[Federal Register Volume 59, Number 69 (Monday, April 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8543]
[[Page Unknown]]
[Federal Register: April 11, 1994]
_______________________________________________________________________
Part X
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Secretary
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24 CFR Parts 50 and 574
Housing Opportunities for Persons With AIDS; Final Rule
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Secretary
24 CFR Parts 50 and 574
[Docket No. R-94-1606; FR-3178-F-03]
RIN 2501-AB41
Housing Opportunities for Persons With AIDS
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
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SUMMARY: This final rule is being issued for the Housing Opportunities
for Persons With AIDS (HOPWA) Program. The program provides States and
localities with resources and incentives to devise long-term
comprehensive strategies for meeting the housing needs of persons with
acquired immunodeficiency syndrome (AIDS) or related diseases and their
families. The program authorizes entitlement grants and competitively
awarded grants for housing assistance and services. This final rule
includes changes made in response to public comments.
EFFECTIVE DATE: May 11, 1994.
FOR FURTHER INFORMATION CONTACT: Barbara Richards, Acting Director,
Office of Special Needs Assistance Programs, (202) 708-4300 (voice);
(202) 708-2565 (TDD); Department of Housing and Urban Development, 451
Seventh Street SW., Washington, DC 20410-7000. (Telephone numbers are
not toll-free.)
SUPPLEMENTARY INFORMATION:
I. Information Collections
The information collection requirements for the HOPWA program have
been approved by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1980 and were assigned OMB control number
2506-0133.
II. Introduction
A. Background
The Housing Opportunities for Persons With AIDS (HOPWA) Program was
authorized by the AIDS Housing Opportunity Act (42 U.S.C. 12901)
(hereafter ``AHOA''). An interim rule was published in the Federal
Register on July 20, 1992 (57 FR 32106), estab- lishing regulations for
the implementation of this new program at 24 CFR part 574.
The Department received 12 public comments on the initial interim
rule. Then Section 606 of the Housing and Community Development Act of
1992, 106 Stat. 3806 (hereafter ``the Act'') made revisions to the
HOPWA program and directed the Department to publish interim and final
rules to implement those revisions. A second interim rule was published
in the Federal Register on December 28, 1992 (57 FR 61736). It
contained responses to comments on the first Interim Rule and revisions
from the Act.
In publishing a second interim rule, the Department announced a
comment due date of February 26, 1993. Thirty-one public comments were
received. The comments were submitted by persons representing nonprofit
organizations, local coalitions of AIDS organizations, professional
organizations, State and local governments, and the Bureau of Health
Resources Development of the U.S. Department of Health and Human
Services.
A number of these comments were highly supportive of those
provisions of the interim rule that allow flexibility in the selection
of activities. In one view, this flexibility ``makes it an especially
valuable resource, allowing local jurisdictions to tailor programs to
their specific circumstances and needs.'' Commenters also noted the
Department's commitment to implement this program in a ``non-
bureaucratic'' manner. Commenters supported the inclusion of
administrative costs, the allowance for HUD approval of formula
applications received before the due date, the provision exempting
project sponsor selection from procurement requirements, and the
removal of the applicability of housing quality standards to short-term
rent, mortgage, and utility payments.
Other public comments recommended revisions to the interim rule.
These are addressed in this preamble along with several technical
corrections which have been identified through the Department's
experience in administering this program.
B. Public Comments, Technical Corrections, and HUD Responses
1. Families Defined--4 Comments
Commenters requested clarification of the term ``family'' because
family members can benefit from any of the eligible activities at
Sec. 574.300(b), except for health services, as provided at
Sec. 574.300(b)(7). Commenters recommended that the definition include
``the spouse, life partner, or significant other person living with the
person with AIDS,'' and that the incomes of any such persons be
included under the household's income for determining resident rent
payments. Other commenters recommended that family be considered ``any
group of people who have chosen to live together'' but that the term
would not apply to residents assembled for the purposes of shared
housing.
Response. The Department has added a definition of family at
Sec. 574.3 of the final rule. The definition provides that a family
includes members of a household who are related or who are determined
to be important to the care and well-being of the member with AIDS or
related diseases. It further provides that the surviving member or
members of a family who were living in an assisted unit with that
person at the time of death will continue to receive housing assistance
and supportive services. The Department has established requirements
for the termination of assistance to surviving family members at
Sec. 574.310(e)(1), including the provision for a reasonable grace
period for continued eligibility--not to exceed one year from the death
of the family member with AIDS.
Assistance to the family of a person with AIDS or related diseases
is authorized by section 606(c)(3) of the Act. Under the final rule,
which includes family under the definition of ``eligible person,''
housing assistance and supportive services can be provided for a family
member residing with a low-income person with AIDS or related diseases,
except for health services as provided at Sec. 574.300(b)(7).
