Proposed Rule2023-08464
Nondiscrimination on the Basis of Disability: Updates to HUD's Section 504 Regulations
Primary source
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Published
April 25, 2023
Issuing agencies
Housing and Urban Development Department
Abstract
This advanced notice of proposed rulemaking (ANPRM) seeks the public's input on changes that the Department of Housing and Urban Development (HUD or the Department) is considering to its implementing regulations for Section 504 of the Rehabilitation Act of 1973 (Section 504) for federally assisted and HUD conducted programs and activities. Section 504 prohibits discrimination on the basis of disability in all programs and activities receiving Federal financial assistance and in programs and activities conducted by executive agencies. After this ANPRM is published, the Department intends to draft a Notice of a Proposed Rulemaking (NPRM) that would propose the adoption of an updated Federal accessibility standard for purposes of compliance with HUD's Section 504 regulations. In addition, the Department intends for this NPRM to propose revisions to HUD's Section 504 regulations to clarify recipients' obligations, including how to account for advances in accessible design, information and communication technology, and assistive technologies that have become available since HUD's Section 504 regulations were originally published in 1988.
Full Text
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<title>Federal Register, Volume 88 Issue 79 (Tuesday, April 25, 2023)</title>
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[Federal Register Volume 88, Number 79 (Tuesday, April 25, 2023)]
[Proposed Rules]
[Pages 24938-24944]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-08464]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 8 and 9
[Docket No. FR-6257-A-01]
RIN 2529-AB03
Nondiscrimination on the Basis of Disability: Updates to HUD's
Section 504 Regulations
AGENCY: Office of Fair Housing and Equal Opportunity, Department of
Housing and Urban Development (HUD).
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: This advanced notice of proposed rulemaking (ANPRM) seeks the
public's input on changes that the Department of Housing and Urban
Development (HUD or the Department) is considering to its implementing
regulations for Section 504 of the Rehabilitation Act of 1973 (Section
504) for federally assisted and HUD conducted programs and activities.
Section 504 prohibits discrimination on the basis of disability in all
programs and activities receiving Federal financial assistance and in
programs and activities conducted by executive agencies. After this
ANPRM is published, the Department intends to draft a Notice of a
Proposed Rulemaking (NPRM) that would propose the adoption of an
updated Federal accessibility standard for purposes of compliance with
HUD's Section 504 regulations. In addition, the Department intends for
this NPRM to propose revisions to HUD's Section 504 regulations to
clarify recipients' obligations, including how to account for advances
in accessible design, information and communication technology, and
assistive technologies that have become available since HUD's Section
504 regulations were originally published in 1988.
DATES: Comment Due Date: July 24, 2023.
ADDRESSES: There are two methods for submitting public comments. All
submissions must refer to the above docket number and title.
1. Electronic Submission of Comments. Comments may be submitted
electronically through the Federal eRulemaking Portal at
<a href="http://www.regulations.gov">www.regulations.gov</a>. HUD strongly encourages commenters to submit
comments electronically. Electronic submission of comments allows the
commenter maximum time to prepare and submit a comment, ensures timely
receipt by HUD, and enables HUD to make comments immediately available
to the public. Comments submitted electronically through the
<a href="http://www.regulations.gov">www.regulations.gov</a> website can be viewed by other commenters and
interested members of the public. Commenters should follow the
instructions provided on that website to submit comments
electronically.
2. Submission of Comments by Mail. Comments may be submitted by
mail to the Regulations Division, Office of General Counsel, Department
of Housing and Urban Development, 451
[[Page 24939]]
7th Street SW, Room 10276, Washington, DC 20410-0500.
Note: To receive consideration as a public comment, comments
must be submitted through one of the two methods specified above.
Public Inspection of Public Comments. HUD will make all properly
submitted comments and communications available for public inspection
and copying between 8 a.m. and 5 p.m. weekdays at the above address.
Due to security measures at the HUD Headquarters building, you must
schedule an appointment in advance to review the public comments by
calling the Regulations Division at 202-708-3055 (this is not a toll-
free number). HUD welcomes and is prepared to receive calls from
individuals who are deaf or hard of hearing, as well as individuals
with speech or communication disabilities. To learn more about how to
make an accessible telephone call, please visit <a href="https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs">https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs</a>. Copies of all
comments submitted are available for inspection and downloading at
<a href="http://www.regulations.gov">www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Amy Gioletti, Senior Policy Advisor,
Fair Housing and Equal Opportunity, Department of Housing and Urban
Development, 451 7th Street SW, Room 5100, Washington, DC 20410,
telephone 405-609-8561 (this is not a toll-free number). HUD welcomes
and is prepared to receive calls from individuals who are deaf or hard
of hearing, as well as individuals with speech or communication
disabilities who would like to submit comments. To learn more about how
to make an accessible telephone call, please visit <a href="https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs">https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs</a>.
