[Federal Register Volume 59, Number 71 (Wednesday, April 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8897]
[[Page Unknown]]
[Federal Register: April 13, 1994]
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Part V
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Assistant Secretary for Public and Indian Housing
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24 CFR Parts 945 and 960
Designated Housing--Public Housing Designated for Occupancy by
Disabled, Elderly, or Disabled and Elderly Families; Final Rule
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Assistant Secretary for Public and Indian Housing
24 CFR Parts 945 and 960
[Docket No. R-94-1694; FR-3425-F-02]
RIN 2577-AB27
Designated Housing--Public Housing Designated for Occupancy by
Disabled, Elderly, or Disabled and Elderly Families
AGENCY: Office of the Assistant Secretary for Public and Indian
Housing, HUD.
ACTION: Final rule.
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SUMMARY: This final rule implements section 622(a) of the Housing and
Community Development Act of 1992. Section 622(a) provides public
housing agencies (PHAs) with the option, subject to the requirements of
this part, to designate public housing projects, or portions of public
housing projects, for occupancy by disabled families; elderly families;
or mixed populations (i.e., disabled families and elderly families).
This final rule also amends existing regulations, which currently
provide for preference for elderly families and disabled families, and
discretionary preference for near-elderly families in ``public housing
projects for the elderly''--that is, public housing projects that house
mixed populations (``mixed population projects''). This final rule
continues to provide for preference for disabled families and elderly
families in ``mixed population projects.'' However, certain amendments
were made to include new and revised definitions pertaining to
``family'' as set forth in section 621 of the 1992 Act, and to provide
for recognition of the designated housing process.
EFFECTIVE DATE: May 13, 1994.
FOR FURTHER INFORMATION CONTACT: Edward Whipple, Director, Occupancy
Division, Department of Housing and Urban Development, 451 Seventh
Street, SW., room 4206, Washington, DC 20410. Telephone number (202)
708-0744 (this is not a toll-free number). Hearing-impaired persons may
contact these offices via TDD by calling (202) 708-9300 or 1-(800) 877-
8339.
SUPPLEMENTARY INFORMATION:
I. Background--Proposed Rule
On January 7, 1994 (59 FR 1244), the Department published a
proposed rule that would implement section 622(a) of the Housing and
Community Development Act of 1992 (Pub. L. 102-550, approved October
28, 1992) (the 1992 Act). Section 622(a) amended section 7 of the
United States Housing Act of 1937 (the 1937 Act) (42 U.S.C. 1437e) to
provide public housing agencies (PHAs)1 with the option, subject
to certain requirements, to designate public housing projects, or
portions of public housing projects for occupancy by (1) disabled
families; (2) elderly families; or (3) mixed populations (``designated
housing''). (Section 7 of the 1937 Act, previously titled ``Congregate
Housing'' was retitled ``Designated Housing'' by the 1992 Act. Unless
the context indicates otherwise, the references to section 7 in this
preamble are to section 7 as amended by section 622(a) of the 1992
Act.)
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\1\ Section 626 of the 1992 Act provides that the amendments
made by subtitle B of title VI of the 1992 Act (which amendments
pertain to the authority of PHAs to provide designated housing)
shall not apply to lower income housing developed or operated
pursuant to a contract between HUD and an Indian housing authority.
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The January 7, 1994 proposed rule incorporated the statutory
requirements for obtaining approval to designate public housing for
occupancy by disabled families or by elderly families, and supplemented
the statutory requirements with regulatory ones. By the expiration of
the public comment period on March 8, 1994, 101 comments were received.
Approximately another 200 comments were received within the two weeks
following the expiration of the public comment period. All comments
timely submitted were reviewed and considered. In order not to delay
final rulemaking on designated housing, the Department made every
effort to review the 200 comments received after the close of the
public comment period. The Department believes that the comments
addressed in the preamble to this rule reflect the major concerns and
issues raised by all commenters.
The commenters included housing authorities, associations
representing housing authorities, elderly persons, organizations
representing the interests of elderly persons, persons with
disabilities, organizations representing persons with disabilities,
State and local offices on aging, and State and local offices that
address such matters as mental health, human services and
rehabilitative services. The majority of the commenters were housing
authorities.
A number of commenters expressed support for the Department's
proposed implementation of section 622, and praised the Department's
efforts to strike a balance between section 622 and the civil rights
protections for persons with disabilities contained in the Fair Housing
Act, section 504 of the Rehabilitation Act of 1973 and the Americans
with Disabilities Act. However, the majority of the commenters were
highly critical of the proposed rule. While the commenters in favor of
the proposed rule were primarily persons with disabilities, their
advocacy organizations, and State and local offices that address
disability issues, supporters of the proposed rule also included
housing authorities. While the commenters opposed to the rule were
predominantly housing authorities, associations representing housing
authorities, elderly persons and their advocacy organizations, and
State and local offices that address elderly issues, these commenters
were joined by persons with disabilities and their advocacy
organizations in voicing objections to sections of the proposed rule.
The provisions in the proposed rule that received the greatest
criticism were those provisions that addressed the allocation plan and
the supportive service plan requirements. The commenters stated that
the Department made both plans unnecessarily complex and unduly
burdensome, with the result being that it would be impossible for PHAs
to obtain approval to designate housing for elderly families or
disabled families.
The Department is appreciative of all comments submitted on the
January 7, 1994 proposed rule. While many commenters simply expressed
their general support or opposition to the proposed rule, other
commenters carefully reviewed the rule, and offered detailed and
helpful comments on regulatory implementation of section 622. The
Department is aware that PHAs and other members of the public are
anxious to have final regulations issued for section 622, and that the
rulemaking process has taken longer than anticipated or desired. The
Department believes, however, that this final rule, which takes into
consideration public comment, improves the designated housing process
and better serves PHAs and the families that they house.
II. Clarification of Relationship of Designated Housing Process to
Statutes Prohibiting Nondiscrimination Against Elderly Persons or
Persons With Disabilities
Certain questions and issues raised by a few commenters made the
Department aware that there may be some misunderstanding about the
obligations of PHAs that operate designated housing under statutes that
contain civil rights protections for elderly persons and persons with
disabilities.
Notwithstanding the permissibility of PHAs to designate public
housing projects for occupancy by elderly families or by disabled
families, PHAs must comply with section 504 of the Rehabilitation Act
of 1973, the Fair Housing Act, the Age Discrimination Act, the
Americans with Disabilities Act, and other applicable civil rights
statutes and their implementing regulations. Section 622 does not alter
the obligations and requirements imposed on PHAs by these statutes and
their implementing regulations.
For example, a PHA may not deny an elderly person who also is a
person with disabilities admission to a designated project for elderly
families, in whole or in part, on the basis of the elderly person's
disability. Similarly, a PHA may not deny a person with disabilities
admission to a designated project for disabled families on the basis of
the person's age.
The Department also notes that several commenters criticized the
proposed rule on the basis that it appeared overly concerned with the
housing needs of non-elderly disabled families. The Department does not
believe that the concern for the housing needs for non-elderly disabled
families as expressed in the proposed rule, and in this final rule, is
unfounded or inconsistent with the statute.
The Department is aware, as was the Congress in enacting this
legislation, that the majority of projects to be designated will be for
elderly families, and the group that will be most affected by this
designation will be non-elderly disabled families. Even without the
requirement to submit a supportive service plan in addition to the
allocation plan, persons with disabilities are not demanding their own
separate housing projects as are elderly families. Thus, out of concern
that non-elderly disabled persons may have public housing assistance
reduced as a result of designation of projects for elderly families,
the Congress requires in section 622 that a PHA, in planning how it
will allocate its housing resources among the families that it serves,
must secure additional housing resources ``that will be sufficient to
provide assistance to not less than the number of non-elderly disabled
families that would have been housed if occupancy in such units were
not restricted pursuant to this section.'' The proposed rule's concern,
and that of this final rule, that persons with disabilities not be
under-served by the designated housing process is not inconsistent with
the statute.
III. Overview of the Final Rule
This section provides a summary of the significant changes made to
the designated housing process by this final rule in response to public
comment. This section also discusses those provisions of the proposed
rule about which substantial comments were received requesting change,
and for which the Department declined to adopt the recommended change.
Additional Housing Resources
Inclusion of Additional Housing Resources for Which PHAs ``Plan To
Apply''
The final rule revises Secs. 945.103 and 945.203 which address
additional housing resources. As revised, these sections provide that
additional housing resources that a PHA may use to meet the housing
needs of non-elderly disabled families who would have been housed in a
project but for its designation as a project for elderly families
include ``housing resources for which the PHA plans to apply during the
period covered by the allocation plan and that it has a reasonable
expectation of obtaining.''
The commenters on this provision are correct that the statute
permits inclusion in the allocation plan of housing resources for which
the PHA ``plans to apply.'' The statute also provides that projections
contained in the allocation plan must be ``reasonable''. Thus, in
including in an allocation plan a description of those housing
resources for which the PHA intends to apply, the PHA must have a
reasonable expectation of obtaining these housing resources.
Additionally, the time period within which the PHA plans to apply for
additional housing resources should be limited, and the regulation
limits the time period to that period covered by the allocation plan.
