Four Key Questions About Section 504 Requirements

Four Key Questions About Section 504 Requirements

Tax credit owners are getting better at complying with the Fair Housing Act's accessibility guidelines in their newly constructed housing projects. However, many who receive federal funding still fail to ensure that they have the appropriate percentage of accessible units to meet the Uniform Federal Accessibility Standards (UFAS) required by Section 504 of the Rehabilitation Act of 1973.

Tax credit owners are getting better at complying with the Fair Housing Act's accessibility guidelines in their newly constructed housing projects. However, many who receive federal funding still fail to ensure that they have the appropriate percentage of accessible units to meet the Uniform Federal Accessibility Standards (UFAS) required by Section 504 of the Rehabilitation Act of 1973.

One reason may be that some confusion exists about when Section 504 applies to a LIHTC site, since 100 percent tax credit sites have been generally exempt from compliance with this accessibility law. So who must comply and how? We asked two leading experts in discrimination issues for their insights.

Is Your Tax Credit Site Subject to Section 504?

Section 504 bans disability-based discrimination in any program or activity that receives federal financial assistance. That includes tax credit and market-rate sites that participate in project-based Section 8, Section 202, HOME, and Community Development Block Grant (CDBG) funds. In addition, tax credit projects that receive direct funding through the Tax Credit Assistance Program (TCAP) or the LIHTC Exchange Program also must comply with Section 504 requirements.

Whom does Section 504 protect? Prospects and residents qualify as disabled under Section 504 if they have a physical or mental impairment that substantially limits one or more major life activities. The term “physical or mental impairment” may include conditions such as visual or hearing impairment, mobility impairment, HIV infection, developmental disabilities, drug addiction (except current illegal use of or addiction to drugs), or mental illness. The term “major life activity” may include breathing, caring for oneself, hearing, learning, performing manual tasks, seeing, speaking, walking, or working.

How does Section 504 differ from fair housing law? “The Fair Housing Act is one of our earliest pieces of accessibility legislation, and it's very thin,” says Clifford Payne, vice president of Technical Assistance Services for Accessibility Development Associates Inc., a national consulting firm specializing in the American with Disabilities Act and other accessibility-related laws. “It doesn't impose any regulations for physical access. There is a set of guidelines, but compliance is voluntary—and with areas like the application process and other softer features, it makes very little imposition at all. Section 504, on the other hand, uses the Uniform Federal Accessibility Standards (UFAS) to determine accessibility, which are very specific and detailed. Section 504 also requires that the housing program itself be accessible, when that program is viewed in its entirety.”

Editor's note: You can view the UFAS Accessibility Checklist for HUD Recipients at

What Are Section 504's Physical Accessibility Requirements?

Section 504's accessibility requirements call for sites constructed after July 1988 that have six or more units to have a minimum of 5 percent of units that are “physically accessible” for persons who have mobility impairments, and 2 percent of units accessible for people with vision and hearing impairments.

Older properties—those built before July 1988—also must comply with the percentage requirements; however, they can be “working toward” achieving the requirements, says fair housing attorney and former HUD counsel Theresa Kitay. For these properties, the site must conduct a self-evaluation and develop a formal plan for bringing the site into compliance.

“The property must evaluate its accessibility to people with disabilities and identify any barriers—both architectural and communication barriers—and then prepare a transition plan that sets out when they will meet the 5 percent and 2 percent requirements,” she explains. It's important to note that the self-evaluation and transition plan are public documents.

What Are the First Steps for Self-Evaluation and Transition?

According to HUD, owners are expected to develop the transition plan with input from interested parties, such as organizations that represent people with disabilities [Handbook 4350.3, par. 2-34].

“It may not be possible to meet the 5 percent minimum requirement right away, but the transition plan should state that the site is working toward it, and include a schedule for completion,” says Kitay. “If it is simply not possible to meet the requirement from a structural standpoint, there may be other options to help the site meet its accessibility goals.” (See What to Include in the Transition Plan.)

She points out that Section 504 does not require that every single site operated by a recipient be accessible—it requires that the program, as a whole, be accessible. Therefore, if a site has a transition plan in place, owners may refer prospects and residents with disabilities to a nearby sister community, as long as the site has equivalent dwelling units (in terms of size, rents, etc.), programs, and amenities.

Also, people with disabilities often do not require a fully UFAS-accessible unit. “It may be that you can make some of the modifications that they need, but not everything,” she says. “In that case, you would still be working toward meeting the 5 percent minimum, and it should be included in your transition plan.”

HUD recommends that owners periodically update their self-evaluations to help ensure ongoing compliance with the requirements—especially when there have been modifications or alterations to units, or units have been added or demolished.

“In some cases, sites may have already met their obligations during prior modifications to the dwelling units, but the site staff don't realize it because the self-evaluations were not updated and the paperwork is not organized,” Payne says.

Practical Pointer: Tax credit sites that receive federal financial assistance, but which have never conducted a self-evaluation, should do so without delay, says Payne. Getting the process started will allow you to retain control of your own timetables, schedules, and finances, should you be faced with a discrimination suit. “This is a very litigious area—and once the courts become involved, the owners risk losing control of how they spend their money. If the court says to provide X number of accessible units by a specific date, they will have very little choice but to spend the money right then. And that can wreak havoc with your strategic planning.”

How Can You Ensure Accessibility in Site Policies and Procedures?

