NCD comments on HUD’s Section 504 Advanced Notice of Proposed Rulemaking

Submitted electronically to http://www.regulations.gov

July 24, 2023

Re: Docket No. FR-6257-A-01, Nondiscrimination on the Basis of Disability: Updates to HUD’s Section 504 Regulations

To Whom It May Concern:

The National Council on Disability submits these comments on the subject Advanced Notice of Proposed Rulemaking (ANPRM). NCD is an independent Federal agency charged with advising the President, Congress, and other Federal agencies on policies, programs, practices, and procedures that affect people with disabilities. Per its authorizing statute, NCD is required to “review and evaluate on a continuing basis - policies, programs, practices, and procedures concerning individuals with disabilities conducted or assisted by Federal departments and agencies…in order to assess the effectiveness of such policies, programs, practices, procedures…in meeting the needs of individuals with disabilities.”[[1]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn1)

General Comments

We preface our specific comments by commending HUD on its intention to issue a proposed rule to update HUD’s Section 504 regulations. As you recognize, much has changed in the 35 years since the regulations were originally published in 1988, including an increased need for affordable, accessible housing for people with disabilities. The increased need has been fueled by a growing elderly population, skyrocketing housing prices, and a backlog of construction of moderate to low-income housing that is accessible. In addition, the Supreme Court’s Olmstead decision in 1999,[[2]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn2) created a need for additional affordable, accessible housing for people with disabilities who are transitioning from institutional settings to their communities.

In 2022, NCD released the report, Strengthening the HCBS Ecosystem – Responding to Dangers of Congregate Settings during COVID-19,[[3]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn3) which was written in response to the disproportionate number of deaths of people with intellectual and developmental disabilities who were living in congregate settings when the pandemic struck. Prior to the pandemic, many were ready to transition from these settings to their communities but faced barriers which kept them from leaving these deadly settings, including the lack of physically accessible, low-income housing units. The lack of accessible housing has been a long-standing, substantial problem for many people with disabilities, making it easier for them to wind up in institutionalized settings and harder to leave once there. In addition, non-institutionalized people with mobility disabilities, like wheelchair users, continue to struggle to find accessible housing, frequently living in housing with structural barriers like steps, stairs, narrow doorways, and unusable bathrooms and kitchens. Those with low incomes who seek federally subsidized housing can remain on wait lists for years.

The latest census data also portends the need for more accessible housing, as age is a predictor of disability: by 2030, more than one in five people in the U.S. will be sixty-five or older, and by 2035, the number of people over eighty-five will nearly double.[[4]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn4) As with group homes, nursing homes were deadly places to reside during the pandemic making it imperative that older individuals with disabilities can age in place, in their own homes.

Our report focuses on several barriers that are substantial contributors to the lack of an adequate supply of affordable, accessible housing which, if addressed, would increase housing opportunities for millions of people with disabilities in the U.S.

First, one of the key factors contributing to the shortage of suitable housing for people with disabilities is the frequent failure of recipients of HUD’s financial assistance to comply with the heightened accessibility requirements outlined in HUD’s Section 504 regulation. These units are a crucial source of housing for people with disabilities with low incomes. Violations of the accessibility requirements are most often identified after construction is completed due to a lack of oversight during the design and construction phases of housing development. This oversight failure leads to federal funds inadvertently being used to sustain discriminatory practices. When these units are not constructed or wrongly constructed, it results in costly and time-consuming retrofitting of housing units to make them accessible, which often takes years. This situation not only presents a significant challenge to people with disabilities eager to transition from group homes and nursing homes to more independent living arrangements, but it also burdens communities. When housing needs cannot be adequately met, homelessness rates rise, creating a societal issue that is far-reaching. Compliance oversight must be provided from the outset at the design and construction phase.

