United Spinal Member Appointed to Highest Accessibility Post

On Wednesday, November 19th, 2008 David M. Capozzi was named the new Executive Director of the United States Access Board. The Access Board is an independent Federal agency devoted to accessibility for people with disabilities. Created in 1973 to ensure access to federally funded facilities, the Board is now a leading source of information on accessible design.

The Board develops and maintains design criteria for the built environment, transit vehicles, telecommunications equipment, and for electronic and information technology. It also provides technical assistance and training on these requirements and on accessible design and continues to enforce accessibility standards that cover federally funded facilities.

Capozzi will manage the Board’s 27 full-time staff including architects, attorneys and compliance specialists and will focus on improving “quality of service” that the agency can provide during an exciting period that will include the adoption of the Americans with Disabilities Act and Architectural Barriers Act Accessibility Guidelines.

Capozzi will also focus on streamlining the rulemaking process by working with other federal agencies like the Department of Justice (DOJ enforces the Americans with Disabilities Act) and the Office of Management & Budget (OMB oversees the activities of federal agencies). “Coordinating accessibility requirements with other countries like the European Union, Japan and Australia as we did during our electronic and information technology update to Section 508 of the Rehabilitation Act is also a major objective.” Capozzi said.

Born in Buffalo, New York in 1958; the then 18 year-old Capozzi was left for dead by the first passerby of the car accident that left him paralyzed outside of Bowling Green, Kentucky during The Blizzard of 1977. Lee Elias an Army Medic stationed at nearby Fort Campbell Kentucky came upon Capozzi’s burning MG convertible that was literally split in half and carried him to safety. Later that year Elias – who is the Godfather of Capozzi’s son Michael – received the Soldier’s Award for his heroism from then Secretary of the Army Harold Brown.

Capozzi met representatives of United Spinal Association (then the Eastern Paralyzed Veterans Association) after he was flown home to Buffalo from Kentucky at Buffalo’s Mercy Hospital and began to participate in the organization’s Wheelchair Basketball team and other activities. This contact would have a profound impact on his life.

“Member Ed Ryder visited me at Buffalo’s Mercy Hospital and encouraged me to participate in activities like wheelchair basketball and skiing,” Capozzi said. A few years later, when on a skiing trip – he met Ed’s young sister-in-law Patti, who agreed to be his teatherer. David and Patti married in 1984.

Capozzi returned to the University of Buffalo and was an honors graduate and Phi Beta Kappa recipient with an undergraduate degree in Psychology. He then graduated from UB’s Law School in 1985. It was during his time at the school’s Law Clinic that he began to focus on the rights of people with disabilities by working with students to ensure that the requirements of Public Law 94-142 or the Education for All Handicapped Children’s Act was met. Enacted by Congress in 1975 and now called the Individuals with Disabilities Education Act (IDEA), Capozzi worked to ensure that public schools provided equal access to education for children with physical and mental disabilities. He also worked to have people with psychiatric disabilities de-institutionalized.

Recognizing his ability, Paralyzed Veterans of America (PVA) hired Capozzi to work in their Advocacy program, immediately upon his graduation. He would become the National Advocacy Director in 1988. Later he moved to Easter Seals as vice president of advocacy and director of Project ACTION before joining the Access Board in 1992.

The Board is structured to function as a coordinating body among Federal agencies and to directly represent the public, particularly people with disabilities. Half of its members are representatives from most of the Federal departments. The other half is comprised of members of the public appointed by the President, a majority of whom must have a disability.

David and Patti Capozzi and their four children (Mathew 17, and triplets Michael, Megan, and Margaret 14) reside in Gaithersburg, Maryland.

Residential Developers Beware
By: Kleo King
Kleo King is Senior Vice President of Accessibility Services for United Spinal Association in Jackson Heights, NY, and is an Attorney and a certified code enforcement official in New York State.

Residential developers may be sitting on a time bomb or in the process of building one.

While residential developers, builders, and architects have designed and built multifamily develops in compliance with local and state codes, they may have over looked the Fair Housing Act of 1968 as amended in 1988 (FHA).

