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U.S. Department of Housing and Urban Development

Community Planning and Development

Special Attention of:

**Notice**: CPD-05-09

All Secretary\'s Representatives

All State/Area Coordinators Issued: November 3, 2005

All CPD Office Directors Expires: November 3, 2006

All HOME Coordinators

All HOME Participating Jurisdictions

All CDBG Grantees

All FHEO Field Directors

SUBJECT: Accessibility Notice: Section 504 of the Rehabilitation Act of
1973 and The Fair Housing Act and their applicability to housing
programs funded by the HOME Investment Partnerships Program and the
Community Development Block Grant Program

**I. PURPOSE**

The purpose of this Notice is to remind recipients of Federal funds for
the HOME Investment Partnerships Program (HOME) or the Community
Development Block Grant (CDBG) Program of their obligation to comply
with Section 504 of the Rehabilitation Act of 1973, the Fair Housing
Act, and HUD\'s implementing Regulations (24 CFR Parts 8 and 100,
respectively), which prohibit discrimination based on disability and
establish requirements for program accessibility and physical
accessibility in connection with housing programs. This Notice describes
key compliance elements for housing assisted under the HOME and CDBG
programs. However, recipients should review the specific provisions of
the Fair Housing Act, Section 504, and their respective regulations in
order to assure that their programs are administered in full compliance.
Note that with respect to Section 504, this Notice does not address the
applicability of Section 504\'s physical accessibility requirements to
homeownership programs financed with HOME/CDBG assistance.

The Notice also recommends that recipients conduct updated self
evaluations as a useful tool for enhancing efforts to comply with
accessibility requirements in HOME/CDBG programs, as well as to document
those efforts.

**Applicability**

This Notice applies to new construction and rehabilitation of housing
under the HOME and CDBG programs. Each primary recipient of Federal
funds from the HOME or CDBG program is responsible for providing this
notice to each organization or other entity participating in the
construction or rehabilitation of projects receiving such funding and
for establishing policies and practices that it will use to monitor
compliance of all covered programs, activities, or work performed by
subrecipients, contractors, subcontractors, management agents, etc.

Distribution: W-3-1

**II. SECTION 504 OF THE REHABILITATION ACT OF 1973**

**Background**

The HOME and CDBG programs, through State and local governments, provide
assistance that may be used for the construction or rehabilitation of
affordable housing. HOME and CDBG funds may be used to construct or
rehabilitate rental housing, to rehabilitate owner-occupied housing, and
to finance homeownership programs.

Section 504 of the Rehabilitation Act of 1973 prohibits discrimination
against persons with disabilities in the operation of programs receiving
Federal financial assistance. HUD regulations implementing Section 504
contain accessibility requirements for new construction and
rehabilitation of housing as well as requirements for ensuring that the
programs themselves are operated in a manner that is accessible to and
usable by persons with disabilities (see 24 CFR Part 8).

For the purposes of this Notice, the references to multifamily housing
projects covered by Section 504 only apply to multifamily rental housing
projects.

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). A family that will receive CDBG or HOME funds for the
rehabilitation of an owner-occupied unit is not subject to the
requirements of Part 8, since it is the ultimate beneficiary of the
funds.

**New construction**

HUD regulations implementing Section 504 at 24 CFR 8.22(a) require that
new construction of multifamily projects be designed and constructed to
be readily accessible to and usable by persons with disabilities.
Multifamily housing projects are defined at 24 CFR 8.3 as \"projects
containing five or more dwelling units.\" Both the individual units and
the common areas in the building must be accessible.

For new construction of multifamily rental projects, a minimum of 5
percent of the dwelling units in the project (but not less than one
unit) must be accessible to individuals with mobility impairments. An
additional 2 percent of the dwelling units (but at a minimum, not less
than one unit) must be accessible to individuals with sensory
impairments (i.e., hearing or vision impairments) unless HUD prescribes
a higher number pursuant to 24 CFR 8.22(c).

