housing Act.
II. Statutory and Regulatory Background
Title VIII of the Civil Rights Act of 1968 makes it unlawful to discriminate in any
aspect relating to the sale, rental or financing of dwellings, or in the provision of
brokerage services or facilities in connection with the sale or rental of a dwelling,
because of race, color, religion, sex or national origin. The Fair Housing Amendments Act
of 1988 (Pub.L. 100-430, approved September 13, 1988) (Fair Housing Act or the Act)
expanded coverage of Title VIII (42 U.S.C. 3601-3620) to prohibit discriminatory housing
practices based on handicap and familial status. As amended, Section 804(f)(3)(C) of the
Act provides that unlawful discrimination includes a failure to design and construct
covered multifamily dwellings for first occupancy after March 13, 1991 (30 months after
the date of enactment) in accordance with certain accessibility requirements. The Act
defines "covered multifamily dwellings" as "(a) buildings consisting of 4
or more units if such buildings have one or more elevators; and (b) ground floor units in
other buildings consisting of 4 or more units" (42 U.S.C. 3604).
The Act makes it unlawful to fail to design and construct covered multifamily dwellings
(1) public use and common use portions of the dwellings are readily accessible to and
usable by persons with handicaps;
(2) all doors within such dwellings which are designed to allow passage into and within
the premises are sufficiently wide to allow passage by persons in wheelchairs; and
(3) all premises within such dwellings contain the following features of adaptive
(a) an accessible route into and through the dwelling;
(b) light switches, electrical outlets, thermostats, and other environmental controls
in accessible locations.
(c) reinforcements in bathroom walls to allow later installation of grab bars; and
(d) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver
about the space.
The Act provides that compliance with (1) the appropriate requirements of the American
National Standard for Buildings and Facilities--Providing Accessibility and Usability for
Physically Handicapped People (commonly cited as "ANSI A117.1"), or (2) with the
laws of a State or unit of general local government, that has incorporated into such laws
the accessibility requirements of the Act, shall be deemed to satisfy the accessibility
requirements of the Act. (See Section 804(f)(4) and (5)(A).) The Act also provides that
the Secretary of the Department of Housing and Urban Development shall provide technical
assistance to States and units of local government and other persons to implement the
accessibility requirements of the Act. (See Section 804(f)(5)(C).)
Congress believed that the accessibility provisions of the Act would
(1) facilitate the ability of persons with handicaps to enjoy full use of their homes
without imposing unreasonable requirements on homebuilders, landlords and non-handicapped
tenants; (2) be essential for equal access and to avoid future de facto exclusion
of persons with handicaps; and (3) be easy to incorporate in housing design and
construction. Congress predicted that compliance with these minimal accessibility design
and construction standards would eliminate many of the barriers which discriminate against
persons with disabilities in their attempts to obtain equal housing opportunities. (See
H.R. Rep. No. 711, 100th Cong. 2d Sess. 27-28 (1988) ("House Report").)
The Fair Housing Act became effective on March 12, 1989. The Department implemented the
Act by a final rule published January 23, 1989 (54 FR 3232), and which became effective on
March 12, 1989. Section 100.205 of that rule incorporates the Act's design and
construction requirements, including the requirement that multifamily dwellings for first
occupancy after March 13, 1991 be designed and constructed in accordance with the Act's
accessibility requirements. The final rule clarified which multifamily dwellings are
subject to the Act's requirements. Section 100.205 provides, in paragraph (a), that
covered multifamily dwellings shall be deemed to be designed and constructed for first
occupancy on or before March 13, 1991, if they are occupied by that date, or if the last
building permit or renewal thereof for the covered multifamily dwellings is issued by a
State, County or local government on or before January 13, 1990. The Department selected
the date of January 13, 1990 because it is fourteen months before March 13, 1991. Based on
data contained in the Marshall Valuation Service, the Department found that fourteen
months represented a reasonable median construction time for multifamily housing projects
of all sizes. The Department chose the issuance of a building permit as the appropriate
point in the building process because such permits are issued in writing by governmental
authorities. The issuance of a building permit has the advantage of being a clear and
objective standard. In addition, any project that actually achieves first occupancy before
March 13, 1991 will be judged to have met this standard even if the last building permit
or renewal thereof was issued after January 13, 1990 (55 FR 3251).
Section 100.205 of the final rule also incorporates the Act's provisions that
compliance with the appropriate requirements of ANSI A117.1, or with State or local laws
that have incorporated the Act's accessibility requirements, suffices to satisfy the
accessibility requirements of the Act as codified in §100.205. In the preamble to the
final rule, the Department stated that it would provide more specific guidance on the
Act's accessibility requirements in a notice of proposed guidelines that would provide a
reasonable period for public comment on the guidelines.
