**U.S. Department of Housing and Urban Development**

**Office of** **Housing**

**Special Attention of:** Notice H 01-02 (HUD)

Secretary\'s Representatives, State

and Area Coordinators, Multifamily **Issued:** 02/06/01

Hub Directors, Multifamily Program **Expires:** 02/28/02

Center Directors; Supervisory

Project Managers, Multifamily Project **Cross References:**

Owners and Management Agents,

Community Builders

**Subject: Compliance with Section 504 of the Rehabilitation Act of 1973
and the**

> **Disability/Accessibility Provisions of the Fair Housing Act of
> 1988**

**I. Introduction**

**A.** **Purpose:** This Notice provides information to participants in
most programs and activities under the jurisdiction of the Office of
Multifamily Housing Programs concerning applicable requirements for
nondiscrimination on the basis of disability in such housing programs.
The Notice reminds recipients of federal financial assistance of their
obligation to comply with Section 504 of the Rehabilitation Act of 1973
and implementing regulations at 24 CFR Part 8 which provide for
non-discrimination on the basis of disability in federally-funded
housing and non-housing programs. The Notice also describes the
obligations of all housing providers, whether or not they receive
federal financial assistance, to comply with pertinent sections of the
Fair Housing Act\'s provisions concerning persons with disabilities. The
Notice also provides information on additional accessibility
requirements imposed by specific program regulations, and discusses the
concept of visitability. Finally, it indicates where participants in the
programs below may receive technical assistance concerning these
requirements.

**B.** **Applicability:** This Notice applies, in whole or in part, to
the programs and activities under the jurisdiction of the Office of
Multifamily Housing Programs, including the following:

1\. Section 202 Supportive Housing for the Elderly

2\. Section 202 Direct Loan Program for Housing for the Elderly or
Persons with

Disabilities

3\. Section 202 Assisted Living Conversion Program

4\. Section 811 Supportive Housing for Persons with Disabilities

5\. Section 8 Project-Based Rental Certificates/Vouchers

**Distribution:** W**-**3-1

1

6\. Mortgage Insurance Programs:

o Section 207 Rental Housing Insurance

o Section 213 Cooperative Housing Insurance

o Section 220 Rehabilitation and Neighborhood Conservation Housing
Insurance

o Section 221 (d)(3) and Section 22 1 (d)(4) Mortgage Insurance for
Rental and Cooperative Housing

o Section 231 Housing for Elderly Persons

o Section 232 Mortgage Insurance for Nursing Homes, Intermediate Care
Facilities, and Board and Care Homes

o Section 234 Mortgage Insurance for Condominiums

o Section 236 Rental Housing

7\. Other programs and activities funded now or in the future by the
Office of Multifamily Housing Programs, including:

o New Approach Anti-Drug

o Drug Elimination Grants

o Service Coordinators

o Neighborhood Networks

o Congregate Housing Services Program

o Miscellaneous Training/Technical Assistance

This notice also applies to contractors or other agents of recipients
performing covered work or conducting covered activities on behalf of
recipients including, architects, consultants, management agents,
service coordinators, etc.

**C.** **Background:** While many participants in the HUD programs
listed above are doing an excellent job of meeting their obligation to
ensure nondiscrimination on the basis of disability in their programs
and services, other HUD program participants may not be in compliance
with the subject laws and implementing regulations. To achieve maximum
compliance, this Notice will serve to emphasize the importance of
compliance.

**D.** **Notification:** Local HUD Offices are responsible for providing
this Notice to all participants in covered programs/activities or
performing work covered under the above subject legislation and
implementing regulations. Participants such as project owners are
responsible for providing this Notice to all **current** and **future**
contractors, management agents, architects, consultants, etc.

**II.** **Section 504 of the Rehabilitation Act**

Section 504 of the Rehabilitation Act of 1973 prohibits discrimination
against persons with disabilities in all programs receiving federal
financial assistance, including housing. The Fair Housing Act prohibits
discrimination based upon disability, race, color, religion, sex,
national origin and familial status in almost all housing sold and
rented in the United States. State and local laws may have additional
requirements. This Notice discusses how the Section 504 and the
disability/accessibility provisions of the Fair Housing Act apply to
housing and addresses situations where both laws apply. In this respect,
where a property is subject to more than one law or accessibility
standard, it is necessary to

2

comply with all applicable requirements. In some cases, it may be
possible to do this by complying with the stricter requirement, however,
it is also important to ensure that meeting the stricter requirement
also meets both the scoping requirements of each law and the technical
requirements of overlapping laws or standards.

**A. Section 504 - Major Provisions (24 CFR 8)**

**1.** **Coverage**

Section 504 applies to recipients of federal financial assistance. The
Section 504 regulations define \"recipient\" as any State or its
political subdivision, any instrumentality of a state or its political
subdivision, any public or private agency, institution, organization, or
other entity or any person to which federal financial assistance is
extended for any program or activity directly or through another
recipient, including any successor, assignee, or transferee of a
recipient, but excluding the ultimate beneficiary of the assistance (24
CFR 8.3). Thus, HUD funded Section 811 or Section 202 developments, any
developments which have project-based rental certificates or vouchers,
or any properties insured by HUD mortgage insurance programs that also
receive federal subsidies along with the mortgage insurance (i.e., rent
supplement, rental assistance program, Section 8 project-based
development) are recipients of federal financial assistance and are
subject to the requirements of Section 504. In addition, a HUD mortgagee
receiving a subsidy through the Section 221(d)(3) Below Market Interest
Rate Program or the 236 Rental Housing Program is also a recipient of
federal financial assistance and is subject to the requirements of
Section 504.