Our report brings attention to a regulatory constraint hindering an adequate supply of accessible housing, namely, the limited quota of accessible units stipulated under HUD’s Section 504 regulation. Notably, long-standing wait lists for accessible units clearly illustrate that the supply has not been able to meet demand. For years, disability advocacy groups have urged HUD to elevate this obligatory percentage of accessible units defined under the Section 504 regulation. Under the current regulation, only 5% – or at least one unit, whichever is higher – of the total dwelling units need to be accessible for persons with mobility disabilities. Additionally, only 2% – or at least one unit, whichever is more – must be tailored for persons with hearing or visual disabilities.[[5]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn5) Putting this in perspective, in more tangible terms, for every 100 housing units constructed, merely five need to be accessible for people with mobility disabilities, and only two for people with hearing or visual disabilities. Considering the demand for these units as consistently surpassed supply for many years and given the aging population, is becoming increasingly critical to reevaluate and augment these percentages to cater to the present and anticipated needs of the American people.

In addition, our report highlights that although recipients of federal financial assistance are required to adopt policies and procedures to ensure that people who need the accessibility features of particular units actually occupy these units – they often are occupied by tenants who do not have disabilities. Leasing accessible units to non-disabled tenants is a practice that exacerbates the housing shortage for eligible people with disabilities.

Another barrier to locating affordable accessible housing is the inability of prospective tenants to easily find out if accessible units are available in their communities. Currently, HUD regulations do not require recipients to maintain a publicly available list of accessible units except for Housing Choice Voucher units.

NCD makes the following recommendations in our report directed at increasing the supply of federally assisted housing for people with disabilities:

• As a part of federal implementation of Section 504, HUD is obligated to collect assurances of compliance with Section 504, including the accessibility requirements. HUD should undertake a review of its various grant programs to ensure that it is collecting appropriate programmatic and construction assurances and provide guidance to grantees to ensure they understand what this means for new construction, substantial alteration, other alterations, and program access, as well as obligations related to nondiscrimination, reasonable accommodations, effective communication, among others.
• To shorten the wait for affordable, accessible housing, HUD should amend its Section 504 regulation to increase the percentage of fully accessible housing units (UFAS units) required in multifamily housing under its Section 504 regulations from 7% (5% mobility disability and 2% hearing and vision disability) to 25%, with at least 20% mobility units to accommodate the existing population of people with disabilities and the growing population of elderly disabled.
• To increase the national supply of affordable, accessible housing units, HUD should amend Section 8.56 of its Section 504 regulations to require HUD to conduct compliance checks during the construction phase to ensure that accessible units are being constructed. This amendment should require HUD to conduct such checks proactively without the need for an instigating event. Moreover, engaging people with disabilities to conduct these compliance checks is imperative.
• To increase transparency and assist people with disabilities to locate accessible housing units, HUD should amend its Section 504 regulations to require recipients of HUD financial assistance to develop and maintain a publicly available list of accessible units with a description of their accessibility features.
• To increase HUD’s ability to monitor compliance with newly constructed housing, substantially altered housing, housing with other alterations, and program accessibility, HUD should request an increased appropriation to fund at least one compliance specialist in each regional HUD office. These staff would have expertise in construction, the Fair Housing Accessibility Guidelines, the Section 504 construction requirements, and would proactively monitor federally financed housing construction in their respective regions.
• HUD should request an increase in its appropriation to broaden its efforts at compliance with both Fair Housing Act Accessibility Standards and Section 504 requirements by piloting a program that trains local planning and codes compliance departments across the U.S. on federal accessibility requirements and enlisting them in identifying potential federal accessibility issues in federally-assisted new housing construction, substantial alterations, housing with other alterations, and existing housing. This can be done by funding contracts and cooperative agreements that include training localities in federal accessibility standards and requirements.
• HUD should establish a home modification fund program or voucher to assist people with disabilities to make modifications to their existing homes.
• HUD should increase the number of housing vouchers specifically designated for people with disabilities transitioning from institutions to support the ADA integration mandate and the Supreme Court’s Olmstead decision.

Responses to Specific Questions

Question 1: The Department anticipates revising the definition of “individual with disabilities” consistent with the ADA Amendments Act of 2008 and DOJ’s Title II ADA regulations. 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.

Comment: We agree that the regulation should be revised to change the definition of “individual with disabilities” to the definition in the ADA Amendments Act of 2008 and DOJ’s Title II ADA regulations. This will help achieve consistency of the definition in Section 504 regulations across federal agencies.