III. Proposed Accessibility Guidelines
On August 2, 1989, the Department published in the Federal Register an
advance notice of intention to develop and publish Fair Housing Accessibility Guidelines
(54 FR 31856). The purpose of this document was to solicit early comment from the public
concerning the content of the Accessibility Guidelines, and to outline the Department's
procedures for their development. To the extent practicable, the Department considered all
public comments submitted in response to the August 2, 1989 advance notice in its
preparation of the proposed accessibility guidelines.
On June 15, 1990, the Department published proposed Fair Housing Accessibility
guidelines (55 FR 24370). The proposed guidelines presented, and requested public comment
on, three options for accessible design:
(1) Option one (Option One) provided guidelines developed by the Department with the
assistance of the Southern Building Code Congress International (SBCCI), and incorporated
suggestions received in response to the August 2, 1989 advance notice;
(2) Option two (Option Two) offered guidelines developed by the National Association of
Home Builders (NAHB) and the National Coordinating Council on Spinal Cord Injuries
(3) Option three (Option Three) offered "adaptable accommodations"
guidelines, an approach that provides for identification of certain features in dwelling
units that could be made accessible to people with handicaps on a case-by-case basis.
In the June 15, 1990 notice of proposed guidelines, the Department recognized that
projects then being designed, in advance of publication of the final Guidelines may not
become available for occupancy until after March 13, 1991. The Department advised that
efforts to comply with the proposed guidelines, Option One, in the design of projects
which would be completed before issuance of the final Guidelines, would be considered as
evidence of compliance with the Act in connection with the Department's investigation of
any complaints. Following publication of the June 15, 1990 notice, the Department received
a number of inquiries concerning whether certain design and construction activities in
connection with projects likely to be completed before issuance of final Guidelines would
be considered by the Department to be in compliance with the Act.
In order to resolve these questions, the Department, on August 1, 1990, published in
the Federal Register a supplementary notice to the proposed guidelines (55
FR 31191). In the supplementary notice, the Department advised that it only would consider
efforts to comply with the proposed guidelines, Option One, as evidence of compliance with
the Act. The Department stated that evidence of compliance with the Option One guidelines,
under the circumstances described in the supplementary notice, would be a basis for
determination that there is no reasonable cause to believe that a discriminatory housing
practice under Section 804(f)(3) has occurred, or is about to occur in connection with the
investigation of complaints filed with the Department relating to covered multifamily
dwellings. The circumstances described in the August 1, 1990 supplementary notice that the
Department found would be in compliance with the Act, were limited to:
(1) Any covered multifamily dwellings which are designed in accordance with the Option
One guidelines, and for which construction is completed before publication of the final
Fair Housing Accessibility Guidelines; and
(2) Any covered multifamily dwellings which have been designed in accordance with the
Option One guidelines, but for which construction is not completed by the date of
publication of the final Guidelines provided:
(a) Construction begins before the final Guidelines are published; or
(b) A building permit is issued less than 60 days after the final Guidelines are
On September 7, 1990, the Department published for public comment a Preliminary
Regulatory Impact Analysis on the Department's assessment of the economic impact of the
Guidelines, as implemented by each of the three design options then under consideration
(55 FR 37072-37129).
IV. Public Comments and Commenters
The proposed guidelines provided a 90-day period for the submission of comments by the
public, ending September 13, 1990. The Department received 562 timely comments. In
addition, a substantial number of comments were received by the Department after the
September 13, 1990 deadline. Although those comments were not timely filed, they were
reviewed to assure that any major issues raised had been adequately addressed in comments
that were received by the deadline. Each of the timely comments was read, and a list of
all significant issues raised by those comments was compiled. All these issues were
considered in the development of the final Guidelines.
Of the 562 comments received, approximately 200 were from disability advocacy
organizations, or units of State or local government concerned with disability issues.
Sixty-eight (68) additional commenters identified themselves as members of the disability
community; 61 commenters identified themselves as individuals who work with members of the
disability community (e.g., vocational or physical therapists or counselors), or who have
family members with disabilities; and 96 commenters were members of the building industry,
including architects, developers, designers, design consultants, manufacturers of home
building products, and rental managers. Approximately 292 commenters supported Option One
without any recommendation for change.
An additional 155 commenters supported Option One, but recommended changes to certain
Option One design standards. Twenty-six (26) commenters supported Option Two, and 10
commenters supported Option Three. The remaining commenters submitted questions, comments
and recommendations for changes on certain design features of one or more of the three
options, but expressed no preference for any particular option, or, alternatively,
recommended final guidelines that combine features from two or all three of the options.