**2.** **Definition of Person With a Disability (24 CFR 8.3)**

Section 504 defines person with a disability to include individuals with
a physical or mental impairment that substantially limits one or more
major life activities. The term \"physical or mental impairment\" may
include, but is not limited to, conditions such as visual or hearing
impairment, mobility impairment, HIV infection, mental retardation, drug
addiction (except current illegal use of or addiction to drugs), or
mental illness. The term \"major life activity\" means a function such
as caring for one\'s self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning and working. Section 504 also
protects persons who have a record of such impairment, or are regarded
as having such an impairment.

**Note:** Although the regulations refer to individual with handicaps,
the statute was amended in 1990 to change the reference to individual
with disabilities. This Notice the latter term.

**3. Physical Accessibility**

**a. [New Construction \[24 CFR 8.22 (a) and (b)\]]{.underline}**. A
minimum of 5% of the total dwelling units or at least one unit
(whichever is greater) must be accessible for persons with mobility
impairments. A minimum of 2% of the total dwelling units or at least one
unit (whichever is greater) must be suitable

3

for occupancy by people with hearing or vision impairments. Also, see
visitability recommendations in Section VI of this Notice.

**b.** **[Substantial Alterations \[24 CFR]{.underline}**
**[8.23(a)\]]{.underline}.** If alterations are undertaken to a project
that has 15 or more units and the cost of the alterations is 75% 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. For a definition
of \"facility\", see 24 CFR 8.3. Also, see visitability recommendations
in Section VI of this Notice.

**c.** **[Other Alterations \[24 CFR 8.23(b)\]]{.underline}**. When any
other alterations are undertaken to any multifamily project that do not
qualify as \"substantial alterations\", such alterations are required to
be accessible, to the maximum extent feasible, up until a point where at
least 5% of the units in a project are accessible unless HUD prescribes
a higher number or percentage pursuant to 24 CFR 8.23(b)(2). If
alterations of single elements of a dwelling unit, when considered
together, amount to an alteration of the dwelling unit, the entire
dwelling unit shall be made accessible. When the entire unit is not
being altered, 100% of single elements being altered must be made
accessible until 5% of the units in the development are accessible.
However, HUD strongly encourages recipients, when undertaking
alterations, to make 5% of the units in a project accessible up front,
as that will avoid the necessity of making every element altered
accessible, which may result in having partially accessible units of
little or no value for persons with mobility impairments, and is likely
to be more costly overall. It is recommended that recipients include up
to 2% of the units for persons with hearing and vision impairments.
Also, see visitability recommendations in Section VI of this Notice. See
24 CFR 8.23(b)(1) for exceptions due to undue financial and
administrative burden and 24 CFR 8.32(c) for exception regarding
alterations that require removing or altering load-bearing structural
members.

**Note:** These exceptions do not relieve the recipient from compliance
utilizing other units/buildings or other methods.

**d.** **[Applicability]{.underline}.** The accessibility requirements
apply to the entire project as opposed to each individual building in
the project.

**4. Program Accessibility**

**a.** **[Reasonable Accommodations \[24 CFR 8.4, 8.24 and
8.33\]]{.underline}**. A \"reasonable accommodation\" is a change,
adaptation or modification to a policy, program, service, building,
dwelling unit or workplace which will allow a qualified person with a
disability to participate fully in a program, take advantage of a
service, live in a dwelling, or perform a job. Reasonable accommodations
may include, for example, those which are necessary for a person with a
disability to use and enjoy a dwelling. When a family member requires an
accessible feature(s), policy modification or other reasonable
accommodation to accommodate a disability, recipients must provide the
requested accommodation unless doing so would result in a fundamental
alteration in the nature of its program or an undue

4

financial and administrative burden. If providing such feature(s) would
result in a financial and administrative burden, the recipient is
required to take any other action that would not result in an undue
burden.

Recipients 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 unit, the common areas of a dwelling or participate in or access
other activities conducted/sponsored by the recipient. For example, a
recipient that does not allow residents to have pets, must modify its
policies and allow a tenant with a disability to have an assistive
animal if the animal is needed as a reasonable accommodation. If the
recipient provides transportation to functions or activities or if
transportation is necessary for a person with a disability to
participate in such functions or activities, a recipient must ensure
that accessible transportation is provided to accommodate persons with
disabilities and their aides including the reasonable accompaniment of
relative(s) or acquaintance(s) or assistive animals. See discussion of
assistive animals under the Fair Housing Act section below.