We also suggest that HUD revise the definition of “Accessible route.” Currently, the definition is” … a continuous unobstructed path connecting accessible elements and spaces in a building or facility that complies with the space and reach requirements of applicable standards prescribed by § 8.32. An accessible route that serves only accessible units occupied by persons with hearing or vision impairments need not comply with those requirements intended to effect accessibility for persons with mobility impairments.” (Italics added). We suggest removing the italicized sentence because it perpetuates segregation within housing developments by making these units not visitable by neighbors with mobility disabilities. Moreover, it also does not recognize that tenants with hearing or vision impairments may also have mobility disabilities and will need an accessible route to these units. It also allows for several inaccessible routes within a housing development as these units are required to be dispersed throughout housing developments.

We also recommend replacing the term “handicap(s)” with “disability” in this section and throughout the regulation.

Question 2(a) and 2(d):

(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.

(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?

Comment: See the general comments section above which describes NCD’s report and addresses challenges faced locating affordable and accessible housing, insufficient accessible housing opportunities, and other challenges faced by people with physical disabilities.

Question 4(a):

To what extent does the lack of accessible units and other facilities in assisted housing discourage applications from eligible persons with a disability?

Comment: The scarcity of accessible units undeniably acts as a deterrent for housing applicants from people with disabilities. However, quantifying the precise degree to which this deficiency dissuades applicants remains challenging. The dearth of accessible, affordable housing within the private rental market often compels eligible people with disabilities to seek federally assisted housing out of sheer necessity, irrespective of lengthy waitlists or an insufficiency of accessible units. Some will not apply, perceiving the attempt as futile. Within the disability community, it is common knowledge that the waiting period for federally assisted housing can extend for years, and that there is a chronic shortage of adequately accessible units.

To what extent is the lack of accessibility a barrier to the participation in various HUD-assisted housing programs by persons with a disability?

Comment: Measuring the exact impact of accessibility deficiencies on participation in HUD’s assisted housing program is challenging. However, it is apparent that any form of discrimination, such as the failure to offer adequate programmatic and physical accessibility contributes significantly to these barriers. Examples of such discrimination include: failing to provide, or making it overly complex to request or obtain, a reasonable accommodation; maintaining websites that are inaccessible to people with vision disabilities; failing to provide appropriate auxiliary aids and services to ensure effective communication; failing to construct accessible units or not constructing them according to federal standards; and leasing accessible units to people without disabilities. These practices contribute to and perpetuate the segregation and isolation of people with disabilities and prevent them from the equal opportunity to benefit from HUD’s housing programs.

What challenges do households face in finding available affordable and accessible housing in their respective communities?

As the federal agency responsible for national policy and programs that address America’s housing needs, HUD should have substantial knowledge about the challenges households face in finding affordable, accessible housing. The lack of moderate and low-income housing opportunities across the nation makes finding and securing affordable housing in one’s community impossible for many families, leading to continued housing insecurity and homelessness. For in-depth information on the shortage of affordable housing, we suggest the following recent reports:

• A 2023 report by the National Low Income Housing Coalition which found that over 11.4 million extremely low income renter households in the U.S, whose income is no greater than 30% of their area median income or the poverty guideline, face a shortage of 7.4 million affordable and available rental homes; that nationally, only 35 affordable homes are available for every 100 extremely low-income renter households; and that a housing shortage exists for extremely low income renters in every state and major metropolitan area. The report calls for significant federal investments to address the shortage.[[6]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn6)
• Harvard University’s 2022 annual State of the Nation’s Housing report, provides insights into the U.S. housing market’s impact on renters and homebuyers.[[7]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn7) Key finding include are that soaring housing costs have led to a substantial rise in housing cost burdens for the first time in 10 years - In 2020, 30% of all households had “unaffordable” rent or mortgage payments, defined as exceeding 30% of monthly household income; and record housing shortages are a fundamental driver of affordability challenges - years of underbuilding have led to an all-time shortage of affordable rentals.[[8]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn8)

