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

Structural Impracticability—28 CFR 35.151

Under § 35.151(a)(2) full compliance with the requirements of the 2010 Standards is not required in new construction where a public entity can demonstrate that it is structurally impracticable to do so. Full compliance is considered structurally impracticable ‘‘only in those rare circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features.’’ ¹⁶ HUD’s Section 504 regulation does not contain a comparable exception from compliance with the applicable accessibility requirements when HUD recipients undertake new construction of facilities. HUD’s regulation also precludes a HUD recipient from selecting a site or location of a facility which would have the purpose or effect of excluding qualified individuals with disabilities from, denying benefits of, or otherwise subjecting them to discrimination under, any program or activity that receives Federal financial assistance.¹⁷ Under HUD’s Section 504 regulation, if a site cannot be made accessible to individuals with disabilities, it must not be selected. As emphasized above, HUD cannot allow the use of an alternative standard which conflicts with HUD’s regulatory requirements and may reduce accessibility in housing settings without the opportunity for public input through notice and comment rulemaking. Accordingly, recipients may not apply the structural impracticability exception contained in § 35.151(a)(2) of the 2010 Standards through this document.