HUD Emphasizes Compliance to Assure Nondiscrimination and Accessibility

Recipients of federal funds are obligated to comply with pertinent laws and regulations that help ensure the rights of persons with disabilities.

HUD recently emphasized the need for compliance in a reminder notice for all those receiving federal funds in its various housing programs and activities [Notice PIH—2010-2 (HA)]. The notice also applies to contractors or other agents of public housing agencies (PHAs) performing covered work or conducting covered activities on behalf of PHAs.

HUD states in the notice that many HUD recipients are “doing an excellent job of providing accessibility in their programs for persons with disabilities.” However, the agency felt the need to stress the importance of compliance because “it has been brought to the Department's attention that other HUD recipients may not be in compliance.” The notice is part of HUD's effort to achieve maximum compliance.

Here is a brief review of the significant federal requirements. Some statutory and regulatory provisions overlap others. Where there is a conflict, the most stringent provision applies, including any state or local laws, regulations, or codes that may be stronger than federal requirements.

Section 504 and Title II of the ADA

When the regulations implementing Section 504 of the Rehabilitation Act of 1973 were issued in 1988, PHAs were required to conduct needs assessments and develop transition plans to address the identified needs of residents and applicants with disabilities [24 CFR Part 8].

New construction. A minimum of 5 percent of the total dwelling units, or at least one unit (whichever is greater), must be made accessible for persons with mobility impairments, unless HUD prescribes a higher number or percentage [pursuant to 24 CFR §8.23 (b)(2)]. An additional minimum of 2 percent of the units, or at least one unit (whichever is greater), must be made accessible for persons with hearing or vision impairments. In circumstances where greater need is shown, HUD may prescribe higher percentages.

Substantial alterations. If alterations are undertaken to a project that has 15 or more units and the cost of the alterations is 75 percent or more of the replacement cost of the completed facility, then the provisions of 24 CFR §8.22 (a) and (b) for new construction apply, with the sole exception that load-bearing structural members are not required to be removed or altered.

Adaptable units. Section 504 permits recipients to construct or convert adaptable units. “Adaptable” or “adaptability” means the ability of certain elements of a dwelling unit—such as kitchen counters, sinks, and grab bars—to be added to, raised, lowered, or otherwise altered to accommodate the needs of persons with or without disabilities, or to accommodate the needs of persons with different types or degrees of disabilities.

Uniform federal accessibility standards. The applicable accessibility standards for purposes of complying with Section 504 are the Uniform Federal Accessibility Standards (UFAS) [24 CFR §§8.3; 8.32, and Appendix A to 24 CFR §40].

On July 23, 2004, the U.S. Access Board issued new Americans with Disabilities Act (ADA) and Architectural Barriers Act (ABA) guidelines that cover new construction and alteration of a broad range of facilities in the private and public sectors and serve as the basis for enforceable accessibility standards issued by federal agencies, including HUD. These guidelines, once adopted by HUD, will replace the current UFAS. However, they will apply only to new construction and planned alterations and generally will not apply to existing facilities except where altered. HUD recipients are not required to comply with the new guidelines until HUD adopts them as enforceable standards.

Reasonable accommodations. PHAs and other recipients of federal financial assistance are required to make reasonable adjustments to their rules, policies, practices, and procedures in order to enable an applicant or resident with a disability to have an equal opportunity to use and enjoy the housing unit and the common areas of a dwelling or participate in or access programs and activities conducted or sponsored by the PHA and/or recipient [24 CFR §§8.20, 8.21, 8.24, and 8.33].

Distribution of accessible dwelling units. Required accessible dwelling units must, to the maximum extent feasible and subject to reasonable health and safety requirements, be distributed throughout projects and sites and must be available in a sufficient range of sizes and amenities so that persons with disabilities have choices of living arrangements comparable to those of other families eligible for assistance under the same program [24 CFR §8.26].

