On May 23, the U.S. Department of Housing and Urban Development (HUD) announced its adoption of an alternative accessibility standard for construction and alteration of housing and other facilities subject to Section 504 of the Rehabilitation Act of 1973 (Section 504). Although HUD has not yet updated its regulations to reflect this standard, effective May 23, 2014, when constructing or altering housing or other facilities using HUD funds, recipients may continue to use the current accessibility standard, the Uniform Federal Accessibility Standards (UFAS), or may elect the new alternative. This new alternative authorizes the use of the 2010 ADA Standards for Accessible Design (2010 Standards), with some modifications by HUD.

HUD’s announcement describes several provisions of the 2010 Standards that HUD recipients cannot use; instead, recipients must continue to follow applicable Section 504, Fair Housing Act, and/or UFAS requirements even if they otherwise adopt the 2010 Standards. The announcement leaves open the possibility that, after notice and comment rulemaking to update the Section 504 regulations, further changes to the standards or exceptions may be made.

The option to use either UFAS or the 2010 Standards (as modified by HUD) is available to all HUD recipients, including public and private entities. Recipients must choose one of the two standards and use the selected standard consistently throughout a project. They must also continue to follow other applicable standards, such as the Fair Housing Act design and construction requirements. To the extent a property is subject to both Section 504 and the ADA, and recipients continue to follow UFAS, HUD reminds them that they must compare UFAS and the 2010 Standards section by section and adopt the more stringent standard.

Different federal agencies have adopted various standards over the years to comply with the laws governing accessibility of housing, public facilities, and other facilities. At times these standards conflict, and implementing multiple standards in the same project can be difficult. The 2010 Standards have already been adopted by the Departments of Transportation and Justice, so HUD’s adoption of a variation of the 2010 Standards represents a positive step toward creating uniform standards to comply with accessibility laws. The 2010 Standards, however, focus on commercial and short-term lodging facilities, unlike UFAS’s emphasis on housing projects. This may cause some confusion in the use of the 2010 Standards in the residential context.

If you wish to discuss this notice, please contact Amy M. Glassman at 202.661.7680 or glassmana@ballardspahr.com.

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