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

V. Utilizing the 2010 Standards

As stated above, the 2010 Standards under title II consist of the 2004 ADAAG and requirements in 28 CFR 35.151. HUD is permitting use of the 2010 Standards as an alternative accessibility standard with the following exceptions. These exceptions are necessary to ensure that HUD recipients construct or alter buildings and facilities with at least the same degree of accessibility as is currently required under HUD’s Section 504 regulation and UFAS. The Department lacks the authority to allow the use of an alternative standard that would reduce accessibility or usability for individuals with disabilities in housing settings below the level required by its Section 504 regulation without engaging in notice and comment rulemaking. As discussed below, these exceptions will also maintain consistency with certain requirements of the FHAct.

Definitions

The 2010 Standards define some terms that are also defined in HUD’s Section 504 regulation. In such cases, the definition in HUD’s Section 504 regulation shall control.

Scoping for Residential Dwelling Units

The 2010 Standards generally defer to HUD on scoping of residential dwelling units provided by entities subject to HUD’s Section 504 regulation.¹⁴ Specifically, entities receiving Federal financial assistance from the Department must provide residential dwelling units containing mobility features and residential dwelling units containing communication features complying with the 2010 Standards in a quantity identified in HUD’s Section 504 regulation. For purposes of this document, HUD is not changing its scoping requirements for residential dwelling units under its part 8 regulation.¹⁵ HUD recipients designing, constructing, altering, or operating residential facilities must utilize HUD’s scoping to determine the number of required accessible units and utilize the 2010 Standards, with the identified exceptions noted below, for other scoping requirements as well as for the technical standards. If HUD’s Section 504 rule does not provide scoping, a HUD recipient using the 2010 Standards for Section 504 compliance must use the scoping provided in the 2010 Standards. This does not preclude HUD from considering scoping or other changes when it undertakes rulemaking to adopt a new 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.

Alterations—28 CFR 35.151

The 2010 Standards at 28 CFR 35.151(b) and section 202 contain criteria detailing when alterations of facilities must be made accessible. In certain situations, application of the 2010 Standards may result in fewer units containing accessibility features. Because HUD cannot use this document to permit the use of a lesser requirement than that required by its Section 504 regulation, HUD is not permitting use of § 35.151(b). Therefore, multifamily housing projects must continue to utilize the terms ‘‘substantial alterations’’ and ‘‘other alterations’’ as defined in HUD’s Section 504 regulation to determine accessibility requirements.¹⁸ This does not preclude HUD from considering changes to its alterations criteria for residential dwelling units when it revises its regulation to adopt a new accessibility standard.

Additions—Section 202.2 of the 2010 Standards

Section 202.2 of the 2010 Standards contains scoping requirements which may, in certain situations, afford less accessibility for individuals with disabilities than is currently provided by HUD’s rules at 24 CFR part 8 and UFAS. Because the Department is precluded from permitting the use of an alternative standard that might reduce accessibility for individuals with disabilities in housing settings without notice and comment rulemaking, HUD is not permitting use of the scoping requirements for additions at section 202.2 of the 2010 Standards.

Alterations Affecting Primary Function Areas—Exception to Section 202.4 of the 2010 Standards

Section 202.4 of the 2010 Standards includes a path of travel obligation when areas containing a primary function are altered. Under the Exception to Section 202.4, residential dwelling units are exempted from this requirement. Under HUD’s Section 504 regulation, when accessible dwelling units are newly constructed or where alterations include the provision of accessible dwelling units, the dwelling units must be on an accessible route. HUD is not permitting use of the Exception to Section 202.4 because this may conflict with HUD’s Section 504 regulation.

Common Use Areas in Residential Facilities—Section 203.8 of the 2010 Standards

Section 203.8 of the 2010 Standards provides that, in residential facilities, common use areas that do not serve residential dwelling units required to provide mobility features are not required to be accessible or on an accessible route. By contrast, common use areas in residential facilities subject to the new construction requirements of the FHAct must comply with FHAct accessibility requirements, including the requirement to be on an accessible route, regardless of whether or not the common use areas serve units required to have mobility features pursuant to the ADA or Section 504. The only exception would be common use areas provided on upper stories of a non-elevator building provided the same common use areas are provided on the ground floor. In addition, this general exception for common use areas may result in less accessibility than is currently required under HUD’s Section 504 regulation and UFAS. Accordingly, HUD is not permitting use of Section 203.8 under this document.

Employee Work Areas—Section 203.9 of the 2010 Standards, and Similar Sections

The 2010 Standards require a more limited level of access within employee work areas in ADA-covered facilities than UFAS, which requires employee work areas to be fully accessible. As stated above, the Department has no authority to allow the use of an alternative standard that may reduce accessibility for individuals with disabilities without notice and comment rulemaking. Section 203.9, as well as Section 206.2.8, the Exception to Section 403.5, and the Exception to Section 405.8, all require less accessibility in employee work areas than UFAS. For this reason, HUD is not permitting use of the aforementioned sections of the 2010 Standards for employee work areas.