By ``reasonable expectation of obtaining,'' the Department means
that circumstances and factors relevant to the PHA's application for
additional housing resources, indicate that the PHA has a reasonable
chance to obtain these additional resources. For example, if the
Department intends to make 3,000 units available on a competitive basis
in a given region, and the PHA applies for 2,500 units, the chance that
the PHA will be awarded 2,500 of the 3,000 units to be competitively
distributed is not reasonable.
Commenters who requested the inclusion of ``planned'' housing
resources in the allocation plan noted that these housing resources can
be further addressed in the biennial updates of the allocation plan.
For example, if a PHA relies upon using housing resources for which it
intends to apply, and subsequently fails to apply for the housing
resources, or applies but was unsuccessful in obtaining the additional
housing resources, the PHA must account for the lack of the additional
housing resources in the biennial update of the allocation plan.
Depending upon the reasons that the ``planned'' additional housing
resources were not obtained, the Department can take appropriate
action, including changes in the designation of the project, or require
the PHA to take appropriate action at the time of review of the
biennial update.
Additional Housing Resources Must Be Those Owned or Controlled, or To
Be Owned or Controlled by PHAs
The Department did not adopt the suggestion of several commenters
that the final rule include housing resources owned by other entities
that are willing to work in conjunction with the PHA. As noted above,
the statute is clear that the housing resources to be addressed in the
allocation plan are those that a PHA owns or controls, or will
eventually own or control. Section 622 provides that a PHA must have
``a plan for securing sufficient additional resources that the agency
owns, controls, or has received preliminary notification that it will
obtain, or for which the agency plans to apply * * *.''
Revision to List of Examples of Additional Housing Resources for
Persons With Disabilities
The final rule removes the majority of the examples of additional
housing resources that a PHA could utilize to provide housing
assistance to the non-elderly disabled persons that would have been
housed in a project were it not for designation of the project as a
project for elderly families. On further consideration, the examples of
additional housing resources, which did not constitute an all inclusive
list, are more appropriately included in a notice or Handbook. The
final rule retains examples of those additional housing resources that
will probably be utilized by the majority of PHAs as additional housing
resources.
For the benefit of commenters who found the list helpful, the
possible options for additional housing resources for persons with
disabilities include but are not limited to the following:
(1) Normal turn-over of units in existing projects;
(2) Providing local preferences for a specific number of non-
elderly disabled persons for a specific general occupancy project or
projects, in accordance with the preference provisions of 24 CFR
960.211; for mixed population projects, as provided in 24 CFR part 960,
subpart D; or for section 8 certificates and vouchers. Within the
context of the PHA's overall preference system, there must be a
demonstration that the preference will result in the desired increase
in the number of non-elderly disabled persons housed;
(3) Convert a project that currently houses mixed populations to
general occupancy project, which provide a more integrated setting;
(4) Allocation of a certain number of existing or new public
housing units or section 8 certificates or vouchers, which will be
accompanied by a supportive services package, which may be achieved by
the PHA entering into an agreement with a supportive service provider
to make these units or certificates or vouchers available in exchange
for the provider delivering supportive services to disabled families.
Clients of the service provider delivering the supportive services may
not be provided these units or certificates or vouchers before other
non-elderly disabled families already in occupancy or on the PHA's
waiting list;
(5) Use of modernization funds to reconfigure units and buildings
to appropriate sizes or uses for non-elderly disabled families;
(6) Designation of projects for occupancy only by disabled families
(projects designated for occupancy by disabled families must have a
supportive service plan in accordance with the requirements of
Sec. 945.205);
(7) Allocation to non-elderly disabled families of units in other
projects owned or controlled by the PHA that will be vacated by elderly
families who will relocate to the project designated for occupancy by
elderly families;
(8) Use of public housing development funds, or funds appropriated
for major reconstruction of obsolete public housing to provide housing
for disabled families;
(9) Use of all or a portion of net increases in units available for
occupancy in a project as a result of the rehabilitation of vacant
units in this project which had been uninhabitable.
Projects Subject to the Requirements of Part 945
Clarification of Exemption From Designation Requirements for Mixed
Population Projects Under Part 960
The majority of commenters understood that a PHA with a project
that houses a mixed population of elderly families and disabled
families (``mixed population project''), and that intends to continue
to house a mixed population of elderly families and disabled families,
is not required to comply with the designation requirements of new part
945. Other commenters stated that the proposed rule was not clear
whether mixed population projects were required to comply with the part
945 designation requirements.
The final rule includes additional language to clarify that mixed
population projects are exempt from the designation requirements of
part 945. The final rule also clarifies that the fact that a mixed
population project houses persons with disabilities does not require a
supportive service plan, as does a project that is designated for
occupancy by disabled families under part 945.
Supportive Services Required Only for Designated Housing for Disabled
Families
Several commenters expressed confusion about when supportive
services are required by the designated housing process. PHAs are
required by statute, and by this regulation, to provide or obtain
supportive services only for projects designated for occupancy by
disabled families. However, in designating a project for elderly
families, the PHA must consider the needs of non-elderly disabled
applicants for services currently provided in the project to be
designated for elderly families.
Section 7(d) provides, in relevant part, that ``in designing,
developing, otherwise acquiring and operating, designating and
providing housing and assistance under this title, each public housing
agency shall meet to the extent practicable, the housing and service
needs of eligible families applying for assistance under this title as
provided in any allocation plan of the agency approved under subsection
(f).''
In an effort to reflect ``the extent practicable'' language of
section 7(d), Sec. 945.103 of the proposed rule contained a paragraph
(paragraph (d)) which stated that the requirements of Sec. 945.205 to
submit a supportive service plan for approval to designate public
housing for disabled families was not to be construed to mean that PHAs
may provide supportive services only to those disabled families
occupying designated housing for disabled families.
The purpose of paragraph (d) in Sec. 945.103 was to encourage PHAs
that may be currently providing supportive services to elderly families
occupying public housing to continue to provide those services. The
fact that a PHA may be able to deliver supportive services, or is
currently delivering supportive services to elderly families, or to
disabled families not occupying a designated project does not bring the
PHA within the scope of the requirements of part 945.
Because of the confusion over this issue expressed by a number of
commenters, the final rule removes paragraph (d) in Sec. 945.103 from
the final rule. The Department, however, continues to encourage PHAs to
meet to the extent practicable the housing and supportive service needs
of all eligible families applying for assistance.
New and Revised Definitions
Defining ``Mixed Population Project''
The final rule provides a definition for ``mixed population
project.'' ``Mixed population project'' is defined to mean a public
housing project reserved for occupancy by elderly families and disabled
families. As discussed in the preceding section, these projects are not
required to meet the designation requirements of part 945, but must be
reserved for occupancy by elderly families and disabled families in
accordance with the requirements of 24 CFR part 960.
Revising the Definitions for the Various Categories of ``Families''
The final rule also introduces a new term to clarify the specific
category of families under discussion. Instead of referring frequently,
and awkwardly, as was done in the proposed rule to ``families who are
members of the group for whom the project is to be designated for
occupancy,'' the final rule uses the term ``designated family.''
``Designated family'' is defined to mean the category of families
for whom a project has been designated. Depending upon the designation
to be made, designated families will be either elderly families or
disabled families.
The final rule provides, as did the proposed rule, definitions for
the statutory terms ``families,'' ``elderly families,'' ``disabled
families,'' and ``near-elderly families,'' but the final rule defines
these terms in their singular context rather than the plural context.
Additionally, the final rule makes some clarifying changes to these
definitions.
``Elderly family'' is defined to clarify that an elderly family may
include one or more elderly persons with disabilities, and members of
the family who are not elderly.
``Near-elderly family'' is defined to clarify that a near-elderly
family may include one or more near-elderly persons with disabilities,
and members of the family who are not near-elderly.
``Disabled family'' is revised to clarify that this term includes a
person with disabilities who is also elderly or near-elderly. An
elderly person with disabilities would be eligible to reside in a
designated project-disabled, designated project-elderly, or a mixed
population project, subject, of course, to availability of units in
these projects, and the person's place on the waiting list.
As noted in the preamble to the January 7, 1994 proposed rule, the
definitions for ``family,'' ``elderly family,'' and related terms are
currently contained in 24 CFR part 912, entitled ``Definition of Family
and Other Related Terms; Occupancy by Single Persons.'' Part 912,
however, has not yet been amended to reflect the revised definitions
provided by section 621 or to add the new terms defined in section 621.
Under separate final rulemaking, part 912 will be amended to include
several of the revised and new definitions set forth in section 621
(and which are included in this final rule). When the part 912 rule is
published in final, the Department will amend the regulations in part
945 to remove the definitions from part 945 and to cross-reference to
the definitions in part 912. The advantage in keeping these definitions
in part 912 (which was established to define ``family'' and related
terms) is that part 912 offers a convenient location to place the
definitions for terms that are applicable to all public housing
programs.
Revised Definition of ``Service Provider''
In response to the many public comments that objected to the
``licensing requirement'' for service providers, the final rule revises
the definition of ``service provider'' to remove the requirement that
the service provider must be licensed under State or local law. In lieu
of this requirement, the final rule provides that the service provider
be ``qualified and experienced'' in the provision of supportive
services. ``Qualified'' means that if the type of supportive services
to be delivered by the service provider requires a State or local
license, the service provider must be in compliance with these laws.