This definition is similar to that portion of the Department's
Shelter Plus Care (S+C) Program definition of person with disabilities,
found at 24 CFR 582.5, which ``includes two or more persons with
disabilities living together, one or more such person living with
another person who is determined to be important to their care or well-
being, and the surviving member or members of any [such] household.''
2. Non-substantial Rehabilitation--1 Comment
A commenter noted that the term ``moderate rehabilitation'' was
used in one location while the term ``non-substantial rehabilitation''
was used elsewhere in the interim rule. The commenter recommended using
only ``non-substantial rehabilitation'' to provide for internal
consistency.
Response. The Department agrees that one term should be used
throughout and has replaced ``moderate rehabilitation'' with ``non-
substantial rehabilitation'' in this rule at Sec. 574.3.
3. For-Profit Involvement--4 Comments
Commenters recommended that for-profit developers not be excluded
from serving as project sponsors. Recommendations included their
serving directly as project sponsors or working in partnership with
non-profits eligible to undertake activities. Commenters felt that a
prohibition on for-profits unnecessarily restricts collaborative
projects between AIDS services providers and housing development
corporations.
Response. No change has been made. The statute does not authorize
for-profit organizations to serve as project sponsors. Eligible
activities are carried out by the grantee itself, through any of its
administrative agencies, or by contract with a project sponsor that is
either a nonprofit organization or a government housing agency.
However, as noted in the preamble to the second interim rule, at
II(B)(6), grantees and project sponsors may contract for services. For-
profit entities could provide those contracted services.
4. Non-profit Organizations Definition--2 Comments
Commenters were concerned that the definition of nonprofit
organization at Sec. 574.3 in paragraph (4), which requires an
organization to have ``among its purposes significant activities
related to providing services or housing to persons with AIDS or
related diseases,'' could prevent experienced nonprofit housing
organizations, who lack such purposes, from participating in an AIDS
housing project.
Response. The definition has been retained. The definition conforms
with the statutory definition under section 606(c)(3) of the Act. An
organization wishing to participate in HOPWA could establish this
purpose, for instance, by amending its by-laws to state that the
organization has an AIDS housing or services mission.
Additionally, as noted in the preceding response, other nonprofit
organizations which do not serve as project sponsors and for-profit
organizations may provide contracted services.
5. State Applicants--10 Comments
Under State eligibility for formula grants, commenters noted that a
State could qualify in one year but become ineligible for a grant in
the following year. Commenters noted that once 1,500 cases of AIDS
occur in a metropolitan area, that area will qualify. Because the
number of cases reported outside qualifying Eligible Metropolitan
Statistical Areas (EMSAs) is used to determine the State's eligibility,
a State's remaining cumulative number of cases of AIDS could drop below
the threshold 1,500 cases. In this case, the State would no longer be
eligible to receive a formula allocation.
Commenters recommended that, once qualified, a State should
continue to receive funds in future program allocations. A concern was
expressed that the State, as a Ryan White Title II recipient, is best
able to coordinate HOPWA-funded activities with its programs through
community-based organizations and the State's loss of eligibility as a
HOPWA formula grantee would interfere with this coordination.
One commenter noted that when a State loses its eligibility,
persons residing in non-formula metropolitan areas and rural areas are
deprived of assistance because of where they reside. The commenter
recommended that HOPWA funds be awarded on morbidity in non-
metropolitan areas and States or that States receive funding to respond
to needs in smaller cities and rural areas.
Response. No change was made. The regulations at Sec. 574.130
conform with the formula-based allocation specified in the statute.
Section 854(c) of AHOA stipulates that any State with more that 1,500
cases of AIDS, ``outside of metropolitan statistical areas'' qualifies
for a formula allocation. Jurisdictions not qualifying for formula
grants are eligible to apply for competitively awarded funds under
Sec. 574.200.
6. High Cost Allocations--1 Comment
The commenter requested that the funding level for the program be
increased, that allocations reflect the demographics of the epidemic,
and that additional funds be allocated to high-cost areas.
Response. Section 854(c) of AHOA does not authorize additional
allocation factors, such as supplemental funds for high-cost areas. The
formula, however, does provide for demographic factors in allocating
funds to those areas with the largest reported number of cases and
incidence of AIDS.
7. County Governments--7 Comments
Commenters raised concerns with the provision at Sec. 574.100 of
the second Interim Rule that requires the most populous city that has
an approved comprehensive housing affordability strategy serve as the
grantee for an EMSA. Commenters noted that under the initial Interim
Rule, the EMSA applicant designation process resulted in the
designation of a number of county governments to serve as the applicant
for the fiscal year 1992 formula grants. Commenters recommended a
return to the designation process of the initial interim rule or allow
for designating another Community Development Block Grant (CDBG)
entitlement community to serve as the applicant by the mutual agreement
with the EMSA community. The Health Resources and Services
Administration, HHS, recommended that HUD review its ability to
continue funding those entities receiving HOPWA grants as this could
help ensure coordination with the community-based HIV services funded
through the Ryan White CARE Act.