SUPPLEMENTARY INFORMATION:
I. Background
Section 504 provides that ``no otherwise qualified individual with
a disability in the United States shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance or under any program or
activity conducted by any executive agency.'' 29 U.S.C. 794(a). Through
Section 504, Congress requires the head of each executive agency to
promulgate regulations to implement the statute. Id. In 1988, HUD
issued its Section 504 regulations for federally assisted programs and
activities at 24 CFR part 8 and for federally conducted programs and
activities \1\ at 24 CFR part 9.\2\
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\1\ The statutory text of Section 504 explains that ``program or
activity'' means ``all of the operations of'' entities, under the
statute, that receive Federal financial assistance. 29 U.S.C.
794(b). The term ``programs and activities'' is intended to cover
the same types of operations that are covered under Title II of the
Americans with Disabilities Act (ADA).
\2\ For purposes of federally conducted programs and activities
new construction and alterations must comply with the standard set
by HUD under the Architectural Barriers Act, 42 U.S.C. 4151-4157.
Under HUD's current regulations, the Uniform Federal Accessibility
Standards are the architectural standards that are applicable to
both federally assisted and federally conducted programs and
activities.
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All recipients and subrecipients of Federal financial assistance
from the Department (HUD recipients) must comply with Section 504 and
24 CFR part 8. HUD's Section 504 requirements apply broadly to any
recipient of Federal financial assistance from the Department,
including any State or its political subdivision, any instrumentality
of a State or its political subdivision, any public or private agency,
institution, organization, or other entity, or any person that receives
Federal financial assistance directly or through another recipient,
including any successor, assignee, or transferee of a recipient, but
excluding the ultimate beneficiary of the assistance. 24 CFR 8.3 and
8.50(a). In addition, HUD has enforced Section 504 requirements against
Tribal entities that receive Federal financial assistance from HUD.
Federal financial assistance is also defined broadly as any assistance
provided or otherwise made available by the Department through any
grant, loan, contract, or any other arrangement in the form of funds,
services, or property interest, excluding assistance through direct
Federal procurement contracts or payments made under those contracts or
any other contract of insurance or guaranty. 24 CFR 8.3.
HUD's Section 504 regulations at 24 CFR part 8 cover all programs
and activities of recipients of funds from HUD, including, for example,
eligibility criteria, application processes, site selection, admission
to and continued participation in programs, tenancy, service delivery,
and accessibility of programs and facilities. The regulations contain
general prohibitions against discrimination and offer examples of
discriminatory actions that either directly or indirectly result in
discrimination against otherwise qualified individuals with
disabilities. 24 CFR 8.4(a) and (b). Among other requirements, HUD's
Section 504 regulations include an integration mandate, requiring
recipients to administer programs and activities in the most integrated
setting appropriate to the needs of qualified individuals with
disabilities; reasonable accommodation requirements, which require
recipients to adjust, modify, or make exceptions to policies or
practices and structural modifications to facilities that may be
necessary for an individual with a disability to equally participate in
or benefit from programs and activities without discrimination; and the
requirement to distribute accessible dwelling units throughout assisted
projects and sites. 24 CFR 8.4(d), 8.20, 8.24(a), 8.26, and 8.33.
Recipients must also take appropriate steps to ensure effective
communication with applicants, beneficiaries, and members of the public
who have disabilities. 24 CFR 8.6.
Recipients of Federal financial assistance from HUD must ensure
that their programs and activities are readily accessible to and usable
by individuals with disabilities. 24 CFR 8.20. This includes physical
accessibility requirements for newly constructed and altered
multifamily housing projects and non-housing facilities. This
requirement also includes alterations to existing facilities that are
necessary to comply with program accessibility requirements for all
facilities. 24 CFR 8.20-8.25. Providers of existing assisted housing
must operate such housing so, when viewed in its entirety, it is
readily accessible to and usable by individuals with a disability. HUD
recipients must comply with HUD's Section 504 regulations that
incorporate the applicable Federal accessibility standard \3\ adopted
by the Department for purposes of Section 504 compliance.
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\3\ HUD uses the term ``Federal accessibility standard'' to
refer to the architectural standard with which recipients of Federal
financial assistance from HUD must comply under its Section 504
regulation. Under HUD's existing Section 504 regulation, HUD
recipients may use one of two Federal accessibility standards--the
Uniform Federal Accessibility Standards or HUD's Deeming Notice, as
more fully explained below.