Moreover, people with disabilities who require accessibility features have an added challenge in obtaining affordable housing. In 2022, only 21.3 percent of people with a disability were employed, compared to 65.4 percent of people without disabilities.[[9]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn9) This has been consistent for decades and notably, the 21.3 percentage was the highest on record for people with disabilities since this data was first published in 2008.[[10]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn10) Thus, a significant amount of people with disabilities cannot afford market rate rental housing. In addition, while privately owned multifamily housing (four or more units) must have accessibility features under the Fair Housing Act,[[11]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn11) these units are leased at market rates, which are prohibitively expensive for renters with low incomes. For example, in the District of Colombia, the average market rate for a one-bedroom apartment in July of 2023 ranges from $1,975 to $2,635.[[12]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn12) Older, privately owned multifamily housing is more affordable, but some predate the Fair Housing Act and do not have accessibility features. They often need structural modifications in order to meet the accessibility needs of tenants with mobility disabilities and structural modifications, such as installing ramps and widening doors are expensive. Under the Fair Housing Act, a tenant may make structural modifications, but the cost is the responsibility of the tenant.[[13]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn13) When a potential tenant with a disability cannot afford these structural modifications, they lose a housing opportunity.

An additional hurdle to securing affordable, accessible housing for people with disabilities, as we described above, are construction failures by recipients of federal financial assistance, as well as the allocation of accessible units to nondisabled tenants. These practices intensify the existing scarcity of suitable housing for people with disabilities. Both result in the loss of housing opportunities for people with mobility and sensory disabilities. These units are crucial for both noninstitutionalized people with mobility and sensory disabilities with low incomes, and people with mobility and sensory disabilities who are ready to transition from institutional settings using Medicaid HCBS waivers. It is important to note that the private rental market, which is not mandated to provide the same level of accessibility, typically does not meet the accessibility requirements.

What factors or sources of data should HUD and its recipients use to determine the level of need for accessible housing?

Comment: As the nation’s top agency in the planning and development of housing programs and accessible housing, HUD is optimally positioned to be the expert on the level of need for accessible housing in the U.S. As such, it is essential for HUD to conduct ongoing data collection regarding the population of people with disabilities in the U.S. and their corresponding housing needs. While broad data collection on the number of people with disabilities and types of disabilities in the U.S. is necessary in order to plan for and implement federal programs and services, to date, disability data gathered is not always detailed, often outdated by the time it is published, and the response rates to federal surveys on disability status may not be high enough to provide an accurate picture on the true amount of people with disabilities in the U.S. Nevertheless, multiple data sources can contribute to painting a clear picture of the need for accessible housing. These sources may include Census data, such as the American Community Survey; housing authority waiting lists for accessible units; state and federal data on Medicare and Medicaid beneficiaries with disabilities; data on older persons with disabilities from the Administration on Aging and other aging organizations and agencies.

The Centers for Disease Control and Prevention, Behavioral Risk Factor Surveillance System (BRFSS) is another resource for disability data. BRFSS conducts annual surveys and all fifty states on disability status. HUD analysts can access the raw data to understand incidence and type of disability across the nation.[[14]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn14) A recent article that relied on BRFSS data to determine rates and types of disabilities by geographic area, found that in 2018 about 26.0% of US adults (67.5 million) had at least 1 of 6 disability types (i.e., serious difficulty with hearing, vision, cognition, or mobility; any difficulty with self-care or independent living).[[15]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn15) The most prevalent disability was related to mobility, followed by cognition, hearing, independent living, vision, and self-care.[[16]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn16)

Another source of data to help determine the level of need is the number of people with disabilities who are on State Medicaid wait lists for home and community-based services (HCBS). Affordable and accessible housing will be required for many of these individuals to successfully transition from institutional settings to community living. A recent study found that over 650,000 people with disabilities are on State HCBS waiting lists, with the caveat that half of the individuals on the wait lists are in states that do not check eligibility before placing them on the lists.[[17]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn17) However, even if half of the 650,000 individuals were deemed ineligible for HCBS, there were still over 325,000 eligible individuals on waiting lists for HCBS.

In addition, we suggest that, if HUD is not currently collecting data on the disability status of individuals who apply for HUD housing programs, it starts to implement this data collection. For example, all HUD offices, recipients, and housing authorities that accept applications from the public regarding housing programs should include a question or questions on disability status that can feed into an overall HUD report to help inform you on the level of need.

Question 4(b): Is there information that HUD should consider to clarify, strengthen, and encourage compliance by recipients’ with program accessibility obligations?