Response. No change was made. The rule conforms with a specific
statutory requirement at section 606(d)(2) of the Act to allocate
formula awards to the most populous city in each EMSA.
8. Clarification of Coordination--4 Comments
Commenters recommended a clearer delineation of the organizations
that should be consulted in a grantee's application planning process.
Response. The Department agrees and the application requirements at
Sec. 574.160(c)(5) have been revised accordingly. The similar provision
for a competitive grant application was also revised at
Sec. 574.240(c)(6).
9. Limitation on Supportive Services--1 Comment
A commenter expressed concern that a number of eligible activities,
such as supportive services, short-term rent, mortgage and utility
payments, and operating costs, dilute the effectiveness of the program
in addressing long-term strategies and in providing needed housing
assistance. The commenter recommended that the rule limit the use of
funds for supportive services and short-term supported housing.
Response. The rule has not been changed. The statute describes a
broad range of eligible activities and states that its purpose is to
provide States and localities with resources and incentives to devise
long-term comprehensive strategies for meeting the housing needs of
persons with AIDS and their families at Sec. 574.1. The choice of which
HOPWA-assisted activities address the needs of eligible persons is a
determination that should be made by States and localities.
10. Personal Assistance as a Supportive Service--1 Comment
A commenter recommended that the supportive services activities at
Sec. 574.300(b)(7) also include personal assistance, i.e., assistance
with personal care and activities of daily living, so that such
assistance could enable an individual to avoid institutionalization. In
addition, the commenter indicated that including personal assistance as
an eligible supportive service is needed if the provision for intensive
services, at Sec. 574.310(a), is strictly interpreted as services that
are delivered away from the person's residence.
Response. The Department believes that the term ``day care and
intensive care when required'' could have been interpreted to include
``personal assistance.'' However, this final rule does include personal
assistance as an eligible activity at Sec. 574.300(b)(7), to avoid
confusion. Further, the rule does not prevent intensive care from being
delivered at a person's residence at Sec. 574.310(a).
11. Technical Assistance--4 Comments
Commenters requested that the authorization for technical
assistance for community residences be broadened to apply to other
eligible activities, especially acquisition and rehabilitation of other
types of facilities.
Response. The rule has not been changed. Section 861(c)(1)(C) of
AHOA provides the only authorization for technical assistance in the
Act, and it only authorizes technical assistance for establishing and
operating a community residence. The rule at Sec. 574.300(b)(9)
implements this eligible activity, as authorized.
12. Administrative Expenses--15 Comments
Commenters expressed concern with the seven percent limitation on
administrative expenses of project sponsors at Sec. 574.300(b)(10).
Under that section, administrative costs include the costs of staff
necessary to carry out eligible activities. Commenters stated that this
provision hinders their activities and reduces program flexibility.
Response. The Department has modified the language of the final
rule for this section with respect to allowable administrative costs of
project sponsors and added a definition of administrative costs at
Sec. 574.3. The 1992 statutory amendment for the first time authorized
the allowance of administrative costs on a program-wide basis. The
purpose was clearly not to diminish the eligibility of any costs
eligible before the amendment, but to provide for the cost to grantees
and project sponsors, subject to the seven and three percent caps, of
operating the program.
Consistent with this purpose, the subject heading of section
606(f)(2) of the Act authorizing these types of costs, and the overall
language of the subsection, the Department believes that the
inclusionary reference to staff costs with respect to project sponsors
is to be construed not as words of limitation on previously eligible
costs, but as an expansion of that authority. The final rule therefore
authorizes a project sponsor to expend up to 7 percent of the amount
received from a grantee for administrative costs (as that term is
defined in Sec. 574.3), including such administrative costs incurred by
its staff in carrying out eligible activities. This new authority is
not intended to diminish the allowance of costs for the activities
listed in Sec. 574.300 previously eligible, whether such activities are
carried out by staff of the project sponsor or otherwise.
13. Voluntary Nondenominational Prayer--3 Comments
Commenters objected to the allowance for voluntary
nondenominational prayer at Sec. 574.300(c)(1)(i)(C). They stated that
there is no truly inclusive ``nondenominational'' prayer and that the
principles of separation of church and state and non-discrimination
based on religious belief are at issue. They recommended that this
allowance be removed, that the provisions be rewritten similar to the
Community Development Block Grant (CDBG) program, or that it be amended
to refer to board meetings at which HOPWA-funded client services are
not provided.
Response. The exception which allows for voluntary prayer before
meetings has been deleted. The remaining prohibitions in the final rule
are the same as those used for the CDBG program at 24 CFR
570.200(j)(3)(iii).
