How to Ensure Compliance with Federal Accessibility Laws
In the past few years the Justice Department has brought increased scrutiny to the issue of accessibility. For example, in September 2010, the Justice Department published revised regulations for Titles II and III of the Americans with Disabilities Act of 1990 (ADA) in the Federal Register. The new rules took full effect on March 15, 2012. The adopted 2010 ADA Standards for Accessible Design include, for the first time, standards on making swimming pools, parks, golf courses, boating facilities, exercise clubs, and other recreation facilities accessible for individuals with disabilities.
A few months before the release of the rules, the Justice Department had settled an accessibility lawsuit alleging that the owners and developers involved in the design and construction of 21 multifamily housing complexes in Tennessee discriminated on the basis of disability. The complexes were built with the assistance of federal low-income housing tax credits.
The case began when the Tennessee Fair Housing Council, a private, nonprofit advocacy organization, provided the department with information on several apartment complexes that were inaccessible to people with disabilities. Under the settlement, the owners and developers agreed to pay: (1) all costs related to making the complexes accessible to persons with disabilities; (2) up to $350,000 to compensate individuals harmed by the inaccessible housing; and (3) $75,000 to the U.S. government. The settlement included retrofitting structures to modify walkways to eliminate steps, excess slopes, and level changes; providing accessible curb ramps; and providing accessible parking and routes to site amenities. In addition, the defendants agreed to replace inaccessible doorknobs, widen inaccessible narrow doorways, and reconfigure bathrooms and kitchens to accommodate persons who use wheelchairs.
Because the new rules went into effect recently—and because April is Fair Housing Month—now may be a good time to review and assess your site's compliance with various accessibility laws designed to protect disabled persons. If your site does not comply, you must take action immediately. If you don't, like the Tennessee housing provider in the case above, you risk that a judge will order you not only to make the necessary structural changes, but also to pay damages to fair housing groups, residents, or applicants who claim that you discriminated against them by not making your site accessible.
LIHTC and Accessibility Laws
While the IRS is generally responsible for the Low-Income Housing Tax Credit (LIHTC) program, in 2000 it entered into a Memorandum of Understanding (MOU) with the Department of Housing and Urban Development (HUD) and the Department of Justice (DOJ) to enforce fair housing laws.
According to compliance expert Gregory Proctor of Windsor Compliance, persons with disabilities have their rights protected under three main laws. These laws are the ADA, the Fair Housing Amendments Act (FHAA), and Section 504 of the Rehabilitation Act. In addition to these federal laws, state and local codes may apply. “Usually, these rules are more stringent than the federal ones,” adds Proctor.
Of the three main federal laws protecting persons with disabilities, Section 504 is the only one that bans disability-based discrimination in any program or activity that receives federal financial assistance. Currently, the IRS and HUD don't view LIHTC properties as being federal financial assistance recipients for the purposes of Section 504 and other civil rights laws. However, in the American Reinvestment and Recovery Act of 2009 (ARRA), Congress created two programs to address the current shortfall in the usage of tax credits, which brought many LIHTC sites into Section 504's purview.
First, Congress created a gap financing program using HOME funds, which fall under the scope of federal financial assistance. Second, it enacted a tax credit exchange program. In this program, the federal government offers direct funds to developers in exchange for unused credits. If your site was developed or receives funding through these programs, it's subject to Section 504 rules. In addition, if your site participates in project-based Section 8, Section 202, and Community Development Block Grant funds, your site must comply with Section 504 requirements.
FHAA Accessibility Standards
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 law defines “first occupancy” as a building that has never before been used for any purpose.
In addition, rehabilitation projects applying for credits and/or HUD program funds must also meet the design and construction standards of the FHAA if the first use of the building was after March 13, 1991.
Also, if your site has four or more units, it's covered by the FHAA even if those units are separated by a breezeway, stairway, or firewall. Detached single-family houses, duplexes, triplexes, and multi-story townhouses without elevators are not covered.
The FHAA and its regulations list seven design and construction requirements that covered sites must follow:
Accessible building entrance on an accessible route;
Accessible and usable public and common use areas;
Accessible route into and through the dwelling unit;
Environmental controls in accessible locations;
Reinforced walls for grab bars; and
Usable kitchens and bathrooms.
The specific design and construction standards can be found in the appropriate requirements of the American National Standards Institute (ANSI), Fair Housing Accessibility Guidelines (FHAG), and in HUD's Fair Housing Act Design Manual. To help you with your site's initial assessment, you can use our Site Accessibility Checklist.
It's important to note that the FHA Guidelines contain a narrow “Site Impracticality Exception,” which provides that first-floor units don't have to meet all of the law's requirements when it's impractical to have an accessible entrance to the building because of the natural hilly terrain or other unusual characteristics of the site.
Section 504 Accessibility Standards
The FHAA accessibility requirements apply whether or not your site receives federal funds if it “opened for first occupancy after March 13, 1991.” And if your site was built after July 1988 and is federally assisted, your site must also comply with Section 504 accessibility requirements.
Section 504's accessibility requirements rely on the Uniform Federal Accessibility Standards (UFAS), which establish specific and detailed standards to determine accessibility.
Section 504 also calls 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.
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. 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.
For a detailed checklist of the physical requirements, you can view the UFAS Accessibility Checklist for HUD Recipients at www.hud.gov/offices/fheo/library/UFASAccessibilityChecklistforPHAs-5-7-08.pdf.
Generally, the requirements of the ADA aren't as restrictive as the requirements under Section 504. The ADA guarantees equal opportunity for individuals with disabilities in employment, public accommodations, transportation, state and local government services, and telecommunication. It's divided into five titles. Title III prohibits disability-based discrimination and requires privately owned “places of public accommodation” be designed, constructed, and altered in compliance with certain accessibility standards. For most sites' purposes, the leasing office is considered to be a public accommodation, notes Proctor. Also, van-accessible spaces are required at office and community rooms for rent by nonresidents.
The ADA doesn't apply to the pool or other amenities that are available for use only by residents and their invited guests. The ADA applies only if you make those facilities available to the public—for example, by renting them out to groups or individuals who are not otherwise associated with your community. Consequently, the new ADA rules for pools and other amenities don't apply in most conventional housing communities—if your pool wasn't covered by the ADA before the new rules were issued, then the new ADA requirements for pools don't apply.
However, if you have areas within your community that are open to the public—such as day care centers, medical offices, or other facilities—you should get legal advice to ensure that you comply with all applicable accessibility requirements.
For a checklist of ADA Accessibility Guidelines to apply to areas of your site that are open to the general public, you can check out www.access-board.gov/adaag/checklist/a16.html.
Gregory Proctor: President, Windsor Consulting, 4165 John Alden Ln., Ste. 705, Lexington, KY 40504; www.windsorconsulting.com.
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