|Version 4.0 July 9, 2001|
Only Section 504 and the ADA apply to existing buildings. Both use a similar approach called "program accessibility." Program accessibility is a flexible concept that requires a government agency to insure that its programs are accessible. Not all existing apartments and buildings owned by a housing authority need to be accessible under the doctrine of program accessibility. But, the housing authority has to insure that buildings are accessible enough to insure access to programs. Thus, for example, if a senior citizen's program is located in a project, those program facilities have to be accessible, even though the rest of the building may not be accessible. Housing authorities can select where they want to have accessible dwelling units as long as there are enough units to meet the needs of tenants with disabilities and provide enough choice as to where to live.
If a tenant becomes disabled and needs an accessible unit, Section 504 and Title II of the ADA require the housing authority to make reasonable accommodations that the tenant may need to live in the authority's property. A reasonable accommodation is "a change, modification, alteration or adaptation in a policy, procedure, practice, or program that provides an opportunity to participate in, or benefit from, a program or activity." A reasonable accommodation could include making renovations to the existing apartment, relocating the individual to an accessible apartment or providing services like delivering the mail if the mailroom is not accessible.
The Fair Housing Act requires owners of multifamily buildings to allow tenants to make renovations that they need at their own expense, as long as they put the property back into its original condition, should the owner request it. This little known law applies to public housing although, because of the low income of tenants and requirements of Section 504 and the ADA, it is unlikely that it would become an issue.
Additions to existing buildings must comply with the ADAAG or UFAS. Alterations must also comply with the exception of changes that would result in undue burden to the authority or is technically infeasible (see below). Thus, any change made to a public space or dwelling unit must comply with the ADAAG or UFAS requirements. Both the ADAAG and the UFAS have some specific exceptions for public spaces in existing buildings but the UFAS does not ahve any exceptions for dwelling units.
Undue burden is an action that causes excessive financial and administrative burden or a fundamental alteration in the nature of a program, service, or activity. This concept is relative. To the owner of a three-unit apartment building, making a modification that would cost $5000 would be considered an undue burden. But to a housing authority with a multimillion-dollar improvement budget, it is difficult to argue that this would be a hardship.
Technical infeasibility means that there "is little likelihood of being accomplished because existing structural conditions would require removing or altering a load-bearing member which is an essential part of the structural frame; or because other existing physical or site constraints prohibit modification or addition of elements, spaces, or features which are in full and strict compliance with the minimum standards for new construction ..." (ADAAG, p. 11). A good example in public housing would be the location of a plumbing stack in a 20 story building.
In older buildings like those of most housing authorities, there are many technically infeasible conditions because the buildings were originally built to minimum standards and there is not enough space in them to enlarge bathrooms and hallways without eliminating rooms. In high rise buildings, there is an additional constraint of elevator shafts, structural columns, plumibing stacks and electrical chases that cannot be relocated because the run the entire height of the buildings.
NYCHA found that it was impossible to meet the letter of UFAS in its existing buildings for the reasons described above. Through negotiations with the U.S. Department of Housing and Urban Development, a Voluntary Compliance Agreement was developed that identifies both how many units of housing NYCHA has to make accessible throughout its properties, how those units will be remodeled, the provision of reasonable accommodations, emergency management for people with disabilities and non-housing program accessibility.
In summary, the VCA provides for two types of accessible units. The first are called "Conversion Rate Units" and are to be fully accessible according to UFAS. A little less than 5,000 units will be initially remodeled in this category. After this target is reached, HUD will no longer be supervising the process as closely. Ultimately, the goal is to convert a total of 5% of all NYCHA units accessible, about 9,000 total units. The second type of accessible units are called ""Modification Rate Units" and are provided in response to to individual tenant needs. These units do not have to be completely compliant with UFAS. Starting in 1997, NYCHA is obligated to retrofit and average of 315 units in this category every quarter. Non-housing program accessibllity includes access to community centers, laundries and sites of other additional services on NYCHA properties. The VCA has many specifics about how these renovations are to be planned and managed, including policies for processing applications, responding to requests and communications between tenants and management.
To accommodate the constraints of existing high rise buildings, the VCA identifies several alternative design approaches that HUD has agreed provide equivalent accessibility. The departures from the UFAS include:
1. Alternative elevator floor plans that recognize the small size of most existing NYCHA elevators. These floor plans have been tested with people who use wheelchairs. They allow full use of elevators although some individuals may not be able to turn around in the car.
2. An alternative to floor indicators in elevator cars and lobbies to address the fact that many NYCHA buildings do not have such systems.
3. Alternative bathroom plans that allow NYCHA to build accessible units without reducing the number of bedrooms in each remodeled unit. These plans have also been tested out with people who use wheelchairs.
These differences with UFAS result in some differences with Local Law 58. For example, Local Law 58 will have more stringent requirements for new construction for elevators. NYCHA has worked closely with the City and developed agreements with them to allow the VCA alternatives. But, in the field, problems still may arise. If City officials do not approve NYCHA renovation plans, this should be brought to the attention of the NYCHA 504 Office and the Design Department.
To implement the VCA, NYCHA has developed a Modified UFAS Checklist that includes the specifications for the alternative designs. This checklist will be used by NYCHA designers and inspectors as well as HUD inspectors who are charged with checking compliance with the VCA. This training program is based on the Modified UFAS Checklist.
It should be noted that the UFAS is based on adult dimensions and abilities. For housing units and community centers in general, this is appropriate. However, for non-housing facilities serving children, they are not. the U.S. Access Board has developed guidelines for children that can be used in place of the UFAS in these facilities.