Recipients are required to make and pay for structural modifications to
dwelling units and common areas when needed as a reasonable
accommodation for tenants or applicants with disabilities. For example,
a recipient may be required to install a ramp to allow a tenant in a
wheelchair access to a dwelling unit or, rather than modifying an
existing unit, transfer a family to an available accessible unit or one
that can be modified without causing an undue financial and
administrative burden or alteration in the nature of a program, as long
as such transfer meets the needs of the applicant/resident and is
consistent with options provided to other families, such as choices
among available projects. If providing a requested accommodation would
result in a fundamental alteration in the nature of the program or an
undue financial and administrative burden, then the recipient need not
provide that accommodation. However, the recipient is required to
provide any other requested accommodation that would not result in an
undue financial and administrative burden or fundamental alteration of
the program. See 24 CFR 8.24 and 8.33 for a variety of compliance
methods.

**b. [Distribution of Accessible Dwelling Units (24 CFR
8.26)]{.underline}.** Required accessible dwelling units shall, to the
maximum extent feasible, be distributed throughout projects and sites
and shall be available in a sufficient range of sizes and amenities so
that people with disabilities have choices of living arrangements
comparable to that of other families eligible for assistance under the
same program.

**c.** **[Occupancy of Accessible Dwelling Units (24 CFR
8.27)]{.underline}.** Recipients shall adopt suitable means to ensure
that information regarding the availability of accessible units reaches
people with disabilities. Recipients shall also take reasonable
nondiscriminatory steps to maximize the utilization of accessible units
by eligible individuals whose disability requires the accessibility

5

accessibility features of the particular unit. To this end, when an
accessible unit becomes vacant, before offering such a unit to an
applicant without a disability, the recipient shall:

\(1\) First, offer the unit to an individual with disabilities currently
residing in a non-accessible unit in the same project or comparable
projects, under common control who requires the features of the unit,

\(2\) Second, offer the accessible unit to the next qualified individual
with disabilities on its waiting list who needs the features of the
unit.

**Note:** A recipient may not prohibit an eligible family with a member
who has a disability from accepting a non-accessible unit that the
family is eligible for which may become available before an accessible
unit. The recipient is required to modify such a non-accessible unit as
needed, unless the modification would result in an undue financial and
administrative burden. When offering an accessible unit to applicants
without disabilities, the recipient may require such applicants to agree
to move to a non-accessible unit when available or when the accessible
unit is needed by a family with a member who has a disability. Such an
agreement may be incorporated into the lease.

If an appropriate size accessible unit is not available, a recipient may
want to house an applicant needing an accessible unit in a larger
accessible unit in order to maximize the use of the accessible features.
Also, dwelling units designed to be adaptable in accordance with the
Uniform Federal Accessibility Standards (UFAS) can be easily converted
into UFAS compliant units, and would, therefore, count as accessible
units (see 24 CFR 8.3). Such adaptable units are helpful when there is
no demand for accessible units since adaptable units are more marketable
to families without disabilities.

Recipients should maintain up to date information about individuals in
the community who need accessible units so that when such a unit becomes
available persons in need of these units may have the opportunity to
live in them. This can best be accomplished by targeting outreach
efforts towards people with disabilities, including
publicity/advertising, contacts with advocacy groups representing people
with disabilities and other entities that come in contact with people
with disabilities such as social service agencies, vocational
rehabilitation agencies, medical providers, etc. **Reminder:** 24 CFR
8.27 requires that accessible units be offered first to current
occupants in need of the accessible features of the available accessible
unit and secondly, to a qualified applicant needing the accessible unit
on the waiting list.

**d.** **[Non-housing Facilities (24 CFR]{.underline}**
**[8.21)]{.underline}.** All of the requirements of Section 504 with
respect to nondiscrimination, program accessibility, and reasonable
accommodation that apply to housing facilities and programs apply
equally to non-housing facilities and programs. For example, newly
constructed nonhousing facilities built by recipients shall be designed
to be readily accessible to and usable by people with disabilities.
Alterations to existing

6

facilities shall 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. For existing
non-housing facilities such as Neighborhood Network Centers,
participants shall operate each 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. There are a number of methods included in the regulation
at 24 CFR 8.21(c)(2) which may be used to accomplish accessibility in
existing non-housing programs and activities.

**e.** **[Accessibility Standards (24 CFR 8.32).]{.underline}** The
design, construction or alteration of buildings in conformance with
Sections 3-8 of the UFAS are deemed to comply with the accessibility
requirements of 24 CFR 8.21, 8.22, 8.23 and 8.25 with respect to those
buildings. See 24 CFR 8.32. While this does not require recipients to
make building alterations that cannot be accomplished without removing
or altering a load-bearing structural member, it does not relieve the
project owner of the responsibility for making its programs and units
accessible to people with disabilities. Note that the UFAS may not be
used alone, it is to be used in conjunction with the Section 504
regulations. Copies of UFAS may be obtained by calling the HUD
Distribution Center at 1-800-767-7468. Deaf, hard of hearing or
speech-impaired individuals also may access this number via TTY by
calling the Federal Information Relay Service at 1-800-877-8339.

