The Department of Housing and Urban Development (HUD) is seeking input on changes that it is considering to its implementing regulations for Section 504 of the Rehabilitation Act of 1973 (Section 504) for federally assisted and HUD conducted programs and activities by publishing an advanced notice of proposed rulemaking.
Section 504 impacts the obligations of housing providers and managers. Providers of assisted housing must operate such housing so, when viewed in its entirety, it is readily accessible to and usable by individuals with a disability. HUD has continued to find widespread discrimination on the basis of disability in HUD-assisted programs and activities and an ongoing need for affordable, accessible, and integrated housing opportunities for individuals with disabilities. HUD hopes to update its implementing regulations for Section 504 to address current emerging issues and environmental, societal, and technological advances.
Background on Section 504
Section 504 provides that "[n]o otherwise qualified individual with a disability in the United States. . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service." In 1988, HUD published 24 CFR Part 8 to promulgate the regulations HUD deemed to be necessary to carry out Section 504. The regulation requires that the design, construction, and alteration of projects meet physical accessibility requirements. The accessibility standard under HUD's regulation is the Uniform Federal Accessibility Standards (UFAS). Pursuant to HUD's Deeming Notice, as of May 23, 2014, the option to utilize the 2010 ADA Standards for Accessible Design (as defined in the regulation implementing title II of the ADA and consists of the 2004 ADAAG as applied to entities covered by Title II of the ADA (i.e., public entities) and the requirements contained in 28 CFR 35.151), except for certain provisions identified in the Appendix to the Deeming Notice, is available to all HUD recipients for purposes of complying with HUD's Section 504 regulation.
HUD's Section 504 regulations have a great impact on housing providers and managers. Under Section 504, all recipients and subrecipients of federal financing assistance from HUD must comply with Section 504 and HUD's Section 504 implementing regulation at 24 CFR Part 8. This includes complying with the operational and construction requirements of 24 CFR 8.21(c) and 24 CFR 8.24. The recipients must "operate each non-housing 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 handicaps." New facilities and alterations to facilities shall, to the maximum extent feasible, be designed and constructed to be readily accessible and usable.
Need for Section 504 Reform
HUD's Section 504 regulations were originally published in 1988 and have not been significantly updated since. There have been many changes since the original publication like the availability and forms of assistive technology. The percentage of the United States population who are individuals with disabilities has also increased. It is crucial that the 504 regulations are clear, consistent and current. HUD recognized the need for reform after they continued to find widespread discrimination on the basis of disability in HUD-assisted programs and activities and an ongoing need for affordable, accessible, and integrated housing opportunities for individuals with disabilities who are eligible for the programs and activities administered by recipients of Federal financial assistance from HUD.
The competing requirements relating to accessibility may have contributed to this outcome. Most entities are subject to more than one federal accessibility law and architectural standard in the operation of their housing services, programs, and activities. For example, a public housing agency receiving HUD funding and operating public housing and voucher programs may be subject to the design and construction requirements of the Fair Housing Act, Section 504 as a recipient of federal financial assistance, and Title II of the ADA as a public entity. This situation would require not only applying multiple accessibility laws, architectural standards and guidelines, but also any state and local laws and building codes. By updating Section 504 implementing regulations, HUD seeks to harmonize, to the extent possible, the requirements among the various standards and achieve greater consistency in the design and construction of the buildings and facilities that are impacted by multiple federal accessibility laws while also ensuring that accessibility for individuals with disabilities is not reduced.
Proposed Changes to Section 504
HUD intends to revise its Section 504 regulations to clarify recipients' obligations, including how to account for advances in accessible design, information and communication technology, and assistive technologies that have become available since HUD's Section 504 regulations were originally published in 1988.
To accomplish this, HUD is posing the following overarching questions and areas for comment:
TOPIC SUMMARIES OF HUD'S QUESTIONS
- Revisions to the definition of "individuals with disabilities" to be consistent with the ADA Amendment Acts of 2008 and DOJ's Title II ADA regulations.
- Examples of direct and indirect discrimination against those with mental or physical disabilities in securing affordable housing.
- Auxiliary Aids and Services in Housing and Community Development Programs and Activities.
- Percentage of Units that are Mobility-Accessible and Visual and Hearing Accessible.
- Housing Choice Vouchers, Tenant-Based Rental Assistance, and Unit Affordability.
- Harmonization of Varying Accessibility Standards.
- Deeming Notice – 2010 ADA Standards (Title II of ADA).
- Accessibility Features in Common Areas and Units of Affordable Housing Developments.
- Construction and Design of Accessible Housing Developments.
- Clarification on Reasonable Accommodations.
- Compliance and Complaint Process, Policies, Practices, and Procedures.
- Accessibility relating to Tribes and Tribal Entities.
- Intersectionality Considerations.
For the specific questions HUD is requesting and more information relating to the topics above, please visit:
Nondiscrimination on the Basis of Disability: Updates to HUD's Section 504 Regulations.
Public Comment
HUD seeks public comment on this advanced notice of proposed rulemaking and invites all interested parties and members of the public to submit their views, comments, and recommendations for changes that HUD is considering to its implementing regulations for Section 504 by July 24, 2023. Comments may be submitted electronically or by mail as described in the proposed rule.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
