Complying with Federal Design and Accessibility Requirements, Part 1

This article is the first of a three-part series on meeting the federal design and accessibility requirements. The first part outlines what the requirements are and whether your site is among those that must comply with them. The second and third parts, which will be published in the next two issues, will give you 11 rules that your site must follow to remain in compliance.

If any part of your tax credit site is covered by accessibility requirements for design and construction—under either the Fair Housing Act (FHA) or Section 504 of the Rehabilitation Act of 1973—you, as a site owner or manager, must make sure that it complies with these requirements. Because HUD and the Department of Justice (DOJ) treat compliance with these requirements seriously, you need to follow suit, warns attorney Steven J. Edelstein, an expert in Fair Housing law and HUD rules. The penalties for violating these requirements are stiff, including HUD fines and lawsuits from DOJ and private individuals. And tax credit sites are also subject to their own state housing finance agency (HFA) rules regarding accessibility.

Generally speaking, if your site was built after July 1988 and is federally assisted, you must comply with Section 504 accessibility requirements. And FHA accessibility requirements, which apply whether or not your site receives federal funds, kick in for sites “opened for first occupancy after March 13, 1991,” which means that if you are constructing a new site today, it's probably covered by both. But if you already own or manage a site that has one or more buildings covered by the requirements, you must be sure that these buildings are in compliance. If you discover they are not, you must fix the problem as soon as possible.

In this article, we will tell you the basics on each set of accessibility requirements so you can determine whether parts of your site are covered by either set of accessibility requirements or both.

Are You Covered?

Whether you must comply either with FHA or Section 504 requirements, or with both, depends on when your site was built and the area of the site in question, says Edelstein. Here are the basics on what each set of accessibility requirements covers:

FHA requirements. If any buildings at your site opened for first occupancy after March 13, 1991, they must have been built in compliance with the FHA's accessibility requirements. These requirements say that all ground-floor and elevator-accessible units (meaning all units in a building with an elevator), public-use areas, and common areas must be accessible to people with mobility impairments. The FHA and its regulations list seven design and construction requirements that covered sites must follow.

You don't have to comply with these requirements if any of the following apply:

• The building was designed and constructed for first occupancy on or before March 13, 1991;

• The last building permit (or renewal) for the building was issued on or before June 15, 1990. If the last building permit (or renewal) for the building is dated June 15, 1990, or before, you don't need to comply with the design and construction requirements—even if the building was first occupied after March 13, 1991. Accordingly, if the last building permit (or renewal) for the building was issued after June 15, 1990, the building is covered—unless it was first occupied on or before March 13, 1991; or

• The building has fewer than four units. If a building has four or more units, it is covered even if those units are separated by a breezeway, stairway, or firewall. Detached single-family houses, duplexes, triplexes, and multistory townhouses without elevators are not covered.

Section 504 requirements. Federally assisted sites are also subject to the physical accessibility requirements of Section 504 of the Rehabilitation Act. These apply to sites with 15 or more units built before July 1988 if these sites have undergone “substantial” alterations. To be considered substantial, the alterations must cost 75 percent or more of the replacement cost of the completed site. But even if no substantial alterations are made, Section 504 requires modifications on an “as needed” basis, Edelstein says.

Section 504 requires sites with six or more units to have a minimum of 5 percent of units—or at least one unit—that is “physically accessible” for persons who have mobility impairments (under HUD regulations this applies to sites constructed after July 1988). The Uniform Federal Accessibility Standards (UFAS) spells out minimum standards for physical accessibility.

Section 504 also requires each site to have completed a self-evaluation of its “policies and practices” that don't meet Section 504 requirements, and to have developed a transition plan for completing structural changes “needed to make the [site] readily accessible and usable by individuals with handicaps.” For more information on completing the self-evaluation and transition plan, see HUD Handbook REV-1 CHG-2, par. 2-34.