Revised Definition of Supportive Services
In response to public comment, specifically by persons with
disabilities, the definition of ``supportive services'' is revised to
clarify that this term refers to non-housing services available to
persons residing in a development for which there is a need and demand
by disabled families. The qualifier of ``non-housing'' before the word
``services'' is to clarify that supportive services do not include
plumbing, minor repair and maintenance of dwelling units that the
housing authority is required to provide under the lease. The provision
of supportive services in a designated project does not relieve the PHA
of its obligation to provide similar services in other developments for
persons with disabilities as required by 24 CFR part 8.
The inclusion of the phrase ``for which there is a need and
demand'' is to emphasize that PHAs should not designate public housing
projects for occupancy by disabled families unless the disabled
families served by the PHA and to whom the PHA intends to offer
occupancy in the designated project clearly indicate a need and demand
for the proposed supportive services. The consensus among commenters
who indicated that they were persons with disabilities or who
represented the interests of persons with disabilities was that
designated housing for disabled families is not the preferred
residential setting of persons with disabilities.
Allocation Plan--Development and Contents
The final rule significantly consolidates and streamlines the
information required to be included in the allocation plan, without,
however, reducing information necessary to determine the possible
adverse impact that the designation process may have on elderly
families or disabled families, particularly non-elderly disabled
families.
Removal of Allocation Plan Objectives
Section 945.203(a)(2) of the proposed rule contained language that
encouraged PHAs, in developing their allocation plan to strive to
provide, regardless of the designation to be made, as broad a range of
housing choice as possible to elderly families and disabled families
with respect to the level of supportive services, and availability of
accessible units. Additionally, this section stated that PHAs should
strive to provide, regardless of the designation to be made, housing
for disabled families in the most integrated setting possible.
Several commenters stated that although these objectives are
laudable, their inclusion in a regulation is inappropriate, and at
variance with the statutory requirements. Other commenters stated that
the inclusion of these objectives in the rule added to the complexity
of the rule because it was unclear whether these objectives were
intended to be advisory or mandatory, and it was unclear whether a PHA
could designate a project for elderly families if these objectives were
not met. A few commenters stated that the final rule should be revised
to require compliance with these objectives.
The objectives listed in Sec. 945.293(a)(2) of the proposed rule
are advisory and not mandatory. The Department agrees with the
commenters that these objectives are laudable, but acknowledges that
these objectives are just that--``objectives'' and not
``requirements''. Accordingly, to comply with the statute and minimize
confusion concerning what is required to be addressed in the plan, and
what is not, the final rule removes these objectives from the
regulation. The Department is confident that without the regulatory
reminder, PHAs will strive to meet these objectives. The Department's
confidence is based in part on the improved public participation
procedures for allocation plan development required by this final rule,
and which are discussed below. The Department believes that these
procedures will provide PHAs with valuable input on proposed allocation
plans, including any possible problems, and options for expanding
housing choice and creating integrated settings.
Revised Consultation Procedures for the Plan Development
A number of commenters criticized the ``public consultation
process'' of the proposed rule on the basis that the rule simply
mirrored the statutory language, and failed to provide adequate
guidance on the extent of consultation involved. The Department found
merit in the commenters' criticism and the final rule provides for a
two-stage consultation process.
The first consultation occurs at the pre-plan development stage,
and the final rule specifies the parties that must be consulted at a
minimum. The second consultation occurs after plan development, but
before submission of the plan to the Department. The final rule
requires the PHA to provide for review and comment on the allocation
plan by all members of the public. This two-stage consultation process
was recommended by several commenters.
For the first stage of the consultation process, the final rule
requires the PHA to consult with the State or unit of general local
government where the project is located. (In response to public comment
the phrase ``where the project was located'' was changed from the
proposed rule phrase of ``in whose jurisdiction the area served by the
PHA is located.'') The final rule also provides for PHAs to consult
with representative advocacy groups, where these groups exist, for each
of the following categories of families: Disabled families, elderly
families and families with children. The final rule establishes
consultation with public housing residents (again in the pre-plan
development stage) by requiring consultation with the representatives
of the residents of the buildings proposed for designation, as a
minimum requirement.
For the second stage of the consultation process, the final rule
provides for public participation review and comment on the plan. The
commenters stated that this type of public participation process would
provide all families affected by the designation with the opportunity
to express their support, voice their objections, and offer comments on
the proposed allocation plan. The Department agrees with the
commenters, and the final rule requires that following completion of
the draft allocation plan (and the draft of any update of the
allocation plan) the PHA shall:
(1) Issue public notices regarding its intent to create designated
housing and the availability of the draft allocation plan;
(2) Contact those parties, with whom the PHA is required by
regulation to consult, and other individuals and agencies that
expressed an interest in the PHA's plan;
(3) Allow not less than 30 days for public comment on the draft
allocation plan;
(4) Make free copies of the draft allocation plan available upon
request and in accessible format, when appropriate; and
(5) Conduct at least one public meeting on the draft allocation
plan.
The requirement to consult with certain groups and individuals, and
the requirement to provide public participation in the development of
the allocation plan is to assist the PHA in better identifying issues,
problems, and benefits involved in the proposed action. However, the
final decision concerning the project to be designated, and how the PHA
proposes to allocate its available housing resources rests with the
PHA.
Submission of Summary of Comments, and Not Transcripts
The final rule continues to allow PHAs to submit a summary of
comments received on the allocation plan. A few commenters stated that
submission of a summary of the comments is in conflict with the
statutory requirement.
The statute provides, in relevant part, that the allocation plan
shall include ``any comments of agencies, organizations or persons with
whom the PHA consults.'' The Department believes that the statutory
language is sufficiently broad to permit submission of a summary of the
comments received on the allocation plan. The PHA must maintain the
original comments on file, and must make these comments available for
inspection by the Department and the public.
Other commenters stated that the proposed rule was unclear whether
transcripts of meetings were required, and if transcripts were
required, the commenters stated that this requirement is too
burdensome. In referring to transcripts of meetings in the proposed
rule, the Department did not intend to require a transcript of a
meeting. Rather, the proposed rule intended to require retention of a
transcript if a PHA decided to have a transcript made of a meeting. The
final rule, however, removes all references to meeting transcripts. If
taken, the PHA should maintain the transcript on file, together with
comments received on the allocation plan, to be made available for
inspection by the public. Comments made at a meeting by members of the
public should be included in the summary of comments.
Retention of Five Year Recordkeeping Requirement for Comments
Several comments complained that the five year recordkeeping
requirement for the retention of comments submitted on the allocation
plan was too lengthy a period. The commenters suggested that a two-year
retention period should be sufficient.
The Department disagrees with the commenters. PHAs should maintain
the original comments received on the allocation plan to cover at least
two biennial updates. The Department believes that the five-year record
retention period is in the best interest of PHAs, and is not unduly
burdensome.
Removal of Requirement To Discuss Advantages and Disadvantages of
Designation
The final rule removes the requirement for the PHA to address in
the allocation plan the advantages and disadvantages that the choice of
designation is expected to have on families served by the PHA. The
Department agrees with the commenters that the advantages and
disadvantages should be apparent by the information provided in the
allocation plan.
Retention of Requirement To Document the Number of Families Who Will Be
Denied or Delayed Housing
A few commenters requested that the final rule not include the
statutory requirements for PHAs to ``document the number and duration
of instances in which housing assistance for eligible applicants will
be denied or delayed by the agency because of a lack of appropriately
designated units.'' The Department declines to remove this requirement
from the rule because it is a statutory requirement.
Clarification That Delays of Concern Are Those That Are Caused by the
Designation Process
In response to public comment, the final rule clarifies that the
denial of or delay in housing assistance with which the Department is
concerned in part 945 is that which results from the designation of
project. Delays that are caused by matters unrelated to the designation
process are not those that will result in re-evaluation of the
appropriateness of a PHA's designation of a project. For example, as
one commenter noted, some PHAs have very low turn-over in their
projects that results in denial of or delay in housing assistance that
is unrelated to the designation process. Also, a PHA that implements
stricter screening procedures can be expected to have an increased rate
of denial of housing assistance among all applicants.
Determining the Extent of Denial of or Delay in Housing Assistance
Several commenters indicated that they were uncertain what the
statute meant by ``excessive,'' and requested the Department define
``excessive'' in terms of a number or percentage. Instead of defining
this term, the Department has replaced ``excessive'' with
``substantial.''
As discussed in the previous section, there may be a variety of
circumstances having nothing to do with the designation of housing that
may give rise to delays in housing assistance. The Department is
interested in knowing whether the designation of project under part 945
is causing a denial of or delay in housing assistance for a substantial
number of tenants. That is, has the number of applicants denied housing
assistance increased as a result of the designation, or (or perhaps
also) has there been an increase (a lengthening) in the duration of
time an applicant must wait for housing assistance as a result of the
designation.
Revision to Requirement To Maintain Access to Similar Services and
Housing Facilities
The proposed rule required PHAs to describe the steps to be taken
to ensure that disabled families (if a project was to be designated for
elderly families) and elderly families (if a project was to be
designated for disabled families) maintain access to services and
housing facilities similar to those that otherwise would have been
available to them at the project if the project had not been
designated.
