Section 504 of the Rehabilitation Act of 1973 Jeanine Worden Associate General Counsel for Fair Housing U.S. Department of Housing and Urban Development

Section 504 Prohibits discrimination on the basis of disability in programs or activities receiving Federal financial assistance (29 U.S.C. § 794) HUD’s regulations are at 24 CFR parts 8 and 9 Part 8 – Federally assisted programs or activities Part 9 – HUD conducted programs or activities Each Federal funding agency has its own regulations and while some overlap, there are unique requirements

Who Must Comply? Any recipient of Federal financial assistance, which is interpreted broadly to including virtually any form of financial assistance, including property, except for a contract or guarantee of insurance 24 C.F.R. § 8.3

What qualifies as Federal financial assistance? Any assistance provided or otherwise made available by the Department through a grant, loan, contract or any other arrangement (1)Funds; (2) Services of Federal personnel; or (3) Real or personal property or any interest in or use of such property 24 C.F.R. § 8.3

Examples HUD funded programs or activities, including: Public housing agencies HUD-assisted housing States, cities and counties that receive Federal funds Section 811 Supportive Housing for Persons with Disabilities, Section 202 Supportive Housing for the Elderly, Project-based voucher program, Homeless Assistance Programs, HOME Program, HOPWA, CDBG Programs, Neighborhood Stabilization Program *NOT an exhaustive list

Who is a Recipient? A 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, but excluding the ultimate beneficiary of the assistance 24 C.F.R. § 8.3

Basic Requirements Integration Mandate Non-discrimination because of disability Effective communications with individuals with disabilities Reasonable accommodations Integration Mandate

Basic Requirements Physical access Making new and existing housing and non-housing facilities accessible for persons with disabilities Includes dwelling units, public and common use areas

Basic Requirements Distributing accessible units throughout a project Use of reasonable nondiscriminatory methods to maximize utilization of accessible units Monitoring subrecipients and contractors (e.g., private owners receiving Project Based Vouchers) and ensuring compliance

Prohibited Discrimination A recipient, in providing any housing, aid, benefit, or service in a program or activity that receives Federal financial assistance may not, directly or through contractual, licensing, or other arrangements, take any prohibited actions 24 C.F.R. § 8.4 (b)(1) – (viii)

Disability-Specific Housing Individuals without disabilities may be excluded from the benefits of a program if a program is limited by Federal statute or Executive order to individuals with disabilities A specific class of individuals with disabilities may be excluded from a program if the program is limited by Federal statute or Executive order to a different class of individuals 24 C.F.R. § 8.4(c)(1)

Integration Mandate Recipients shall administer programs and activities receiving Federal financial assistance in the most integrated setting appropriate to the needs of qualified individuals with disabilities 24 .C.F.R. § 8.4(d)

Effective Communication The recipient shall take appropriate steps to ensure effective communication with applicants, beneficiaries, and members of the public (1) The recipient shall furnish appropriate auxiliary aids where necessary to afford an individual with disabilities an equal opportunity to participate in, and enjoy the benefits of, a program or activity receiving Federal financial assistance. (i) In determining what auxiliary aids are necessary, the recipient shall give primary consideration to the requests of the individual with disabilities (ii) The recipient is not required to provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature (2) Where a recipient communicates with applicants and beneficiaries by telephone, telecommunication devices for deaf persons (TDD's) or equally effective communication systems shall be used 24 C.F.R. § 8.6(a)

Effective Communication (b) The recipient shall adopt and implement procedures to ensure that interested persons (including persons with impaired vision or hearing) can obtain information concerning the existence and location of accessible services, activities, and facilities (c) This section does not require a recipient to take any action that the recipient can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. If an action would result in such an alteration or burdens, the recipient shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the benefits and services of the program or activity receiving HUD assistance 24 CFR § 8.6(b) & (c)

Reasonable Accommodations A “reasonable accommodation” is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces When Section 504 applies, this requirement extends to access to programs and activities conducted or sponsored by the recipient

Reasonable Accommodations – Common Issues Recipient obligation to provide/pay for structural modifications as a reasonable accommodation under Section 504 as opposed to a reasonable modification under the Fair Housing Act Unit transfers, e.g., transfer request for accessible unit, or for an unit that is on the first floor Unit size, e.g., request for a reasonable accommodation for an extra bedroom to accommodate medical equipment or to accommodate disability-related overnight care Live-in-aides

Reasonable Accommodations – Common Issues Assistance Animals as a Reasonable Accommodation Assistance animals work, provide assistance, or perform tasks for the benefit of a person with a disability, or provide emotional support that alleviates one or more identified symptoms or effects of a person's disability Not just dogs, e.g., cat, bird, miniature horse, capuchin monkey, etc. May be trained or untrained Do not require certification No breed restrictions No fees, deposits, insurance, hold harmless agreements, extra inspections, “pet rules,” veterinary certificates, or special conditions

Program Accessibility Equal opportunity to access and use HUD-funded programs and activities Subpart C of 24 CFR part 8 General Requirement, Section 8.20

New Construction 5% of the units in a multifamily housing project or one unit, whichever is greater, must be accessible to persons with mobility impairments An additional 2% of the units in such a project or one unit, whichever is greater, must be accessible to persons with vision or hearing impairments (24 C.F.R. § 8.22)

New Construction In circumstances where greater need is demonstrated, HUD may prescribe higher percentages or numbers (24 C.F.R. § 8.22(c)) But see Integration mandate and Olmstead

Alterations of Existing Housing Facilities Substantial Alteration – Use New Construction Standards 15 or more units Equal to or greater than 75% of replacement cost of completed facility Other Alterations to Units Each altered element is made readily accessible to and usable by persons with disabilities, to the maximum extent feasible, until 5% is reached If alterations of single elements or spaces of a dwelling unit, when considered together, amount to an alteration of a dwelling unit, the entire dwelling unit shall be made accessible Common Area Alterations Each altered element is made accessible to and usable by people with disabilities to the maximum extent feasible 24 C.F.R. § 8.23

Existing Housing Programs A recipient shall operate each existing 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 disabilities 24 C.F.R. § 8.24

Section 504 Accessibility Standard Uniform Federal Accessibility Standards (UFAS) OR HUD Deeming Notice (2010 ADA Standards + Certain Higher 504 and FHA Requirements)

Application of Multiple Laws Many properties are subject to more than one law and accessibility standard Section 504, the Fair Housing Act, and the Americans with Disabilities Act (ADA) State and local accessibility laws Must ensure compliance with all applicable laws

Resources Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations under the Fair Housing Act, https://www.hud.gov/offices/fheo/library/huddojstatement.pdf Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs, https://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf Statement of the Department of Housing and Urban Development on the Role of Housing in Accomplishing the Goals of Olmstead, https://portal.hud.gov/hudportal/documents/huddoc?id=OlmsteadGuidnc060413.pdf HUD’s “Deeming Notice” (Instructions for use of alternative accessibility standard), https://www.gpo.gov/fdsys/pkg/FR-2014-05-23/pdf/2014-11844.pdf