The commenters included several national, State and local organizations and agencies,
private firms, and individuals that have been involved in the development of State and
local accessibility codes. These commenters offered valuable information, including copies
of State and local accessibility codes, on accessibility design standards. These
commenters included: the Southern Building Code Congress International (SBCCI); the U.S.
Architectural and Transportation Barriers Compliance Board (ATBCB); the Building Officials
& Code Administrators International, Inc. (BOCA); the State of Washington Building
Code Council; the Seattle Department of Construction and Land Use; the Barrier-free
Subcode Committee of the New Jersey Uniform Construction Code Advisory Board; the
Department of Community Planning, Housing and Development of Arlington County, Virginia;
the City of Atlanta Department of Community Development, Bureau of Buildings; and members
of the Department of Architecture, the State University of New York at Buffalo. In
addition to the foregoing organizations, a number of the commenters from the building
industry submitted detailed comments on the proposed guidelines.
The commenters also included a number of disability organizations, several of which
prepared detailed comments on the proposed guidelines. The comments of two disability
organizations also were submitted as concurring comments by many individuals and other
disability advocacy organizations. These two organizations are the Disability Rights
Education & Defense Fund, and the Consortium for Citizens with Disabilities (CCD). The
CCD represents the following organizations: the Association for Education and
Rehabilitation of the Blind and Visually Impaired, Association for Retarded Citizens of
the United States, International Association of Psychological Rehabilitation Facilities,
National Alliance for the Mentally Ill, National Association of Protection and Advocacy
Systems, National Association of Developmental Disabilities Councils, National Association
of State Mental Health Program Directors, National Council of Community Mental Health
Centers, National HeadInjury Foundation, National Mental Health Association, United
Cerebral Palsy Associations, Inc. Both the Disability Rights Education and Defense Fund
and the CCD were strongly supportive of Option One.
A coalition of 20 organizations (Coalition), representing both the building industry
and the disability community, also submitted detailed comments on the proposed guidelines.
The members of the Coalition include: American Institute of Architects, American Paralysis
Association, American Resort and Residential Development Association, American Society of
Landscape Architects, Apartment and Office Building Association, Association of Home
Appliance Manufacturers, Bridge Housing Corporation, Marriott Corporation, Mortgage
Bankers Association, National Apartment Association, National Assisted Housing Management
Association, National Association of Home Builders (NAHB), National Association of
Realtors, National Association of Senior Living Industries, National Conference of States
on Building Codes and Standards, National Coordinating Council on Spinal Cord Injury
(NCCSCI), National Leased Housing Association, National Multi Housing Council, National
Organization on Disability, and the Paralyzed Veterans of America.
The commenters also included U.S. Representatives Don Edwards, Barney Frank and
Hamilton Fish, Jr., who advised that they were the primary sponsors of the Fair Housing
Act, and who expressed their support of Option One.
Comments on the Three Options
In addition to specific issues and questions raised about the design standards
recommended by the proposed guidelines, a number of commenters simply submitted comments
on their overall opinion of one or more of the options. Following is a summary of the
opinions typically expressed on each of the options.
Option One. The Option One guidelines drew a strong reaction from commenters.
Supporters stated that the Option One guidelines provided a faithful and clearly stated
interpretation of the Act's intent. Opponents of Option One stated that its design
standards would increase housing costs significantly -- for everyone. Several commenters
who supported some features of Option One were concerned that adoption of Option One in
its entirety would escalate housing costs. Another frequent criticism was that Option
One's design guidelines were too complex and cumbersome.
Option Two. Supporters of Option Two stated that this option presented a
reasonable compromise between Option One and Option Three. Supporters stated that the
Option Two guidelines provided more design flexibility than the Option One guidelines, and
that this flexibility would allow builders to deliver the required accessibility features
at a lower cost. Opponents of Option Two stated that this option allowed builders to
circumvent the Act's intent with respect to several essential accessibility features.
Option Three. Supporters of Option Three stated that Option Three presented the
best method of achieving the accessibility objectives of the Act, at the lowest possible
cost. Supporters stated that Option Three would contain housing costs, because design
adaptation only would be made to those units which actually would be occupied by a
disabled resident, and the adaptation would be tailored to the specific accessibility
needs of the individual tenant. Opponents of Option Three stated that this option, with
its "add-on" approach to accessibility, was contrary to the Act's intent, which,
the commenters claimed, mandates accessible features at the time of construction.
Comments on the Costs of Implementation.