A number of commenters objected to this requirement on the basis
that the regulatory language was too broad, and it would be impossible
for PHAs to guarantee similar access to all services and amenities
available to them before designation. The Department agrees with the
commenters, and has revised this section of the allocation plan. The
rule now requires PHAs to describe the steps taken to facilitate access
to supportive services provided by other agencies at the designated
project.
This section, however, imposes an affirmative duty on a PHA to fund
at least the same level of supportive services needed and requested by
non-elderly disabled families that the PHA funds for elderly families
in the designated project.
Revision to Requirement Concerning Accessible Units
The proposed rule required the PHA to describe the steps to be
taken to replace any accessible units that will be unavailable as a
result of the designation. A few commenters noted that PHAs are already
mandated by section 504 to assess and provide for accessibility needs,
and recommended this provision refer to the PHA's obligations under
section 504 obligations.
The Department agrees, and final rule requires the PHA to describe
the steps taken by the PHA to affirmatively meet its obligations under
24 CFR part 8 to respond to any need for accessible units that will no
longer be available to applicants who need these units.
Removal of Requirement To Provide Information on Existing Occupancy
Policy and Procedures
The final rule also removes the requirement for the PHA to provide
information on the PHA's existing occupancy policies and procedures,
and to include a description of the PHA's HUD-approved Tenant Selection
and Assignment Plan. With respect to the PHA's admission policies and
procedures, the final rule requires the PHA to describe any changes the
PHA intends to make in its admission policies to accommodate the
proposed designation.
Allocation Plan Approval or Disapproval
Approval of Plan Because of HUD Failure To Respond Within Timeframes
The final rule clarifies that if HUD fails to approve or disapprove
an allocation plan within the timeframes imposed by statute, and set
forth in this regulation, an allocation plan will be considered
approved.
Time Limits on Resubmission of Disapproved Allocation Plans
The proposed rule provided that if the Department disapproves an
initial allocation plan, a PHA shall have a period of not less than 45
days following notification of disapproval to submit amendments to the
plan, or to submit a revised plan. ``A period of not less than 45
days'' is the language used in the statute. A few commenters read this
provision to mean that only 45 days would be permitted. Other
commenters requested that there be no time limitation imposed on the
resubmission of an allocation plan.
The final rule continues to provide PHAs, consistent with the
statute, with a period of at least 45 days to submit amendments to the
plan or to submit a revised plan. The Department, however, declines to
adopt the suggestion of some commenters that there be no time
limitation on submission of a revised plan. In fact, on further
consideration, the Department has decided to impose a maximum time
limit on when a disapproved plan may be resubmitted. The Department
believes that the passage of a substantial period of time may affect
the data originally reported in the allocation plan, and may make it
necessary for the PHA to hold another public meeting. Accordingly, the
final rule provides that PHAs will have a period of no less than 45
days, and no more than 90 to resubmit an initial allocation plan
originally disapproved.
The Department believes that 90 days represents a reasonable
maximum period within which to submit a revised plan. An allocation
plan that may require more than 90 days to make it an approvable plan,
in all likelihood, indicates serious underlying problems with the plan.
Accordingly, the PHA and the families that it houses are better served
by restarting the allocation plan development process.
The Department declines to apply, as one commenter suggested, one
time limit to all revised plans. Some revisions required of allocation
plans may take minimal time on the part of the PHA, and therefore 45
days will be sufficient, while other revisions may require use of the
longer 90-day period.
Designated Housing for Disabled Families
The final rule makes several changes to Sec. 945.205 that addresses
the supportive service plan component for obtaining approval to
designate projects for disabled families. To obtain approval to
designate a project for disabled families, section 622 requires
submission of an allocation plan and a supportive service plan.
Supportive Service Plan Is Statutory Requirement
Many commenters objected to the requirement to submit a supportive
service plan in order to obtain approval for designated housing for
disabled families. The commenters stated that it is not only unfair to
disabled families, it is unfair to PHAs. Several commenters stated that
this requirement reinforces the stereotype that persons with
disabilities have special needs and are incapable of living
independently. Other commenters stated that if the supportive service
plan is going to be required for housing for disabled families, it also
should be required for housing for elderly families.
The requirement to submit a supportive service plan for designated
housing for disabled families is a statutory requirement, not a
regulatory one. However, the Department has made changes to this
provision of the final rule with the intention of minimizing the
administrative burden, and with the intention of clarifying when this
type of housing should be considered as an alternative housing for
persons with disabilities.
Demonstrated Need and Demand for This Housing
The final rule provides that HUD will approve designation of a
project for disabled families only where there is a clear demonstration
of both a need and demand for such designation, and in the absence of
such demonstrated need and demand, PHAs should provide for the housing
needs of disabled families in the most integrated setting possible. The
inclusion of a demonstration or evidence that there is a clear need and
demand for housing that is limited to persons with disabilities is in
response to commenters from the disability community who stressed that
this type of housing should not be the automatic alternative to
designated housing for elderly families.
Admission to Designated Projects for Disabled Families Need Not Be
Based on Need for Services
Although the designation of a project for disabled families should
arise only where there is a real need and demand for this type of
housing (i.e., where persons with disabilities express the need or
demand for the services to be provided) once the project is
established, admission to this project is not to be conditioned on a
person with disabilities needing or opting for the service. A person
with disabilities who chooses to reside in this project, and is next on
the waiting list, should not be denied occupancy because the person
does not need or have any interest in using the services to be provided
to this project.
Non-Contiguous Units Encouraged but Not Required
A few commenters objected to the proposed rule's implied
prohibition against designating contiguous units. Designation of
contiguous units is, by no means, prohibited by this final rule.
The Department recognizes that where projects are designated for
occupancy by elderly families, the units or floors designated will, in
all likelihood, be contiguous, reflecting the preference of elderly
families to reside in proximity to one another. As stated earlier in
this preamble, the preference of the persons with disabilities who
commented on this rule is to reside in an integrated setting, and not
be limited to projects that house only disabled families, or that house
only disabled families and elderly families. Thus, the reference to
non-contiguous units in the regulation is to encourage PHAs to consider
more integrated settings for persons with disabilities.
Clarification of When Service Provider Must Be Licensed
As discussed earlier in this preamble, the final rule removes the
requirement that service providers must be licensed, unless licensing
for the type of service to be provided is required by State or local
law.
Consultation Procedures for Supportive Service Plan
The final rule provides the same consultation process for the
supportive service plan that is required of the allocation plan. For
PHAs that intend to designate a project for disabled families the
consultation process for the supportive service plan may be performed
concurrently with the allocation plan.
IV. Discussion of Public Comments
Many of the issues raised by commenters have been addressed in
section III of this preamble, which provided a summary of the principal
features of the designated housing process as implemented by this final
rule. Therefore, these issues are not re-addressed in this section.
This section discusses additional issues raised by the commenters, and
the Department's response to these issues. These comments may or may
not have prompted additional, but less significant, changes to the
rule. The comments are discussed in the context of the particular
subpart or section of the rule to which they pertain.
In addition to not discussing issues already addressed in section
III of the preamble, the following does not discuss comments that were
either generally laudatory or generally critical of the proposed rule,
either of style or substantive comment, or that offered editorial
suggestions, or suggestions regarding format that would not affect the
meaning of the regulatory provisions.
Section 945.105 Definitions
Comment: Two commenters recommended that the definition of
``persons with disabilities'' be revised to eliminate the implication
that these persons must have multiple disabilities to qualify as a
``person with disabilities.'' Their suggested term was ``person with
one or more disabilities.''
Response: The term ``person with disabilities'' is the term used in
section 622, and is also the term used in the Americans with
Disabilities Act (ADA) (although, as discussed in the next response,
the definition for this term is not identical in section 622 and the
ADA). The Department believes that the definition for this term makes
clear that to qualify as a person with disabilities, the individual
need not have more than one disability.
Comment: Two commenters stated that the definition of ``person with
disabilities'' should be revised to conform to the definition provided
in the Americans with Disabilities Act.
Response: The definitions for the various categories of ``persons''
and ``families'' used in section 622 of the 1992 Act, are provided in
section 621 of the 1992 Act. The final rule reflects the definition for
``person with disabilities'' set forth in section 621. Additionally,
neither the Americans with Disabilities Act or section 504 of the
Rehabilitation Act of 1973 amended the U.S. Housing Act of 1937 to
replace the 1937 Act's definition of ``persons with disabilities.''
Comment: One commenter stated that the age distinction for ``near-
elderly person'' is too low and should be raised to 55. Two commenters
stated that the definition of ``disabled families'' should include an
age restriction, such as 55 or 50 years of age. Another commenter
stated that the definition of ``elderly family'' should exclude any
child under the age of 55.
Response: The statute defines all of these terms (``near-elderly
person,'' ``disabled family'' and ``elderly family'') and the
Department is without authority to adopt the recommendations made by
these commenters.
Section 621 defines ``near-elderly person'' as a person who is at
least 50 years of age, but below the age of 62.
