On January 4, 2022, USDA Rural Development published an updated Unnumbered Letter (UL) 1-4-22 regarding the completion of Self Evaluations (SE) and Transition Plans (TP). First, and possibly most significantly, new accessibility transition plans are no longer required to be completed every three years. RD will accept a revised transition plan that has no changes other than to revise the projected implementation dates of the transition plan schedule if an acceptable reason can be documented why the original dates could not be met. The revision included in the 2022 UL more closely aligns with the guidance provided in UL 9-21-2018 regarding allowable project expenses, which stated,
“Annual reviews updating of transition plans by management should be completed with budgets and actual financial reviews. An explanation for the lack of work and not following the transition plan schedule should be provided. It is not a reasonable expense to complete a transition plan every three years, especially if none of the items have been corrected or completed since the initial plan. Management should review the existing plan annually with a year-end update.”
What is a Self-Evaluation and Transition Plan?
A Section 504/UFAS self-evaluation is an inspection of a property to determine if the property meets the standards for barrier-free design outlined in the Uniform Federal Accessibility Standards (UFAS). If the self-evaluation shows that areas require updates in design, a transition plan is necessary to establish a schedule to complete the changes.
“A transition plan is required when the self-evaluation determines that a facility modification to buildings and grounds is necessary to meet the applicable accessibility standards. Realistically, all accessibility work in the TP should be completed within three years and as expeditiously as possible, as outlined in 7 CFR 15b.l8(f) and based on the annual approved budget.”
Self-Evaluation and Transition Plans Required for all USDA Projects
With the issuance of this new unnumbered letter, RD is now clearly requiring that all RD MFH projects complete self-evaluations. This requirement includes all projects, no matter what the placed-in-service date is, including Section 538/515 Projects. This new unnumbered letter clarifies previous guidance about which properties must complete a self-evaluation.
“[Properties] ready for occupancy after June 10, 1982, must be designed and constructed in such manner that the facility, to the maximum extent possible, is readily accessible to and usable by persons with disabilities. These and all other borrowers shall conduct a Self-Evaluation (SE); and, if needed, develop a Transition Plan (TP). The SE and TP process gives borrowers a reasonable period to complete the accessibility work required under the law. … If an existing MFH property does not have a SE and TP in place, regardless of the date it was placed into service, the borrower must develop a SE and TP. In accordance with 7 CFR 3560.2(d), borrowers or grantees that fail to comply with the requirements of Section 504 are subject to sanctions authorized by law and may be subject to fines and penalties imposed by enforcement agencies, loss of tax credits, or legal actions if found in non-compliance with Civil Rights laws. The cost of the SE and TP report preparation is an eligible project expense and may be paid from the housing project’s Reserve Account or excess Operating and Maintenance (O&M) account funds with prior Agency approval.”
Properties placed in service prior to June 10, 1982, are required to ensure that public areas meet UFAS barrier-free design and are strongly encouraged but are not required to meet the 5% accessible unit requirement.
Accessibility Compliance Regular Reviews
The Section 504/Self-Evaluation and Transition Plan is a living document. Owners and managing agents must re-evaluate their practices and properties regularly to check for new accessibility issues. USDA provides some examples:
- A change in trash pick-up design (taller dumpster, no side door, etc.)
- Updated fixtures in common areas which do not comply with UFAS
- Damaged sidewalks which result in tripping hazards
- Overgrown vegetation which restricts either vertical clearance or width of an accessible route
Accessibility Design is Fair Housing
It’s important for owners and managers to remember that failure to meet Section 504 and handicapped accessibility standards is a fair housing violation. There are risks of non-compliance with all funding programs for failure to meet design standards, as well as fair housing violations. Moreover, failure to meet these standards can put persons with disabilities at risk of personal injury. Removing the barriers to housing, both physical and procedural, is a vital part of affordable housing and it’s important to be vigilant about fair housing every day.
Notable Changes from Previous UL published January 10, 2020
- Revised Transition Plans: RD no longer requires a new TP to be completed every three years; RD will accept a revised TP that has no changes other than to revise the projected implementation dates of the TP schedule if an acceptable reason can be documented why the original dates could not be met.
- Required SE/TP – Project Applicability: With the issuance of this new UL, RD is now clearly requiring, not just recommending, that all RD MFH projects, regardless of placed-in-service date, complete self-evaluations. This includes Section 538/515 Projects.
- Definition of Substantial Rehabilitation and Alteration: Changed the definition of Substantial Rehab to reflect the definition found in UFAS 4.1.6(1) (d).
- Temporary COVID Deferral of SE/TP Inspections: The new UL allows Borrowers to temporarily defer SE/TP Inspections due to COIV-19 Limitations, based on local conditions and health advisories within the state.
- 5% Accessible Unit Requirement Clarification: The revised UL clarified that properties placed in service on or before 6/10/82 are strongly encouraged but are not required to meet the 5% accessible unit requirement.
- Agency Roles – The UL changes the role of accessibility compliance oversight from the Servicing Office to the Fields Operation Division.
- Agency Response to Non-Compliance When a project is found to be out of compliance with the TP schedule, Field Operations Division staff will follow the guidance on page 8 of Appendix 5, HB-2-3560 “The Agency’s Response to Findings of Non-Compliance, before taking the steps outlined in Exhibit 10-2 of the HB-3-3560.
