Lately, we have received numerous questions concerning the applicability of Section 504 for alterations of existing housing developments.

The first step in applying section 504 is to look at the funding involved in the project. Any project that receives federal financial assistance must comply with the provisions set forth in Section 504 and its implementing regulations found at 24 CFR Parts 8 and 9. Federal financial assistance is defined as any assistance provided or otherwise made available from the United States Department of Housing and Urban Development (HUD) through a grant, loan, contract or any other arrangement. Some examples include Section 811 programs, Section 202 programs, project-based voucher programs, Tax Credit Assistance Programs (TCAP), HOME programs, Community Development Block Grant (CDBG) funds, and Neighborhood Stabilization programs.

Once it is determined that federal money is connected to the project, we must then determine the level of alteration being undertaken. Substantial alterations occur when a multifamily housing project with 15 or more units is undergoing an alteration that costs at least 75% of the replacement cost of the facility. All substantial alterations must comply with the new construction requirements of the HUD 504 regulations which require at least 5% of the units to be accessible to people with mobility disabilities and 2% of the units to be accessible to people with vision or hearing disabilities. Accessible units must be on an accessible route from site arrival points and connected by an accessible route to public and common use facilities located on the site. The accessible dwelling units must be distributed throughout the project and must be available in sufficient range of size and amenities.

If the development is not undergoing a substantial alteration, HUD has provided regulations for other alterations as well. Thus, HUD requires that alterations to units be made accessible to the “maximum extent feasible”, which means up to the point that would constitute an undue financial and administrative burden. Thus, if bathrooms are being altered then they must be made accessible to the maximum extent feasible. If alterations of single elements (I.e. kitchens, doorway, bathrooms) of a dwelling when considered together amount to an alteration of the entire dwelling, then the entire dwelling must me made accessible up to have 5% of the units accessible.

Once a development has obtained 5% accessible units, then alteration work to the remaining units does not have to be accessible. Often, we will see work being done to a project that does not reach the level of substantial alteration but the owner deems it easier to make 5% accessible units rather than making all the renovations they are doing accessible. For example, in a 100 unit building if the alteration work is a renovation of 25 bathrooms rather than make the 25 bathrooms meet the accessibility requirements to the maximum extent feasible, it is easier to take 5 units and make them completely accessible and not have to do any accessibility improvements in the other 20 units undergoing the bathroom alteration work.

Alterations to common use areas, such as community rooms, laundry rooms, and playgrounds, must be made accessible to the maximum extent feasible.

A second question we have been receiving lately is the obligation of an existing housing facility that received federal funding to remove barriers even if it is not undergoing any alteration work. The project as a whole must be readily accessible and usable by individuals with disabilities. In other words, an assessment must be done and barriers to access removed if doing so will not cause an undue financial and administrative burden.

Currently the standard to use when doing alteration work is the Uniform Federal Accessibility Standards (UFAS). Other methods are permitted where they are substantially equivalent or provide greater access to and usability of the facility. HUD has not yet adopted the 2010 ABA Accessibility Standards but once it does, the 2010 ABA Standards will replace UFAS.