The statute does not provide for an age restriction in the
definition of ``disabled family'' nor does it exclude as an ``elderly
family'' a family with children who are neither elderly or near-
elderly. In fact in the final rule, the definition of ``disabled
family'' rule clarifies that this term includes persons and other
members of the family who may be elderly, near-elderly, or who are
neither elderly, or near-elderly. The definition of ``elderly family''
clarifies that this term includes persons and other members of the
family who may be persons with disabilities or who are neither elderly
nor near-elderly.
Comment: One commenter requested that the Department provide a
definition for ``accessible'' when used in the context of a dwelling
unit.
Response: The definition section of the final rule includes a
definition for ``accessible unit.'' The final rule provides that the
term ``accessible unit'' has the meaning given this term under the
second definition of ``accessible'' in 24 CFR 8.3, which is a
definition familiar to PHAs.
Section 945.203 Allocation plan
Comment: Two commenters requested that the final rule require PHAs
to explain the methods used in arriving at information required by the
allocation plan.
Response: The Department declines to impose this requirement on
PHAs. Much of the information required by the allocation plan will be
derived from the PHA's waiting list, or from the locality's CHAS, or
other local housing needs survey. Members of the public that may be
interested in determining how a PHA arrived at the information
disclosed in its allocation plan may inquire about this at the public
meeting to be held on the allocation plan. Some of the information will
be derived from the PHA's self-evaluation under section 504.
Comment: Several commenters supported the use of the CHAS as a
source of information required to be included in the allocation plan,
but other commenters stated that the CHAS is not a useful source of
information or is not required in their jurisdictions.
Response: The statute specifically includes the CHAS as a source of
data for the allocation plan. For localities where there is no CHAS,
the final rule provides for use of any other local housing needs
survey.
Comment: One commenter stated that in determining additional
housing resources that are needed to house non-elderly disabled
persons, the rule should clearly state that if the same number of units
would be offered to the applicant group not allowed in designated
units, as would have been offered before the designation, then no new
units are needed.
Response: The Department believes that this point need not be
explicitly stated in the rule. The statute and this final rule require
the PHA to disclose its plan for securing additional housing resources
that will be sufficient to provide assistance to not less than the
number of non-elderly disabled families that would have been housed but
for the designation. If the PHA has the ``additional'' housing
resources on hand, and need not secure other housing resources, then
this is what the PHA will state in its allocation plan.
Comment: One commenter stated that it was trivial for the
Department to require the PHA to describe any incentives offered to
implement voluntary transfers to achieve the objectives of the
designation.
Response: The Department is interested in how a PHA is successful
in motivating families to move to a designated project, or motivating
families to move from a project proposed to be designated.
Additionally, the information provided by PHAs on this matter may be
useful to other PHAs.
Comment: Many comments were received on the types of additional
housing resources to be provided to non-elderly disabled families.
Persons within the disability community were divided on what
constitutes acceptable additional housing resources. Some commenters
stated that section 8 certificates and vouchers were not suitable
housing resources for persons with disabilities. The majority of
individual commenters (as opposed to advocacy organizations) requested
the use of more section 8 certificates and vouchers for persons with
disabilities. Other commenters stated that replacing public housing
units with residency in a group home, or shared housing is not
comparable to residency in a private apartment and should not be
acceptable.
Response: The statute provides for consideration of a variety of
alternative housing resources for non-elderly disabled families,
including section 8 certificates and vouchers, mixed housing,
congregate housing, shared housing, and group homes. Accordingly, the
Department cannot exclude consideration of use of these types of
housing assistance by regulation. The final rule, however, provides for
greater public input in the allocation plan than did the proposed rule.
This provides an opportunity for persons with disabilities, and their
representatives, to voice their objections, if any, to the additional
housing resources for non-elderly disabled families proposed to be used
by the PHA. The Department will look very carefully at any plan about
which there were strong objections raised by persons with disabilities.
Comment: A few commenters asked how the allocation plan is to
indicate that it gave fair consideration of comments received on the
allocation plan.
Response: The PHA should explain how it did or did not revise its
plan in response to public comment. Generally, the Department will be
interested in a PHA's response to substantial negative comment on a
proposed allocation plan.
Comment: Three commenters objected to the fact that the proposed
rule did not include a list of various housing options for elderly
families.
Response: As noted earlier in this preamble, the Congress and the
Department anticipate that most, if not all, allocation plans will
provide for designation of public housing projects for occupancy by
elderly families. This is why the statute specifically requires PHAs to
address housing resources that will be available for non-elderly
disabled families. In the event a PHA designates a project for
occupancy by disabled families, and the designation will result in
denial of or delay in housing assistance to elderly families, then the
PHA must address this issue in its allocation plan.
Comment: Nine commenters stated that approval or disapproval of an
allocation plan should be based only on the statutory requirements.
Another commenter stated that the only basis for disapproval should be
an indication that there will be disparate waiting times for groups
waiting to be housed. Three commenters stated that the rule should make
clear that the Department will not approve an allocation plan which
fails to promote fair housing or which is submitted by a PHA for which
there is documented history of discrimination against various types of
families.
Response: The Department has made only a few editorial changes to
Sec. 945.203(d) which addresses the allocation plan approval criteria.
This section tracks the statutory language. The statute provides that
the allocation plan shall be approved if the Department determines that
based on the plan ``and the comments submitted on the plan''--``the
information contained in the plan is complete and accurate and the
projections are reasonable, implementation of the plan will not result
in excessive vacancy rates, and the plan (as described in the statute)
can reasonably be achieved.'' The fact that the approval section of the
regulation may focus on particular information to be contained in the
plan (and the completeness and accuracy of this information), or
emphasize the reasonableness of certain projections to be made does not
mean that the Department has departed from the statutory approval
criteria.
Comment: One commenter suggested that the final rule require that a
PHA whose plan has been disapproved by the Department, must undergo
public review and comment before resubmission of the plan to the
Department.
Response: As discussed in section III of this preamble, the
Department shared the concern expressed by the commenter, and has
revised the provision in the rule that addresses when a revised plan
may be submitted. The rule now provides that if a revised plan is
submitted within the period set by the Department which will be no less
than 45 days, but no more than 90 days, the PHA need not undergo a
second consultation process. However, after 90 days, the Department is
concerned that factors and data may have changed that will affect
families served by the PHA, and that therefore make it necessary for
the PHA to once again invite public review and comment. Accordingly,
the Department established a maximum time limit of 90 days.
Comment: Three commenters requested that the final rule provide for
PHAs to follow the same public participation requirements on updated
plans that govern the initial plans.
Response: The final rule imposes (as did the proposed rule) the
same public participation requirements on updated plans, as imposed on
initial allocation plans. This is a statutory requirement. Section 622
provides that ``in preparing the initial allocation plan, or updates of
a plan, for submission under this section, a public housing agency
shall consult with * * *.''
Comment: Three commenters stated that the requirement to submit
updated allocation plans every two years is burdensome.
Response: The requirement to submit biennial updates is a statutory
requirement.
Comment: Two commenters stated that the Department exceeds its
statutory authority in providing that projects for which updated plans
were disapproved will revert to occupancy status before designation.
Response: The Department disagrees with the commenter. The Congress
would not have required PHAs to submit updated plans every two years if
the Congress were not concerned that there may be instances in which
designated housing is a failure. That is, the Congress was concerned
that the number of families who have been denied housing assistance, or
the delay in providing housing assistance has increased substantially
as a result of designated housing, to cite two examples of concern. If
one of these consequences were to occur, the Department cannot permit
the PHA to continue to operate designated housing for which the impact
is adverse for a substantial number of families or a protected class of
families. However, the Department has revised the final rule to clarify
that disapproval of the updated plan will not result in automatic
reversal of a designated project to its predesignation occupancy
status. As with the initial allocation plan, there may be factors that
a PHA can, and is willing to change, that will correct the situation
and minimize the adverse impact of the designated housing process on
the families served by the PHA.
Section 945.205 Designated housing for disabled families
Comment: One commenter stated that the two year commitment for a
service provider may be in violation of some State laws that permit
only one-year contracts.
Response: The Department is sympathetic to this situation. However,
the statute requires that a designated project for disabled families
cannot be approved without a supportive service plan. The Department
must have some assurance that if it approves the designated project for
disabled families, the supportive services will remain in place at
least until the PHA submits its updated allocation plan.
Comment: Nine commenters stated that it will be difficult if not
impossible to identify the supportive service needs of disabled
families. These commenters stated that HUD must keep in mind that PHAs
can no longer require disclosure of specific disabling conditions.
Response: The Department recognizes the difficulties for PHAs to
identify the specific disabling condition of persons with disabilities,
and the designated housing process does not impose this type of
investigation on PHAs. The designated housing process, as implemented
by this final rule, intends for PHAs to informally survey residents and
potential residents about service needs and desires. The Department's
experience, generally, is that the public is not shy about expressing
needs and desires. From this survey, the PHA should be able to
determine the services that residents actually need and demand, and
those that the PHA believes that it can reasonably provide.
Comment: Two commenters stated that the PHA should be required to
document the need for specific supportive services it intends to
provide.
Response: As discussed in Section III of the preamble, the
revisions made to the approval process for designated housing for
disabled families impose this type of requirement. The final rule
provides that designated housing for disabled families will be approved
if the allocation plan meets the requirements of Sec. 945.203 and
demonstrates both a need and a demand for designated housing for
disabled families. The need and demand will be based on the information
provided in the supportive service plan that will (or should) evidence
the need and demand for the services to be provided to families
occupying this project.
