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

IV. Deeming 2010 Standards as an Alternative Accessibility Standard for Section 504 Compliance

In March 2011, pursuant to its coordination authority under Section 504, DOJ advised Federal agencies that until such time as they update their agency’s regulation implementing the Federally assisted provisions of Section 504, they may notify covered entities that they may use the 2010 Standards as an acceptable alternative to UFAS. Consistent with this guidance, HUD will permit, but not require HUD recipients to use the 2010 Standards under title II of the ADA, except for those provisions identified in this document, as an alternative accessibility standard to UFAS until HUD revises its Section 504 regulation to formally adopt an updated accessibility standard.¹¹ HUD is not permitting use of certain identified provisions in the 2010 Standards because those provisions provide a lower level of accessibility than is currently required under UFAS and/or HUD’s Section 504 regulation and HUD cannot reduce the level of accessibility provided under its Section 504 regulation without engaging in notice and comment rulemaking.

It is important to emphasize that HUD recipients electing to use the 2010 Standards must use the 2010 Standards applicable to public entities under title II of the ADA, with the exceptions noted below, to the entire project; they may not rely on some requirements contained in the 2010 Standards and some requirements contained in UFAS. For purposes of Section 504 compliance, this does not mean that existing buildings that are part of a project and which are not being altered must be brought up to the 2010 Standards. Rather, it means that when a HUD recipient undertakes new construction or alterations and chooses to use the 2010 Standards with the exceptions outlined in this document, the recipient must apply the 2010 Standards to all of the new construction or alterations. It should be noted that the 2010 Standards include a safe harbor for portions of a path of travel complying with UFAS or the 1991 Standards (28 CFR 35.151(b)(4)(ii)(C)). This safe harbor does not apply to existing elements that are altered. The 2010 Standards are available at http:// www.ada.gov/2010ADAstandards_index.htm.

This option applies to all HUD recipients for purposes of compliance with HUD’s Section 504 regulation, including private and public entities, and entities covered by Section 504 but not title II or III of the ADA. Most recipients covered by Section 504 based on the receipt of Federal financial assistance from HUD are state or local government entities or private entities covered by the ADA, and are therefore required to comply with ADA accessibility requirements.¹² By issuing this document, HUD is offering covered entities the option of reducing the burden of complying with different accessibility standards under Section 504 and the ADA until HUD issues a rule adopting a new accessibility standard under Section 504. HUD recipients may utilize the 2010 Standards, with the exceptions outlined in this document, for compliance with both statutes.

This document makes no changes for entities that choose to use UFAS for purposes of Section 504 compliance along with HUD’s Section 504 regulation when undertaking alterations or new construction. HUD recipients may continue to use HUD’s Section 504 regulation and UFAS for Section 504 compliance until HUD formally adopts an updated accessibility standard through rulemaking. However, because UFAS is no longer an option for ensuring compliance with title II of the ADA, HUD recipients subject to both Section 504 and title II of the ADA must take an additional step in order to ensure compliance with the ADA if they use UFAS for purposes of Section 504. Specifically, in addition to complying with each scoping and technical provision of UFAS, they must also comply with each scoping and technical provision of the 2010 Standards that affords greater accessibility than UFAS.¹³