**B. Section 504 Admission/Occupancy Requirements**

**1.** **[Application Process (24 CFR 8.4, 8.24)]{.underline}.**
Recipients must make sure that all employees who are involved in the
application process understand how to conduct tenant selection and
screening without discriminating on the basis of any protected class, in
particular, applicants with disabilities. All application offices must
be accessible. The recipient should provide accessible materials for
persons with hearing or visual disabilities. A recipient may have to
make special arrangements to take the applications of persons who are
unable to come to the management office as an accommodation to a
disability. At the initial point of contact with each applicant, the
recipient should inform all applicants of alternative forms of
communication that can be used. Some examples of alternative forms of
communication are sign language interpretation; having material
explained orally by staff, providing large type materials; or having a
third party representative (a friend, relative or advocate, named by the
applicant) to receive, interpret and explain housing materials and be
present at all meetings.

**2.** **[Live-in-Aides (24 CFR 5.403)]{.underline}.** In some cases,
individuals with disabilities may require a live-in-aide. A recipient
should consider a person a live-in-aide if the person (a) is essential
to the care and well being of a family member who has a disability; (b)
is not obligated to support the family member; and (c) would not be
living in the unit except to provide the supportive services. A
live-in-aide may not be required to share a bedroom with another member
of the household.

7

**3.** **[Verification]{.underline}.** The recipient may verify a
person\'s disability only to the extent necessary to ensure that
applicants are qualified for the housing for which they are applying;
that applicants are qualified for deductions used in determining
adjusted income; that applicants are entitled to any preference they may
claim; and that applicants who have requested a reasonable accommodation
have a need for the requested accommodation. A recipient may not require
applicants to provide access to confidential medical records in order to
verify a disability nor may a recipient inquire into the nature or
severity of a person\'s disability. Because some housing programs may
lawfully be designed for persons within one or more of the three
categories of disability (i.e., physical disability, developmental
disability, chronic mental illness), such as the Section 811 program or
Section 202 direct loan program, a recipient may make an inquiry to
determine if an applicant qualifies for the housing which is available
only to persons who are a member of the category of disability served by
the project.

**4.** **[Eligibility/Reasonable Accommodations]{.underline}.** Many
applicants meet the eligibility requirements and the requirements of the
lease, do not need a reasonable accommodation, and do not need special
unit features, and, therefore, can be admitted in exactly the same
manner as other applicants.

Applicants who do not meet the requirements of the lease are sent a
rejection letter. This letter must provide all applicants information
concerning the recipient\'s informal review process and their right to
request a hearing. The letter must also state that applicants with
disabilities have the right to request reasonable accommodations to
participate in the informal hearing process. The recipient is obligated
to provide such reasonable accommodation if it does not cause undue
financial and administrative burdens or require the recipient to make a
fundamental alteration to the nature of its program.

A recipient may consider rejecting an applicant with disabilities if
there is information indicating (a) the person is unable to comply with
the terms of tenancy, or (b) that the individual tenancy would pose a
direct threat to the health or safety of other individuals or would
result in substantial physical damage to the property of others. In such
cases, however, if a reasonable accommodation will allow an applicant
with a disability to meet the requirements, or will eliminate the
threat, a recipient must make the accommodation.

A reasonable accommodation allows the applicant with a disability to
meet essential requirements of tenancy; it does not require reducing or
waiving essential requirements. Examples of reasonable accommodations
include, but are not limited to, physical alteration of units, making
services and programs accessible, and revising policies and procedures.
The focus should be on finding a reasonable accommodation that will
permit the applicant to comply with the essential obligations of
tenancy. A recipient is not required to excuse the applicant from
meeting those requirements. All applicants should be provided
information about how to request a reasonable accommodation at the

8

time they apply for admission and at every recertification. Each
recipient must have a reasonable accommodation policy. The requirement
to provide a reasonable accommodation is present at all times, including
during lease enforcement.

**5.** **[Unit Size]{.underline}.** A family may need a unit that is
larger than the occupancy standards allow as a reasonable accommodation
because of a family member with a disability. In such cases, a recipient
must grant the reasonable accommodation, but may request documentation
of the need for the larger unit.

**6.** **[Unit Location]{.underline}.** A family applying for a unit or
requesting a transfer may need a first floor unit as an accommodation
due to a disability. However, persons with disabilities may not be
restricted to only first floor units.

**7.** **[Assistive Animals]{.underline}**. Assistive animals for
persons with disabilities are not pets, therefore, regular pet policies
do not apply to animals that are used to assist persons with
disabilities and are necessary as a reasonable accommodation. See
discussion of assistive animals under the Fair Housing Act section
below. However, all provisions of the lease apply, such as maintaining
the premises in a clean and sanitary condition and ensuring that
neighbors enjoy their premises in a safe and peaceful manner.

**C.** **Self Evaluation (24 CFR 8.51)**

The Section 504 regulations required recipients of federal financial
assistance to conduct a self-evaluation of their policies and practices
to determine if they were consistent with the law\'s requirements. This
self evaluation was to have been completed no later than July 11, 1989.

The regulatory deadlines are long past. However, self-evaluation
continues to be an excellent management tool for ensuring that a
recipient\'s current policies and procedures comply with the
requirements of Section 504.