14. Payments for Supportive Services--1 Comment
One commenter asked if payments for health costs must be made by
the beneficiary's primary health provider under an existing insurance
policy, prepaid health plan, or other existing compensation before
HOPWA funds may be used for such costs.
Response. The final rule newly establishes an order of payments for
health costs at Sec. 574.310(a). The rule provides that, before
expending HOPWA funds for health related items and services, the
grantee must seek payment for these items or services under State
compensation programs, insurance policies, any Federal or State health
benefits program, or a prepaid health service plan.
This provision is similar to that used for Ryan White CARE Act
program (42 U.S.C. 300ff-15) in providing HIV-related services. The
Department supports the coordination of these related programs in
addressing health care needs of persons with AIDS or related diseases
and in addressing their housing needs. This new HOPWA provision will
ensure that HOPWA funds are used for health costs only in the absence
of payments that are made or can reasonably be expected to be made, for
an item or service under any State compensation program, an insurance
policy, any Federal or State health benefits program, or a plan that
provides health services on a prepaid basis.
15. Housing Quality Standards--2 Comments
Commenters favored a provision of the second interim rule that
clarified that Housing Quality Standards (HQS) at Sec. 574.310(b) are
not applicable to short-term rent, mortgage, and utility payments.
Commenters requested that HUD specify that this provision exempting the
grants from HQS applies to fiscal year 1992 grants.
Response. The 1992 HOPWA grant agreements provide for the
applicability of the program's statute and regulations as they may be
amended from time to time. Thus, the second interim rule did apply to
the fiscal year 1992 grants, and this final rule--with the exemption
for short-term rent, mortgage and utility payments--will also apply to
them. No change in the rule is needed to produce this result.
16. Resident Rent Payments
HUD is making a technical correction at Sec. 574.310(d) to clarify
that resident rent payments are not required for short-term supported
housing. Since the purpose of this activity is to address emergency and
temporary needs to prevent homelessness by providing short-term rent,
mortgage, and utility payments, a requirement for resident rent
payments is inconsistent with the nature of this activity.
Such payments continue to be required for persons receiving
project- or tenant-based rental assistance, at Sec. 574.300(b)(5), and
for persons residing in any rental housing assisted under this program,
including single-room occupancy (SRO) dwellings, community residences,
and other housing facilities.
The Department's technical correction on short-term supported
housing is based on its review of section 858 of AHOA which authorizes
that activity. Section 858 differs from sections 859, 860, and 861,
which authorize the other eligible housing activities, as it does not
require such payments or require that the assistance be provided in the
manner provided for under Section 8, which includes a resident rent
payment.
17. Community Residence Service Agreement--3 Comments
Commenters supported a correction made by the Department in the
second Interim Rule regarding a requirement for a written services
agreement for community residences, at Sec. 574.340(b). However, the
commenters viewed subsections (b) (1) and (2) as inconsistent if both
are required.
Response. The Rule has been changed to clarify the components of
the grantee's certification of a written services agreement that is
required by section 861(d)(1) of AHOA. The Department disagrees that
the two sections were inconsistent under the second Interim Rule.
However, in reviewing the requirements of the written services
agreement, the Department finds that a clearer statement of the three
required components will improve understanding and use of these
components. The Final Rule requires the grantee to obtain and keep on
file:
(1) Either a certification that the grantee is carrying out the
required supportive services itself, or a certification that it has a
written services agreement with a project sponsor or contracted service
provider to provide the services at a community residence; and
(2) Either a certification that the grantee has sufficient funds
for these services, or a certification that it has on file an analysis
of the needed service level, a statement of which entity will provide
the services, and a statement of how the services will be funded; and
(3) Either a certification that the grantee is eligible to provide
the services, or a certification that the project sponsor or service
provider is qualified to provide the services.
18. Approval of Local Government--3 Comments
Commenters requested the removal of the requirement at
Sec. 574.420(b) for local government approval of project sponsors that
carry out activities in that locality under a State grant. The
commenters indicated that this was a potential roadblock in the State's
program which invites a local government to violate the spirit of the
Fair Housing Amendments Act of 1988 by trying to block the development
of housing for persons with AIDS.
Response. The rule implements a requirement of section 606(d)(2) of
the Act for local approval and, therefore, cannot be changed. This
provision does not affect the grantee's responsibility to comply with
the Fair Housing Amendments Act and the Department will continue to
ensure that that Act is not violated.
19. Timely Expenditures--5 Comments
Commenters expressed concern with the provision allowing HUD to
deobligate unexpended funds after three years at Sec. 574.540.
Commenter recommendations include:
(a) In the absence of a statutory limit, the three year period be
eliminated, especially for projects with significant construction costs
and considering that some other HUD programs use longer expenditure
periods.
(b) Since some activities will take longer than 3 years to
accomplish, HUD should grant waivers in cases where the sponsor is
acting in a timely and responsible manner.