In addition to the comments on the specific features of the three design options, one
of the issues most widely commented upon was the cost of compliance with the Act's
accessibility requirements, as implemented by the Guidelines. Several commenters disputed
the Department's estimate of the cost of compliance, as presented in the Initial
Regulatory Flexibility Analysis, published with the proposed guidelines on June 15, 1990
(55 FR 24384-24385), and in the Preliminary Regulatory Impact Analysis published on
September 7, 1990 (55 FR 37072-37129). The Department's response to these comments is
discussed in the Final Regulatory Impact Analysis, which is available for public
inspection during regular business hours in the Office of the Rules Docket Clerk, Room
10276, Department of Housing and Urban Development, 451 Seventh Street, S.W., Washington,
V. Discussion of Principal Public Comment Issues, and Section-by-Section Analysis of
the Final Guidelines
The following presents a discussion of the principal issues raised by the commenters,
and the Department's response to each issue. This discussion includes a section-by-section
analysis of the final Guidelines that addresses many of the specific concerns raised by
the commenters, and highlights the differences between the proposed Option One guidelines
and the final Guidelines. Comments related to issues outside the purview of the
Guidelines, but related to the Act (e.g., enforcement procedures, statutory effective
date), are discussed in the final section of the preamble under the preamble heading
"Discussion of Comments on Related Fair Housing Issues".
1. Discussion of General Comments on the Guidelines
Comment. Many commenters expressed their support for the ANSI Standard as the
basis for the Act's Guidelines, because ANSI is a familiar and accepted accessibility
Response. In developing the proposed and final Guidelines, the Department was
cognizant of the need for uniformity, and of the widespread application of the ANSI
Standard. The original ANSI A117.1, adopted in 1961, formed the technical basis for the
first accessibility standards adopted by the Federal Government, and most State
governments. The 1980 edition of that standard was based on research funded by the
Department, and became the basis for the Uniform Federal Accessibility Standards (UFAS),
published in the Federal Register on August 4, 1984 (47 FR 33862). The 1980
edition also was generally accepted by the private sector, and was recommended for use in
State and local building codes by the Council of American Building Officials.
Additionally, Congress, in the Fair Housing Act, specifically referenced the ANSI
Standard, thereby encouraging utilization of the ANSI Standard as guidance for compliance
with the Act's accessibility requirements. Accordingly, in using the ANSI Standard as a
reference point for the Fair Housing Act Accessibility Guidelines, the Department is
issuing Guidelines based on existing and familiar design standards, and is promoting
uniformity between Federal accessibility standards, and those commonly used in the private
sector. However, the ANSI Standard and the final Guidelines have differing purposes and
goals, and they are by no means identical. The purpose of the Guidelines is to describe
minimum standards of compliance with the specific accessibility requirements of the Act.
Comment. Two commenters suggested that the Department adopt the ANSI Standard as
the guidelines for the Fair Housing Act's accessibility requirements, and not issue new
Response. The Department has incorporated in the Guidelines those technical
provisions of the ANSI Standard that are consistent with the Act's accessibility
requirements. However, with respect to certain of the Act's requirements, the applicable
ANSI provisions impose more stringent design standards than required by the Act. (In the
preamble to the proposed rule (55 FR 3251), and again in the preamble to the proposed
guidelines (55 FR 24370), the Department advised that a dwelling unit that complies fully
with the ANSI Standard goes beyond what is required by the Fair Housing Act.) The
Department has developed Guidelines for those requirements of the Act where departures
from ANSI were appropriate.
Comment. A few commenters questioned whether the Department would revise the
Guidelines to correspond to ANSI's periodic update of its standard.
Response. The ANSI Standard is reviewed at five-year intervals. As the ANSI
Standard is revised in the future, the Department intends to review each version, and, if
appropriate, to make revisions to the Guidelines in accordance with any revisions made to
the ANSI Standard. Modifications of the Guidelines, whether or not reflective of changes
to the ANSI Standard, will be subject to notice and prior public comment.
Comment. A few commenters requested that the Department republish the ANSI
Standard in its entirety in the final Guidelines.
Response. The American National Standards Institute (ANSI) is a private,
national organization, and is not connected with the Federal Government. The Department
received permission from ANSI to print the ANSI Standard in its entirety, at the time of
publication of the proposed guidelines (55 FR 24404-24487), specifically for the purpose
of assisting readers of the proposed guidelines in developing timely comments. In the
preamble to the proposed guidelines, the Department stated that since it was printing the
entire ANSI Standard, as an appendix to the proposed guidelines, the final notice of the
Accessibility Guidelines would not include the complete text of the ANSI Standard (55 FR
24371). Copies of the ANSI Standard may be purchased from the American National Standards
Institute, 1430 Broadway, New York, NY 10018.
Comment. Another commenter requested that the Department confirm that any ANSI
provision not cited in the final Guidelines is not necessary for compliance with the Act. Response.