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The Uniform Federal Accessibility Standards (UFAS) is currently the
Department's Section 504 Federal accessibility standard for compliance
with HUD's Section 504 requirements. 24 CFR 8.32. However, in 2014, HUD
published a Notice, commonly referred to as HUD's ``Deeming Notice,''
allowing HUD recipients to use the U.S. Department of Justice's (DOJ)
accessibility standard under Title II of the Americans with
Disabilities Act (ADA)--referred to as the 2010 ADA Standards for
Accessible Design (2010 ADA Standards)--with identified exceptions, as
an alternative
[[Page 24940]]
accessibility standard in lieu of UFAS for purposes of Section 504
compliance. 79 FR 29671 (May 23, 2014). HUD provided this flexibility
through the Deeming Notice because of a recognition that many
facilities are designed, constructed, or altered by entities that are
subject to HUD's Section 504 regulations, which are also subject to
Title II and/or Title III of the ADA and, therefore, are also required
to comply with the 2010 ADA Standards. This option exists until HUD
formally revises its Section 504 regulations to adopt an updated
accessibility standard.
HUD recipients must also ensure that designated accessible dwelling
units are dispersed throughout projects and sites, are available in a
sufficient range of bedroom sizes and amenities, and are tenanted to
maximize the utilization of such units by individuals who need the
accessibility features of the units. 24 CFR 8.26 and 8.27.
HUD's existing Section 504 regulations also set forth a compliance
and enforcement mechanism. 24 CFR 8.50 through 8.58. HUD's Office of
Fair Housing and Equal Opportunity (FHEO) investigates individual
complaints alleging disability-related discrimination and conducts
compliance reviews of recipients of HUD assistance to determine whether
they are complying with these requirements. 24 CFR 8.56(a). The
regulations set out the procedures used when FHEO finds noncompliance
with Section 504 requirements. 24 CFR 8.56, 8.57, and 8.58.
II. The Need To Update HUD's Section 504 Regulations and Section 504
Federal Accessibility Standard for HUD Programs and Activities
The Department's Section 504 regulations, as a whole, have not been
significantly updated since their initial publication in 1988. Since
that time, HUD has continued to find widespread discrimination on the
basis of disability in HUD-assisted programs and activities and an
ongoing need for affordable, accessible, and integrated housing
opportunities for individuals with disabilities who are eligible for
the programs and activities administered by recipients of Federal
financial assistance from HUD. As the agency with primary
responsibility for administering the Nation's federally assisted
housing programs, HUD has a responsibility to ensure that its Section
504 regulations account for these needs.
In fiscal year 2020, HUD received four hundred and sixty-one (461)
complaints from individuals and organizations alleging disability
discrimination under Section 504. In fiscal year 2021, HUD received
five hundred and ninety-seven (597) complaints from individuals and
organizations alleging disability discrimination under Section 504. In
fiscal year 2022, HUD received five hundred and eighty-two (582)
complaints from individuals and organizations alleging disability
discrimination under Section 504. To date, in fiscal year 2023, HUD has
received two hundred and two (202) complaints from individuals and
organizations alleging disability discrimination under Section 504.
Section 504 complaints are the most common type of civil rights related
complaint \4\ received with respect to the administration of HUD
programs and account for more than half of such complaints.
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\4\ Civil rights authorities include Section 504 of the
Rehabilitation Act of 1973, Title VI of the Civil Rights Act of
1964, Section 109 of the Housing and Community Development Act of
1974, and the Age Discrimination Act of 1975.
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HUD-initiated Section 504 compliance reviews also underscore
ongoing discrimination faced by individuals with disabilities.
Significant noncompliance has been found with respect to physical
accessibility requirements within public housing and other HUD-assisted
affordable housing programs. Compliance reviews have demonstrated that
newly constructed and substantially altered multifamily housing
developments frequently do not meet the accessibility requirements
under UFAS. Furthermore, compliance reviews often reveal that HUD-
assisted programs and activities do not meet other Section 504
requirements such as the provision of reasonable accommodations,
establishment and maintenance of grievance procedures, ensuring
effective communication, appropriate tenanting policies to ensure
maximum use of accessible housing by individuals with disabilities,
occupancy preferences, or physical dispersal of accessible units.
Designated accessible units are often not appropriately tenanted by
individuals who have a disability-related need for the accessibility
features of the unit. Other examples of common violations include the
imposition of inappropriate disability verification requirements, the
imposition of requirements beyond what is required in a lease, the
failure to protect the confidentiality of applicants' or tenants'
disability-related information, discrimination against individuals with
intellectual and developmental disabilities and behavioral health
conditions, and policies for the admission of elderly residents that
exclude persons with a disability.