Comment: Six commenters stated that the final rule should provide
that supportive services not be linked to a project, but must be
portable.
Response: For designated housing for disabled families, the
supportive services are project specific. (However, the units in the
project that constitute the designated housing need not be contiguous;
and the Department encourages non-contiguous units.) The project
specific aspect recognizes that if projects are designated for disabled
families the designation in itself establishes ``separate housing'' for
the designated families, even if non-contiguous units comprise the
designated housing. Whenever the PHA undertakes designation of a
project for disabled families, the Department wants assurance that
there are sufficient numbers of persons with disabilities who are
current tenants or applicants on the waiting list who express a need
and demand for housing that provides supportive services (i.e.,
designated housing for disabled families).
Comment: Eleven commenters stated that the rule must clarify that
designated projects for disabled families are also available to persons
not needing, or opting for supportive services.
Response: As discussed in section III of the preamble, the final
rule makes this clarification.
Comment: One commenter stated that the final rule should require
PHAs to determine which disabled families will occupy designated
housing for disabled families.
Response: The final rule requires PHAs, as part of the approval
process for designated housing for disabled families, to demonstrate
the need and demand for this type of housing. The Department believes
that this requirement will address the concern expressed by the
commenter.
Comment: Seven commenters requested that the final rule clarify
what is meant by residential supervision. The commenters stated that
they did not want PHAs to use residential supervision to provide a more
restrictive type of public housing for persons with disabilities.
Response: ``Residential supervision'' refers to the assistance
provided by a person or persons who either lives at the designated
project for disabled families, or makes himself or herself available to
persons with disabilities who may need assistance on a 24-hour or on-
call basis. Generally, residential supervision assistance is provided
to persons who, as a result of seizures or paralysis, for example, may
need assistance to be provided on a flexible basis (e.g., on-call) and
to be available within proximity to where the person resides. The
specific need for residential supervision must be documented in the
supportive service plan.
Section 945.303 Requirements governing occupancy in designated housing
Comment: One commenter requested that the final rule contain
regulations to permit expedited removal of disruptive tenants.
Response: The Department's regulations in 24 CFR part 966,
governing lease and grievance procedures in public housing, already
address this issue.
Section 945.301 Operating designated housing
Comment: Two commenters stated that the requirement to operate
designated housing in conformance with civil rights laws should be
extended to the allocation plan development stages.
Response: The Department agrees with this comment, and this section
of the final rule provides that ``the application procedures and
operation of designated projects'' shall be in conformity with the
applicable civil rights and nondiscrimination statutes. Conformity with
applicable civil rights and nondiscrimination statutes includes
submission of the needs assessment and transition plan required by 24
CFR 8.25.
Part 960, Subpart D--Preference for Disabled Families and Elderly
Families in Public Housing Projects for Disabled Families and Elderly
Families
Comment: One commenter stated that the proposed rule did not make
clear that elderly housing under part 960 is not the same as elderly
housing under part 945.
Response: The Department believes that the editorial changes made
to part 960 in the final rule clarify the distinction between projects
meeting the requirements of part 945, and those meeting the
requirements of part 960. For example, the Department has changed the
title to subpart D to read ``Preferences for Elderly Families and
Disabled Families in Mixed Population Projects'' and uses this term
``mixed population project'' throughout the subpart D. Use of the term
``mixed population project'' should clarify that projects meeting the
requirements of subpart D house both elderly families and disabled
families.
Comment: Six commenters stated that reference in Sec. 960.407 to
the 10 percent limitation on families without a Federal preference
should be revised to read ``50 percent.''
Response: The Department has not yet issued its final regulation on
Federal preferences. Once the Federal preferences final rule is
published, the Department will make a conforming amendment to part 960,
subpart D to reflect the 50 percent.
Comments on the Information Collection Requirements
Comment: Ten commenters stated that the Department grossly
underestimated the time for completion of the allocation plan.
Response: The Department believes that the substantial changes made
to the allocation plan requirements by this final rule bring the plan
more in line with the estimated burden hours.
Other Comments and Recommendations
Comment: Three commenters stated that they expect the most vigorous
possible oversight by the Department of the allocation planning
process, not only at the first step of initial approval, but biennial
updates.
Response: The Department has every intention to monitor, through
careful review of initial allocation plans and biennial updates, the
operation of designated housing, and its impact on families served by
PHAs that operate designated housing. Monitoring also will include
monitoring and compliance reviews under section 504, investigations of
complaints under section 504, the Fair Housing Act, and other civil
rights authorities.
Comment: Four commenters stated that the final rule should require
PHAs to preserve some mixed-use or general occupancy housing for
persons with disabilities.
Response: The Department certainly encourages, but cannot require,
PHAs to maintain mixed-used or general occupancy projects for persons
with disabilities.
V. Other Matters
Environmental Impact
A Finding of No Significant Impact with respect to the environment
was made in accordance with HUD regulations at 24 CFR part 50, which
implements section 102(2)(c) of the National Environmental Policy Act
of 1969 (NEPA) at the time of development of the proposed rule. This
Finding of No Significant Impact remains applicable to this final rule,
and is available for public inspection between 7:30 a.m. and 5:30 p.m.
weekdays in the Office of the Rules Docket Clerk, Office of the General
Counsel, Department of Housing and Urban Development, room 10276, 451
Seventh Street, SW., Washington, DC 20410.
Executive Order 12866
This final rule was reviewed by the Office of Management and Budget
under Executive Order 12866 as a significant regulatory action. Any
changes made in this rule as a result of that review are clearly
identified in the docket file, which is available for public inspection
in the Office of HUD's Rule's Docket Clerk, room 10276, 451 Seventh St.
SW., Washington, DC.
Impact on Small Entities
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this final rule before publication and by
approving it certifies that the rule will not have a significant impact
on a substantial number of small entities. The final rule establishes
the requirements and procedures by which PHAs may designate projects,
or portions of projects, for occupancy only by (1) elderly families,
(2) disabled families, or (3) disabled families and elderly families.
The rule incorporates the requirements established by statute for such
designation. The designation of housing for occupancy by elderly
families, disabled families, or disabled families and elderly families
is an option provided to, not a requirement imposed on, PHAs by this
rule.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this final rule would not
have potential for significant impact on family formation, maintenance,
and general well-being within the meaning of the order. This final rule
implements the designation process provided by section 622 of the 1992
Act, the purpose of which is to assist PHAs in meeting the housing and
supportive service needs of disabled families and elderly families. The
supportive services provided by PHAs to disabled and elderly families
are expected to assist these families in avoiding possible
institutionalization, and to reduce unnecessary stress and financial
burden on these families. Thus, the supportive services component of
the program is anticipated to have a beneficial impact on disabled
families and elderly families.
Since the designation process, however, provides for elderly-only
housing and disabled-only housing, there is the possibility that the
designation process authorized by section 622 of the 1992 Act would
limit the availability of housing for (1) disabled families (if a PHA
designates elderly family-only housing), (2) elderly families (if a PHA
designates disabled family-only housing) or (3) families with children
(if a PHA designates disabled families and/or elderly family-only
housing), and thus adversely impact the maintenance and well-being of
these families. (Although it should be noted that PHAs would be
required to admit eligible elderly families with children to designated
projects for elderly families, and admit eligible disabled families
with children to projects designated for disabled families.) The final
rule, however, provides certain protections for all family types,
including the protection provided by HUD's review and approval of a
PHA's housing allocation plan. The purpose of this review is to ensure
that the availability of public housing, and other housing resources
available to the PHA, is not reduced for any of these families,
especially non-elderly disabled families. Thus, the impact on family
maintenance and well being that may result from the designation
process, as implemented by the Department through this rule, would not
be significant within the meaning of the order.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that this final
rule would not have substantial, direct effects on States, on their
political subdivisions, or on their relationship with the Federal
government, or on the distribution of power and responsibilities among
the various levels of government. The is limited to implementing the
procedures under which PHAs may opt, subject to certain requirements
and procedures, to designate public housing projects, or portions of
public housing projects, for occupancy by elderly families, disabled
families, or disabled families and elderly families.
Regulatory Agenda
This rule was listed as sequence number 1635 in the Department's
Semiannual Agenda of Regulations, published on October 25, 1993 (58 FR
56402, 56448) under Executive Order 12291 and the Regulatory
Flexibility Act.
List of Subjects
24 CFR Part 945
Aged, Grant programs--housing and community development,
Individuals with disabilities, Public housing, Reporting and
recordkeeping requirements.
24 CFR Part 960
Aged, Grant programs--housing and community development,
Individuals with disabilities, Public housing.
Accordingly, title 24 of the Code of Federal Regulations is amended
as follows:
1. A new part 945, consisting of Secs. 945.101 through 945.303, is
added to read as follows:
PART 945--DESIGNATED HOUSING--PUBLIC HOUSING DESIGNATED FOR
OCCUPANCY BY DISABLED, ELDERLY, OR DISABLED AND ELDERLY FAMILIES
Subpart A--General
Sec.