In addition to physical accessibility requirements, Section 504 regulations require site owners and managers to ensure that the housing program itself is accessible, when that program is viewed in its entirety, says Payne. “Site managers should review their policies and procedures to ensure that they do not inadvertently or overtly discriminate against people with disabilities.”

Examples of discrimination include refusing to permit the use of service animals, having a policy prohibiting residents from having live-in aides, or even having the leasing office in an inaccessible location, such as up a flight of stairs in a building that has no elevator or other way for a person who uses a mobility aid to reach it.

How can you ensure that your site's policies and procedures are meeting Section 504 requirements? The first step should be a quick consultation with HUD, advises Payne. “Ask them very directly, what do you require of us in this area? Then be sure to communicate to your staff that your policy prohibits overlooking people with disabilities because of their disabilities. For instance, if an applicant can't get to the leasing office, can you bring the office to him? Can you take him to another location, or sit in the car with him to fill out the paperwork?” (Note that this kind of “contingency” plan for access to the leasing office is only acceptable at older sites, as the Fair Housing Act and the Americans with Disabilities Act would both require the leasing office at a property built after 1991 be accessible when first constructed.)

Payne says that sites can help to improve program accessibility by producing rental documents in alternate formats, such as in Braille or on CDs for people with visual disabilities. “Ask your staff to be creative in getting to people and getting them the necessary information,” he says.

Additionally, make sure you have a formal process for handling reasonable accommodations requests (see Handling Requests for Accommodations.) Using a form to respond to every request will help ensure you respond appropriately. (See our Model Form: Respond Promptly and in Writing to Requests for Accommodations.)

Insider Sources

Theresa L. Kitay, Esq.: Law Offices of Theresa L. Kitay, 578 Washington Blvd., Ste. 836, Marina del Rey, CA 90292; (310) 578-9134;;

Clifford Payne: Vice President of Technical Assistance Services, Accessibility Development Associates, Inc., 3 Gateway Ctr., 5th Fl., 401 Liberty Ave., Pittsburgh, PA 15222-1004; (412) 471-4156;;


What to Include in Transition Plan

HUD Handbook 4350.3, Paragraph 2-34, recommends that a site's Section 504 transition plan do the following:

  • Identify physical obstacles in the property that limit accessibility to persons with disabilities;

  • Describe in detail the methods that will be used to make the project accessible;

  • Specify the schedule for taking steps to achieve compliance with the requirements for structural changes, including making a minimum of 5 percent of the units accessible to persons with mobility impairments. If the time period covered by the transition plan is longer than one year, the plan must identify steps that will be taken during each year of the transition period;

  • Indicate the person (and his or her title) responsible for implementing the plan; and

  • Identify persons or groups who helped the owner prepare the plan.


Handling Requests for Accommodations

One way to ensure that your site's policies and procedures do not discriminate against persons with disabilities is to put in place a formal process for handling accommodation requests, says Theresa Kitay, a fair housing attorney and former HUD counsel. A written policy should include how the requests are accepted, how they're processed, and what happens if there is a dispute.

Ideally, a request for accommodation should be an interactive process, says Clifford Payne, vice president of Technical Assistance Services for Accessibility Development Associates, Inc. “Property management and the person making the application should have a dialogue so that the resident can discuss what he needs and management can respond with what they can do.

“Management is not required to provide any accommodation that would amount to an undue financial or administrative burden,” he adds. “If that is the case, management can respond with, ‘Is there another way that we can meet your need?’ But managers do not have to go beyond what is outlined for physical accessibility in the Uniform Federal Accessibility Standards. It's important for managers to know that they do have rights.”

Keep in mind there is a key difference between Section 504 and the Fair Housing Act. “If someone requests modifications to the property—that is, physical changes—it's typically at the owner's expense and not the resident's expense under Section 504,” says Kitay.

The following are HUD's key principles for reasonable accommodation [Handbook 4350.3, par. 2-40]:

  • When a family member requires an accessible feature(s), policy modification, or other reasonable accommodation to accommodate a disability, the owner must provide the requested accommodation unless doing so would result in a fundamental alteration in the nature of the program or an undue financial and administrative burden. A fundamental alteration is a modification that is so significant that it alters the essential nature of the housing provider's operations.

  • If providing such accommodation(s) would result in an undue financial and administrative burden, the owner must take any other action that would not result in an undue burden. See Section 2-46 B.

  • If a housing provider refuses a requested accommodation because it is not reasonable, the provider should engage in an interactive dialogue with the requester to determine if there is an alternative accommodation that would adequately address the requester's disability-related needs. If an alternative accommodation would meet the individual's needs and is reasonable, the provider must grant it.

  • Under both Section 504 and the Fair Housing Act, a tenant or applicant for housing makes a reasonable accommodation request whenever he or she makes it clear to the housing provider that a request is being made for an exception, change, or adjustment to a rule, policy, practice, service, or physical structure because of his or her disability. A request can be made by the person with the disability, a family member, or someone else acting on the individual's behalf.

  • Although a request can be made orally or in writing, it is usually helpful for both the individual with the disability and the housing provider if the request is reduced to writing. If the individual with a disability requires assistance in providing a written reasonable accommodation request, the housing provider should assist the individual with a disability with this request. The request for accommodation cannot be ignored simply because the individual with a disability neglects or refuses to put the request in writing.

  • Housing providers have an obligation to provide prompt responses to reasonable accommodations requests.

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