1. Section 504 of the Rehabilitation Act of 1973
Sol Kim, Trial Attorney
Gabriel Arnson, Lead Equal Opportunity Specialist
July 26, 2017
Great Lakes Indian Housing Association

2. Overview of Section 504 Training
A. Applicability of Section 504 to Native American Recipients
B. Substantive Requirements of Section 504
General Overview
Theories and Examples of Violations
Reasonable Accommodation and Modification Requests
C. Construction and Accessibility Requirements
Structures built or Acquired before July of 1988
Structures built or Acquired after July of 1988
D. Programmatic Requirements of Section 504
Priority on Accessible Units and Effective Communication Policy
Grievance Procedure and Section 504 Coordinator
Public Notice
E. HUD Investigation and Enforcement

3. A. Applicability of Section 504 to Native American Recipients
Section 504 states that no qualified individual with a disability in the United States will 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 by reason of her or his disability.
HUD Regulations state that Section 504 applies to NAHASDA-funded activities
HUD Notice currently in effect states that Section 504 applies to IHBG, ICDBG, and any other programs and activities funded by ONAP, including Youthbuild, Drug Elimination Programs and Model Activities.
[29 USC 794; 24 CFR ; PIH (extended via PIH )]

4. B. Substantive Requirements of Section 504
General Overview
Prohibits any program or activity using federal funding from excluding, denying the equal benefits of, or discriminating people based on disability.
It’s broader than simply prohibiting discrimination. The recipients must affirmatively seek to remove any obstacle that has the effect of excluding or denying the full benefits of the program.
Covers all aspects of the program, including housing, model activities, and employment
Some of the obligations under Section 504 include:
Nondiscrimination
Reasonable accommodations
Reasonable modifications
Effective communication
Accessibility rule compliance
Establishment of grievance procedure and coordinator

5. B. Substantive Requirements of Section 504
Definition of Disability
“A person with handicap or disability” has:
Physical or mental impairment that substantially limits one or more major life activities
History of impairment, or
Is regarded as having an impairment
“Impairment of major life activity” includes:
Caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, sleeping, learning, concentrating, remembering, interacting with others, and many others.
Does not include current abusers of alcohol or lawful drugs who lack the ability to participate in the program and/or activity because of the abuse, or who present a direct threat to property or the safety of others because of the abuse.
It is a functional definition. Diagnosis does not mean disability.
“Federal financial assistance” covers any assistance provided or made available by HUD via any grant, loan, contract or any other arrangement, including real property loan or grant.
[24 CFR 8.3]

6. B. Substantive Requirements of Section 504
Theories and Examples of Violations
Disparate treatment
Actions that are intended to provide unequal treatment to people with disabilities
Denying or limiting participation in program on the basis of disability, either deliberately or by having barriers that make it difficult to participate (refusing to rent to someone who is receiving counseling for past alcoholism or drug use; refusing to rent to someone with mental disability)
Segregating or separating participants who have disabilities (clustering of all accessible units in the same development or same floor of a building)
Placing additional requirements based on disabilities (only renting ground floor units to persons with disability; requiring applicants with mental disabilities to have a co-signer)
Placing employment test or selection criteria that tends to screen out individuals with disabilities, unless such test or criteria are job-related (driving test for an office job)
Making unnecessary and/or excessive inquiries related to a person’s disability (“what’s your condition? How long have you been seeing the doctor?”)
Making statements, advertisements or communications or having written policies that are discriminatory (“We do not allow animals of any kind under any circumstances”)

7. B. Substantive Requirements of Section 504
Theories and Examples of Violations (Cont.)
Disparate impact
An action that seems neutral but has effect of providing unequal treatment
Failure to have adequate number of accessible units
Lack of funding necessary to make reasonable accommodation/modifications
Clustering all accessible units in a single project/neighborhood
The above examples may also be discriminatory under the disparate treatment theory
Failure to provide a reasonable accommodation or modification
Failure to comply with specific programmatic requirements
The program, as a whole, must be equally accessible and beneficial to people with disabilities as it is to people without disabilities.

