Is Your Accessibility Professional Asking You the Right Questions?
If you recall, in my previous article, “Perfect is the Enemy of Good,” I discussed the new Accessibility Initiative introduced by the Department of Justice (“DOJ”) and how we, as an industry, need to change the way we do business, in part, by being pro-active rather than re-active when it comes to the accessibility of our properties. Today, I continue this dialogue with a list of questions that your accessibility professional should be asking you.
Whether you are preparing for an accessibility plan review, a series of accessibility construction inspections, a rehab of a property or portfolio of properties, an accessibility training for your development team (i.e. architects, contractors, sub-contractors, job superintendent), or have completed a property and want to know if there are any accessibility violations, your accessibility professional should be discussing with you all of the items below to achieve accessibility.
Let’s start with the easier questions and work our way to the questions whose answers have more complicated implications: 1) What is the name / address of your property? 2) How many units / buildings does the property have? 3) What is the date of occupancy? and 4) How is your property funded?
- Name/address of property: Today, for a variety of financing reasons, owners often combine one, two, and yes, sometimes three properties’ phases into one when doing a rehab. So, to provide you the best advice to satisfy the applicable accessibility requirements for your property, it is prudent for the accessibility professional, either prior to, or immediately following an inspection, to view your site on Google Earth or Google Maps for an overview of the entire property and items such as accessible routes, amenities, and types and locations of those amenities.
- Number of Units / Buildings: For obvious reasons, knowing the number of units / buildings at your property, helps the person preparing your price quote and performing the inspection set aside enough time to properly inspect all areas and items of the property that must be accessible. For example, if your property was built after March 13, 1991, all ground floor units in each building with four or more units must comply with the Fair Housing Act design and construction requirements; and, if a building with four or more units has an elevator, then all the units in that building must comply with the Fair Housing Act design and construction requirements.
- Date of Occupancy: The date of occupancy is another piece of critical information. If your property was built after March 13, 1991, your property, regardless of the type of funding, must be in compliance with the design and construction requirements of the Fair Housing Act. Congress set forth ten safe harbors that can be used to satisfy the design and construction requirements of the Fair Housing Act, but remember, the Fair Housing Act applies to all housing providers with very few exceptions. Also, it is important to remember that virtually all accessibility elements are required to be in place when built; do not fall into the trap that the term “adaptable” contemplates a delay or deferral of the time when “features of adaptable design” may be completed.
And, if federal funds are involved in the financing of your property, there are trigger dates that your accessibility professional will need to know in order to comply with additional accessibility requirements. If your property is funded by the U.S. Department of Housing and Urban Development (“HUD”), then you will need to let your accessibility professional know whether your property was built before or after July 11, 1988. If your property was built BEFORE July 11, 1988, under your original loan documents, your property was not required to have any designated accessible units; however, one hundred percent of the property’s common areas must meet the applicable accessibility requirements. (For a property combining “phases” / multiple properties, the date is applied to each “phase” or property separately.) But, if your property was built AFTER July 11, 1988, in addition to the accessibility requirements for the common areas, 5% of the units (minimum one) must meet the applicable accessibility dwelling unit requirements and, an additional 2% of the units must meet the hearing and visual requirements.
If your property is funded by USDA Rural Development (“RD”), then you will need to let your accessibility professional know whether your property was built before or after June 10, 1982. If your property was built BEFORE June 10, 1982, under your original loan documents, your property was not required to have any designated accessible units; however, one hundred percent of your property’s common areas must meet the applicable accessibility requirements. But, if your property was built AFTER June 10, 1982, in addition to the accessibility requirements for the common areas, 5% of the units (minimum one) must meet the applicable accessibility unit requirements. However, the property is not required have an additional 2% of the units meet the hearing and visual requirements.
- Type of Funding: Each federal accessibility regulation has an accessibility standard used to determine accessibility. So, to know which standard to use – whether it is an accessibility plan review, an accessibility construction inspection or an accessibility review of an existing property – you and your accessibility professional MUST know the funding information.
Numerous types of funding exist, including:
- Low Income Housing Tax Credit (“LIHTC”):
- Federal:
- HUD
- RD
- HOME (HOME funds come directly from the U.S. Treasury to the organization that your state has designated to administer the funds.)
- Community Development Block Grant (“CDBG”)
- Conventional:
- Bank
- Bonds
- Mortgage companies
Let’s discuss each type of funding in more detail.
Low Income Housing Tax Credits: Many owners, developers, architects, contractors, job superintendents, and sub-contractors do not know that tax credits, with limited exceptions, are NOT considered federal funding. So, if your property was originally funded through tax credits, and since tax credits were not introduced until 1991, then your property (with few exceptions) should have been designed and constructed using the design and construction requirements in the Fair Housing Act.
Federal (RD / HUD / HOME / CDBG): If your property uses RD, HUD, HOME, or CDBG funds, or received ANY other federal assistance (rental assistance, Section 8 vouchers or project-based vouchers), then your property must comply with Section 504 of the Rehabilitation Act of 1973 (“Section 504”). To make matters even more complicated, each federal agency has its own 504 Regulations. RD uses the Uniform Federal Accessibility Standard (“UFAS”) to satisfy Section 504. HUD allows you to use either UFAS or ADA 2010 to satisfy the accessibility requirements of Section 504. This is where your design professional and accessibility professional should be working together to determine the applicable and most cost-effective method for satisfying the accessibility requirements.
Conventional: If your property is funded using conventional funds, and if your building (not your property, which is different than the examples listed above) received its Certificate of Occupancy (“C/O”) prior to March 13, 1991, then that building must comply with the Americans with Disability Act (“ADA”), which covers areas of public accommodation. Areas of public accommodation are limited to areas the general public may access, such as the rental office. Thus, the rental office and the means of reaching the rental office must be accessible. Accordingly, the property must have accessible parking that connects to an accessible access aisle that, in turn, connects to an accessible route to the rental office. Other areas open to the general public and thereby covered under the ADA include public restrooms, and any area that may open to or be rented out to the general public such as community rooms or swimming pools.
These are all issues that you and your accessibility professional should be discussing. If your accessibility professional is not asking you questions about these items, then why are you using them as your accessibility professional?