**Rehabilitation**

**Substantial alterations -** Section 504 requires that if alterations
are undertaken to a housing project that has 15 or more units, and the
rehabilitation costs will be 75 percent or more of the replacement cost
of the completed facility, then such developments are considered to have
undergone \"substantial alterations\" (24 CFR 8.23 (a)). For substantial
alterations of multifamily rental housing, the accessibility
requirements contained in 24 CFR 8.22 must be followed \-- a minimum of
5 percent of the dwelling units in the project (but not less than one
unit) must be accessible to individuals with mobility impairments, and
an additional 2 percent, at a minimum (but not less than one unit), must
be accessible to individuals with sensory impairments.

**Other alterations \--** When **other alterations** that do not meet
the regulatory definition of substantial alterations are undertaken in
multifamily rental housing projects of any size, these alterations must,
to the maximum extent feasible, make the dwelling units accessible to
and usable by individuals with disabilities, until a minimum of 5
percent of the dwelling units (but not less than one unit) are
accessible to people with mobility impairments, unless HUD prescribes a
higher number pursuant to 24 CFR 8.23(b)(2). If alterations of single
elements or spaces of a dwelling unit, when considered together, amount
to an alteration of a dwelling unit, then the entire dwelling unit shall
be made accessible. For this category of rehabilitation the additional 2
percent of the dwelling units requirement for individuals with sensory
impairments does not apply. Alterations to common spaces must, to the
maximum extent feasible, make those areas accessible. A recipient is not
required to make a dwelling unit, common area, facility or element
accessible, if doing so would impose undue financial [and]{.underline}
administrative burdens on the operation of the multifamily housing
project (24 CFR 8.23(b)). Therefore, with regards to covered
alterations, recipients are only required to provide access up to the
point of being an undue financial and administrative burden.

**Accessibility Standards**

Dwelling units designed and constructed in accordance with the Uniform
Federal Accessibility Standards (UFAS) will be deemed to comply with the
Section 504 regulation. For copies of UFAS, contact the HUD Distribution
Center at 1-800-767-7468; hearing or speech-impaired persons may access
this number via TTY by calling the Federal Information Relay Service at
1-800-877-8339. Accessible units must be, to the maximum extent
feasible, distributed throughout the projects and sites, and must be
available in a sufficient range of sizes and amenities so as not to
limit choice.

**III. FAIR HOUSING ACT**

**Background**

The Fair Housing Act applies to most housing sold or rented in the
United States. The Fair Housing Act prohibits discrimination in housing
practices on the basis of race, color, religion, sex, and national
origin. The Fair Housing Act was amended in 1988 to provide protections
from discrimination in any aspect of the sale or rental of housing for
families with children and persons with disabilities. The Fair Housing
Act [also]{.underline} establishes requirements for the design and
construction of new rental or for sale multifamily housing to ensure a
minimum level of accessibility for persons with disabilities (see 24 CFR
100.200 et seq.).

Section of the Fair Housing Act at 804(f)(3)(C) requires that covered
multifamily dwelling units designed and constructed for initial
occupancy after March 13, 1991, be designed and constructed in a manner
that:

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

> \(ii\) the doors are designed to allow passage into and within the
> premises of such dwelling units and 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 usable bathrooms such that an individual in
> a wheelchair can maneuver about the space.

Covered multifamily dwelling units are:

-   dwelling units in buildings consisting of 4 or more units served by
    one or more elevators, or

-   ground floor dwelling units in other buildings with 4 or more units.

    Information about housing designs that provide accessible features
    in compliance with the Fair Housing Act can be found in the HUD\'s
    Fair Housing Accessibility Guidelines, which were published in the
    Federal Register on March 6, 1991 (56 F.R. 9472) and in HUD\'s Fair
    Housing Act Design Manual. These can be obtained from the HUD
    Distribution Center at 1-800-767-7468. Hearing-impaired or
    speech-impaired individuals also may access this number via TTY by
    calling the Federal Information Relay Service at 1-800-877-8339.

    The design and construction requirements in the Fair Housing Act
    apply only to a building designed and constructed for initial
    occupancy after March 13, 1991. The Fair Housing Act regulations
    define a building for initial occupancy as a building that has never
    been used for any purpose. Thus, the design and construction
    requirements in the Fair Housing Act will not apply to
    rehabilitation projects or activities.

    **Illustrations**

It must be noted that, in many cases, new construction of rental
projects funded in the HOME/CDBG Programs must meet both the Fair
Housing Act and the Section 504 new construction requirements. Where two
or more accessibility standards apply, the housing provider is required
to follow and apply both standards, so that maximum accessibility is
obtained.