It is important to involve persons with disabilities in the
self-evaluation process. This will assure the most meaningful result for
both the recipient and for persons with disabilities who participate in
the recipient\'s programs and activities. It is important to involve
persons and/or organizations representing persons with disabilities, and
agencies or other experts who work regularly with accessibility
standards.

Important steps in conducting a self-evaluation and implementing its
results include the following:

o Evaluate current policies and practices and analyze them to determine
if they adversely affect the full participation of individuals with
disabilities in the recipient\'s programs, activities and services. Be
mindful of the fact that a policy or practice may appear neutral on its
face, but may have a discriminatory effect on individuals with
disabilities.

9

o Modify any policies and practices that are not or may not be in
compliance with Section 504.

o Take appropriate corrective steps to remedy those policies and
practices which either are discriminatory or have a discriminatory
effect. Develop policies and procedures by which persons with
disabilities may request a modification of a physical barrier or a rule
or practice that has the effect of limiting or excluding a person with a
disability from the benefits of the program.

o Document the self-evaluation process and activities. The Department
recommends that all recipients keep the self-evaluation on file,
including records of the individuals and organizations consulted, areas
examined and problems identified, and document modifications and
remedial steps.

o The Department also recommends that recipients periodically update the
self-evaluation, particularly, for example, if there have been changes
in recipient owned housing stock, such as demolition of housing units
and construction and/or alteration of housing, or changes in the
programs and services of the agency.

**III. The Fair Housing Act of 1988 (24 CFR 100)**

**A. Background**

The Fair Housing Act (the Act), prohibits discrimination in housing
practices on the basis of race, color, religion, sex, national origin,
and applies to almost all housing sold or rented in the United States.
The Act was amended in 1988 to provide protections for families with
children and persons with disabilities. This Notice focuses only on the
provisions of the Act protecting persons with disabilities. The Act also
establishes requirements for the design and construction of covered
multifamily dwellings built for first occupancy after March 13, 1991, to
ensure a minimum level of accessibility for persons with disabilities.
(See 24 CFR 100.200 *et seq).*

**B.** **Applicability**

The Fair Housing Act applies to all **housing providers** operating
programs funded by the Office of Multifamily Housing Programs, and all
housing providers applying for HUD mortgage insurance; not just those
providers that qualify as recipients of federal financial assistance.

**C.** **Definition of Person with a Disability (24 CFR 100.201).**

The Fair Housing Act defines \"person with disability\" in the same
manner as Section 504 as an individual with a physical or mental
impairment that substantially limits one or more major life activities.
The ten-n \"physical or mental impairment\" may include, but is not
limited to, conditions such as visual or hearing impairment, mobility
impairment, HIV infection, mental retardation, drug addiction (except
current, illegal use of, or addiction to, drugs)

10

or mental illness. The term \"major life activity\" may include seeing,
hearing, walking, breathing, performing manual tasks, caring for one\'s
self, learning, speaking, or working. The Act also protects persons who
have a record of such impairment, or are regarded as having such an
impairment.

**D. New** **Construction**

**1. [Requirements]{.underline}**. Section 804(f)(3)(C) of the Fair
Housing Act (45 U.S.C. 3604(f)(3)(c)) requires that covered multifamily
dwelling units **designed and constructed for first occupancy after
March 13, 1991,** be designed and constructed in a manner that:

\(i\) the public and common use portions of such dwelling units are
readily accessible to and usable by disabled persons;

\(ii\) all the doors designed to allow passage into and within the
premises within such dwelling units are sufficiently wide to allow
passage by disabled persons in wheelchairs; and

\(iii\) all premises within such dwelling units contain the following
features of adaptive design:

\(I\) an accessible route into and through the dwelling unit;

\(II\) light switches, electrical outlets, thermostats, and other
environmental controls in accessible locations;

\(III\) reinforcements in bathroom walls to allow later installation of
grab bars; and

\(IV\) usable kitchens and bathrooms such that an individual in a
wheelchair can maneuver about the space.

Covered multifamily dwellings are:

o buildings consisting of 4 or more dwelling units, if such buildings
have one or more elevators, and

o ground floor units in other buildings consisting of 4 or more dwelling
units.

**2.** [Applicability]{.underline}. The Act\'s design and construction
requirements apply on a building-by-building basis and only to a
building designed and constructed for first occupancy after March 13,
1991. The Fair Housing Act regulations define \"first occupancy\" as a
building that has never before been used for any purpose.

**E.** **Accessibility Standards**

The Fair Housing Act regulations provide that meeting the appropriate
requirements of the American National Standards Institute (commonly
cited as ANSI A117.1) accessibility standards suffices to meet the
accessibility requirements in the Act and the Department's regulations.
In

11

addition, the Department\'s **Fair Housing Accessibility Guidelines**
(the Guidelines) provide a safe harbor for compliance. The Guidelines
were published in the [Federal Register]{.underline} on March 6, 1991
(56 F.R. 9472) and technical corrections to the Guidelines were
published in the [Federal Register]{.underline} on June 24, 1991. In
addition, on June 28, 1994, the Department published a Supplemental
Notice to the Guidelines: Questions and Answers About the Guidelines (59
F.R. 33362). The Department also published a **Fair Housing Act Design
Manual** which also serves as a safe harbor. For copies of either the
Guidelines or the Design Manual, contact HUD\'s Distribution Center at
1-800-767-7468. Deaf, hard of hearing or speech-impaired individuals
also may access this number via TTY by calling the Federal Information
Relay Service at 1-800-877-8339.