Comment:  The likelihood of recipients adhering to HUD’s guidelines regarding both physical and programmatic accessibility increases with their comprehension of their duties and the assurance that HUD will consistently enforce Section 504 and the Fair Housing Act. NCD recently recommended to HUD that CDBG-DR recipients receive the following information in a universal notice to clarify and encourage compliance with their program accessibility obligations.[[18]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn18) We believe this approach remains pertinent in this context as well.

NCD recommends that HUD:

1. Clearly inform recipients, in a stand-alone notice, that recipients are required to comply with civil rights and nondiscrimination laws as a condition of receipt of HUD funds and, by law, this requirement cannot be waived.
2. Provide recipients of HUD funds with full information on the Fair Housing Act’s design and construction requirements and the Section 504 construction requirements. We recommend that the notice include, at minimum, include the following:
3. A description of the Fair Housing Act regarding requirements for constructing multifamily dwellings. For example -

“Title VIII of the Civil Rights Act of 1968, as amended, (42 U.S.C. 3601 et seq.) (the ‘‘Fair Housing Act’’) prohibits discrimination in housing and housing-related transactions based on race, color, religion, national origin, sex, disability and familial status. The Act provides, that unlawful discrimination against persons with disabilities includes the failure to design and construct covered multifamily dwellings for first occupancy after March 13, 1991, in a manner that ‘‘(1) the public and common use portions of such dwellings are readily accessible to and usable by handicapped persons; (2) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and (3) all premises within such dwellings contain the following features of adaptive design: (a) An accessible route into and through the dwelling; (b) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (c) reinforcements in bathroom walls to allow later installation of grab bars; and (d) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. 42 U.S.C. 3604(f)(3)(C).”[[19]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn19)

1. A statement describing the types of dwellings that at the design and construction        apply to, e.g., housing that is for rent or for sale, transitional housing, student housing, assisted living housing, some homeless shelters, time shares, and dormitories.
2. A list of resources, such as:

• The Fair Housing Act
• Fair Housing Accessibility Guidelines
• Fair Housing Act Design and Construction Requirements; Adoption of Additional Safe Harbors  

1. Information on the Section 504 requirements for federally assisted housing, at a minimum, to include the following:

“Section 504 requires that recipients of federal financial assistance ensure that their programs and activities are readily accessible to and usable by individuals with disabilities.

As of July 11, 1988, newly-constructed housing and non-housing facilities must be designed and constructed to be readily accessible to and usable by persons with disabilities. In new construction multifamily housing projects, a minimum of 5 percent of the total dwelling units (or at least one unit, whichever is greater) must be made accessible for persons with mobility impairments. An additional 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.

Physical accessibility requirements also apply to any alterations of existing housing and non-housing facilities. Under HUD’s Section 504 regulation, alterations include any change in a facility or a change to its permanent fixtures or equipment. If alterations are undertaken to a multifamily housing project that has fifteen or more units and the cost of the alterations is 75 percent or more of the replacement cost of the completed facility, this qualifies as “substantial alteration,” in which all of the new construction provisions of HUD’s Section 504 regulation apply.

Designated accessible units must be made accessible in accordance with HUD’s Section 504 architectural accessibility standards. The accessibility standard under HUD’s Section 504 regulation is the Uniform Federal Accessibility Standards (UFAS).”[[20]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn20) (Also include Deeming Notice information)

1. The notice should provide additional resources on the Section 504 requirements, such as:

• Physical accessibility – Section 504 at https://www.hud.gov/program_offices/fair_housing_equal_opp/physical_accessibility#_Section_504
• Uniform Federal Accessibility Standards (UFAS) at https://www.access-board.gov/aba/ufas.html

1. The notice should clarify that the Section 504 requirements are in addition to the Fair Housing design and construction requirements.
2. The notice should require an express acknowledgment of having read the notice and an agreement to comply with its applicable obligations.

Other technical assistance could include interactive training on the Fair Housing Act and Section 504 design and construction requirements and on reasonable accommodations.

Question 8(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?