In the over thirty years since HUD implemented its Section 504
regulations, the percentage of the U.S. population who are individuals
with disabilities has continued to increase and diversify. In addition,
as a larger share of the population increases in age, HUD will continue
to play a critical role in providing affordable housing opportunities
to allow older adults to age in place. This is particularly important
given the significant population of older adults with disabilities, who
will require accessible and affordable housing to age in place.
Likewise, the mobility devices, personal aids, and other forms of
assistive technology available for use by individuals with disabilities
have also diversified. The characteristics of equipment that
individuals with disabilities use have changed in ways that impact the
design and usability of living space and methods of communication.
Significant advances have also occurred in building practices since
1988. Various accessibility codes have been developed and additional
features and elements have been researched based on study of how
persons use, or cannot use, facilities because of inaccessible design
and construction. Many design features that make the home more usable
and accessible have become readily available and widely used in
residential construction, such as additional or modified environmental
controls, security hardware, cabinetry, and plumbing fixtures. Also,
housing models have continued to emerge that focus on identifying and
mitigating barriers to accessibility and safety hazards in the home to
promote healthy aging and enhance health outcomes for older adults. In
addition, the severe lack of affordable housing has caused communities
across the country to explore new and innovative approaches to
providing housing. Examples of emerging single family and multifamily
housing include tiny homes, portable homes, manufactured or
prefabricated homes, 3D printed homes, townhomes, multifamily with
townhome facades, and even housing developed using shipping containers
and other pre-existing structures. The Department seeks to respond to
these environmental, societal, and technological changes in its revised
rule.
The United States is also experiencing an immediate and increasing
need for affordable, accessible, and integrated housing opportunities.
In particular, since the Supreme Court's Olmstead
[[Page 24941]]
decision in 1999, there have been increased efforts to assist
individuals in transitioning from institutional and other segregated
settings into integrated, community-based settings.\5\ As a result of
Olmstead enforcement and implementation efforts by public entities,
there is a crucial need for affordable and integrated housing where
individuals with disabilities are able to live and interact with
individuals without disabilities.\6\ Individuals with disabilities
cannot be subject to discrimination in their housing search.
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\5\ Olmstead refers to the 1999 Supreme Court decision, Olmstead
v. L.C., 527 U.S. 581 (1999), wherein the Supreme Court affirmed
that the unjustified segregation of individuals with disabilities is
a form of discrimination prohibited by Title II of the Americans
with Disabilities Act.
\6\ See HUD's Statement on the Role of Housing in Accomplishing
the Goals of Olmstead, <a href="https://www.hud.gov/sites/documents/OLMSTEADGUIDNC060413.PDF">https://www.hud.gov/sites/documents/OLMSTEADGUIDNC060413.PDF</a>.
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HUD is considering how to more effectively address these
significant and emerging issues and seeks public comment as it updates
its Section 504 regulations.
III. Request for Public Comments
The Department seeks input from the public, including individuals
with disabilities, HUD recipients, such as public housing agencies,
States, or local governments, Tribes, housing providers, and social
service providers, before proposing regulatory text for comment. The
Department is posing overarching questions and areas for particular
comment below regarding effective communication, program accessibility,
adopting an updated Federal accessibility standard, and enforcement
mechanisms. The Department is also considering clarifying certain
subsections of the regulations and providing further examples to
enhance compliance.
When providing responsive comments, the Department requests that
commenters indicate the specific question number that corresponds with
the responsive comments. If providing comments not associated with a
question number, please label the comment as such or identify the
comment by the existing regulatory provision to which it relates. The
Department also welcomes general comments on any aspect of its Section
504 regulations or how the Department can improve the administration of
its federally assisted and federally conducted programs to ensure its
own compliance with Section 504.
Question for Comment 1: The Department anticipates revising the
definition of ``individual with disabilities'' consistent with the ADA
Amendments Act of 2008 \7\ and DOJ's Title II ADA regulations. The ADA
Amendments Act of 2008 revised the definition of ``individual with
disabilities'' for purposes of the ADA and made conforming amendments
to Section 504. In view of the ADA Amendments Act of 2008's change to
the definition of disability, the Department is also considering
whether the other definitions, currently provided at 24 CFR 8.3 should
be revised to clarify how the term ``disability'' is used in connection
with certain HUD programs, which have statutory authorizations to serve
specific populations. The Department seeks general comments on updating
its definitions contained at 24 CFR 8.3.
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\7\ Public Law 110-325 (Sept. 25, 2008).