EDITOR'S NOTE: You can get a copy of the UFAS by going to http://www.access-board.gov/ufas. Look for “Standards and Guidelines” at the top of the page and click on UFAS. You can also find out about a HUD nationwide initiative called “Fair Housing Accessibility FIRST,” which includes a comprehensive training curriculum. The initiative has its own Web site at www.fairhousingfirst. org, where you can obtain technical guidance on federal design and accessibility requirements.

Compliance with Other Accessibility Laws

Some states and local governments have their own accessibility laws, which may be more stringent than the FHA's requirements, says Edelstein. And these laws may require you to follow different sets of accessibility standards than what the FHA or Section 504 requires, he notes. For example, although federal law requires that, depending on the number of parking spaces that are available to a site, from 2 to 4 percent of the total be handicap-accessible, Massachusetts requires much more—at least 10 percent, he adds.

In addition, all sites—regardless of when they opened for first occupancy—must comply with Title III of the Americans with Disabilities Act (ADA). This law requires you, as an owner or manager, to remove barriers that prevent people with disabilities from getting to and using your public use areas, Edelstein explains. Public use areas are any areas that are open to the public, such as your leasing office. A common area set aside for residents only is not considered a public use area, he notes.

For sites built before Jan. 23, 1993, you must remove barriers that keep people with wheelchairs out of your public use areas only if barrier removal is “readily achievable,” says Edelstein. This means that it must make both structural and financial sense to remove the barriers, he explains. If removing a barrier is not readily achievable, you don't need to do it to comply with the ADA.

For instance, if widening an entrance would mean tearing down beams on either side of the door that support the building, you don't have to widen the entrance. But most of the time, the barriers that you must remove are ones like stairs, curbs, and narrow doorways that keep people in wheelchairs out of public use areas, explains Edelstein.

To comply, you must use the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG) standard, says Colleen Bloom, associate director of housing operations at the American Association of Homes and Services for the Aging. The ADAAG differs from the UFAS standards for public use areas, which the FHA and Section 504 use, she notes. In many cases, the ADAAG standard is more stringent, she advises. You can download a copy of the ADAAG by going to HUD's Web site at http://www.hudclips.org and finding the link to the HUD Distribution Center, she adds.

If you discover that buildings at your site don't meet these accessibility requirements, you must bring them into compliance as soon as possible, says Edelstein. This is especially true if your site is not in compliance with the ADA—there's no limit to the amount you could be sued for under the ADA. But if you get sued before you bring your site into compliance, the fact that you are already taking steps to comply will help your case, he adds. You will be more likely to avoid paying punitive damages, he explains.

Consult an attorney or experienced Fair Housing consultant to make sure you understand which accessibility laws you must comply with, Edelstein suggests. An attorney or consultant can give you a more independent assessment of your compliance than you could give yourself, he says. And the attorney or consultant might be able to recommend cost-effective ways to modify your site so that it complies with the requirements.

EDITOR'S NOTE: The Insider's July issue will give you six rules to follow to ensure your buildings and common areas are in compliance with federal design and accessibility requirements. The August issue will give you five rules covering unit-specific compliance requirements.

Legal Citations

• Americans with Disabilities Act: 42 USC §12131 et seq.

• Fair Housing Act: 42 USC § 3601 et seq.

• First Occupancy: 24 CFR 100.201.

• Section 504 of the Rehabilitation Act of 1973: Pub. L. 93-1121, 87 Stat. 355, as amended.

• Seven design and construction requirements that covered sites must follow: 42 USC § 3604; 24 CFR 100.205.

Insider Sources

Colleen Bloom: Assoc. Director of Housing Operations, American Assn. of Homes & Services for the Aging, 2519 Connecticut Ave., Washington, DC 2008; (202) 508-9483; cbloom@aahsa.org.

Steven J. Edelstein, Esq.: Partner, Law Firm of Williams & Edelstein, PC, 7742 Spalding Dr., Ste. 478, Norcross, GA 30092; (770) 817-0405; http://www.williams-edelstein.net; steve@fairhouse.net.