SECTION 504 AND PHYSICAL ACCESSIBILITY EQUIREMENTS Part1
BY RANDALL A. PENTIUK, ESQ.
Cooperative Housing Boards are often faced with difficult questions regarding compliance with
Section 504 of the Rehabilitation Act of 1973. There appears to be confusion about the law’s application to different types of Cooperatives depending on whether or not they accept Section 8 funds, are built prior to 1973 or have their mortgages insured by HUD. This Article helps Managers and Boards be better aware of the law and what it requires of them in terms of a Cooperative’s duty to make physical alterations to their structures and units 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. For example, HUD
funded Section 811 or Section 202 developments, developments which have projectbased rental
certificates or vouchers, or any properties insured by a HUD mortgage insurance programs that also receive federal subsidies along with the mortgage insurance, are recipients of federal financial assistance and are subject to the requirements of Section 504.
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 different types of accessibility for its handicapped and disabled members.
For example, “Physical Accessibility” criteria require new construction to have a minimum of 5% of the total dwelling units accessible for persons with mobility impairments. A minimum of 2% of the total dwelling units must also be suitable for occupancy by people with hearing or vision impairments. If alterations are undertaken to a previously built project either before or after 1973 then the same rules generally apply. If a project that has 15 or more units and the cost of the alterations is 75% or more of the replacement cost of the completed facility, then the provisions for new construction stated above apply. Otherwise, when any other alterations are undertaken, such alterations are required to be accessible, to the maximum extent feasible, up until a point where at least 5% of the units in a project are accessible.
HUD makes exceptions due to undue financial and administrative burden and alterations that
require removing or altering loadbearing structural members. Such exceptions, however, do not excuse overall compliance. They are only unit or location specific. Required accessible dwelling units must also be distributed throughout project and available in a sufficient range of sizes and amenities so that people with disabilities have choices of living arrangements.
Nonhousing Facilities (24 CFR 8.21) are also affected. All of the requirements of Section 504
with respect to nondiscrimination apply equally to nonhousing facilities and programs. For example, newly constructed non-housing facilities built by recipients must be designed to be readily accessible to and usable by people with disabilities. Alterations to existing facilities must also be accessible to the maximum extent feasible defined as not imposing an undue financial and administrative burden on the operations of the recipient's program or activity. Thus, ramps, hand-rails, door widening, common restroom access and modifications are usually the first items to be undertaken in common areas.
Other Section 504 requirements impose Program 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.
1 This is the first article in a series that covers Physical Accessibility, Program Accessibility, admission Occupancy Requirements and Fair Housing Act Amendments (FHAA) reasonable accommodation requirements.