(c) Since some activities will be more lengthy due to complex
financing structures or community opposition, allow streamlined HUD
Regional Office approval of waivers to extend the period in cases of
good faith effort.
Response. The rule has not been changed. The Department does not
agree with the comments that construction or rehabilitation of
facilities should be expected to exceed the three year period for the
use of funds under Sec. 574.540. Timely use of these funds is an
important element in addressing the urgent needs that are not being met
by available public and private sources as established by section
854(d)(5) of AHOA. The Department intends to fully implement this
provision.
20. Program Years--1 Comment
A commenter requested that the program year, which runs from the
signing date of a grant agreement, be made more flexible for the
purposes of reporting on activities at Sec. 574.520. The commenter
recommended that allowing grantees discretion in selecting the start
date could improve their program coordination with other programs and
reduce administrative burdens in reporting.
Response. The rule has not been changed because the Department
allows flexibility for setting the dates of program years under both
types of HOPWA grants. Grantees for formula awards establish their
program year by initiating the expenditure of funds following the
signing of a grant agreement. A formula grantee may shorten or lengthen
a program year by advance written notice to their HUD Field Office.
Grantees for competitive grants may set the operating start date for
their program on a date up to four months following the date of the
signing of a grant agreement. Both types of grantees will describe the
use of these funds annually in performance reports as required by
Sec. 574.520 under their respective program year dates.
21. Conflict of Interest--4 Comments
In the context of requirements for cooperation with local
governments at Sec. 574.160(c)(5), commenters recommended that the rule
clarify the roles of local governments, provider agencies, and the Ryan
White Committee in light of the conflict of interest provision at
Sec. 574.625.
Response. Although the related application requirements were
revised, as noted above in item 8, further changes have not been made
in the conflict of interest provision. The relationships of the
entities described will vary for each grant based on that grantee's
program design. Conflict of interest questions in these situations are
governed by Sec. 574.625 of the final rule. These procedures determine
the conflict of interest for persons involved in an assisted activity.
Procedures are also provided for granting exceptions which involve
public disclosure of the conflict and nonviolation of State or local
law.
22. Minor Technical Corrections
The Department has made four minor technical corrections in the
final rule. First, there is extensive discussion of the term ``eligible
person'' in Secs. 574.140 and 574.220, as well as a definition of the
term in Sec. 574.3. The definition at Sec. 574.3 has been expanded to
include the special eligibility provisions applicable for receipt of
housing information services and for outreach and educational
activities. Sections 574.140 and 574.220 are removed, since they are
redundant now that the definition of eligible person has been moved to
the definitions section.
Second, the phrase ``rent, mortgage, or utility payments'' in
Sec. 574.330 (in the first paragraph and in paragraphs (a)(1) and (d))
has been replaced with the phrase ``rent, mortgage, and utility
payments'', to provide consistency with the term used in the list of
eligible activities in Sec. 574.300(b)(6).
Third, at Sec. 574.655, the Department is clarifying that the
Davis-Bacon Act (prevailing wage rate requirements) does not generally
apply to this program.
Fourth, the termination of assistance provision at Sec. 574.310(e)
was clarified to provide participants with the opportunity to confront
opposing witnesses and to be represented by counsel under these
procedures.
23. Environmental Provisions
The first interim rule published to establish this program
contained revisions to 24 CFR part 50 to reflect the Department's
determination that the decision point in the program to which
environmental review responsibility would attach was when specific
properties are identified for use under the grant (not before award of
the grant). As noted in the second interim rule for this program, at 57
FR 61739, there were no public comments received concerning the
revisions to part 50. Therefore, this rule adopts as final the changes
made in the first interim rule published on July 20, 1992 (57 FR 32110-
32111): the addition of Secs. 50.3(i), 50.17(i), and 50.19 (as revised
at 58 41337, August 3, 1993), and the revision to Sec. 50.20(o).
24. Removal of Publication Requirement For Entitlement Grants
The Department has decided that publishing an annual announcement
of allocations to those jurisdictions that qualify for formula
allocations is a needless expense, since direct notification of the
jurisdictions is more efficient and provides them with all the
materials necessary to apply for funding. Therefore, references to
publication of an announcement of allocations has been removed from
Secs. 574.2(a), 574.100, and 574.160(b).
III. Findings and Certifications
A. Environmental Impact
A finding of no significant impact with respect to the environment
has been made in accordance with HUD regulations at 24 CFR part 50,
which implement section 102(2)(C) of the National Environmental Policy
Act of 1969. The finding of no significant impact is available for
public inspection between 7:30 a.m. to 5:30 p.m. weekdays in the Office
of the Rules Docket Clerk at the above address.
