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

III. Background

A. Section 504

Section 504 and HUD’s Section 504 regulation prohibit discrimination on the basis of disability in any program or activity that receives Federal financial assistance from the Department.³ HUD’s Section 504 regulation specifically prohibits the denial of benefits of, exclusion from participation in, or other discrimination against qualified individuals with disabilities in Federally assisted programs or activities because a recipient’s facilities are inaccessible to or unusable by individuals with disabilities.⁴ Among other things, the regulation requires that the design, construction, and alteration of projects meet physical accessibility requirements.⁵

Currently, pursuant to HUD’s Section 504 regulation, the design, construction, or alteration of buildings in conformance with UFAS is deemed to be in compliance with the accessibility requirements of Section 504.⁶ UFAS is based on the minimum accessibility guidelines developed by the United States Access Board (Access Board) that were adopted as enforceable standards by the General Services Administration, the Department of Defense, the Department of Housing and Urban Development, and the United States Postal Service for purposes of compliance with the ABA. Subsequently, UFAS was also adopted as the referenced accessibility standard in HUD’s Section 504 regulation. HUD’s Section 504 regulation provides that departures from particular technical and scoping requirements of UFAS by the use of other methods are permitted where substantially equivalent or greater access to and usability of the building is provided (24 CFR 8.32).

B. 2004 ADA and ABA Accessibility Guidelines

On July 23, 2004, the Access Board published updated minimum accessibility guidelines for both the ADA and the ABA known as the Americans with Disabilities Act and Architectural Barriers Act Accessibility Guidelines (2004 ADA and ABA Accessibility Guidelines). The 2004 ADA and ABA Accessibility Guidelines updated the accessibility provisions contained in UFAS and the 1991 ADA Accessibility Guidelines. The 2004 ADA and ABA Accessibility Guidelines contain three parts: application and scoping requirements for facilities covered by the ADA (ADA Chapters 1 and 2); application and scoping requirements for facilities covered by the ABA (ABA Chapters 1 and 2); and a common set of technical provisions (Chapters 3 through 10). The 2004 ABAAG refers to ABA scoping Chapters 1 and 2 and technical provisions in Chapters 3 through 10, and the 2004 ADAAG refers to ADA scoping Chapters 1 and 2 and technical provisions in Chapters 3 through 10.

HUD will engage in the rulemaking process in order to replace UFAS with a new accessibility standard based on the updated guidelines for purposes of both Section 504 and ABA compliance. Until HUD adopts a new accessibility standard, HUD recipients who undertake alterations or new construction of a project may continue to utilize UFAS and HUD’s Section 504 or ABA regulations.

C. Title II of the ADA

Title II of the ADA prohibits discrimination on the basis of disability by state and local government entities, including by requiring facilities designed, constructed, or altered by or on behalf of a public entity, or as part of a public entity’s program, to be readily accessible to and usable by individuals with disabilities.⁷ Except for transportation facilities, DOJ is the Federal agency responsible for adopting accessibility standards under title II of the ADA.⁸ The Department of Transportation establishes accessibility standards for transportation facilities subject to title II of the ADA. In 1991, DOJ issued a regulation establishing the 1991 Standards or UFAS as legally enforceable accessibility standards under title II.

On September 15, 2010, DOJ published a final rule revising its title II regulation at 28 CFR part 35. Among other requirements, the revised regulation adopted a new accessibility standard referred to as the 2010 ADA Standards for Accessible Design (2010 Standards).⁹ For new construction and alterations that commence on or after March 15, 2012, entities covered by title II must comply with the 2010 Standards.¹⁰ The 2010 Standards can be found at http://www.ada.gov/ 2010ADAstandards_index.htm.

For title II entities, the 2010 Standards consist of the 2004 ADAAG and requirements contained in 28 CFR 35.151. Section 35.151 sets forth requirements that have the effect of modifying provisions in 2004 ADAAG and include scoping and technical requirements for social service center establishments, housing at places of education, assembly areas, medical care facilities, residential dwelling units for sale to individuals, and detention and correctional facilities. For example, social service center establishments, which include group homes, halfway houses, shelters, and similar facilities providing temporary sleeping accommodations, must comply with the 2010 Standards applicable to residential facilities including certain requirements specified at 28 CFR 35.151(e). Most housing at a place of education (defined in the title II and title III regulations) must comply with the 2010 Standards applicable to transient lodging including certain requirements specified at 28 CFR 35.151(f).