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Question for Comment 2: HUD's Section 504 regulations at 24 CFR 8.4
contain general prohibitions on discrimination and include examples of
discriminatory application processes, admissions policies, and service
provision, as well as physical inaccessibility, eligibility, and site
selection, that would either directly or indirectly result in
discrimination against otherwise qualified individuals with
disabilities. 24 CFR 8.4(a) and (b).
(a) To what extent are individuals with disabilities at serious
risk of entering institutional settings or being unable to transition
from institutional or group home settings, including skilled nursing
facilities, correctional institutions and inpatient rehabilitation for
substance misuse, settings because they are unable to find affordable,
accessible, and integrated housing opportunities in community-based
settings? Please describe any challenges faced and solutions identified
with locating affordable, integrated, and accessible housing, including
issues such as ensuring housing is available when an individual is
ready to transition from an institutional setting, coordinating housing
and services, identifying available housing programs that individuals
may be eligible for, the referral and/or application process, the use
of preferences, the operation of waitlists, insufficient accessible and
integrated housing opportunities, etc.
(b) Are there specific examples of discrimination that individuals
with mental health or substance use disabilities have experienced, or
other challenges faced by such individuals, in securing affordable
housing, such as rental policies eligibility or exclusion criteria,
that meets disability-related needs that HUD should consider addressing
in its Section 504 regulations?
(c) Are there specific examples of discrimination that individuals
with intellectual, cognitive, or developmental disabilities have
experienced, or other challenges faced by such individuals, in securing
affordable housing that meets the disability-related needs that HUD
should consider addressing in its Section 504 regulations?
(d) Are there specific examples of discrimination that individuals
with physical disabilities have experienced, or other challenges faced
by such individuals, in securing affordable housing that meets the
disability-related needs that HUD should consider addressing in its
Section 504 regulations?
Question for Comment 3: Recipients must take appropriate steps to
ensure effective communication with applicants, beneficiaries, and
members of the public who have disabilities and are required to provide
appropriate auxiliary aids and services where necessary to afford
individuals with disabilities an equal opportunity to participate in,
and enjoy the benefits of, a program or activity receiving Federal
financial assistance. Because of technological advances, methods of
enabling effective communication have significantly changed since HUD
issued its Section 504 regulations in 1988 and recipients and
individuals with disabilities communicate in different ways. What types
of auxiliary aids and services do individuals with disabilities need in
housing and community development programs and activities? What
information should the Department consider with respect to the
accessibility of recipients' websites and devices, mobile applications,
etc.?
Question for Comment 4: Section 504 requires that newly constructed
housing and non-housing facilities be designed and constructed to be
readily accessible to and usable by persons with disabilities. HUD's
existing Section 504 regulations require that in new construction
multifamily housing projects, currently a minimum of five (5) percent
of the total dwelling units in each multifamily housing project (or at
least one unit, whichever is greater) must be made accessible for
persons with mobility impairments. An additional two (2) percent of the
total units (or at least one unit, whichever is greater) must be made
accessible for persons with hearing or vision impairments. In
circumstances where greater need is demonstrated, HUD may prescribe
higher percentages or numbers. 24 CFR 8.20 through 8.22. Physical
accessibility requirements also apply to any alterations of housing and
non-housing facilities. 24 CFR 8.21.
[[Page 24942]]
Additionally, recipients must operate each housing and non-housing-
related program and activity receiving Federal financial assistance so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with disabilities. 24 CFR 8.20,
8.21, and 8.24. This may require alterations to comply with program
accessibility obligations in older facilities that were built before
HUD's Section 504 regulations became effective. This may also require
alterations in addition to and separate from meeting the affirmative
physical accessibility requirements described above.
(a) To what extent does the lack of accessible units and other
facilities in assisted housing discourage applications from eligible
persons with a disability? To what extent is the lack of accessibility
a barrier to the participation in various HUD-assisted housing programs
by persons with a disability? What challenges do households face in
finding available affordable and accessible housing in their respective
communities? What factors or sources of data should HUD and its
recipients use to determine the level of need for accessible housing?
(b) Is there information that HUD should consider to clarify,
strengthen, and encourage compliance by recipients' with program
accessibility obligations?
Question for Comment 5: Tenant-based housing choice voucher (HCV)
and other tenant-based rental assistance programs are crucial to enable
individuals with disabilities to secure affordable, accessible, and
integrated housing opportunities of their choice. HUD's regulation at
24 CFR 8.28 provides examples of specific safeguards to ensure
individuals with disabilities have access to these programs.