This is the case with one of the largest apartment developers in the United States. Recently, the United States Department of Justice filed a federal lawsuit in Manhattan against AvalonBay Communities, accusing the company of illegally discriminating against disabled people by failing to provide them with sufficient access at a 361-unit rental building located on the Lower East Side of Manhattan. The lawsuit concerns Avalon Chrystie Place. Opened in 2005 at a cost of $149 million, it was constructed with a Whole Foods Market on the ground level of the building and includes a rooftop deck, a fitness center and a residents’ lounge with a pool table. The complaint, filed in United States District Court, says the building has common areas that are inaccessible to people with disabilities, accessible routes are not provided into and through dwelling units, bathroom walls lack reinforcements to allow the installation of grab bars, and kitchens and bathrooms are not usable by a person using a wheelchair. The complaint also named SLCE Architects, a Manhattan-based design firm.

In 1988 Congress amended the FHA to require any multifamily (those with four or more units) housing complex designed for first occupancy after March 13, 1991 to provide accessibility requirements. These requirements include at least one building entrance on an accessible route unless it is impractical to do so because of the terrain or unusual characteristics of the site, all public and common use areas are readily accessible to and usable by people with disabilities, all the doors designed to allow passage into and within all premises are sufficiently wide to allow passage by persons using wheelchairs, and all premises within covered multifamily dwelling units contain the following features of adaptable design: an accessible route into and through the covered 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 around the toilet, tub, shower, stall and shower seat, where such facilities are provided; and usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space.

If the provisions of the local applicable building code do not encompass all the requirements of the FHA, violations of the federal law will occur. The local building inspectors are not charged with enforcing the federal law, thus no one will catch the error. The responsibility for ensuring compliance with FHA is on the design professional and building owner.

In order to head off DOJ, many developers are hiring consultants to review existing properties built after 1991 to determine if there are violations of the FHA and to develop a strategy to correct the deficiencies. Also, design professions and their residential clients are hiring consultants to review architectural plans for new developments to ensure compliance with the federal law.

The AvalonBay case and other lawsuits have resulted in United Spinal’s Accessibility Services program receiving an increase in the number of clients seeking technical assistance for existing and newly designed residential facilities. Our staff’s participation on the Residential Task Force of the American National Standard for Accessible & Usable Buildings (ANSI A117.1) assists us in providing remedies for noncompliant design and construction to residential developers, builders and designers many of whom are responding to complaints from government entities or private litigants.

Our job is to try and help residential builders and owners comply with what are often confusing requirements. The many safe-harbor standards can be confusing and are often misinterpreted or used en lieu of more restrictive state building codes. During the course of its work, the staff in Accessibility Services has identified a “Top 10 List” of the most common accessibility violations in residential buildings.

1. Lack of Access between building entrance and public street/sidewalk
2. Dimensions/Slope of Accessible Parking & Access Aisles
3. Slope/Lack of landing at Curb Ramps
4. Access to Common Areas
- Refuge rooms
- Public toilet rooms
- Mailboxes
- Intercoms
- Amenities in Community & Exercise Rooms
- Tennant Storage
5. Clear width of interior doors within dwelling unit
6. Adequate dimension between countertops, appliances and cabinets in kitchens
7. Clear floor space for sink in kitchen; and lavatories in bathroom
8. Location of bathroom fixtures/ number of accessible bathrooms provided within the unit.
9. Height and clear floor space available to Electrical Receptacles and Thermostats
10. Access to Washer/Dryer.

Residential builders and design professionals should seriously think of including an accessibility consultant as part of their team to avoid future problems. Dealing with design solutions is much easier done on paper that it is in the field during construction or after construction is complete and the building is occupied.

Technical Assistance Tip:
Common FHA Design Error – Clear Floor Space at Kitchen Appliances

By: John Rooney

There are seven design requirements in the Fair Housing Act Guidelines; Requirement 7 requires covered units to contain usable kitchens and bathrooms. One component of usable kitchen requirements that often does not comply is the clear floor space at appliances. Many designers are aware that a 30 inch minimum by 48 inch minimum clear floor space is required to be provided at every kitchen appliance and fixture.

Non-compliance usually results because designers are not aware that the clear floor space is required to be centered on the center line of the appliance and/or fixture. The clear floor space is required to be positioned for either a forward or parallel approach; however some appliances require a forward approach. The clear floor space for sinks, ranges and cook tops must be positioned for a parallel approach unless knee space is provided and must be centered on the appliance.

The requirement to center the clear floor space often results in non-compliance when the appliance is located in the corner of the kitchen. Many times the design has to be revised in order to re-locate the appliances so that the approach can be centered as required. The Fair Housing Act Guidelines permit the clear floor space for ovens, dishwashers, refrigerators/freezers and trash compactors to be positioned for either a forward or a parallel approach; however the clear floor space is required to be centered.
For additional information please see the Fair Housing Act Design Manual.