945.101 Purpose.
945.103 General policies.
945.105 Definitions.
Subpart B--Application and Approval Procedures
945.201 Approval to designate housing.
945.203 Allocation plan.
945.205 Designated housing for disabled families.
Subpart C--Operating Designated Housing
945.301 General requirements.
945.303 Requirements governing occupancy in designated housing.
Authority: 42 U.S.C. 1473e; 42 U.S.C. 3535(d).
Subpart A--General
Sec. 945.101 Purpose.
The purpose of this part is to provide for designated housing as
authorized by section 7 of the U.S. Housing Act of 1937 (42 U.S.C.
1437e). Section 7 provides public housing agencies with the option,
subject to the requirements and procedures of this part, to designate
public housing projects, or portions of public housing projects, for
occupancy by disabled families, elderly families, or mixed populations
of disabled families and elderly families.
Sec. 945.103 General policies.
(a) Agency participation. Participation in this program is limited
to public housing agencies (PHAs) (as this term is defined in 24 CFR
913.102) that elect to designate public housing projects for occupancy
by disabled families, elderly families, or disabled families and
elderly families, as provided by this part.
(b) Eligible housing--(1) Designation of public housing. Projects
eligible for designation under this part are public housing projects as
described in the definition of ``project'' in Sec. 945.105.
(2) Additional housing resources. To meet the housing and
supportive service needs of elderly families, and disabled families,
including non-elderly disabled families, who will not be housed in a
designated project, PHAs shall utilize housing resources that they own,
control, or have received preliminary notification that they will
obtain (e.g., section 8 certificates and vouchers). They also may
utilize housing resources for which they plan to apply during the
period covered by the allocation plan, and that they have a reasonable
expectation of obtaining. PHAs also may utilize, to the extent
practicable, any housing facilities that they own or control in which
supportive services are already provided, facilitated or coordinated,
such as mixed housing, shared housing, family housing, group homes, and
congregate housing.
(3) Exemption of mixed population projects. A PHA with a public
housing project with a mixed population of elderly families and
disabled families that plans to house them in such project in
accordance with the requirements of 24 CFR part 960, subpart D, is not
required to meet the designation requirements of this part.
(c) Family Participation in designated housing--(1) Voluntary
participation. The election to reside in designated housing is
voluntary on the part of a family. No disabled family or elderly family
may be required to reside in designated housing, nor shall a decision
not to reside in designated housing adversely affect the family with
respect to occupancy of another appropriate project.
(2) Meeting stated eligibility requirements. Nothing in this part
shall be construed to require or permit a PHA to accept for admission
to a designated project a disabled family or elderly family who does
not meet the stated eligibility requirements for occupancy in the
project (for example, income), as set forth in HUD's regulations in 24
CFR parts 912 and 913, and in the PHA's admission policies.
Sec. 945.105 Definitions.
As used in this part:
Act means the United States Housing Act of 1937 (42 U.S.C. 1437-
1440).
Accessible units means units that meet the requirement of
accessibility with respect to dwellings as set forth in the second
definition of ``accessible'' in 24 CFR 8.3.
Allocation plan. See Sec. 945.201.
CHAS means the comprehensive housing affordability strategy
required by section 105 of the National Affordable Housing Act (42
U.S.C. 12705) or any successor plan prescribed by HUD.
Designated family means the category of family for whom the project
is designated (e. g., elderly family in a project designated for
elderly families).
Designated housing or designated project means a project (or
projects), or a portion of a project (or projects) (as these terms are
defined in this section), that has been designated in accordance with
the requirements of this part.
Disabled family means a family whose head or spouse or sole member
is a person with disabilities. The term ``disabled family'' may include
two or more persons with disabilities living together, and one or more
persons with disabilities living with one or more persons who are
determined to be essential to the care or well-being of the person or
persons with disabilities. A disabled family may include persons with
disabilities who are elderly.
Elderly family means a family whose head, spouse, or sole member is
an elderly person. The term ``elderly family'' includes an elderly
person, two or more elderly persons living together, and one or more
elderly persons living with one or more persons who are determined to
be essential to the care or well-being of the elderly person or
persons. An elderly family may include elderly persons with
disabilities and other family members who are not elderly.
Elderly person means a person who is at least 62 years of age.
Family includes but is not limited to a single person as defined in
this part, a displaced person (as defined in 24 CFR part 912), a
remaining member of a tenant family, a disabled family, an elderly
family, a near-elderly family, and a family with children. It also
includes an elderly family or a disabled family composed of one or more
elderly persons living with one or more disabled persons.
Housing has the same meaning as ``project,'' which is defined in
this section.
HUD or Department means the Department of Housing and Urban
Development including any Field Offices to which authority has been
delegated to perform functions under this part.
Mixed population project means a public housing project reserved
for elderly families and disabled families. This is the project type
referred to in NAHA as being designated for elderly and disabled
families. A PHA that has a mixed population project or intends to
develop one need not submit an allocation plan or request a
designation. However, the project must meet the requirements of 24 CFR
part 960 subpart D.
NAHA means the National Affordable Housing Act (Pub.L. 101-625,
approved November 28, 1990).
Near-elderly family means a family whose head, spouse, or sole
member is a near-elderly person. The term ``near-elderly family''
includes two or more near-elderly persons living together, and one or
more near-elderly persons living with one or more persons who are
determined to be essential to the care or well-being of the near-
elderly person or persons. A near-elderly family may include other
family members who are not near-elderly.
Near-elderly person means a person who is at least 50 years of age
but below the age of 62, who may be a person with a disability.
Non-elderly disabled person means a person with a disability who is
less than 62 years of age.
Person with disabilities means a person who--
(a) Has disability as defined in section 223 of the Social Security
Act (42 U.S.C. 423), or
(b) Is determined to have a physical, mental, or emotional
impairment that--
(1) Is expected to be of long-continued and indefinite duration,
(2) Substantially impedes his or her ability to live independently,
and
(3) Is of such a nature that such ability could be improved by more
suitable housing conditions, or
(c) Has a developmental disability as defined in section 102 of the
Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C.
6001(5)).
The term ``person with disabilities'' does not exclude persons who have
the disease of acquired immunodeficiency syndrome or any conditions
arising from the etiologic agent for acquired immunodeficiency
syndrome.
Portion of project includes: One or more buildings in a multi-
building project; one or more floors of a project or projects; a
certain number of dwelling units in a project or projects. (Designation
of a portion of a project does not require that the buildings, floors
or units be contiguous.)
Project means low-income housing developed, acquired, or assisted
by a PHA under the U.S. Housing Act of 1937 (other than section 8) for
which there is an Annual Contributions Contract (ACC) between HUD and
the PHA. For purposes of this part, the terms housing and public
housing mean the same as project. Additionally, as used in this part,
and unless the context indicates otherwise, the term project when used
in the singular includes the plural, and when used in the plural,
includes the singular, and also includes a ``portion of a project,'' as
defined in this section.
Public housing or public housing project. See definition of
``project'' in this section.
Public housing agency or PHA. See 24 CFR 913.102.
Secretary means the Secretary of Housing and Urban Development.
Service provider means a person or organization qualified and
experienced in the provision of supportive services, and that is in
compliance with any licensing requirements imposed by State or local
law for the type of service or services to be provided. The service
provider may provide the service on either a for-profit or not-for-
profit basis.
Single person means a person who lives alone or intends to live
alone, who is not an elderly person, a person with disabilities, a
displaced person, or the remaining member of a tenant family.
Supportive service plan. See Sec. 945.205.
Supportive services means services available to persons residing in
a development, requested by disabled families and for which there is a
need, and may include, but are not limited to, meal services, health-
related services, mental health services, services for nonmedical
counseling, meals, transportation, personal care, bathing, toileting,
housekeeping, chore assistance, safety, group and socialization
activities, assistance with medications (in accordance with any
applicable State laws), case management, personal emergency response,
and other appropriate services.
Subpart B--Application and Approval Procedures
Sec. 945.201 Approval to designate housing.
(a) Designated housing for elderly families. To designate a project
for occupancy by elderly families, a PHA must have a HUD-approved
allocation plan that meets the requirements of Sec. 945.203.
(b) Designated housing for disabled families. To designate a
project for occupancy by disabled families, a PHA must have a HUD-
approved allocation plan that meets the requirements of Sec. 945.203,
and a HUD-approved supportive service plan that meets the requirements
of Sec. 945.205.
(c) Designated housing for elderly families and disabled families.
(1) A PHA that provides or intends to provide a mixed population
project (a project for both elderly families and disabled families) is
not required to meet the requirements of this part. The PHA is required
to meet the requirements of 24 CFR part 960, subpart D.
(2) A PHA that intends to provide designated housing for elderly
families or for disabled families must identify any existing or planned
mixed population projects, reserved under 24 CFR part 960, subpart B,
as additional housing resources, in its allocation plan, in accordance
with Sec. 945.203(c)(6).
Sec. 945.203 Allocation plan.
(a) Applicable terminology. (1) As used in this section, the terms
``initial allocation plan'' refers to the PHA's first submission of an
allocation plan, and ``updated allocation plan'' refers to the biennial
update (once every two years) of this plan, which is described in
paragraph (f) of this section.
(2) As provided in Sec. 945.105, the term ``project'' includes the
plural (``projects'') and includes a portion of a project.