**F.** **Other Fair Housing Act Disability-Related Nondiscrimination
Requirements**

**The Fair Housing Act\'s nondiscrimination requirements apply to all
housing providers, funded or insured through programs of the Office of
Multifamily Housing Programs, not just those engaged in the design and
construction of new housing.**

**1.** **[Reasonable Modifications to Existing Premises (24 CFR
100.203).]{.underline}** The Fair Housing Act provides that it is
unlawful for a housing provider to refuse to permit a person with a
disability to make reasonable modifications, at his or her own expense,
of existing premises occupied or about to be occupied by a person with a
disability, if such modification may be necessary to afford the person
with a disability full enjoyment of the premises. If it is reasonable to
do so, the housing provider may condition permission for a modification
of a dwelling unit, (not the common areas) on the renter agreeing to
restore the unit to the condition that existed before the modification,
reasonable wear and tear excepted. In such case, the housing provider
may require the tenant to pay into an interest bearing escrow account,
over a reasonable period, the funds necessary to restore the premises to
its original condition (see regulation for further requirements and
guidance). **However, participants in programs receiving federal
financial assistance that are also subject to section 504, such as
owners of Section 202 and Section 811 projects, owners receiving project
based Section 8 certificates, participants in the Section 236 Rental
Insurance Program or the 221(d)(3) Below Market Rate Insurance Programs
must follow the more stringent requirements of 24 CFR** **8.4, 8.24,
8.23(b)(1) and 8.33, which require them to pay the cost of modifications
unless such modifications are determined to be an undue financial and
administrative burden (in such cases, other alternatives for providing
the accommodation must be implemented by project owners).**

**2.** **[Reasonable Accommodations (24 CFR 100.204).]{.underline}**
This obligation applies to all housing providers regardless of whether
they receive federal financial assistance. This requirement is the same
under Section 504 and the Fair Housing Act.

12

An **\"accommodation\"** is a change, exception, or adjustment to a
rule, policy, practice or service, which may be necessary in order for a
person with a disability to use and enjoy a dwelling, including public
and common use spaces. Since persons with disabilities may have special
needs, in some cases, simply treating them exactly the same as others
may not ensure that they have an equal opportunity to use and enjoy a
dwelling. The Fair Housing Act makes it unlawful to refuse to make
**\"reasonable** accommodations\" to rules, policies, practices, or
services, when such accommodations **may be necessary** to afford
persons with disabilities an equal opportunity to use and enjoy a
dwelling.

In order to show that a requested accommodation **may be necessary,**
there must be an identifiable relationship, or nexus, between the
requested accommodation and the individual\'s disability. A provider may
refuse to provide a requested accommodation if providing the
accommodation would constitute an undue financial and administrative
burden or fundamental alteration of the provider\'s housing program.

Examples of reasonable accommodations are: providing an assigned parking
space in front of an entrance to a tenant\'s unit, where the housing
provider has a policy of no assigned spaces; allowing a tenant with a
disability to have an assistive animal, (see below) where the housing
provider has a "no pets\" policy; allowing a tenant whose disability
makes it difficult for her to leave her unit to mail her rent, where the
landlord has a policy of requiring rent to be paid in person at the
rental office.

**3.** **[Assistive Animals]{.underline}.** Assistive animals are
animals that serve as a reasonable accommodation for persons with
disabilities by assisting those individuals in some identifiable way by
making it possible for them to make more effective use of their housing.
Such animals are often referred to as \"service animals, assistive
animals, support animals, or therapeutic animals" and may include any
animal that actually performs tasks or a service for the benefit of an
individual with a disability, including, but not limited to, guiding
individuals with impaired vision, alerting individuals with hearing
impairments to intruders or sounds, pulling a wheelchair, fetching items
or providing emotional support to persons with mental disabilities.
Regular pet policies do not apply to assistive animals. If a tenant or
applicant can establish that he or she needs an assistive animal as a
reasonable accommodation to his or her disability, the housing provider
must allow the animal to live in the unit.

**4.** **[Unlawful Inquiries (24 CFR 100.202).]{.underline}** The Fair
Housing Act provides that it is unlawful for a housing provider (a) to
inquire whether an applicant for a dwelling, a person intending to
reside in a dwelling after it becomes available, or anyone associated
with an applicant or resident, has a disability or (b) to inquire as to
the nature or severity of a disability of such persons. Housing
providers may, however, make the following inquiries, provided these
inquiries are made of all applicants, whether or not they are persons
with disabilities:

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o Inquiry into an applicant\'s ability to meet the requirements of
tenancy;

o Inquiry to determine if an applicant is a current illegal abuser or
addict of a controlled substance; and

o Inquiry to determine if an applicant has been convicted of the illegal
manufacture or distribution of a controlled substance.

