SECTION 504 AND PHYSICAL ACCESSIBILITY REQUIREMENTS
BY RANDALL A. PENTIUK, ESQ.
This is the second article in a series and addresses Program Accessibility requirements under section 504. The first article covered Physical Accessibility requirements. Admission and Occupancy Requirements and Fair Housing Act Amendment (FHAA) reasonable accommodation requirements will be addressed in the future. For immediate information, please consult, http://www. hud.gov/offices/fheoldisabilitieslsect504docs.cfm
Cooperative Housing Boards are often faced with many questions regarding compliance with
Section 504 of the Rehabilitation Act of 1973. This Article is the second in a series that helps Managers and Boards be better aware of the law and what it requires of them in terms of a Cooperatives duty to make program changes in order to comply with the law and accommodate members with disabilities. For specific legal advice, however, you should always consult your legal advisor.
Section 504 generally applies to recipients of federal financial assistance. It states that "no qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under" any program or activity that either receives Federal financial assistance or is conducted by any Executive agency or the United States Postal Service.
Each Federal agency has its own set of section 504 regulations that apply to its own programs.
Agencies that provide Federal financial assistance also have section 504 regulations covering entities that receive Federal aid. Requirements common to these regulations include reasonable accommodation for employees with disabilities; program accessibility; effective communication with people who have hearing or vision disabilities; and accessible new construction and alterations. Each agency is responsible for enforcing its own regulations. Section 504 may also be enforced through private lawsuits. It is not necessary to file a complaint with a Federal agency or to receive a "right-to-sue" letter before going to court.
Section 504 defines a person with a disability to include individuals with a physical or mental
impairment that substantially limits one or more major life activities. There are very specific criteria that further define a disability but the key criteria is that a disability includes a physical or mental impairment. Section 504 requires a Cooperative to provide program accessibility for its handicapped and disabled members.
For example, HUD's Section 504 regulations require that a recipient of Federal financial assistance ensure that its programs, when viewed in their entirety, are accessible to persons with disabilities. Title 24 CFR § 8.20 states: "Except as otherwise provided in §§ 8.21(c)(1), 8.24(a), 8.25, and 8.31, no qualified individual with handicaps shall, because a recipient's facilities are inaccessible to or unusable by individuals with handicaps, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity that receives Federal financial assistance."
A practical example of meeting this obligation is for a financial recipient to distribute, (to the
maximum extent feasible), accessible units throughout the projects and sites, and make them available in a sufficient range of sizes and amenities so as not to limit choice. Cooperatives must also adopt suitable means to assure that information regarding the availability of accessible units reaches eligible individuals with disabilities. When an accessible unit becomes vacant, before offering the unit to an individual without a disability, it is prudent to offer the unit first, to a current occupant of the project requiring the accessibility feature, and second, to an eligible qualified applicant on the waiting list requiring the accessibility features.
When an applicant or tenant requires an accessible feature or policy modification to accommodate a disability, a federally assisted provider must provide such feature or policy modification unless doing so would result in a fundamental alternation in the nature of its program or an undue financial and administrative burden. See 24 CFR §§ 8.4, 8.24, and 8.33 for further requirements and guidance.
Providers are required to ensure that information about their programs is disseminated in a manner that is accessible to persons with disabilities. For example, special communication systems can increase the effectiveness of outreach and ongoing communication. Providers must ensure that activities and meetings are conducted in accessible locations.
Federal funds recipients may ask applicants for information that can demonstrate that they can meet the obligations of tenancy including financial information, references, prior tenancy history, etc. However, housing providers may not inquire into the nature and severity of an applicant or tenant's disability, nor may they ask persons with disabilities questions not asked of all applicants, apply different types of screening criteria, or assess an applicant's ability to live independently.
Management may also inquire if the applicant qualifies for a housing program or unit designed for persons with a disability, when the housing program or unit is designed for such persons. Consider including a lease provision that requires a non-disabled family occupying an accessible unit to move if a family with a disability needing that size unit applies and there is an appropriately sized non-accessible unit available for the relocating family.
Other Section 504 requirements impose Physical Accessibility and Admission - Occupancy
Requirements, but these are too extensive to be covered in this Article. Stay tuned for these requirements and other developments addressing accommodation under the FHAA in the future.