The following examples illustrate how these requirements will (or will
not) apply.

-   A rental building with an elevator constructed with HOME/CDBG
    funding would be required to have 5% of its dwelling units meet the
    Section 504 accessibility requirements at 24 CFR 8.22 and the
    remaining 95% of the dwelling units would be required to comply with
    the Fair Housing Act design and construction requirements at 24 CFR
    100.205. Note: An additional 2% of the dwelling units are required
    to be accessible for people with vision and hearing impairments.

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-   A newly constructed 100 unit two-story garden apartment development
    with no elevator that received HOME/CDBG assistance, with half (50)
    of its dwelling units on the ground floor and half (50) on the
    second floor, would be required to have 5 of its ground floor
    dwelling units built to comply with the Section 504 accessibility
    requirements at 24 CFR 8.22, and the remaining 45 ground floor
    dwelling units built to comply with the Fair Housing Act design and
    construction requirements at 24 CFR 100.205. Note: An additional 2%
    of the dwelling units are required to be accessible for people with
    vision and hearing impairments in accordance with Section 504.

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-   A development consisting entirely of multistory rental townhouses
    constructed with Federal financial assistance is not a covered
    multifamily dwelling for purposes of the design and construction
    requirements of the Fair Housing Act at 24 CFR 100.205, since none
    of the dwelling units qualify as ground floor units, but the project
    would still have to meet the Section 504 5% + 2% accessibility
    requirements at 24 CFR 8.22. (A townhouse development of 5 or more
    single story dwelling units would still have to comply with both
    Section 504 and the Fair Housing Act design and construction
    requirements at 24 CFR 100.200 et. seq.)

    **IV. Increasing Program Accessibility**

    HUD\'s Section 504 regulations require that a recipient of Federal
    financial assistance ensure that its program, when viewed in its
    entirety, is accessible to persons with disabilities (24 CFR 8.20).
    In order to meet this obligation, participants in the HOME/CDBG
    program must:

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-   To the maximum extent feasible, distribute accessible units
    throughout the projects and make them available in a sufficient
    range of sizes and amenities so as not to limit choice.

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-   Adopt suitable means to assure that information regarding the
    availability of accessible units reaches eligible individuals with
    disabilities. They must also take reasonable nondiscriminatory steps
    to maximize use of such units by eligible individuals.

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-   When an accessible unit becomes vacant, before offering the unit to
    an individual without a disability, offer the unit: first, to a
    current occupant of the project requiring the accessibility feature
    and, second, to an eligible qualified applicant on the waiting list
    requiring the accessibility features.

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-   When an applicant or tenant requires an accessible feature or policy
    modification to accommodate a disability, a federally assisted
    provider must provide such feature or policy modification unless
    doing so would result in a fundamental alternation in the nature of
    its program or an undue financial [and]{.underline} administrative
    burden. See 24 CFR 8.4, 8.24, and 8.33 for further requirements and
    guidance.

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-   Providers are required to ensure that information about their
    programs is disseminated in a manner that is accessible to persons
    with disabilities. For example, special communication systems can
    greatly increase the effectiveness of outreach and ongoing
    communication (e.g., Telecommunications Devices for the Deaf (TTY),
    materials on tape or in Braille).

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-   Providers must ensure that activities and meetings are conducted in
    accessible locations.

    Participants in the HOME/CDBG program may:

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-   Ask applicants for information that demonstrates they can meet the
    obligations of tenancy, including financial information, references,
    prior tenancy history, etc. However, housing providers may not
    inquire into the nature and severity of an applicant or tenant\'s
    disability, nor may they ask persons with disabilities questions not
    asked of all applicants, apply different types of screening
    criteria, or assess an applicant\'s ability to live independently.

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-   Ask if the applicant qualifies for a housing program or unit
    designed for persons with a disability when the housing program or
    unit is designed for such persons.

-   Consider including a lease provision that requires a nondisabled
    family occupying an accessible unit to move if a family with a
    disability needing that size unit applies and there is an
    appropriately sized nonaccessible unit available for the relocating
    family.

    **V. Visitability**

    **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, which for very little or no
    additional cost, enables persons with disabilities to visit
    relatives, friends, and neighbors in their homes within a community.

