Prepared Statement for the Record

of

Bill Lann Lee

Acting Assistant Attorney General

Civil Rights Division

for the

Committee on the Judiciary

Subcommittee on the Constitution

U.S. House of Representatives

Concerning

H.R. 2437, Fair Housing Enforcement

Presented on

October 28, 1999

In 1988, Congress enacted legislation promising housing opportunities for millions of disabled Americans. Newly constructed multifamily housing would, for the first time, be required to have features that would make this housing accessible to and usable by persons with disabilities. The accessibility requirements included in the Fair Housing Amendments Act of 1988 went into effect in 1991. H.R. 2437 would exempt from these requirements almost all multifamily housing built since 1991. We oppose this effort to renege on the civil rights protections promised to people with disabilities over a decade ago.

The accessibility requirements of the Fair Housing Amendments Act were enacted with the support of civil rights groups and industry, including the National Association of Home Builders, the National Association of Realtors, and the American Institute of Architects. The Act passed with overwhelming bipartisan support in Congress.

Through its landmark 1988 legislation, Congress intended to address the "consistent failure to design and build housing having accessible features." 134 Cong. Rec. S10544-02 (Aug. 2, 1988) (Sen. Stafford). The statutory provisions adopted then were understood to be "minimal standards" that would "eliminate many of the barriers which discriminate against persons with disabilities in their attempts to obtain equal housing opportunities." H.R. Rep. No. 100-711 at 27 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2188-2189 (House Report).

The Fair Housing Act accessibility requirements for multifamily housing are very simple, basic, and reasonable. Public and common use portions of buildings, such as lobbies and laundry rooms, must be accessible and usable; entrances, doors and hallways must be level and wide enough for wheelchair users; rooms must be on an accessible route; switches and other controls must be reachable; bathrooms and kitchens must be configured to have maneuvering space for wheelchair users; and bathrooms need to have reinforcements inside walls to accommodate later installation of grab bars. 42 U.S.C. §3604(f)(3)(C). It was understood that these "modest requirements" would provide "features which do not look unusual" and which would "not add significant additional costs." (House Report at 18).

These accessibility features are fundamental to people with disabilities and their families. Failure to meet these requirements has meant, for example, that an individual with multiple sclerosis had to drag himself into the bathroom because the door was too narrow for his wheelchair. Another individual, also with multiple sclerosis, had her husband carry her in and out of the bathroom. She was unable to visit other residents because the connecting sidewalks were too narrow for her wheelchair. An elderly man who had once been able to walk with a cane but then needed to use a walker because of his deteriorating health, was unable get around his apartment without great difficulty because the doorways were too narrow. A woman had to carry her disabled son around her apartment when he visited on weekends because the doorways were too narrow for his wheelchair.

If H.R. 2437 is enacted, hundreds of thousands of housing units built since 1991 that should have included these minimal accessible features will be exempt from enforcement. The bill provides that those requirements will not apply to any building constructed since March 13, 1991 -- the effective date of the accessibility provisions -- if it "received a building permit or other similar approval from the relevant State or local building authorities as meeting the requirements of the applicable building code." Because there are few, if any, multifamily buildings which would have been constructed without a building permit, the bill effectively immunizes from federal enforcement all noncompliant buildings constructed in the last eight years.

H. R. 2437 is not properly characterized as merely providing a "safe harbor" for "developers and owners for certain buildings built in compliance with the applicable local accessibility requirements." Testimony of Michael T. Rose for the National Association of Home Builders before the House Subcommittee on Government Programs and Oversight Committee on Small Business, July 27, 1999. The bill mentions nothing about having to meet the accessibility requirements of any local building code. It exempts all housing that has received a building permit or other similar approval from local building authorities, regardless of whether that local code contains any provisions mirroring the requirements of the federal Fair Housing Act, or for that matter, has any accessibility requirement at all.