In the proposed guidelines, the Department stated that: "Where the guidelines rely on
sections of the ANSI Standard, the ANSI sections are cited. * * * For those guidelines
that differ from the ANSI Standard, recommended specifications are provided" (55 FR
24385). The final Guidelines include this statement, and further state that the ANSI
sections not cited in the Guidelines have been determined by the Department not to be
necessary for compliance with the Act's requirements.
Bias Toward Wheelchair Users.
Comment. Two commenters stated that the proposed guidelines were biased toward
wheelchair users, and that the Department has erroneously assumed that the elderly and the
physically disabled have similar needs. The commenters stated that the physical problems
suffered by the elderly often involve arthritic and back problems, which make bending and
Response. The proposed guidelines, and the final Guidelines, reflect the
accessibility requirements contained in the Fair Housing Act. These requirements largely
are directed toward individuals with mobility impairments, particularly those who require
mobility aids, such as wheelchairs, walkers, or crutches. In two of the Act's
accessibility requirements, specific reference is made to wheelchair users. The emphasis
of the law and the Guidelines on design and construction standards that are compatible
with the needs of wheelchair users is realistic because the requirements for wheelchair
access (e.g., wider doorways) are met more easily at the construction stage. (See House
Report at 27.) Individuals with non-mobility impairments more easily can be accommodated
by later nonstructural adaptations to dwelling units. The Fair Housing Act and the Fair
Housing regulations assure the right of these individuals to make such later adaptations.
(See Section 804(f)(3)(A) of the Act and 24 CFR 100.203 of the regulations. See also
discussion of adaptations made to units in this preamble under the heading "Costs of
Adaptation" in the section entitled "Discussion of Comments on Related Fair
Compliance Problems Due to Lack of Accessibility Guidelines
Comment. A number of commenters from the building industry attributed difficulty
in meeting the Act's March 13, 1991 compliance deadline, in part, to the lack of
accessibility guidelines. The commenters complained about the time that it has taken the
Department to publish proposed guidelines, and the additional time it has taken to publish
Response. The Department acknowledges that the development and issuance of final
Fair Housing Accessibility Guidelines has been a time-consuming process. However, the
building industry has not been without guidance on compliance with the Act's accessibility
requirements. The Fair Housing Act identifies the ANSI Standard as providing design
standards that would achieve compliance with the Act's accessibility requirements.
Additionally, in the preamble to both the proposed and final Fair Housing rule, and in the
text of §100.205, the Department provided examples of how certain of the Act's
accessibility requirements may be met. (See 53 FR 45004-45005, 54 FR 3249-3252 (24 CFR Ch.
I, Subch. A, App. I, at 583-586 (1990)), 24 CFR 100.205.)
The delay in publication of the final Guidelines has resulted, in part, because of the
Department's pledge, at the time of publication of the final Fair Housing regulations,
that the public would be provided an opportunity to comment on the Guidelines (54 FR 3251,
24 CFR Ch. I, Subch. A, at 585-586 (1990)). The delay in publication of the final
Guidelines also is attributable in part to the Department's effort to develop Guidelines
that would (1) ensure that persons with disabilities are afforded the degree of
accessibility provided for in the Fair Housing Act, and (2) avoid the imposition of
unreasonable requirements on builders.
Comment. Two commenters requested that interim accessibility guidelines should
be adopted for projects "caught in the middle", i.e. those projects started
before publication of the final Guidelines.
Response. The preamble to the June 15, 1990 proposed guidelines and the August
1, 1990 supplementary notice directly addressed this issue. In both documents, the
Department recognized that projects being designed in advanceof publication of the
Guidelines may not become available for occupancy until after March 13, 1991. The
Department advised that efforts to comply with the Option One guidelines, in the design of
projects that would be completed before issuance of the final Guidelines, would be
considered as evidence of compliance with the Act in connection with the Department's
investigation of any complaints. The August 1, 1990 supplementary notice restated the
Department's position on compliance with the Act's requirements prior to publication of
the final Guidelines, and addressed what "evidence of compliance" will mean in a
Conflict with Historic Preservation Design Codes.
Comment. Two commenters expressed concern about a possible conflict between the
Act's accessibility requirements and local historic preservation codes (including
compatible design requirements). The commenters stated that their particular concerns are:
(1) the conversion of warehouse and commercial space to dwelling units; and (2) new
housing construction on vacant lots in historically designated neighborhoods.
Response. Existing facilities that are converted to dwelling units are not
subject to the Act's accessibility requirements. Additionally, alteration, rehabilitation
or repair of covered multifamily dwellings are not subject to the Act's accessibility
requirements. The Act's accessibility requirements only apply to new construction. With
respect to new construction in neighborhoods subject to historic codes, the Department
believes that the Act's accessibility requirements should not conflict with, or preclude
building designs compatible with historic preservation codes.