Comment: Individuals with disabilities often encounter a variety of obstacles in public and shared-use areas of both residential and nonresidential facilities. Common barriers include:  building entrances that lack ramp access or heavy doors at entrances without a push pad opener;  building entry systems that are not designed for individuals with visual or auditory impairments; thick carpeting which makes it difficult or impossible to maneuver in a manual wheelchair; security keys that require an individual to slide a card key in and out of a receptacle to unlock a door are unusable by many people with disabilities that impact finger dexterity; mailboxes for accessible units that are located too high to reach from a seated position; small mailbox keys; mailboxes for that do not have raised signage for tenants with vision disabilities; washers that are not front loading for access by wheelchair users; washers and dryers with controls that are unreachable from a seated position and that have no raised signage, laundry rooms designed without turning space for wheelchairs or room to open a front-loading washer and maneuver around the open door; recreation facilities like weight rooms with no space to move between machines in a wheelchair and that lack of accessible cardio and weightlifting equipment; no lifts at swimming facilities, or lifts that do not work/are not maintained; coworking facilities with cubicles that are too small for wheelchair users to enter or to roll under the desk; elevators without audible floor indicators; and alarms without flashing lights.

Question 8(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?

Comment: A multitude of accessible features and innovative technologies can be employed to alleviate these barriers. Generally speaking, strict adherence to and the enforcement of the Uniform Federal Accessibility Standards (UFAS) can ensure units are designed and constructed to be accessible by people with mobility disabilities. Furthermore, addressing elements that the UFAS may not cover could enhance usability. For instance, windows should ideally be fitted with cranks or lever handles for easier operation from a seated position, as traditional push-up, pull-down windows pose a challenge, or make it impossible to operate from a seated position. Showerheads should adjust vertically, to allow for independent use. Wall mounted sinks in bathrooms and kitchens allow a wheelchair user to fully use the sink. Adjustable shelving systems and lowered kitchen cabinets are needed, as are stoves with front controls. Microwave ovens should never be installed above a stove, for example, because they cannot be reached from a seated position. Refrigerators with one door are easier to approach in a wheelchair than a double door model. Clothing rods should be lowered in all closets. Interior doors and entry doors should have lever handles. Incorporating smart technology can significantly improve accessibility. Smart doorbells, for example, enable tenants to see who is outside without opening the door. Environmental controls that can be manipulated and programmed via a smartphone bring added convenience and independence.

Question 8(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?

Comment: Gallaudet University Technology Access Program, which explores ways to improve visual access within smart homes can be a valuable resource for HUD on this question. This initiative, under a grant sponsored by the Consumer Technology Association Foundation, can provide invaluable insights. See, https://tap.gallaudet.edu/smarthome/. Recent advancements include Smart Home Security Systems, capable of sending alerts to a tenant’s phone in the case of a break-in, a water leak, a frozen pipe, carbon monoxide, smoke, or fire. In addition, Smart Doorbells with audio/video feeds allow a person to see and hear who is at the door. Tenants with hearing disabilities who lipread or use sign language can communicate with visitors without opening the door. The technology can also send a doorbell alert to a tenant’s smartphone.

Question 8(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?

Comment: Many accessibility features that are required in accessible housing units under the Fair Housing Accessibility Guidelines and the Uniform Federal Accessibility Standards can be used or modified for use in an individual’s home to help them age in place. In addition, to the extent possible, interior doors can be widened to allow passage by a wheelchair, cabinets can be lowered, entries can be ramped, cabinets can be removed from underneath bathroom and kitchen sinks, environmental controls can be lowered, wall mounted sinks can replace bathroom vanities, grab bars can be installed near commodes, in showers, and in tubs. Hand-held showers or height-adjustable shower fixtures can be installed, shower benches can be added or tubs/showers with built-in benches can be installed.

Moreover, adopting concepts of universal design in the architecture and design of housing can enhance accessibility and be tremendously beneficial for the aging population. This is primarily because these design principles focus on maximizing usability, flexibility and adaptability, key factors that could allow older adults to age in place, that is, to continue living in their own home safely, independently, and comfortably as they age. Universal design ensures easy access to and within the home for everyone, regardless of mobility. This could include features such as no-step entryways, wider doorways and hallways for wheelchair access, and lever style door handles that are easier to use than knobs. Features like grab bars in bathrooms, nonslip flooring, and better lighting can help prevent falls, a common cause of injury among older adults. Universal design principles advocate for easy-to-use features, such as lowered kitchen cabinets, adjustable shelves, and appliances with easy-to-read displays. This makes it easier for older adults to perform daily tasks and maintain their independence. Moreover, universal design encourages flexible layouts that can be adapted over time as a person’s needs change. This might include things like adjustable countertops or modular furniture that can be arranged based on need. And finally, by making homes more adaptable, universal design can enable individuals to stay in their homes longer, reducing the need for costly renovations for the stress of moving to assisted living facilities.