Occupancy of accessible dwelling units. A PHA must adopt suitable means—including providing information in its application packets, providing refresher information to each resident during annual recertifications, and posting notices in its Admissions & Occupancy offices—to ensure that information regarding the availability of accessible dwelling units reaches eligible persons with disabilities. PHAs must also take reasonable nondiscriminatory steps to maximize the utilization of accessible units by eligible individuals whose disability requires the accessibility features of the particular unit [24 CFR §8.27].

PHA requirements for the Housing Choice Voucher program. The PHA or other recipient administering a Housing Choice Voucher program must, in providing notice of the availability and nature of housing assistance for low-income families under program requirements, adopt a suitable means to ensure that the notice reaches eligible individuals with disabilities and that they can have an equal opportunity to participate in the application process for the Housing Choice Voucher program [24 CFR §8.28].

Nonhousing facilities. Newly constructed nonhousing facilities must be designed to be readily accessible to and usable by people with disabilities. Alterations to existing facilities must be accessible to the maximum extent feasible—defined as not imposing an undue financial and administrative burden on the operations of the recipient's program or activity [24 CFR §8.21].

Accessibility standards. The design, construction, or alteration of buildings in conformance with the UFAS must be deemed to comply with accessibility requirements of 24 CFR §§8.3, 8.21, 8.22, 8.23, and 8.25 with respect to those buildings. This does not require building alterations to remove or alter a load-bearing or structural member.

Common areas. Section 504 and Title II of the ADA require that a PHA operate each existing housing program or activity receiving federal financial assistance so that the program or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities [24 CFR §8.24(a) and 28 CFR §35.150 (a)]. Therefore, the PHA must ensure that its common areas and public spaces serving its designated accessible units, including, but not limited to, community buildings, management offices, meeting rooms, corridors, hallways, elevators, entrances, parking, public transportation stops, social service offices, mail delivery, laundry rooms/facilities, trash disposal, playgrounds, child care centers, training centers, and recreational centers are accessible to individuals with disabilities. In the alternative, the PHA may offer the program, service, or activity, currently located in an inaccessible location, in an equivalent, alternate accessible location.

Architectural Barriers Act

The ABA applies to residential structures that are: (1) constructed or altered by or on behalf of the United States; (2) leased in whole or in part by the United States after Aug. 12, 1968, if constructed or altered in accordance with plans or specifications of the United States; or (3) financed in whole or in part by a grant or loan made by the United States after Aug. 12, 1968. Those structures must be constructed to ensure that they can be accessed and used by persons with physical disabilities [Accessibility Standards for Design, Construction and Alteration of Publicly Owned Residential Structures, 24 CFR §40.4].

Fair Housing Act

The Fair Housing Act (FHA) includes the following provisions designed to prevent discrimination based on an applicant's or resident's disability:

Illegal inquiries. The FHA makes it unlawful for a housing provider to:

• Ask if an applicant for a dwelling has a disability or if a person intending to reside in a dwelling or anyone associated with an applicant or resident has a disability; or

• Ask about the nature or severity of a disability of such persons [24 CFR §100.202].

Reasonable modification to existing premises. Under the FHA, it is unlawful for an owner to refuse to permit a person with a disability, at his own expense, to make reasonable modifications of existing premises he occupies or is about to occupy if such modification may be necessary to afford him full enjoyment of the premises [24 CFR §100.203].

Reasonable accommodation. The FHA makes it unlawful for any person to refuse to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford persons with disabilities equal opportunity to use and enjoy a dwelling unit, including public and common use areas [24 CFR §100.204].

Design and construction requirements. The FHA requires that covered multifamily dwellings, available for first occupancy after March 13, 1991, be designed and constructed so that:

• At least one building entrance is on an accessible route unless impractical due to terrain [24 CFR §100.205(a)];

• Public and common use areas are accessible [24 CFR §100.205(c)(1)];

• All doors into and within all premises are wide enough for passage by persons using wheelchairs [24 CFR §100.205(c)(2)]; and

• All premises within covered multifamily dwelling units contain the appropriate features of adaptable design.

For complete details, refer to the notice at http://www.hud.gov/offices/adm/hudclips/whatsnew/.

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