B. Regulatory Review
This rule was reviewed by the Office of Management and Budget under
the Executive Order on Regulatory Planning and Review (E.O. 12866)
issued by the President on September 30, 1993. Any changes made to the
rule as a result of that review are clearly identified in the docket
file, which is available for public inspection in the office of the
Department's Rules Docket Clerk, room 10276, 451 Seventh St., SW,
Washington, DC.
C. Impact on Small Entities
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this rule before publication and by
approving it certifies that this rule does not have a significant
economic impact on a substantial number of small entities, because
jurisdictions that are statutorily eligible to receive formula
allocations are limited to States and metropolitan statistical areas
with a relatively large cumulative number of cases of persons with
AIDS.
D. Semiannual Agenda of Rules
This rule was listed as sequence number 1476 under the Office of
the Secretary in the Department's Semiannual Agenda of Regulations,
published on October 25, 1993 (58 FR 56402, 56417) in accordance with
Executive Order 12866 and the Regulatory Flexibility Act.
E. Federalism Impact
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this rule will not have substantial direct effects on
States or their political subdivisions, or the relationship between the
federal government and the States, or on the distribution of power and
responsibilities among the various levels of government. As a result,
the Rule is not subject to review under the Order. The rule authorizes
entitlement grants to a limited number of States and metropolitan areas
and authorizes competitively awarded grants under a limited statutory
allocation for housing assistance and services for the Housing
Opportunities for Persons with AIDS program, but the grants are
administered locally.
F. Impact on the Family
The General Counsel, as the Designated Official for Executive Order
12606, the Family, has determined that this rule, to the extent the
funds provided under it are directed to families, has the potential for
a beneficial impact on family formation, maintenance and general well-
being. The program provides housing assistance and services for
individuals with acquired immunodeficiency syndrome or related diseases
and their families and defines the term eligible person to include the
family of a person with AIDS or related diseases. Such assistance will
help enable those families with a participating member who has AIDS to
live in decent, safe, and sanitary housing and receive the supportive
services necessary to assist a person with AIDS to live independently.
Since the impact on the family is beneficial, no further review is
considered necessary.
H. Public Reporting Burden
The information collection requirements contained in this rule have
been submitted to the Office of Management and Budget under the
Paperwork Reduction Act of 1980 (44 U.S.C. 3501-3520). The Department
has determined that the following provisions contain information
collection requirements:
Table 1.--Tabulation of Annual Reporting Burden
----------------------------------------------------------------------------------------------------------------
Number of
Description of Provision of interim Number of responses Total Hours per
information collection rule respondents per annual response Total hours
respondent responses
----------------------------------------------------------------------------------------------------------------
Applications to HUD:
--State Sec. 574.160........... 17 1 17 20.0 340
entitlements.
--Local unit for Sec. 574.160........... 33 1 33 20.0 660
EMSA.
--Competitive Sec. 574.240........... 100 1 100 44.0 4,400
awards.
Annual report to HUD.. Sec. 574.520........... 117 1 117 65.0 7,605
Waiver requests to HUD Sec. 574.4, Sec. 4 1 4 4.0 16
574.310(c), Sec.
574.330(b).
Amendments submitted.. Sec. 574.180, Sec. 40 1 40 4.0 160
574.260.
Uniform Relocation Act Sec. 574.630........... 5 1 5 2.0 10
appeals process.
Environmental review Sec. 574.510........... 75 1 75 4.0 300
recordkeeping.
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Total burden.... ....................... ........... ........... ........... ........... 13,491
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I. Catalog
The Catalog of Federal Domestic Assistance program number for the
Housing Opportunities for Persons with AIDS program is 14.241.
List of Subjects
24 CFR Part 50
Environmental protection, Environmental assessments, Environmental
impact statements, Environmental policies and review procedures.
24 CFR Part 574
AIDS, Community facilities, Disabled, Emergency shelter, Grant
programs-health programs, Grant programs-housing and community
development, Grant programs-social programs, Homeless, Housing, Low and
moderate income housing, Nonprofit organizations, Rent subsidies,
Reporting and recordkeeping requirements, Technical assistance.
Accordingly, parts 50 and 574 of title 24 of the Code of Federal
Regulations are amended, as follows:
PART 50--PROTECTION AND ENHANCEMENT OF ENVIRONMENTAL QUALITY
1. The authority citation for part 50 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d), 4332; and Executive Order 11991,
42 FR 26967 (May 24, 1977).
2. This rule adopts without change as final the amendments made to
Secs. 50.3(i) and 50.17, as they were published in the interim rule on
July 20, 1992 (57 FR 32110).
3. Sections 50.19 and 50.20 are adopted as final as they were
published on July 20, 1992 (57 FR 32110), as amended on August 3, 1993
(57 FR 41337).
PART 574--HOUSING OPPORTUNITIES FOR PERSONS WITH AIDS
4. The authority citation for part 574 continues to read as
follows:
Authority: 42 U.S.C. 12901-12912.