Conflict with Local Accessibility Codes.
Comment. Several commenters inquired about the appropriate course of action to
follow when confronted with a conflict between the Act's accessibility requirements and
local accessibility requirements.
Response. Section 100.205(i) of the Fair Housing regulations implements Section
804(f)(8) of the Act, which provides that the Act's accessibility requirements do not
supplant or replace State or local laws that impose higher accessibility standards (53 FR
45005). For accessibility standards, as for other code requirements, the governing
principle to follow when Federal and State (or local) codes differ is that the more
stringent requirement applies.
This principle is equally applicable when multifamily dwellings are subject to more
than one Federal law requiring accessibility for persons with physical disabilities. For
example, a multifamily dwelling may be subject both to the Fair Housing Amendments Act and
to Section 504 of the Rehabilitation Act of 1973. Section 504 requires that 5% of units in
a covered multifamily dwelling be fully accessible -- thus imposing a stricter
accessibility standard for those units than would be imposed by the Fair Housing Act.
However, compliance only with the Section 504 requirements would not satisfy the
requirements of the Fair Housing Act. The remaining units in he covered multifamily
dwelling would be required to meet the specific accessibility requirements of the Fair
Comment. One commenter, the Seattle Department of Construction and Land Use,
presented an example of how a local accessibility code that is more stringent with respect
to some accessibility provisions may interact with the Act's accessibility requirements,
where they are more stringent with respect to other provisions. The commenter
pointed out that the State of Washington is very hilly, and that the State of Washington's
accessibility code requires accessible buildings on sites that would be deemed impractical
under the Option One guidelines. The commenter stated that the State of Washington's
accessibility code may require installation of a ramp, and that the ramp may then create
an accessible entrance for the ground floor, making it subject to the Act's accessibility
requirements. The commenter asked that, since the project was not initially subject to the
Act's requirements, whether the creation of an accessible ground floor in accordance with
the State code provisions would require all units on the ground floor to be made
accessible in accordance with the Fair Housing Act. (The State of Washington's
accessibility code would require only a percentage of the units to be accessible.)
Response. The answer to the commenter's question is that a nonelevator building
with an accessible entrance on an accessible route is required to have the ground floor
units designed and constructed in compliance with the Act's accessibility requirements.
This response is consistent with the principle that the stricter accessibility requirement
Design Guidelines for Environmental Illness
Comment. Twenty-three (23) commenters advised the Department that many
individuals are disabled because of severe allergic reactions to certain chemicals used in
construction, and in construction materials. These commenters requested that the
Department develop guidelines for constructing or renovating housing that are sensitive to
the problems of individuals who suffer from these allergic reactions (commonly referred to
as environmental illnesses). These commenters further advised that, as of February 1988,
the Social Security Administration lists as a disability "Environmental Illness"
(P.O.M.S. Manual No. 24515.065).
Response. The Guidelines developed by the Department are limited to providing
guidance relating to the specific accessibility requirements of the Fair Housing Act. As
discussed above, under the preamble heading "Bias Toward Wheelchair Users," the
Act's requirements primarily are directed to providing housing that is accessible to
individuals with mobility impairments. There is no statutory authority for the Department
to create the type of design and construction standards suggested by the commenters.
Design Guidelines for the Hearing and Visually-Impaired
Comment. Several commenters stated that the proposed guidelines failed to
provide design features for people with hearing and visual impairments. These commenters
stated that visual and auditory design features must be included in the final Guidelines.
Response. As noted in the response to the preceding comment, the Department is
limited to providing Guidelines for the specific accessibility requirements of the Act.
The Act does not require fully accessible individual dwelling units. For individual
dwelling units, the Act requires the following: doors sufficiently wide to allow passage
by handicapped persons in wheelchairs; accessible route into and through the dwelling
unit; light switches, electrical outlets, thermostats, and other environmental controls in
accessible locations; reinforcements in bathroom walls to allow later installation of grab
bars; and usable kitchens and bathrooms such that an individual in a wheelchair can
maneuver about the space. To specify visual and auditory design features for individual
dwelling units would be to recommend standards beyond those necessary for compliance with
the Act. Such features were among those identified in Congressional statements discussing
modifications that would be made by occupants.