Designers and builders of multifamily housing have had sufficient opportunity to learn the requirements of federal law. It is significant that the accessible housing mandate imposed by the Fair Housing Amendments Act were the last provisions of that Act to take effect. Indeed, while other portions of the statute became effective six months after enactment, in March 1989, Congress provided architects and the construction industry with an additional two years, until March 1991, to learn about their obligations regarding the accessibility provisions. Moreover, the statute itself provided a "safe-harbor" by stating that compliance with the requirements of the American National Standard for buildings providing accessibility and usability for persons with disabilities ("ANSI A117.1") would suffice to satisfy the requirements of the Act. See 42 U.S.C. § 3604(f)(4). Additional guidance and "safe harbors" followed. In June 1990, prior to the effective date of the accessibility requirements, HUD published proposed guidelines setting forth standards for compliance which were consistent with those contained in the ANSI standard Congress had referenced. The guidelines were formally adopted, following public notice and comment, in March 1991. Both the National Association of Home Builders and the American Institute of Architects were among a coalition of organizations which commented on the guidelines. Those guidelines (including the 1990 draft), too, provided the construction industry with a "safe harbor."

The Fair Housing Amendments Act required HUD to issue regulations and to provide technical assistance to implement the accessibility requirements of the Act. Pursuant to its technical assistance mandate, HUD issued accessibility guidelines and has engaged in outreach and education efforts with regard to the accessibility requirements of the Act almost since the time of their passage by Congress.

Housing providers may also look to the states for guidance. The Act provides that if a

state or local jurisdiction has incorporated into its laws the accessibility requirements of federal law, compliance with such laws shall be deemed to satisfy the federal requirements. 42 U.S.C. §3604(f)(5)(A). Both HUD and this Department have undertaken efforts to encourage local jurisdictions to make known the requirements of federal law and to adopt provisions which reflect the federal mandate. For instance, in 1997, the Justice Department, HUD, and a number of state attorneys general, wrote to local permitting officials and urged them to provide notice of the design and construction provisions of the Fair Housing Act and to make available a HUD pamphlet entitled "Architects and Builders -- Are You in Compliance with the Fair Housing Act?" More recently, and consistent with the directive contained in the House Report (Report No. 106-286) accompanying the FY 2000 HUD appropriation bill (H.R. 2684), we have been assisting HUD in its review of model building codes to determine whether their accessibility provisions are consistent with HUD's guidelines for accessible housing. These codes are the International Building Code, the Standard Building Code, the Uniform Building Code, and Building Officials and Code Administrators, International, Inc.(BOCA).

When we have found noncompliance with the accessibility requirements of the Fair Housing Act, the responsible architects and builders have not tried to justify the deficiencies based on provisions of a state or local "accessibility" law. Indeed, while we have seen buildings where both the design and construction were noncompliant, we have also seen situations where a builder simply ignored the accessible features of an architect's design plan and, conversely, where an architect failed to follow an owner's explicit instructions to provide a design that met the Fair Housing Amendments Act's accessibility requirements. Providing accessible multifamily housing has simply not been enough of a priority for the home building industry

Our investigations have uncovered design features which obviously and fundamentally deny housing to persons with disabilities and have not involved disputes over minor deviations from the statutory mandate. For instance, we have found builders and architects who have included steps -- sometimes as many as five -- up to the front entrances of their ground floor units; doors -- including some with an opening width to a unit bathroom of only 22 inches -- which are far too narrow for a wheelchair user to maneuver through; bathrooms built without complying with the clear statutory mandate that walls be reinforced for the later installation of grab bars; and kitchens and bathrooms which cannot be used by persons who are mobility impaired because those rooms provide insufficient space for such persons to maneuver around.

These barriers were found in buildings that were constructed after 1991 that should have been built in compliance with the accessibility requirements of the Fair Housing Amendments Act. H.R. 2437 would leave persons with disabilities without a federal remedy to redress the violation of their rights to equal housing opportunity. We oppose this proposed legislation.