24 CFR Part 8 Nondiscrimination on the Basis of Disability in Federally Assisted Programs and Activities - Notice: Instructions for use of alternative accessibility standard

I. Overview

HUD’s Section 504 regulation requires that programs or activities receiving Federal financial assistance be readily accessible to and usable by persons with disabilities. HUD’s Section 504 regulation provides that the design, construction, or alteration of buildings and facilities in conformance with UFAS is deemed to be in compliance with the accessibility requirements of Section 504 (24 CFR 8.32). Many of the programs or activities that are subject to HUD’s Section 504 regulation, however, are also subject to title II of the ADA, which applies to public entities, or title III of the ADA, which covers certain private entities, including public accommodations, and are therefore required to comply with the 2010 Standards. When more than one law and accessibility standard applies, it is currently necessary for the recipient to determine on a section-by-section basis which standard affords greater accessibility.

In March 2011, DOJ advised Federal agencies that they may provide covered entities the option of using the 2010 Standards as an acceptable alternative to UFAS (www.ada.gov/504_memo_standards.htm) until such time as they update their agency’s regulation implementing the Federally assisted provisions of Section 504. Because many recipients of Federal financial assistance are also subject to the Americans with Disabilities Act (ADA), Federal agencies requested this authority to minimize the number of accessibility standards with which recipients of Federal financial assistance must comply.

HUD has identified certain provisions in the 2010 Standards that provide less accessibility than is currently required by UFAS and/or HUD’s Section 504 regulation. As a result, HUD is not deeming use of those specific provisions of the 2010 Standards as a means of providing accessibility under Section 504 because HUD cannot decrease the level of accessibility currently required by its Section 504 regulation without engaging in notice and comment rulemaking. Those provisions are summarized in the Appendix of this document.

The option to utilize the 2010 Standards under title II of the ADA, except for certain provisions identified in this document, is available to all HUD recipients for purposes of complying with HUD’s Section 504 regulation whether they are private or public entities, including HUD recipients covered by Section 504 but not title II or III of the ADA. For purposes of complying with Section 504, a HUD recipient must designate the accessibility standard it is using: The 2010 Standards with identified exceptions outlined in this document or UFAS. Recipients that prefer to use UFAS as the accessibility standard under Section 504 may continue to do so. If a recipient subject to both Section 504 and the ADA decides to continue to use UFAS to comply with HUD’s Section 504 requirements, it must determine, section-by-section, which standard (2010 Standards or UFAS) affords greater accessibility and comply with that provision. If choosing the 2010 Standards for purposes of compliance with Section 504, the recipient need only comply with the 2010 Standards except that it must not apply those provisions not deemed as compliant in this document and must continue to apply those provisions of UFAS or the HUD regulation that are specifically identified in this document. HUD also reminds recipients that the design and construction requirements of the Fair Housing Act (FHAct) continue to apply to new construction of covered multifamily dwellings. These requirements are not affected by this document. However, some of these requirements impose greater accessibility requirements than the 2010 Standards.