There may be instances where the housing has been developed under
programs designed to provide housing for persons with a disability. In
such instances, a housing provider may make the following inquiries of
all applicants:

o Inquiry to determine if an applicant qualifies for a dwelling legally
available only to persons with a disability or to persons with a
particular type of disability, and

o Inquiry to determine if an applicant qualifies for a priority
available to persons with disabilities or to persons with a particular
disability. For example:

\- A housing provider offers accessible units to persons needing the
features of these units [on a priority basis]{.underline}. The provider
may ask applicants whether they have a disability which will benefit
from the features of the units, but may not in such circumstances ask
applicants whether they have other types of impairments.

Housing providers may not assess an applicant\'s ability to live
independently, may not apply different types of screening criteria to
persons with disabilities, and may not request copies of a tenant or
applicant\'s medical records.

**IV. Examples of How Developments May Be Subject to Both Section 504
and**

**the Fair Housing Act Design and Construction Requirements**

In many cases properties constructed with Federal financial assistance
must meet both the Section 504 new construction requirements at 24 CFR
8.22 as well as the Fair Housing Act design and construction
requirements. Multifamily projects consisting of four (4) or more units
in a building that are constructed with federal financial assistance for
first occupancy after March 13, 1991 must meet both the Section 504 new
construction requirements at 24 CFR 8.22 as well as the Fair Housing Act
design and construction requirements. For example:

o A newly constructed elevator building must have 5% of its units meet
the Section 504 accessibility requirements at 24 CFR 8.22. The remaining
95% of the units must comply with the Fair Housing Act design and
construction requirements at 24 CFR 100.205 (see Section III.D. Above).

**Note:** As required by Section 504, an additional 2% of the units must
be accessible for people with vision and hearing impairments.

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o A newly constructed two-story 100-unit garden apartment development
with no elevator with 50 units on the ground floor and 50 on the second
floor must have 5 (5% of total number of units) ground floor units built
to comply with the Section 504 accessibility requirements at 24 CFR
8.22., All of the remaining 45 ground floor units must comply with the
Fair Housing Act design and construction requirements at 24 CFR 100.205.

**Note:** As required by Section 504, an additional 2% of the units must
be accessible for people with vision and hearing impairments.

o A development consisting entirely of [multistory]{.underline}
townhouses is **not** a covered multifamily dwelling for purposes of the
design and construction requirements of the Fair Housing Act at 24 CFR
100.205, but must meet the Section 504 5% + 2% accessibility
requirements at 24 CFR 8.22. (However, a townhouse development of 4 or
more [single-story]{.underline} units **must** comply with the Fair
Housing Act design and construction requirements).

**V. Program Specific Compliance/Activities**

**Programs that have accessibility requirements that go beyond the scope
of Section 504 and the Fair Housing Act**

**A. Section 202 Direct Loan Program for Housing for the Elderly or
Persons with Disabilities**

Although the Section 202 Direct Loan Program is no longer in existence
to fund new projects (the National Affordable Housing Act of 1990
replaced it with the Section 202 program of Supportive Housing for the
Elderly and the Section 811 program of Supportive Housing for Persons
with Disabilities), projects developed under the program were required
to meet certain accessibility requirements and must remain in compliance
with these requirements, as follows:

In a Section 202 direct loan project for the elderly, 10 percent of the
units were required to be designed to be accessible (according to UFAS)
to persons with mobility impairments and can be occupied by either
elderly people or nonelderly people with mobility impairments who
require the accessible features of the unit.

**Note:** Projects constructed under the Section 202 Program of
Supportive Housing for the Elderly which was authorized by the National
Affordable Housing Act of 1990 are not required to have 10 percent of
their units accessible to persons with mobility impairments. However,
they must comply with the UFAS, Section 504 of the Rehabilitation Act of
1973 and HUD\'s implementing regulations at 24 CFR part 8 and, for new
construction projects, the design and construction requirements of the
Fair Housing Act and HUD\'s implementing regulations at 24 CFR part 100.

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**B. Section 811 Program of Supportive Housing for Persons with
Disabilities**

Projects must comply with the following:

1\. The Uniform Federal Accessibility Standards (UFAS);

2\. Section 504 of the Rehabilitation Act of 1973 and HUD\'s
implementing regulations at 24 CFR part 8;

3\. For new construction of residential buildings having 4 or more units
(other than a single-family group home intended for occupancy as a
single household), the design and construction requirements of the Fair
Housing Act and HUD\'s implementing regulations at 24 CFR part 100; and

4\. Additional accessibility requirements at 24 CFR 891.310(b) which
include the following:

\(a\) All entrances, common areas, units to be occupied by resident
staff, and amenities must be readily accessible to and usable by persons
with disabilities.

\(b\) In projects for persons with chronic mental illness, a minimum of
10 percent of all dwelling units in an independent living project (or 10
percent of all bedrooms and bathrooms in a group home, but at least one
of each such space) must be designed to be accessible or adaptable for
persons with physical disabilities.