Vehicular Route Exceptions—Sections 206.2.1 and 206.2.2 of the 2010 Standards

The 2010 Standards contain an exception for accessibility at site arrival points which provides that an ‘‘accessible route shall not be required between site arrival points and the building or facility entrance if the only means of access between them is a vehicular way not providing pedestrian access’’ (Section 206.2.1 Site Arrival Points, Exception 2). The 2010 Standards also contain an exception for accessibility within a site which provides that an ‘‘accessible route shall not be required between accessible buildings, accessible facilities, accessible elements, and accessible spaces if the only means of access between them is a vehicular way not providing pedestrian access’’ (Section 206.2.2 Within a Site, Exception). Neither exception is in UFAS,¹⁹ which requires pedestrian access routes, and both conflict with HUD’s Section 504 regulation, which requires that all programs and activities receiving Federal funds be readily accessible to and usable by persons with disabilities, as well as the requirements of the FHAct and HUD’s Fair Housing Accessibility Guidelines. Accordingly, HUD is not permitting the use of Exception 2 to Section 206.2.1 Site Arrival Points, and the Exception to Section 206.2.2 Within a Site.

Elevator Exception 1—Section 206.2.3 of the 2010 Standards

The 2010 Standards contain specific exceptions to the general provision requiring at least one accessible route to connect each story and mezzanine in multi-story buildings or facilities (Section 206.2.3). Exception 1 to Section 206.2.3 of the 2010 Standards contains an elevator exception for private buildings or facilities that are less than three stories or that have less than 3,000 square feet per story (unless the type of building is omitted in the standard from the exception, e.g., a shopping center, a shopping mall, the professional office of a health care provider, etc.). HUD’s Section 504 regulation does not impose different requirements on recipients that are public entities as compared to recipients that are private entities. In order to ensure that all HUD recipients are subject to the same accessibility requirements, regardless of whether they are public or private entities, HUD is not permitting use of Exception 1 to Section 206.2.3 by private entities subject to its Section 504 regulation.

Washing Machines; Clothes Dryers— Sections 214.2 and 214.3 of the 2010 Standards

UFAS requires front loading washing machines and clothes dryers in common use laundry rooms in facilities serving accessible residential dwelling units.²⁰ UFAS’ requirements for front-loading machines reflect the fact that not all persons with disabilities will be able to use top loading machines. The 2010 Standards, however, permit either top loading or front loading machines in such facilities (Section 214.2 Washing Machines; Section 214.3 Clothes Dryers). Consequently, HUD is not permitting application of the scoping requirements for washing and drying machines found at sections 214.2 and 214.3 of the 2010 Standards. Recipients must continue to comply with section 4.34.7 of UFAS. These requirements apply to each laundry room except that HUD’s Section 504 regulation and UFAS would not require a laundry room on an upper story of a non-elevator building to be accessible provided that there is an accessible laundry room serving that same building on the ground floor. HUD recipients should also be aware that, when washing machines and clothes dryers are provided in individual dwelling units, front loading accessible washing machines and clothes dryers may be required in accessible dwelling units as a reasonable accommodation for individuals with disabilities.

Visible Alarms—Exception to Section 215.1 of the 2010 Standards

Section 215.1 includes a new exception for visible alarms in the alteration of existing facilities, providing that visible alarms must be installed only when an existing fire alarm system is upgraded or replaced, or a new fire alarm system is installed. Under this exception, visible alarms would not be required as part of alterations unless the alarm system is upgraded, replaced, or newly installed. HUD is not permitting use of this exception because its application may result in less accessibility than is currently required under HUD’s Section 504 regulation. Instead, recipients engaged in alterations must refer to HUD’s regulation at 24 CFR 8.22, 8.23, 8.24, and 8.25 to determine whether visible alarms must be installed. For recipients engaged in substantial alterations, the new construction requirements apply (with the exception that building alterations are not required that have little likelihood of being accomplished without removing or altering a load-bearing structural member) and visible alarms would be included in the alterations. For recipients engaged in other alterations not rising to the level of substantial alterations, any alterations (including alterations to dwelling units, common areas, or parts of facilities that affect accessibility of existing housing facilities) must, to the maximum extent feasible, be made to be readily accessible to and usable by individuals with disabilities. ‘‘To the maximum extent feasible’’ means recipients are not required to make alterations if doing so would impose undue financial and administrative burdens on the operation of the multifamily housing project, but must provide for accessibility up to the point of undue financial and administrative burdens. This is a high threshold to meet. Therefore, HUD recipients must continue to comply with the provisions in HUD’s Section 504 regulation, and not utilize the exception in the 2010 Standards. If visible alarms are not provided, there must be an effective means of alerting individuals who are deaf or hard of hearing to fires and other emergencies in order to afford them an equal opportunity to evacuate to safety.

For the convenience of the reader, the Appendix to this document provides a table that lists in column one the exceptions contained in the document and in the second column, the UFAS and/or HUD Section 504 regulation provisions that would need to be complied with because the entity could not use that section of the ADA 2010 Standards. The table is provided so that it can be used by HUD recipients as a stand-alone chart that lists, in a single table, not only what the exceptions are, but what actions recipients must undertake in lieu of using the exceptions.