(a) What challenges exist in using an HCV or other tenant-based
rental assistance in the private rental market to secure a unit that
meets a household's disability-related needs? For example, is the
process for households with members with disabilities to seek an
extension of the search term due to the lack of accessible housing
effective or is the process for seeking exception rent under the
exception payments standard for accessible housing units effective,
and/or what other difficulties exist for individuals with disabilities
in securing a suitable unit? Do households with members with
disabilities encounter issues using HCVs or other tenant-based rental
assistance due to the need for live-in caregivers? Is there information
that HUD should consider on various methods or approaches that have
proven effective in helping individuals with disabilities access these
types of programs in order to provide equal access?
(b) Please provide details about the availability of affordable
accessible units in different areas of the United States (e.g., urban
areas, suburban areas, and rural areas, including geographically
isolated and remote areas) in the private rental market and any proven
strategies that encourage landlords to participate in the tenant-based
HCV program.
Question for Comment 6: Most entities are subject to more than one
Federal accessibility law and architectural standard in the operation
of their housing services, programs, and activities. For example, a
public housing agency receiving HUD funding and operating public
housing and voucher programs may be subject to the design and
construction requirements of the Fair Housing Act,\8\ Section 504 as a
recipient of Federal financial assistance, and Title II of the ADA as a
public entity. This may require applying multiple accessibility laws
and architectural standards, e.g., the Fair Housing Act's Accessibility
Guidelines, the 2010 ADA Standards under Title II of the ADA, and HUD's
Section 504 accessibility standard. In addition, State and local laws
and building codes will also apply. Most States and localities now use
the International Building Code (IBC) and the accessibility standard it
references, the ICC A117.1 Standard for Accessible and Usable Buildings
and Facilities.
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\8\ 42 U.S.C. 3601 et seq.
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The Department seeks input on ways to harmonize, to the extent
possible, the requirements among the various standards and achieve
greater consistency in the design and construction of buildings and
facilities that are covered by multiple Federal accessibility laws. The
Department also seeks to ensure, however, that accessibility for
persons with disabilities is not reduced and opportunities for
modernization of accessibility requirements are considered.
The Department notes that recipients of HUD funding must be aware
of and comply with the accessibility requirements of all applicable
laws, including Section 504, the ADA, and the Fair Housing Act.
Compliance with one of these statutes does not ensure compliance with
other Federal disability nondiscrimination laws. HUD's adoption of an
updated Section 504 Federal accessibility standard for purposes of
compliance with its own Section 504 regulations does not change an
entity's obligation to comply with all applicable laws.
What standards should the Department consider for purposes of an
updated accessibility standard for its recipients? HUD requests
information to assist the Department in determining whether other
specific guidelines provide sufficient or insufficient accessibility in
the context of housing or other residential facilities funded by HUD.
In addition, please provide information on scoping and other technical
provisions the Department should consider to further accessibility for
individuals with disabilities in the context of housing.
Question for Comment 7: HUD's Deeming Notice allowed HUD recipients
to use the 2010 ADA Standards under Title II of the ADA--with
identified exceptions, as an alternative accessibility standard in lieu
of UFAS for purposes of Section 504 compliance. The Deeming Notice
identified eleven (11) exceptions where UFAS provides greater
accessibility than the 2010 ADA Standards and must continue to be
utilized.\9\ Are there other UFAS provisions that HUD did not identify
in its Deeming Notice that should be retained to further accessibility
in HUD-assisted programs?
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\9\ (1) Section 35.151(a)(2) Exception for structural
impracticability; (2) Section 35.151(b) Alterations; (3) Section
202.2 Additions; (4) Exception to Section 202.4 Alterations
Affecting Primary Function Areas; (5) Section 203.8 General
Exceptions--Residential Facilities; (6) Employee Work Areas:
Sections 203.9 (General exception for employee work areas), 206.2.8
(Circulation paths in employee work areas), and the Exceptions to
403.5 (Clearances within employee work areas) and 405.8 (Handrails
within employee work areas); (7) Exception 2 to Section 206.2.1 Site
Arrival Points; (8) Exception to Section 206.2.2 Within a Site; (9)
Exception 1 to Section 206.2.3 Multi-Story Buildings and Facilities;
(10) Section 214--Scoping of Washing Machines and Clothes Dryers;
(11) Exception to Section 215.1 Visible Alarms.
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Question for Comment 8: As the Federal agency with primary
responsibility for administering the Nation's federally assisted
housing programs, the Department has a unique role in considering how
residential and connected spaces (e.g., spaces for laundry, mail,
telecommunications, office, maintenance, parking, recreation, service,
and community functions) must be made accessible. HUD is looking at the
accessibility and usability of spaces and elements within one's own
home and connected spaces that will impact daily living, which is
different than considering accessibility in places of public
accommodation or other settings. HUD is considering how the development
of various enhanced
[[Page 24943]]
accessibility features can be incorporated or incentivized into the
design and construction of affordable housing developments.