When do the Revised ADA/ABA Accessibility Guidelines Apply to a Project?
By: Jennifer Perry

This is a very common question that our staff hears from designers. The answer to that question depends on the type of facility that is being constructed or altered. Below is some background information on the development of the Revised guidelines as well as some guidance on those agencies that have adopted the Revised ADA/ABA Accessibility Guidelines as an enforceable standard.

The ADA-ABA Accessibility Guidelines were published in the Federal Register on July 23, 2004. The development of the new guidelines dates back to 1994. On September 13, 1994 the United States Access Board created the ADAAG review advisory committee and the process of rulemaking began. A series of committee reports, public hearings, public comment periods and approvals by the board followed and culminated in the publication of the final rule. Questions that arose subsequent to the publication of the guidelines involve: harmonization with building codes, the inclusion of ADA and ABA guidelines in one document and when the guidelines go into effect.

The ADA-ABA Accessibility Guidelines provide guidelines for two federal laws: The Americans with Disabilities Act (ADA) and the Architectural Barriers Act (ABA). The ADA is a civil rights law that prohibits discrimination on the basis of disability. The guidelines provide design requirements for public and private facilities. The ABA requires accessibility to facilities built, designed, altered or leased with federal funds. At the present time facilities covered by the ADA follow the Americans with Disabilities Act Accessibility Guidelines (ADAAG), except for the US Department of Transportation (see below). Those agencies required to comply with the ABA use UFAS as the design standard, unless an agency has already adopted the Revised ABA Guidelines (see below). The Access Board decided to update both ADAAG and UFAS at the same time in order to provide consistent enforcement under both federal laws. When the ADA-ABA Guidelines are adopted they will replace ADAAG and UFAS. When the new guidelines are in effect it will consist of three parts: scoping for ADA facilities (Part I), scoping for ABA facilities (Part II) and a common set of technical criteria applicable to both parts (Part III).

Adoption:

The ADA-ABA Guidelines are final; however they are not enforceable until they are adopted by the federal agencies responsible for their enforcement. The Justice Department (DOJ) and the Department of Transportation are responsible for enforcement of the ADA. Federal agencies responsible for maintaining the ABA standards are the General Services Administration (GSA), the Department of Defense (DOD), the United States Postal Service (USPS) and the Department of Housing and Urban Development (HUD). Below are the federal agencies that have adopted the Revised guidelines as of February, 2009:

• On November 8, 2005 The General Services Administration (GSA) adopted the Revised ADA/ABA Accessibility Guidelines as an enforceable standard that applies to a wide range of new or altered buildings under the Architectural Barriers Act (ABA), which ensures access to facilities designed, built, altered or leased with Federal money.
• Effective October 1, 2005 The U.S. Postal Service (USPS) also adopted the Revised ABA Standards for postal facilities.
• Effective October 31, 2008, The U.S. Department of Defense (DOD) adopted the Revised ABA Standards which apply to military and other facilities under DOD’s jurisdiction.
• Effective November 29, 2006 The US Department of Transportation (DOT) adopted the Revised ADA Accessibility Guidelines for new construction and alterations.

The U.S. Department of Justice, which enforces Titles II and III of the ADA, has not adopted the Revised ADA-ABA Guidelines as an enforceable standard yet, nor has the Department of Housing & Urban Development. Below is a statement from the U.S. Department of Justice on the status of the adoption of the Revised ADA-ABA Guidelines:

“On January 21, 2009, the Department of Justice notified the Office of Management and Budget (OMB) that the Department has withdrawn its draft final rules to amend the Department’s regulations implementing title II and title III from the OMB review process. This action was taken in response to a memorandum from the President’s Chief of Staff directing the Executive Branch agencies to defer publication of any new regulations until the rules are reviewed and approved by officials appointed by President Obama. No final action will be taken by the Department with respect to these rules until the incoming officials have had the opportunity to review the rulemaking record. Incoming officials will have the full range of rule-making options available to them under the Administrative Procedure Act.

Withdrawal of the draft final rules does not affect existing ADA regulations. Title II and title III entities must continue to follow the Department’s existing ADA regulations, including the ADA Standards for Accessible Design.”

Until DOJ adopts the Revised ADA Guidelines as enforceable standard, current ADAAG should be applied to the construction and alteration of facilities covered under the ADA. To see the most recent information regarding the ADA-ABA Guidelines and the adoption process, please visit the United States Access Board’s website: www.access-board.gov