5. Part 574, as published on December 28, 1992 (57 FR 61736), is
adopted as final with the following amendments:
a. In Sec. 574.2, the second sentence of paragraph (a) is revised
to read as follows:
Sec. 574.2 Overview.
(a) * * * The amount of funds available for competitive grants will
be specified in a Notice of Funding Availability (NOFA), published in
the Federal Register; and the amount of funds available for formula
allocations will be specified in a written notice to the entities
eligible for such allocations. * * *
* * * * *
b. In Sec. 574.3, the definition of ``moderate rehabilitation'' is
removed; new definitions of ``administrative costs'', ``family'', and
``non-substantial rehabilitation'' are added; and the definition of
``eligible person'' is revised; to read as follows:
Sec. 574.3 Definitions.
* * * * *
Administrative costs mean costs for general management, oversight,
coordination, evaluation, and reporting on eligible activities. Such
costs do not include costs directly related to carrying out eligible
activities, since those costs are eligible as part of the activity
delivery costs of such activities.
* * * * *
Eligible person means a person with acquired immunodeficiency
syndrome or related diseases who is a low-income individual, as defined
in this section, and the person's family. A person with AIDS or related
diseases or a family member regardless of income is eligible to receive
housing information services, as described in Sec. 574.300(b)(1). Any
person living in proximity to a community residence is eligible to
participate in that residence's community outreach and educational
activities regarding AIDS or related diseases, as provided in
Sec. 574.300(b)(9).
* * * * *
Family means a household composed of two or more related persons.
The term family also includes one or more eligible persons living with
another person or persons who are determined to be important to their
care or well being, and the surviving member or members of any family
described in this definition who were living in a unit assisted under
the HOPWA program with the person with AIDS at the time of his or her
death.
* * * * *
Non-substantial rehabilitation means rehabilitation that involves
costs that are less than or equal to 75 percent of the value of the
building after rehabilitation.
* * * * *
Sec. 574.100 [Amended]
c. In Sec. 574.100, paragraph (b) is removed, and the paragraph
designation ``(a)'' for the remaining paragraph is removed.
Sec. 574.140 [Removed]
d. Section 574.140 is removed.
e. In Sec. 574.160, paragraphs (b) and (c)(5) are revised, to read
as follows:
Sec. 574.160 Application requirements.
* * * * *
(b) Application requirements. To receive a grant, a State or city
applicant for an EMA applying for a formula grant award on the basis of
an allocation under Sec. 574.130 must submit an application that meets
the requirements of paragraph (c) of this section, and the application
must be submitted within the time period established by HUD. HUD will
send each qualifying city and eligible State a written notice, which
shall include:
(1) A statement of the amount of the allocation for which the city
or State is eligible to apply;
(2) The application package, which provides specific application
requirements and guidance;
(3) Designation of the time and the place for submitting a
completed application; and
(4) If applicable, the identity of the EMA or the area of the State
for which the city or State is invited to apply.
(c) * * *
(5) (i) For State and city applicants, a description of efforts
that have been or will be taken to coordinate proposed activities with:
(A) State and local government agencies responsible for providing
State or locally funded assistance and services to persons with AIDS or
related diseases; and
(B) Government agencies and nonprofit organizations that are
administering the Ryan White Comprehensive AIDS Resources Emergency Act
of 1990 (42 U.S.C. 300) and other related Federal programs.
(ii) In addition, for city applicants, a description of efforts
that have been or will be taken to coordinate proposed activities with
other units of general local government located within the eligible
metropolitan statistical area:
(A) To address needs within that area; and
(B) To consult with and involve in the application's proposed
activities, the area community-based nonprofit organizations which are
experienced in caring for persons with AIDS and the area organizations
which represent persons with AIDS;
* * * * *
Sec. 574.220 [Removed]
f. Section 574.220 is removed.
g. Section 574.240 is amended by revising paragraph (c)(6), to read
as follows:
Sec. 574.240 Application requirements.
* * * * *
(c) * * *
(6) (i) A description of efforts that have been or will be taken to
coordinate proposed activities with:
(A) State and local government agencies responsible for providing
State or locally funded assistance and services to persons with AIDS or
related diseases; and
(B) Government agencies and nonprofit organizations that are
administering the Ryan White Comprehensive AIDS Resources Emergency Act
of 1990 (42 U.S.C. 300) and other related Federal programs.
(ii) In addition, a description of efforts that have been or will
be taken to consult with and involve in the application's proposed
activities, community-based nonprofit organizations which are
experienced in caring for persons with AIDS and organizations which
represent persons with AIDS;
* * * * *
h. In Sec. 574.300, paragraph (a) is amended by removing the word
``hopelessness'' and adding in its place the word ``homelessness'';
paragraph (c)(1)(i)(C) is amended by removing the words ``(which term
does not include voluntary nondenominational prayer before meetings)'';
and paragraphs (b)(7) and (b)(10)(ii) are revised to read as follows:
Sec. 574.300 Eligible activities.
