Nondiscrimination on the Basis of Disability: Updates to HUD's Section 504 Regulations, 24938-24944 [2023-08464]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[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 [www.gpo.gov]
[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 
www.regulations.gov. 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 
www.regulations.gov 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 https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs. Copies of all 
comments submitted are available for inspection and downloading at 
www.regulations.gov.

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 https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs.

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, https://www.hud.gov/sites/documents/OLMSTEADGUIDNC060413.PDF.
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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.

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    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]
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