A.5.2.2 Implementing and Applying Accessibility Requirements

A. For new construction, all persons or parties involved in design and construction, including but not limited to Borrowers, Project Architects, and General Contractors are jointly responsible for compliance. When construction is proposed, design professionals, Lenders, and contractors are obligated to assure that plans, specifications, and contract documents describe work that will result in such compliance.

B. When developing a scope of work for existing structures, Needs Assessors, registered Architects when involved, and Lenders must identify the statutes and standards applicable to the property (or particular buildings or spaces thereof) and describe all deficiencies and violations and specify the work needed to remedy deficiencies.

C. Lenders must retain persons or firms with particular experience and expertise in the recognition and evaluation of accessibility issues in the design of new construction or substantial rehabilitation projects as well as in the preparation of the CNA for existing properties.

1. For substantial rehabilitation, observed deficiencies at existing properties must be itemized and clearly listed in the Cover Sheet of the plans (or, where General Notes are listed). The plans and specs must reflect proposed remedies addressing each of the deficiencies.

2. For other existing properties (e.g., Section 223(f) with repairs and alterations), observed deficiencies and proposed remedies must be described as Accessibility Critical Repairs in the CNA e-Tool. Accessibility Critical Repairs must:

Address all accessibility deficiencies.

• Specify what accessibility requirement is not met in the ‘Scope of Accessibility Compliance’ field.

• Describe the remedies with enough details demonstrating that the remedies are appropriate. The description must be specific enough to be easily inspectable. Describe in the ‘Scope of Required Replace/Refurbishment’ field.

• Describe when the work will be completed as ‘Months to Complete.’ When the work involves a General Contractor, a detailed construction schedule must be submitted as an attachment in the CNA e-Tool.

• Provide any additional information and clarifications in the ‘Comments’ field. For example, describe any circumstance where the implementation of a remedy to a deficiency would compromise other architectural design requirements, (e.g., requires the elimination of closet space).

• The Lender must ensure that the schedule requested for corrective action is the minimum possible given the physical characteristics of the remedies and the reasonably anticipated impact of the repairs on tenants and or the costs of displacement.

D. In unusual circumstances (e.g., extensive displacement or large scope of work or excessive costs) accessibility remedies may require more than 12 months to complete. Any corrective work requiring more than 12 months for completion must be referred to HUD Headquarters to the attention of the Director of Technical Support (in the case of new applications) or to the Director of the Office of Asset Management and Portfolio Oversight (in the case of corrective action plans prepared after Endorsement).

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Appendix 5 Architectural and Construction Analysis A.5.2 Accessibility for Persons with Disabilities

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E. When completion of remedies for accessibility deficiencies is deferred, the funds required (including amounts assuring completion) should be provided and disbursed in accordance with the applicable escrow requirements for Non-critical repairs for new applications under Sections 223(f) or 223(a)(7) of the National Housing Act or, when no new insured financing is proposed, in accordance with HUD Handbook 4350.1.

F. Where a deficiency is identified arising from a state or local accessibility requirement that exceeds the applicable Federal standard(s) and the proposed corrective action does not result in full compliance with that state or local requirement, it is the responsibility of the owner and/or the Lender to obtain written confirmation that the proposed corrective work is acceptable to the state or local entity with enforcement jurisdiction.

G. The Lender must ensure that the professional preparing the plan has skill and experience commensurate with the scale of work required (see Chapter 5, Section 5.3.1). When compliance with multiple statutes and standards is required or when design documents are needed, the scope of work must be prepared by other qualified professionals (e.g., a registered Architect, engineer) retained either by the owner or the Lender provided that the identity and qualifications of the author(s) are fully disclosed. All resulting reports and drawings should be attached to the CNA when it is submitted via the CNA e-Tool.

H. Accessibility Critical repairs listed in the CNA e-Tool does not constitute a safe harbor for compliance with the Fair Housing Act, Section 504 of the Rehabilitation Act of 1973 or the ADA. Proposed remedies in the CNA e-Tool do not preclude an individual from filing a fair housing complaint with the Department and do not preclude the Department from investigating a complaint or pursuing administrative or legal action under applicable civil rights accessibility laws and regulations to ensure full compliance. Similarly, any corrective action described in the e-Tool does not preclude the Department of Justice from investigating or filing a lawsuit for Fair Housing Act, Section 504, or ADA violations.

I. The Fair Housing Act, Section 504 of the Rehabilitation Act of 1973 and the American with Disabilities Act require owners to make reasonable accommodations (that is, exceptions to or changes in rules, policies, practices, or services) and/or reasonable modifications (physical changes to premises) for persons with disabilities. These requirements are separate and distinct from the requirement to address accessibility deficiencies identified in a CNA. Reasonable accommodations and modifications will not be addressed in CNA reports or corrective action plans. References to detailed guidance on reasonable accommodations and modifications may be found in Appendix 5, Section A.5.2.3.3.