Question 11: 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?

Comment: HUD, as the custodian of federal laws, has the task of ensuring compliance by all funding recipients. However, the existing provisions of its Section 504 regulation requires more teeth to actively enforce accessibility during the construction phase of housing. Currently, the regulation allows, but does not require, HUD to conduct compliance reviews. Its language indicates that HUD “may” review practices periodically to evaluate compliance[[21]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn21) This neither necessitates nor authorizes HUD to verify accessibility compliance during the design or construction phase. Moreover, it mandates an investigation only when “a compliance review, report, complaint or any other information indicates a possible failure to comply with this part.”[[22]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn22) These provisions should be amended to obligate HUD to proactively ensure that accessible units are not only constructed but are also meeting the requisite standards. If HUD could assign designated employees in its regional or local offices to conduct compliance checks during the construction phase, instead of relying on recipient assurances of compliance with the accessibility requirements as part of their obligations for receipt of federal financial assistance, early detection of issues could be facilitated.  Though federal oversight is designed to count on recipient assurances, this has been shown to be costly when it fails. Our recent NCD report  illustrates two cities, which after receiving federal financial assistance to construct large housing developments, failed to meet the accessibility requirements under HUD’s Section 504 regulation.[[23]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftn23) As a result, thousands of accessible housing units that were required to be constructed for people with disabilities were not built - worsening the ongoing housing shortage for people with disabilities in those cities and increasing the chance of institutionalization and homelessness. Years later, in both cities, these much-needed units remain largely unavailable.

Question12(a): Are there tribal specific circumstances that HUD should consider regarding Tribes and tribal entities, particularly with respect to the construction of accessible facilities?

Comment: Note - The Native American Disability Law Center (NADLC), provided NCD with the following comments for Question 12.

Tribes often face increased costs in materials to complete construction projects due to their rural and remote locations, making it more difficult to build accessible facilities - which often have their own increased costs. Similarly, it is difficult to find contractors to complete work in these rural and remote locations. Even when there is sufficient money, construction projects still must be approved by the tribal government. Tribes have found that where there is federal funding available for accessibility projects, the approval process is lengthy.

Native Americans have a higher rate of disability than the general population. HUD requires that five percent of all housing units in multifamily housing projects are required to be physically accessible to people with mobility disabilities, and two percent for vision and hearing disabilities, but this number may not be sufficient for many tribal communities that have a higher number of tribal members with disabilities.

Question 12(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?

Question 12(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?

Comment on 12(b) and 12(c): Many of NADLC’s findings are likely shared with the general population of individuals with disabilities and may not be tribal specific, but accommodations for Native Americans with disabilities are lacking for a variety of reasons. The headquarters or offices for the tribal entities responsible for providing housing may not be accessible itself, leading to difficulties in Native Americans with disabilities requesting accommodations in the first place, both physically inaccessible and programmatically inaccessible. Answers to our surveys almost always include that the forms required to request accommodations or apply for accessible housing are inaccessible, and many individuals simply give up in their attempts to obtain accessible services.

NADLC found that staff are not trained on how to provide accessible assistance to individuals with disabilities or tribal entities are understaffed and unable to devote the resources to providing accessible assistance. Also, a recent NADLC survey showed that Native Americans with disabilities often report that they feel like they are

discriminated against because of their race or disability when working with housing agencies.

Closing

In closing, we hope that these comments are helpful in achieving the goal of issuing a proposed rule to update HUD’s Section 504 implementing regulations. We firmly believe that addressing the current housing situation for people with disabilities involves strengthening the Section 504 regulations to include stricter compliance, enhancing significantly the quota for accessible units, encouraging the implementation of universal design, and harnessing advanced technology to improve accessibility.