Advances in the types of accessibility features can assist
individuals with various types of disabilities obtain, remain in, and
receive the full benefits of their housing. For example, for
individuals with mobility disabilities, such features may include:
power operated or other keyless proximity-based entry at entrances and
exits from buildings and passageways through the building; light weight
or low resistance doors; detachable shower-heads; smart, remotely
adjustable thermostats; adjustable shelves in closets and storage; full
extension pull-out drawers, shelves, and racks; roll-in showers;
avoiding swinging interior doors within individual accessible dwelling
units; faucets with touch or motion sense water controls; and
reinforced ceilings to accommodate a track and harness system. For
individuals who are blind or have low vision, examples of such features
may include: audible elevator indicators; innovative entry systems that
do not solely rely on an individual's ability to see in order to gain
access; controls with audio feedback as opposed to or in addition to
touch screens; and enhanced lighting. For individuals who are deaf or
hard of hearing, examples of such features may include: innovative
entry systems that do not solely rely on an individual's ability to
hear in order to gain access; doorbells with light alerts; activated
close captioning on televisions located in public areas; and video
phones or other video connections for communications.
In addition, specific accessibility features assist individuals to
remain in their homes and to age in place, such as vertical and angled
grab bars to get up and down from toilets and for stepping in and out
of bathing fixtures. Examples to assist individuals who are blind or
have low vision include contrasting surfaces, enhanced lighting,
tactically discernible controls, and elimination of tripping hazards.
Examples to assist individuals who are deaf or hard of hearing include
innovative entry systems, doorbells with light alerts, and emergency
alarms for fire and carbon monoxide leaks that can accommodate personal
notification devices.
(a) What barriers do individuals with disabilities face in public
and common use areas of housing and non-housing facilities (e.g.,
building entrances, building entry systems, recreation and fitness
facilities, mail and package rooms, coworking facilities, parking
structures, laundry rooms)? What accessibility features or advanced
technology can help overcome these barriers?
(b) What accessibility features or advanced technology should the
Department be aware of that improve accessibility in designated
accessible units for individuals with mobility disabilities?
(c) What accessibility features or advanced technology should the
Department be aware of that improve accessibility in designated
accessible units for individuals with vision and hearing disabilities?
(d) Given the increasing aging population, the Department is
considering its role in providing affordable housing opportunities to
this population and how to enable households to remain in their
housing. Are there specific accessibility features that can help
individuals to age in place?
(e) There are alternative accessibility provisions in accessibility
standards that address the more limited reach ranges and need for lower
seat heights and dining surfaces for children with disabilities that
are different than accessibility features configured for adult use. The
Department is interested in any comments related to dimensions for
children.
(f) To what extent does the failure to maintain accessible
features, including elevators and lifts, limit individuals with
disabilities access to affordable housing?
Question for Comment 9: HUD is considering how advances in the
design and construction field impact accessible housing developments.
There are various types of single family and multifamily housing, as
well as a variety of materials and structural components to construct
different types of housing, such as shipping containers or other
emerging building components. In all instances, federally assisted
housing must provide accessible housing opportunities for beneficiaries
with disabilities.
(a) Are there specific emerging design approaches, or specific
construction materials that HUD should consider?
(b) The Department is interested in comments related to emerging
design approaches in disaster response, mitigation, and recovery
situations. Are there specific design types or other issues
specifically within the context of disaster relief that HUD should
consider addressing to ensure accessibility for individuals with
disabilities?
Question for Comment 10: A reasonable accommodation is a change,
exception, or adjustment to a rule, policy, practice, or service that
may be necessary for a person with disabilities to have an equal
opportunity to use and enjoy a dwelling, including public and common
use spaces, or to participate in a HUD-assisted program or activity.
For purposes of Section 504, this also includes recipients providing
structural changes to a unit or public or common use area when they may
be needed as a reasonable accommodation. Generally, the failure to
provide reasonable accommodation is a form of discrimination under
Section 504. HUD anticipates further addressing the concept of what
constitutes a reasonable accommodation in its Section 504 regulations.
HUD is aware that it may be useful to its recipients to understand the
broad array of the types of accommodations that may be useful to
individuals with different types of disabilities, such as individuals
who are blind or have low vision, individuals who are deaf or hard of
hearing, individuals with intellectual, cognitive, or developmental
disabilities, individuals with mental health disabilities or substance
use disabilities, and individuals with mobility disabilities. The
Department is interested in comments on these issues.
Question for Comment 11: HUD undertakes two types of investigations
under its Section 504 regulations--complaint-based investigations and
compliance reviews. Any person, or their authorized representative, who
believes that they have been subjected to discrimination by a recipient
of HUD financial assistance may file a Section 504 complaint with HUD.