8. B. Substantive Requirements of Section 504
Reasonable Accommodation Request
Large number of disability complaints filed with HUD concern Reasonable Accommodation or Reasonable modification (over 50%)
Request to make an exception to rule, policy, practice, service or procedure when such accommodations are necessary to afford a person with disability an equal opportunity to use or enjoy the dwelling or program
Examples:
A person with an emotional support animal requests a waiver of no-pet policy
A person with depression has trouble focusing and requests the recipient to provide additional reminders or extra deadline for rent payments
A person with mobility disability requests a parking spot close to building entrance
A person with visual disability requests recipient to provide documents in braille
A person requests a reasonable accommodation by providing a notice (unless the need for the accommodation is obvious) that an accommodation is needed due to a disability.
No magic word or specific form is necessary (management cannot refuse to grant accommodation unless specific forms are submitted)
The recipient does not need to make the request to a specific designated individual
Reasonable accommodation requests cannot be restricted to certain hours, locations or formats

9. B. Substantive Requirements of Section 504
Reasonable Accommodation Request (cont.)
Response to reasonable accommodation requests
Right to verify the disability and the nexus between the functional limitations caused by the disability and the requested accommodation
Example: A person with an emotional disability seeks a support animal that will motivate him or her or reduce social anxiety; a person with a mobility disability seeks a reserved parking spot close to the entrance; a paraplegic with a live-in aid requests a unit with an extra bedroom.
Verification does not necessarily have to come from a medical professional. For example, receipt of SSDI may be adequate to prove disability
Safeguard the confidentiality of any medical information and do not disclose the requester’s disability or medical information
Do not ignore requests or cease correspondence or negotiation; failure to engage in interactive process constitutes denial.

10. B. Substantive Requirements of Section 504
When of Reasonable Accommodation Requests be denied?
Must be determined on a case-by-case basis
Constitutes Threat to health and safety
Must be specific and supported by facts and data. “There might be people who are adversely affected” is not adequate.
No per se dog breed can be banned; documented dangerous species ban may be more acceptable to ban
Must not be based on stereotyping
Undue Burden or Fundamental Program Alteration
Must be actual and demonstrative, not speculative
Evaluated on case-by-case basis
Fundamental alteration: change in the nature of the program provided (reduction of rent; payment for live-in aid or medical expenses, etc.)
Threat/undue burden/fundamental program alteration does not relieve the duty to engage in an interactive process. It is important to communicate the objections to enable requester to remedy any deficiencies and attempt to find an agreeable solution

11. B. Substantive Requirements of Section 504
Reasonable Modification Request
Physical alteration of the structure when necessary for a person with a disability to have equal use and enjoyment
Examples:
Installing ramps, widening doors or lowering kitchen counters for people using wheelchairs
Installing grab bars in bathrooms or accessible bathtubs
Installing visual fire alarms for people with hearing disability
Section 504 does not differentiate between accommodations and modifications, as do newer laws such as ADA or FHA
Unlike in FHA, the cost of reasonable modification is borne by the accommodating management/owner of the property

12. B. Substantive Requirements of Section 504
Common Pitfalls
Failure to engage in interactive process
Lack of information or reasons for denials must be communicated so the deficiencies can be remedied; reasonable accommodation should be negotiated in cooperation
Excessive Verification Attempts
Limit documentation sought to only disability and nexus; do not ask for medical history, diagnosis, nature of the medical treatments, or general medical release
Do not medically second guess the accommodation
Relying on policy or rules to deny (including failure to follow RA process). The point of RA is to change rules, policies, practices or services.
Refusal based on speculative or unsupported reasons (allergies, “everyone will ask for the accommodation,” etc.)
Failure to train the staff to recognize reasonable accommodation requests
Service animal (ADA) versus support animal (Section 504): no training required
Resources
HUD-DOJ Joint Statement on Reasonable Accommodation
HUD-DOJ Joint Statement on Reasonable Modification

13. C. Construction and Accessibility Requirements
In addition to requiring programs to be accessible as a whole, Section 504 requires specific minimum number of accessible units (not safe harbors)
Structures Built or Acquired Before July of 1988
Housing Facilities
If a multifamily project with 15 or more units undergoes a “substantial alteration (75% of the replacement cost),” then it must meet the same requirements as new multifamily structures: 5% of the units must meet the full accessibility standard, with additional 2% of the units hearing or visual impairment accessibility standards.
For any other alteration or rehabilitation, units must be made accessible “to the maximum extent feasible”
This obligation to continuously increase the stock of accessible units applies until five percent of the units in multifamily projects meet the accessibility standard (although HUD may prescribe a higher percentage depending on the need)
[24 CFR 8.23]