\(c\) In projects for persons with physical or developmental
disabilities, all dwelling units in an independent living project (or
all bedrooms and bathrooms in a group home) must be designed to be
accessible or adaptable for persons with physical disabilities. A
project involving acquisition and/or rehabilitation may provide a lesser
number if:

\(i\) The cost of providing full accessibility makes the project
financially infeasible;

\(ii\) Fewer than one-half of the intended occupants have mobility
impairments; and

\(iii\) The project complies with the requirements of 24 CFR 8.23.

**VI. Visitability**

**A.** **Visitability Concept**

Although not a requirement, it is recommended that all design,
construction and alterations incorporate, whenever practical, the
concept of visitability **[in addition]{.underline}** to the
requirements under Section 504 and the Fair Housing Act.

Visitability is a design concept, for very little or no additional cost,
that enhances the ability of people with disabilities to interact with
their neighbors, friends and associates in the community.

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**B.** **Design Considerations**

Visitability design incorporates the following in all construction or
alterations, in addition to the applicable requirements of Section 504
and the Fair Housing Act, whenever practical and possible for as many
units as possible within a development:

1\. Provide a 32\" clear opening in all bathroom and interior doorways,
and

2\. Provide at least one accessible means of egress/ingress for each
unit.

**C.** **Benefits**

Visitability also expands the availability of housing options for
individuals who may not require full accessibility. It will assist
project owners in making reasonable accommodations and reduce, in some
cases, the need for structural modifications or transfers when
individuals become disabled in place. Visitability will also improve the
marketability of units.

**VII. HUD Technical Assistance on Section 504 and the Fair Housing
Act**

Further information concerning compliance with any of these requirements
may be obtained through the HUD web page
(http://www.hud.gov/fhe/fheo.html). Additional assistance and
information may be obtained by contacting the local Department of
Housing and Urban Development Office of Fair Housing and Equal
Opportunity (FHEO) and Multifamily Program Center (MF Prog Ctr). Below
is a list of the phone numbers for these offices which can also be
accessed through the Federal Information Relay Service at
1-800-877-8339.

**[FHEO]{.underline}** **[MF Prog Ctr]{.underline}**

**Boston** 617-565-5310 617-565-5152

**Hartford** 860-240-4800 860-240-4800 x3002

**Manchester** 603-666-7685

**Providence** 401-528-5354

**New York** 212-264-1290 212-264-0777 x3712

**Buffalo** 716-551-5755 716-551-5755 x5500

**Charleston** 304-347-7000 x110

**Newark** 973-622-7900 973-622-7900 x3419

**Philadelphia** 215-656-0661 215-656-0609 x3305

**Pittsburgh** 412-355-3167 412-644-6394

**Baltimore** 410-962-2520 410-962-2520 x3052

**Richmond** 804-278-4504 804-278-4505 x3148

**Washington, DC** 202-275-0848 202-275-4677 x309l

**Atlanta** 404-331-1798 404-331-5001 x2309

**Birmingham** 205-290-7630 205-290-7630 x1062

**South Florida** 305-536-4479

**Jacksonville** 904-232-1777 904-232-1777 x2018

**Jackson** 601-965-4700 x2801

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**FHEO** **MF Prog Ctr**

**San Juan** 787-766-5400 787-766-5400 x2058

**Louisville** 502-582-6163 x230 502-582-6163 x262

**Knoxville** 865-545-4379 865-545-4411 x157

**Nashville** 615-736-5365 x3120

**Greensboro** 336-547-4050 336-547-4020 x8335

**Columbia** 803-765-5936 803-253-3240

**Chicago** 312-353-7776 312-353-6236 x2152

**Indianapolis** 317-226-7654 317-226-7183

**Minneapolis** 612-370-3185 612-370-3051 x2265

**Milwaukee** 414-297-3214 414-297-3214 x8600

**Detroit** 313-226-6280 313-226-7107 x8l45

**Grand Rapids** 616-456-2138

**Columbus** 614-469-5737 x8170 614-469-5737 x8201

**Cleveland** 216-522-4058 x7169

**Cincinnati** 513-684-2881

**Fort Worth** 817-978-5870 817-978-5767

**Albuquerque** 505-346-7327 817-978-5787

**Houston** 713-313-2274 713-313-2210 x7063

**Little Rock** 501-324-6296 501-324-5937

**New Orleans** 504-589-7219 504-589-7236 x3106

**San Antonio** 210-475-6885 210-475-6831

**Kansas City** 913-551-5834 913-551-6812

**Des Moines** 515-284-4015

**Oklahoma City** 405-553-7426 405-553-7510

**Omaha** 402-492-3109 402-492-3114

**St. Louis** 314-539-6327 314-539-6260

**Denver** 303-672-5437 303-672-5343 x1170

**San Francisco** 415-436-6569 415-436-6580

**Honolulu** 808-522-8180 808-522-8185

**Phoenix** 602-379-4667 x6236

**Sacramento** 916-498-5200 x343

**Los Angeles** 213-894-8000 x3400 213-894-8000 x3802

**Seattle** 206-220-5170 206-220-5200 x3270

**Portland** 503-326-3349 503-326-2514

William C. Apgar

Assistant Secretary for Housing-

Federal Housing Commissioner

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