HUD Changes ADA Compliance Standards

HUD recently announced that it’s permitting owners and developers of federally funded construction projects to use an alternative design standard to meet the accessibility requirements under Section 504 of the Rehabilitation Act of 1973. With a few exceptions, owners may use the Americans with Disabilities Act (ADA) 2010 Standards (2010 Standards) for accessible design as an alternative to the Uniform Federal Accessibility Standards (UFAS) when undertaking new construction or alterations to existing structures on or after May 23, 2014.

Section 504 requires that programs or activities, including construction projects, receiving federal financial assistance be readily accessible to persons with disabilities. Many of the projects that are subject to HUD’s Section 504 regulation and UFAS, however, are also subject to ADA requirements for state and local governments. When both accessibility standards apply, it was previously necessary for recipients to determine on a section-by-section basis which afforded greater accessibility and meet that.

With issuance of the notice, HUD permits fund recipients to use the 2010 Standards, except for specific provisions identified in the notice, as an alternative to UFAS until HUD formally revises its Section 504 regulation. HUD is excepting some provisions of the 2010 Standards because those provisions provide a lower level of accessibility than is currently required under UFAS and HUD’s Section 504 regulation. The notice will remain in effect until HUD formally revises its Section 504 implementing regulation.

In many cases, owners will have to continue to follow the UFAS rules and won’t be able to take advantage of the greater flexibility allowed by the 2010 Standards. The list of exceptions is lengthy. The following are some examples of the 2010 Standards that HUD won’t allow owners to follow:

Structural impracticability. The 2010 Standards don’t require full accessibility compliance where site conditions make compliance impractical. Under UFAS, if a site can’t be made accessible, it can’t be used for HUD-funded housing. HUD has rejected the use of the flexibility for structural impracticability allowed by the 2010 Standards.

Alterations and additions. In some cases, the 2010 Standards may allow for a lesser degree of accessibility in alterations and additions to existing projects than UFAS would permit. HUD will require compliance with the stricter rules applicable to alterations under UFAS.

Scope. To the extent that the 2010 Standards allow for a more limited number of accessible units, HUD insists that the number of units dictated by UFAS will continue to apply, although other scoping requirements of the 2010 Standards would apply.

The other exceptions to the 2010 Standards included in the notice involve alterations affecting primary function areas, common use areas in residential facilities, employee work areas, vehicular route exceptions, elevator exception, washing machines, clothes dryers, and visible alarms.