* * * * *
(b) Activities. * * *
(7) Supportive services including, but not limited to, health,
mental health, assessment, permanent housing placement, drug and
alcohol abuse treatment and counseling, day care, personal assistance,
nutritional services, intensive care when required, and assistance in
gaining access to local, State, and Federal government benefits and
services, except that health services may only be provided to
individuals with acquired immunodeficiency syndrome or related diseases
and not to family members of these individuals;
* * * * *
(10) Administrative expenses:
* * * * *
(ii) Each project sponsor receiving amounts from grants made under
this program may use not more than 7 percent of the amounts received
for administrative costs.
* * * * *
i. Section 574.310 is amended by retitling paragraph (a) and
redesignating it as ``(a)(1) General.''; by adding a new paragraph
(a)(2); by adding the phrase ``Except for persons in short-term
supported housing,'' at the beginning of the first sentence of
paragraph (d) introductory text; and by revising paragraph (e), to read
as follows:
Sec. 574.310 General standards for eligible housing activities.
* * * * *
(a) * * *
(2) Payments. The grantee shall ensure that grant funds will not be
used to make payments for health services for any item or service to
the extent that payment has been made, or can reasonably be expected to
be made, with respect to that item or service:
(i) Under any State compensation program, under an insurance
policy, or under any Federal or State health benefits program; or
(ii) By an entity that provides health services on a prepaid basis.
* * * * *
(e) Termination of assistance.
(1) Surviving family members. With respect to the surviving member
or members of a family who were living in a unit assisted under the
HOPWA program with the person with AIDS at the time of his or her
death, housing assistance and supportive services under the HOPWA
program shall continue for a grace period following the death of the
person with AIDS. The grantee or project sponsor shall establish a
reasonable grace period for continued participation by a surviving
family member, but that period may not exceed one year from the death
of the family member with AIDS. The grantee or project sponsor shall
notify the family of the duration of their grace period and may assist
the family with information on other available housing programs and
with moving expenses.
(2) Violation of requirements. (i) Basis. Assistance to
participants who reside in housing programs assisted under this part
may be terminated if the participant violates program requirements or
conditions of occupancy. Grantees must ensure that supportive services
are provided, so that a participant's assistance is terminated only in
the most severe cases.
(ii) Procedure. In terminating assistance to any program
participant for violation of requirements, grantees must provide a
formal process that recognizes the rights of individuals receiving
assistance to due process of law. This process at minimum, must consist
of:
(A) Serving the participant with a written notice containing a
clear statement of the reasons for termination;
(B) Permitting the participant to have a review of the decision, in
which the participant is given the opportunity to confront opposing
witnesses, present written objections, and be represented by their own
counsel, before a person other than the person (or a subordinate of
that person) who made or approved the termination decision; and
(C) Providing prompt written notification of the final decision to
the participant.
Sec. 574.330 [Amended]
j. In the undesignated first paragraph of Sec. 574.330 and in
paragraphs (a)(1) and (d) of that section, the phrase ``rent, mortgage,
or utilities payments'' is removed and the phrase ``rent, mortgage, and
utilities payments'' is added in its place.
k. Paragraph (b) of Sec. 574.340 is revised to read as follows:
Sec. 574.340 Additional standards for community residences.
* * * * *
(b) If grant funds are used to provide a community residence,
except for planning and other expenses preliminary to construction or
other physical improvement for a community residence, the grantee must,
prior to the expenditure of such funds, obtain and keep on file the
following certifications:
(1) A services agreement. (i) A certification that the grantee will
itself provide services as required by Sec. 574.310(a) to eligible
persons assisted by the community residence; or
(ii) A certification that the grantee has entered into a written
agreement with a project sponsor or contracted service provider to
provide services as required by Sec. 574.310(a) to eligible persons
assisted by the community residence;
(2) The adequacy of funding. (i) A certification that the grantee
has acquired sufficient funding for these services; or
(ii) A certification that the grantee has on file an analysis of
the service level needed for each community residence, a statement of
which grantee agency, project sponsor, or service provider will provide
the needed services, and a statement of how the services will be
funded; and
(3) Capability. (i) A certification that the grantee is qualified
to provide the services; or
(ii) A certification that the project sponsor or the service
provider is qualified to provide the services.
1. A new Sec. 574.655 is added, to read as follows:
Sec. 574.655 Wage rates.
The provisions of the Davis-Bacon Act (40 U.S.C. 276a-276a-5) do
not apply to this program, except where funds received under this part
are combined with funds from other Federal programs that are subject to
the Act.
Dated: April 1, 1994.
Henry G. Cisneros,
Secretary.
[FR Doc. 94-8543 Filed 4-8-94; 8:45 am]
BILLING CODE 4210-32-P