We urge HUD to consider our feedback and its provided insights to revise and strengthen its strategies and efforts. We stand ready to offer our support, resources, and continued collaboration in these efforts. Should you have questions about anything in this response, please contact Joan Durocher, General Counsel and Director of Policy at jdurocher@ncd.gov and Ana Torres-Davis, Senior Attorney Advisor, at atorresdavis@ncd.gov.

Respectfully, 

Andrés J. Gallegos, J.D.

Chairman

[[1]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref1) 29 U.S.C. § 781(a)(5) - (a)(6).

[[2]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref2) Olmstead v. L.C., 527 U.S. 581 (1999). Affirming that unjustified segregation of individuals with disabilities is a form of discrimination prohibited by Title II of the Americans with Disabilities Act.

[[3]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref3) National Council on Disability (2022). https://ncd.gov/sites/default/files/NCD_Strengthening-HCBS-Ecosystem_508.pdf

[[4]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref4) U.S. Census Bureau, Demographic Turning Points for the United States: Population Projections for 2020 to 2060, P25-1144, 2018, 3, February 2020. Available at: https://www.census.gov/library/publications/2020/demo /p25-1144.html.

[[5]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref5) Section 504: Frequently Asked Questions. https://www.hud.gov/program_offices/fair_housing_equal_opp/disabilities/sect504faq;

[[6]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref6) National Low Income Housing Coalition. The Gap: A Shortage of Affordable Homes. 2023. https://nlihc.org/news/nlihc-releases-gap-2023-shortage-affordable-homes

[[7]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref7) State of the Nation’s Housing 2022. Harvard University Joint Center for Housing Studies. https://www.habitat.org/costofhome/2022-state-nations-housing-report-lac…

[[8]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref8) Id.

[[9]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref9) US Department of Labor, Bureau of Labor Statistics. Persons With A Disability: Labor Force Characteristics - 2022. https://www.bls.gov/news.release/pdf/disabl.pdf

[[10]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref10) Id.

[[11]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref11) Fair Housing Act Accessibility Guidelines. https://www.hud.gov/program_offices/fair_housing_equal_opp/disabilities/fhefhag

[[12]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref12) https://www.zumper.com/rent-research/washington-dc

[[13]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref13) https://www.hud.gov/sites/documents/reasonable_modifications_mar08.pdf

[[14]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref14) About BRFSS. https://www.cdc.gov/brfss/about/index.htm

[[15]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref15) Lu H, Wang Y, Liu Y, Holt JB, Okoro CA, Zhang X, et al. County-Level Geographic Disparities in Disabilities Among US Adults, 2018. Prev Chronic Dis 2023;20:230004. DOI: http://dx.doi.org/10.5888/pcd20.230004.

[[16]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref16) Id.

[[17]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref17) Burns, A., M. O’Malley Watts, M. Ammula. A Look at Waiting lists for Home and Community-Based Services from 2016 to 2021. Kaiser Family Foundation. www.kff.org/medicaid/issue-brief/a-look-at-waiting-lists-for-home-and-community-based-services-from-2016-to-2021/

[[18]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref18) https://ncd.gov/publications/2023/comments-huds-rfi-cdbg-disaster-recovery

[[19]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref19) This section is from, Final Rule: Fair Housing Act Design and Construction Requirements; Adoption of Additional Safe Harbors, 85 Fed. Reg. 78957 (December 8, 2020).

[[20]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref20) This section on Section 504 is lifted from Physical Accessibility at https://www.hud.gov/program_offices/fair_housing_equal_opp/physical_accessibility

[[21]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref21) 24 CFR 8.56(a).

[[22]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref22) 24 CFR 8.56(b).

[[23]](https://74.118.245.87/publications/2023/ncd-comments-hud-section-504-advanced-notice-proposed-rulemaking#_ftnref23) CRA/LA Agrees to Pay $3.1 Million to Resolve Alleged Misuse of Federal Funds for Inaccessible Housing. https://

www.justice.gov/opa/pr/crala-agrees-pay-31-million-resolve-alleged-misuse-federal-funds-inaccessible-housing; Los Angeles Times, August 30, 2016, “L.A. to spend more than $200 million to settle suit on housing for disabled.” https://www.latimes.com/local/lanow/la-me-ln-housing-settlement-disabled-20160828-snap-story.html.