The Act, however, requires public and common use portions of covered multifamily
dwellings to be "readily accessible to and usable by handicapped persons." The
more comprehensive accessibility requirement for public and common use areas of dwellings
necessitates a more comprehensive accessibility standard for these areas. Accordingly, for
public and common use areas, the final Guidelines recommend compliance with the
appropriate provisions of the ANSI Standard. The ANSI Standard for public and common use
areas specifies certain design features to accommodate people with hearing and visual
Guidelines as Minimum Requirements
Comment. A number of commenters requested that the Department categorize the
final Guidelines as minimum requirements, and not as performance standards, because
"recommended" guidelines are less effective in achieving the objectives of the
Act. Another commenter noted that a safe harbor provision becomes a de facto
minimum requirement, and that it should therefore be referred to as a minimum requirement.
Response. The Department has not categorized the final Guidelines as either
performance standards or minimum requirements. The minimum accessibility requirements are
contained in the Act. The Guidelines adopted by the Department provide one way in which a
builder or developer may achieve compliance with the Act's accessibility requirements.
There are other ways to achieve compliance with the Act's accessibility requirements, as
for example, full compliance with ANSI A117.1. Given this fact, it would be inappropriate
on the part of the Department to constrain designers by presenting the Fair Housing
Accessibility Guidelines as minimum requirements. Builders and developers should be free
to use any reasonable design that obtains a result consistent with the Act's requirements.
Accordingly, the design specifications presented in the final Guidelines are appropriately
referred to as "recommended guidelines".
It is true, however, that compliance with the Fair Housing Accessibility Guidelines
will provide builders with a safe harbor. Evidence of compliance with the Fair Housing
Accessibility Guidelines adopted by this notice shall be a basis for a determination that
there is no reasonable cause to believe that a discriminatory housing practice under
Section 804(f)(3) has occurred or is about to occur in connection with the investigation
of complaints filed with the Department relating to covered multifamily dwellings.
National Accessibility Code
Comment. Several commenters stated that there are too many accessibility codes
-- ANSI, UFAS, and State and local accessibility codes. These commenters requested that
the Department work with the individual States to arrive at one national uniform set of
Response. There is no statutory authority to establish one nationally uniform
set of accessibility standards. The Department is in agreement with the commenters' basic
theme that increased uniformity in accessibility standards is desirable. In furtherance of
this objective, the Department has relied upon the ANSI Standard as the design basis for
the Fair Housing Accessibility Guidelines. The Department notes that the ANSI Standard
also serves as the design basis for the Uniform Federal Accessibility Standards (UFAS),
the Minimum Guidelines and Requirements for Accessible Design (MGRAD) issued by the U.S.
Architectural and Transportation Barriers Compliance Board, and many State and local
government accessibility codes.
One Set of Design Standards
Comment. A number of commenters objected to the fact that the proposed
guidelines included more than one set of design standards. The commenters stated that the
final Guidelines should present only one set of design standards so as not to weaken the
Act's accessibility requirements.
Response. The inclusion of options for accessibility design in the proposed
guidelines was both to encourage a maximum range of public comment, and to illustrate that
there may be several ways to achieve compliance with the Act's accessibility requirements.
Congress made clear that compliance with the Act's accessibility standards did not require
adherence to a single set of design specifications. In Section 804(f)(4) of the Act, the
Congress stated that compliance with the appropriate requirements of the ANSI Standard
suffices to satisfy the accessibility requirements of the Act. In House Report No. 711,
the Congress further stated as follows:
"However this section [Section 804(f)(4)] is not intended to require that
designers follow this standard exclusively, for there may be other local or State
standards with which compliance is required or there may be other creative methods of
meeting these standards." (House Report at 27)
Similarly, the Department's Guidelines are not the exclusive standard for compliance
with the Act's accessibility requirements. Since the Department's Guidelines are a safe
harbor, and not minimum requirements, builders and developers may follow alternative
standards that achieve compliance with the Act's accessibility requirements. This policy
is consistent with the intent of Congress, which was to encourage creativity and
flexibility in meeting the requirements of the Act.
Reliance on Preamble to Guidelines
Comment. One commenter asked whether the explanatory information in the
background section of the final Guidelines may be relied upon, and deemed to have the same
force and effect as the Guidelines themselves.
Response. The Fair Housing Accessibility Guidelines are -- as the name indicates
-- only guidelines, not regulations or minimum requirements. The Guidelines consist of
recommended design specifications for compliance with the specific accessibility
requirements of the Fair Housing Act. The final Guidelines provide builders with a safe
harbor that, short of specifying all of the provisions of the ANSI Standard, illustrate
acceptable methods of compliance with the Act. To the extent that the preamble to the
Guidelines provides clarification on certain provisions of the Guidelines, or illustrates
additional acceptable methods of compliance with the Act's requirements, the preamble may
be relied upon as additional guidance. As noted in the "Summary" portion of this
document, the preamble to the Guidelines will be codified in the 1991 edition of the Code
of Federal Regulations as Appendix III to the Fair Housing regulations (24 CFR Ch. I,
Subch. A, App. III.).
