Do You Know What You Are Certifying To?

By admin | March 9, 2020


Before your budgets are approved by the respective state or federal agency (i.e. RD, HUD, State Housing Finance Agency) each year, affordable property owners and their agents are required to execute documents certifying that their properties receive federal funds and are in full compliance with all applicable Federal Civil Rights laws.  

Also, Affirmatively Furthering Fair Housing (AFFH) is a requirement for all recipients of federal funds. This is used to ensure recipients are furthering the purposes of the Fair Housing laws and that properties are accessible and available for all persons regardless of protected class. The duty to affirmatively further fair housing extends to all of the recipients’ activities and programs relating to housing. 

State and local agencies that receive and distribute funds are also subject to these requirements and must implement and follow monitoring procedures to ensure that developments to which they award funds are in compliance with federal Fair Housing laws.  Evidence from DOJ and HUD enforcement actions, as well as private lawsuits, suggests that many, if not most, housing developments have accessibility deficiencies that were present in the original design and construction of the property. A state or local agency cannot simply ignore this evidence of a wide-spread problem and claim that developments are complying with federal nondiscrimination standards for persons with disabilities. 

Before you sign any documents certifying compliance with federal nondiscrimination laws or confirming that you are affirmatively furthering fair housing, we recommend that your properties be reviewed by an expert Accessibility Consultant. This will ensure the properties are in fact in full compliance with accessibility laws or, if not, will identify the steps you must take to put an Accessibility Action Plan in place to remedy any noncompliance.

News Flash: On January 10, 2020, USDA Rural Development (RD) published a new UnNumbered Letter (UL) regarding your 504 Transition Plans. Why now?  The reason is pretty simple- the enforcement actions from The Department of Justice (DOJ), The United States Department of Housing and Urban Affairs (HUD), private Accessibility Advocate Groups, and individuals with disabilities are at an all-time high.  The latest DOJ case has focused on 515, 538, and LIHTC properties.

Here’s a summary of the new UL:

  • Regardless of when your property was built (either BEFORE or AFTER June 10, 1982), your property is REQUIRED to conduct a Self-Evaluation (SE) and to develop a 504 TP.  
  • RD personnel will verify that accessibility items from the borrowers annual proposed budget for the property includes the portions of costs of the accessibility repairs from the 504 TP scheduled for the respective year.  The narrative portion of the budget must include a discussion on which accessibility items are being funded and scheduled for completion within the upcoming fiscal year.
  • The cost of the plan is an approved project expense through the reserve account, or, based on 3560 Regulations, through excess operating and maintenance funds.
  • RD will NO LONGER accept a previous or existing 504 TP that has been re-dated and presented by borrowers as “revised.”  RD wants a new inspection with a new plan.
  • RD’s National Office will no longer allow the Servicing Office staff to perform reviews of initial and updated 504 TP reports.  RD is requiring that the 504 TP be developed by a skilled and knowledgeable source or third-party provider, in accordance with 7 CFR 15b.18 (g). 
  • 504 TP MUST include proof that the plan has been evaluated with the assistance of interested persons, including persons with disabilities or organizations representing persons with disabilities.
  • The 504 TP record must be maintained for at least three years following the inspection.  The record must be made available for public inspection and be provided to the Agency upon request.
  • The 504 TP MUST contain:
    • A list of the interested persons consulted
    • A description of areas examined, and any problems identified
    • A description of any modifications made and of any remedial steps taken
  • Your property is in compliance with accessibility laws and Agency regulations as long as the schedule of work within the 504 TP is being followed and completed within the agreed-upon time frame.
  • A 504 TP is required where structural changes to facilities are necessary to meet the applicable accessibility standards.  All accessibility work in the 504 TP should be completed as expeditiously as possible, as outlined in 7 CFR 15b.18(f).
  • All these new actions are a direct correlation with the Department of Justice’s Accessibility Initiative and the Best Practices published by NCSHA.

Of course, all of this is directly related to the topics of our past articles regarding the Department of Justice’s Accessibility Initiative and the National Council for State Housing Agencies’ (NCSHA) new Best Practices. In case you missed any of them, let me hit the high points:

  • Capital Needs Assessments must address all applicable accessibility regulations (ADA, Section 504, and Fair Housing)
  • If you are planning on rehabbing your existing properties or you plan on applying for LIHTC, HUD, RD and or Bond funding, you need to have all plans and specs reviewed by an expert Accessibility Consultant.
  • During any rehab or new construction, you need to engage an approved Accessibility Consultant to do Accessibility Construction Inspections throughout the process in order to ensure compliance at each stage of the project.
  • On-site training for the entire project team (i.e. Contractor, Job Superintendent, and all sub-contractors) is highly recommended and should be considered during the rehab or new construction process.

Your best action plan is NOT to assume that your TEAM (Architect, Developer, Contractor, Sub-Contractors and or government funding agency) has a complete or accurate understanding of all the applicable federal civil rights regulations that affect your property. If you are receiving funds from a State Housing Finance Agency for your new construction or rehab property, make sure to review the applicable Qualified Allocation Plan for your funding cycle regarding the Accessibility requirements for your plans and specification being reviewed by an Accessibility Specialist.  It will go a long way to ensure Bob Villas old saying “measure twice and cut once”.

This article by Mark English appeared in the January/February 2020 Edition of CARH News.

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Mark English, is President of E&A Team, Inc.  E&A has helped thousands of Owners create an Accessibility Action Plan as a first step. E&A Team, Inc. has become one of the national recognized Accessibility firms who provide Accessibility Evaluations, CNAs, and training to property management firms, owners and developers, architects, contractors, engineers, State Housing Finance Agencies, and mutable governmental agencies in all 50 states and various U.S. Territories.   

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