14. C. Construction and Accessibility Requirements
Structures Built or Acquired Before July of 1988 (Cont.)
Non-housing Units
In addition to operating each non-housing program or activity readily accessible to and usable by people with disabilities, any alteration to facilities must, to the maximum extent feasible, be made readily accessible to people with disabilities
Key issues are often office entrances, pedestrian routes, and parking lot accessibilities
Possible ways of maximizing accessibility:
Reassignment of services to accessible buildings, assignment of aides, provision of housing or services at alternate accessible site, alternating of existing facilities, or any other method that makes the services readily accessible.
[8 CFR 8.21]

15. C. Construction and Accessibility Requirements
Structures built or Acquired after July of 1988
Multifamily Housing Facilities with 5 or more Units
Minimum of 5% of units must meet the full accessibility standards (not fewer than one)
Minimum of 2% of units must meet the accessibility standards for hearing or vision impairments (but not fewer than one)
All of the common areas must be accessible
HUD may require higher number of minimum units
Non-housing facilities
The entire facility must be readily accessible to and usable by persons with disabilities
Some exception to historical properties
[24 CFR 8.21, 8.22]

16. C. Construction and Accessibility Requirements
Applicable Accessibility Standards
The accessibility standard mandated by Section 504 is the Uniform Federal Accessibility Standards (“UFAS”)
The 2010 Americans with Disability Act Standard for Accessibility Guidelines (“ADAAG”) may also be used. However, a consistent standard must be used; recipients cannot pick and choose between two standards in a single project.
ADAAG is only applicable for common areas and certain provisions of ADAAG are not applicable
11 sections that offer less accessibility than HUD’s 504 Regulation and UFAS cannot be used
[24 CFR 8.32; 79 FR (May 23, 2014)]

17. D. Programmatic Requirements of Section 504
Priority for Accessible Units
Vacancies of accessible units must be offered:
First to current tenants with needs (maintain a transfer waiting list)
Second to applicants with needs
Finally to residents or applicants without disabilities, with the agreement to transfer when an accessible unit is needed by a tenant or an applicant with disability-related needs
Effective Communication Policy
Identify how applicants/participants with hearing or speech impairment will communicate
Contact information for Section 504 Coordinator should be identified in all correspondence and outreach/advertising materials, including websites
Affirmatively solicit the need for effective communication before public meetings and sponsored events (for example, sign language interpreters, assisted living devices, braille or other written formats, or large font documents)
[24 CFR 8.27; 24 CFR 8.6]

18. D. Programmatic Requirements of Section 504
Grievance Procedure and Section 504 Coordinator
Recipient with at least 15 employees must designate at least one person as Section 504 coordinator and adopt a grievance procedures that incorporate due process standard and provide for the prompt and equitable resolution of complaints
Section 504 Coordinator must be identified in the RA policy and Grievance Procedure
Public Notice
Recipient with at least 15 employees must take appropriate and continuous steps to notify participants, beneficiaries, applicants and employees that it does not discriminate on the basis of disability in “admission or access to, or treatment or employment in, its federally assisted programs and activities”
Must identify Section 504 Coordinator
May be a good idea to distribute at initial application, program entry, and at each annual recertification with acknowledging signatures
Recipient must ensure that members of the potentially eligible population with disabilities will have the appropriate opportunities to become informed of the notice, including by providing sign language/oral interpreters, readers, or materials in Braille.
[24 CFR 8.53; 24 CFR 8.54]

19. E. HUD Investigation and Enforcement
Regular ONAP compliance reviews do not usually include substantive Section 504 review because FHEO, not ONAP, oversees Section 504
HUD has right to conduct compliance reviews and access information related to Section 504 compliance and reports
HUD also may investigate individual complaints
If HUD finds Section 504 violation, it can issue letter of finding and/or demand voluntary remedial actions
There is a right to hearing if the recipient disagrees with HUD’s Section 504 findings
[24 CFR 8.52; 24 CFR 8.55; 24 CFR 8.56]

20. Disclaimer
This presentation does not constitute an official statement of the U.S. Department of Housing and Urban Development. The views expressed therein do not constitute an official recommendation or legal advise. Furthermore, the examples in the presentation are hypotheticals used to help explain the materials and the concepts and should be relied upon strictly at own risk. Furthermore, the U.S. Department of Housing and Urban Development is not in any way responsible for the use of the information contained in this presentation.