"User Friendly" Guidelines
Comment. A number of commenters criticized the proposed guidelines for being too
complicated, too ambiguous, and for requiring reference to a number of different sources.
These commenters requested that the final Guidelines be clear, concise and "user
friendly". One commenter requested that the final Guidelines use terms that conform
to terms used by each of the three major building code organizations: the Building
Officials and Code Administrators International, Inc. (BOCA); the International Conference
of Building Officials (ICBO), and the Southern Building Code Congress International
(SBCCI). Response. The Department recognizes that the Accessibility Guidelines
include several highly technical provisions. In drafting the final Guidelines, the
Department has made every effort to explain these provisions as clearly as possible, to
use technical and building terms consistent with the terms used by the major building code
organizations, to define terms clearly, and to provide additional explanatory information
on certain of the provisions of the Guidelines.
2. Section-by-Section Analysis of Final Guidelines
The following presents a section-by-section analysis of the final Guidelines. The text
of the final Guidelines is organized into five sections. The first four sections of the
Guidelines provide background and explanatory information on the Guidelines. Section 1,
the Introduction, describes the purpose, scope and organization of the Guidelines. Section
2 defines relevant terms used. Section 3 reprints the text of 24 CFR 100.205, which
implements the Fair Housing Act's accessibility requirements, and Section 4 describes the
application of the Guidelines. Section 5, the final section, presents the design
specifications recommended by the Department for meeting the Act's accessibility
requirements, as codified in 24 CFR 100.205. Section 5 is subdivided into seven areas, to
address each of the seven areas of accessible design required by the Act.
The following section-by-section analysis discusses the comments received on each of
the sections of the proposed Option One Guidelines, and the Department's response to these
comments. Where no discussion of comments is provided under a section heading, no comments
were received on this section.
Section 1. Introduction
Section 1, the Introduction, describes the purpose, scope and organization of the Fair
Housing Accessibility Guidelines. This section also clarifies that the accessibility
guidelines apply only to the design and construction requirements of 24 CFR 100.205, and
do not relieve persons participating in a federal or federally-assisted program or
activity from other requirements, such as those required by section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794), or the Architectural Barriers Act of 1968 (42
U.S.C. 4151-4157). (The design provisions for those laws are found at 24 CFR Part 8 and 24
CFR Part 40, respectively.) Additionally, Section 1 explains that only those sections of
the ANSI Standard cited in the Guidelines are required for compliance with the
accessibility requirements of the Fair Housing Act. Revisions to Section 1 reflect the
Department's response to the request of several commenters for further clarification on
the purpose and scope of the Guidelines.
Section 2. Definitions
This section incorporates appropriate definitions from 100.201 of the Department's Fair
Housing regulations, and provides additional definitions for terms used in the Guidelines.
A number of comments were received on the definitions. Clarifications were made to certain
definitions, and additional terms were defined. New terms defined in the final Guidelines
include: "adaptable," "assistive device," "ground floor,"
"loft," "multistory dwelling unit," "single-story dwelling
unit," and "story". The inclusion of newdefinitions reflects the comments
received, and also reflects new terms introduced by changes to certain of the Option One
design specifications. In several instances, the clarifications of existing definitions,
or the new terms defined, were derived from definitions of certain terms used by one or
more of the major building code organizations. Comments on specific definitions are
discussed either below or in that portion of the preamble under the particular section
heading of the Guidelines in which these terms appear.
Comment. A number of commenters stated that the Department used the terms
"accessible" and "adaptable" interchangeably, and requested
clarification of the meaning of each. The commenters noted that, under several State
building codes, these terms denote different standards for compliance. The commenters
requested that if the Department intends these two terms to have the same meaning, this
should be clearly stated in the final Guidelines, and, if the terms have different
meanings, "adaptable" should also be defined.
Response. The Department's use of the terms "adaptable" and
"accessible" in the preamble to the proposed guidelines generally reflected
Congress' use of the terms in the text of the Act, and in the House and Senate conference
reports. However, to respond to commenters' concerns about the distinctions between these
terms, the Department has included a definition of "adaptable dwelling units" to
clarify the meaning of this term, within the context of the Fair Housing Act. In the final
Guidelines, "adaptable dwelling units", when used with respect to covered
multifamily dwellings, means dwelling units that include features of adaptable design
specified in 24 CFR 100.205(c)(2)-(3).
The Fair Housing Act refers to design features that include both the minimal
"accessibility" features required to be built into the unit, and the
"adaptable" feature of reinforcement for bathroom walls for the
futureinstallation of grab bars. Accordingly, under the Fair Housing Act, an
"adaptable dwelling unit" is one that meets the minimal accessibility