Similarly, persons may file a complaint with HUD on behalf of specific
classes of individuals who have been subjected to discrimination by a
recipient.
HUD may conduct periodic compliance reviews of recipients that
include a review, including an on-site review of recipients' policies,
practices, and procedures, to determine whether recipients are
complying with HUD's Section 504 regulations. Recipients are also
subject to program compliance reviews and monitoring procedures by HUD
in its oversight of program requirements designed to further compliance
with HUD's Section 504 regulations. 24 CFR 8.56. Are there any
clarifications or changes HUD should consider in procedures for
initiating and conducting investigations and/or enforcement mechanisms
with respect to individual complaints or compliance reviews?
Question for Comment 12: HUD has enforced Section 504 requirements
against Tribes and Tribal entities that receive HUD Federal financial
assistance. While the Department
[[Page 24944]]
recognizes Section 504 obligations are consistent across all recipients
of HUD Federal financial assistance, the Department also recognizes the
unique relationship between the Federal Government and Tribes and seeks
comment from Tribes and Tribal entities in accordance with HUD's
Government-to-Government Tribal Consultation Policy.
(a) Are there tribal specific circumstances that HUD should
consider regarding Tribes and tribal entities, particularly with
respect to the construction of accessible facilities?
(b) Are there unique types of discrimination members of Tribes with
disabilities experience, particularly with respect to non-Tribal
grantees or other entities covered by Section 504?
(c) Are there unique types of discrimination members of Tribes with
disabilities experience with respect to the provision of reasonable
accommodations, the provision of appropriate auxiliary aids and
services necessary to ensure effective communication, access to
accessible facilities, or accessing services and programs in the most
integrated setting appropriate to the needs of members of Tribes with
disabilities?
Question for Comment 13: The Department recognizes that individuals
with disabilities who are also members of other protected class groups
(e.g., race, color, national origin, sex (including sexual orientation
and gender identity), familial status, religion, age, etc.) may be
uniquely impacted by revisions to HUD's Section 504 regulations and is
interested in receiving public comment on unique considerations related
to intersectionality.
(a) Are there unique barriers or other forms of discrimination in
housing or HUD assisted programs against individuals with disabilities
who are also members of other specific protected class groups?
(b) In particular, is there information that HUD should consider
regarding how disability discrimination affects persons of color,
LGBTQ+ persons, families with children, older adults, and individuals
with limited English proficiency who also require appropriate auxiliary
aids and services necessary to ensure effective communication?
IV. Findings and Certifications
Regulatory Review--Executive Orders 12866 and 13563
Under Executive Order 12866 (Regulatory Planning and Review), a
determination must be made whether a regulatory action is significant
and, therefore, subject to review by the Office of Management and
Budget (OMB) in accordance with the requirements of the order.
Executive Order 13563 (Improving Regulations and Regulatory Review)
directs executive agencies to analyze regulations that are ``outmoded,
ineffective, insufficient, or excessively burdensome, and to modify,
streamline, expand, or repeal them in accordance with what has been
learned.'' Executive Order 13563 also directs that, where relevant,
feasible, and consistent with regulatory objectives, and to the extent
permitted by law, agencies are to, ``identify and consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public.''
HUD's Section 504 regulations have not been significantly updated
since originally published in 1988; whereas significant advances in
building practices and assistive technologies have been made during the
preceding decades. Additionally, since HUD's Section 504 regulations
were first published, the percentage of the U.S. population with
disabilities has continued to increase and diversify and, during this
time, a larger share of the population has increased in age. Given
these changes in the availability and improvement of accessibility
design and technologies and the changes in the makeup of the American
population that require or benefit from the improvements in
accessibility and design and technologies, this ANPRM is necessary to
avoid HUD's Section 504 regulations from becoming outmoded,
ineffective, and insufficient.
This ANPRM has been reviewed by OMB. As a result of this review,
OMB determined that this ANPRM will likely result in a ``significant
regulatory action,'' as defined in section 3(f) of Executive Order
12866 but not an ``economically significant'' action.
Environmental Review
This ANPRM sets out nondiscrimination standards. Accordingly, under
24 CFR 50.19(c)(3), it is categorically excluded from environmental
review under the National Environmental Policy Act (42 U.S.C. 4321-
4347).
Demetria McCain,
Principal Deputy, Assistant Secretary for Fair Housing and Equal
Opportunity.
[FR Doc. 2023-08464 Filed 4-24-23; 8:45 am]
BILLING CODE P
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</html>Indexed from Federal Register on April 25, 2023.
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