    **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:

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

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

    **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. Further information regarding the
    concept of visitability may be obtained through the HUD web page
    **(http://www.huduser.org/publications/pubasst/strategies.html).**

    **VI.** **Self-Evaluation**

    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.
    Nonetheless, recipients who have not completed a self-evaluation are
    encouraged to conduct a self-evaluation to be in compliance with
    requirement under these regulatory provisions.

    Involving persons with disabilities in the self-evaluation process
    is very beneficial. This will assure the most meaningful result for
    both the recipient and for persons with disabilities who participate
    in the recipients 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:

-   Evaluate current policies and practices and analyze them to
    determine if they adversely affect the full participation of
    individuals with disabilities in its 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.

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

-   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.

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

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.

**VII. HUD Technical Assistance Concerning these Requirements**

Further information concerning compliance with any of these requirements
may be obtained through the HUD web page
**(http://www.hud.gov/offices/fheo/disabilities/sect504.cfm).**
Additional assistance and information may be obtained by contacting the
local HUD Office of Community Planning and Development (CPD) and the
Office of Fair Housing and Equal Opportunity (FHEO) listed below:

> **CPD** **FHEO**

**Boston, MA** 617 994-8357 617 994-8300

**Hartford, CT** 806 240-4800 x3059 860 240-4800

**New York, NY** 212 542-7401 212 264-1290

**Buffalo, NY** 716 551-5755 x5800 716 551-5755

**Newark, NJ** 973 622-7900 x3300 973 622-7900

**Philadelphia, PA** 215 656-0624 x3201 215 656-0663

**Pittsburgh, PA** 412 644-2999 412 644-6970

**Baltimore, MD** 410 962-2520 x3071 410 962-2520

**Richmond, VA** 804 771-2100 x3766 804 771-2100

**Washington, DC** 202 275-9200 x3l63 202 275-9200

**Atlanta, GA** 404 331-5001 x2449 404 331-5140

**Birmingham, AL** 205 731-2630 x1027 205 731-2630

**South Florida** 305 536-5678 x2257 305 536-5678 x2218

**Jacksonville, FL** 904 232-1777 x2077 904 232-1241

**San Juan, PR** 787 766-5201 787 766-5400

**Louisville, KY** 502 582-6163 x200 502 582-6163 x230

**Jackson, MS** 601 965-4700 x3140 601 965-4700 x2435

**Knoxville, TN** 865 545-4391 x125 865 545-4400

**Greensboro, NC** 336 547-4000 336 547-4050

**Columbia, SC** 803 765-5564 803 765-5938

**Chicago, IL** 312 353-1696 x2713 312 353-7776

**Minneapolis, MN** 612 370-3019 x2107 612 370-3185

**Detroit, MI** 313 226-7900 x8059 313 226-7900

**Milwaukee, WI** 414 297-3214 x8100 414 297-3214

**Columbus, OH** 614 469-5737 x8240 614 469-5737 x8170

**Indianapolis, IN** 317 226-6303 x6790 317 226-6303

**Little Rock, AK** 501 324-6375 x3300 501 324-6296

**Oklahoma City, OK** 405 609-8569 405 609-8435

**Kansas City, KS** 913 551-5485 913 551-6958

**Omaha, NE** 402 492-3147 402 492-3109

**St. Louis, MO** 314 539-6524 314 539-6583

**New Orleans, LA** 504 589-7214 x1047 504 589-7219

**Fort Worth, TX** 817 978-5934 817 978-5900

**San Antonio, TX** 210 475-6821 210 475-6885

**Albuquerque, NM** 505 346-7361 505 346-6463

**Denver, CO** 303 672-5414 xl326 303 672-5437

**San Francisco, CA** 415 489-6597 415 489-6524

**Los Angeles, CA** 213 894-8000 x3300 213 894-8000 x2600

**Honolulu, HI** 808 522-8180 x264 808 522-8175

**Phoenix, AZ** 602 379-7175 602 379-6699 x5261

**Seattle, WA** 206 220-5268 206 220-5170

**Portland, OR** 503 326-7018 503 326-2561

**Manchester, NH** 603 666-7510 x3017 617 994-8300

**Anchorage, AK** 907 677-9890 907 677-9837

**Houston, TX** 817 978-5934 713 718-3199