(b) Consultation in plan development. These consultation
requirements apply to the development of an initial allocation plan as
provided in paragraph (c) of this section, or any update of the
allocation plan as provided in paragraph (f) of this section.
(1) In preparing the draft plan, the PHA shall consult with:
(i) The State or unit of general local government where the project
is located;
(ii) Public and private service providers;
(iii) Representative advocacy groups for each of these family
types: disabled families, elderly families, and families with children,
where such advocacy groups exist;
(iv) Representatives of the residents of the PHA's projects
proposed for designation, including representatives from resident
councils or resident management corporations where they exist; and
(v) Other parties that the PHA determines would be interested in
the plan, or other parties that have contacted the PHA and expressed an
interest in the plan.
(2) Following the completion of the draft plan, the PHA shall:
(i) Issue public notices regarding its intention to designate
housing and the availability of the draft plan for review;
(ii) Contact directly those individuals, agencies and other
interested parties specified in paragraph (b)(1) of this section, and
advise of the availability of the draft plan for review;
(iii) Allow not less than 30 days for public comment on the draft
allocation plan;
(iv) Make free copies of the draft plan available upon request, and
in accessible format, when appropriate;
(v) Conduct at least one public meeting on the draft allocation
plan;
(vi) Give fair consideration to all comments received; and
(vii) Retain any records of public meetings held on the allocation
plan (or updated plan) and any written comments received on the plan
for a period of five years commencing from the date of submission of
the allocation plan to HUD. These records must be available for review
by HUD.
(c) Contents of initial plan. The initial allocation plan shall
contain, at a minimum, the information set forth in this paragraph (c).
(1) Identification of the project to be designated and type of
designation to be made. The PHA must:
(i) Identify the type of designation to be made (i.e., housing for
disabled families or housing for elderly families);
(ii) Identify the building(s), floor(s), or unit(s) to be
designated and their location, or if specific units are not designated,
the number to be designated; and
(iii) State the reasons the building(s), floor(s), or unit(s) were
selected for designation.
(2) Identification of groups and persons consulted and comments
submitted. The PHA must:
(i) Identify the groups and persons with whom the PHA has consulted
in the development of the allocation plan;
(ii) Include a summary of comments received on the plan from the
groups and persons consulted; and
(iii) Describe how the plan addresses these comments.
(3) Profile of proposed designated project in pre-designation
state. This component of the plan must include, for the projects,
buildings, or portions of buildings to be designated:
(i) The total number of families currently occupying the project,
and
(A) The number of families who are members of the group for whom
the project is to be designated, and
(B) The number of families who are not members of the group for
whom the project is to be designated;
(ii) An estimate of the total number of elderly families and
disabled families who are potential tenants of the project (i.e., as
the project now exists), based on information provided by:
(A) The waiting list from which vacancies in the project are
filled; and
(B) A local housing needs survey, if available, such as the CHAS,
for the jurisdiction within which the area served by the PHA is
located;
(iii) An estimate of the number of potential tenants who will need
accessible units based on information provided by:
(A) The needs assessment prepared in accordance with 24 CFR 8.25,
and
(B) A housing needs survey, if available, such as the CHAS or HUD-
prescribed successor survey;
(iv) The number of units in the project that became vacant and
available for occupancy during the year preceding the date of
submission of the allocation plan to HUD;
(v) The average length of vacancy for dwelling units in the project
for the year preceding the date of submission of the allocation plan to
HUD;
(vi) An estimate of the number of units in the project that the PHA
expects to become vacant and available for occupancy during the two-
year period following the date of submission of the allocation plan to
HUD (i.e., if the project were not to be designated);
(vii) An estimate of the average length of time elderly families
and non-elderly persons with disabilities currently have to wait for a
dwelling unit.
(4) Projected profile of project in designated state. This
component of the plan must:
(i) Identify the source of the families for the designated project
(e.g., current residents of the project, families currently on the
waiting list, residents of other projects, and potential tenants based
on information from the local housing needs survey);
(ii) For projects proposed to be designated for occupancy by
elderly families an estimate of the number of:
(A) Units in the project that are anticipated to become vacant and
available for occupancy during the two-year period following the date
of submission of the allocation plan to HUD;
(B) Near-elderly families who may be needed to fill units in the
designated project for elderly families, as provided in
Sec. 945.303(c);
(iii) Describe any impact the designation may have on the average
length of time applicants in the group for which the project is
designated and other applicants will have to wait for a dwelling unit.
(5) PHA occupancy policies and procedures. This component of the
plan must describe any changes the PHA intends to make in its admission
policies to accommodate the designation, including:
(i) How the waiting list will be maintained;
(ii) How dwelling units will be assigned; and
(iii) How records will be maintained to document the effect on all
families who would have resided in the designated project if it had not
been designated.
(6) Strategy for addressing the current and future housing needs of
the families in the PHA's jurisdiction. The PHA must:
(i) Identify the housing resources currently owned or controlled by
the PHA, including any mixed population projects, in existence, as
provided in 24 CFR part 960, subpart D, that will be available to these
families;
(ii) Describe the steps to be taken by the PHA to respond to any
need for accessible units that will no longer be available for
applicants who need them. The PHA has a continuing obligation under
section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) to
provide accessible dwellings even if the project designation removes
accessible dwellings from the inventory of possible dwellings for non-
elderly persons with disabilities;
(iii) If a project is being designated for elderly families,
describe the steps the PHA will take to facilitate access to supportive
services by non-elderly disabled families. The services should be
equivalent to those available in the designated project and requested
by non-elderly disabled families. If the PHA funds supportive services
for the designated project for elderly families, the PHA must provide
the same level of services, upon the request of non-elderly disabled
families.
(iv) If a project is being designated for elderly families,
identify the additional housing resources that the PHA determines will
be sufficient to provide assistance to not less than the number of non-
elderly disabled families that would have been housed by the PHA if
occupancy in units in the designated project were not restricted to
elderly families (one-for-one replacement is not required). Among these
resources may be:
(A) Normal turnover in existing projects;
(B) Existing housing stock that previously was not available to or
considered for non-elderly disabled families. Examples are dwellings in
general occupancy (family) projects that are reconfigured to meet the
dwelling size needs of the non-elderly disabled families, or were
previously occupied by elderly families who will relocate to the
designated project for elderly families, or were previously vacant
because there had not been a demand for dwellings of that size in that
location;
(C) Housing for which the PHA has received preliminary notification
that it will obtain; and
(D) Housing for which the PHA plans to apply during the period
covered by the allocation plan, and which it has a reasonable
expectation of obtaining.
(v) Where a project is being designated for elderly families,
explain how the PHA plans to secure the required additional housing
resources. In the case of housing for which the PHA plans to apply, the
PHA must provide sufficient information about the housing resource and
its application to establish that the PHA can reasonably expect to
obtain the housing.
(vi) Describe incentives, if any, that the PHA intends to offer to:
(A) Families who are members of the group for whom a project was
designated to achieve voluntary transfers to the designated project;
and
(B) Families who are not members of the group for whom a project
was designated to achieve voluntary transfers from the project proposed
to be designated;
(d) Criteria for allocation plan approval. HUD shall approve an
initial allocation plan, or updated allocation plan, if HUD determines
that:
(1) The information contained in the plan is complete and accurate
(a plan that is incomplete, i.e., missing required statements or items,
will be disapproved), and the projections are reasonable;
(2) Implementation of the plan will not result in a substantial
increase in the vacancy rates in the designated project;
(3) Implementation of the plan will not result in a substantial
increase in delaying or denying housing assistance to families on the
PHA's waiting list because of designating projects;
(4) The plan for securing sufficient additional housing resources
for non-elderly disabled persons can reasonably be achieved; and
(5) The plan conforms to the requirements of this part.
(e) Allocation plan approval or disapproval.--(1) Written
notification. HUD shall notify each PHA, in writing, of approval or
disapproval of the initial or updated allocation plan.
(2) Timing of notification. An allocation plan shall be considered
to be approved by HUD if HUD fails to provide the PHA with notification
of approval or disapproval of the plan, as required by paragraph (e)(1)
of this section, within:
(i) 90 days after the date of submission of an allocation plan that
contains comments, as provided in paragraph (c)(2) of this section; or
(ii) 45 days after the date of submission of all other plans,
including
(A) Initial plans for which no comments were received;
(B) Updated plans, as provided in paragraph (f) of this section;
and
(C) Revised initial plans or revised updated plans, as provided in
paragraph (e)(4) of this section.
(3) Approval limited solely to approval of designated housing.
HUD's approval of an initial plan or updated allocation plan under this
section may not be construed to constitute approval of any request for
assistance for major reconstruction of obsolete projects, assistance
for development or acquisition of public housing, or assistance under
24 CFR part 890 (supportive housing for persons with disabilities).
(4) Resubmission following disapproval. If HUD disapproves an
initial allocation plan, a PHA shall have a period of not less than 45
days or more than 90 days following notification of disapproval as
provided in paragraph (e)(2) of this section, to submit amendments to
the plan, or to submit a revised plan.
(f) Biennial update of plan.--(1) General. Each PHA that owns or
operates a public housing project that is designated for occupancy
under this part shall update its allocation plan not less than once
every two years, from the date of HUD approval of the initial
allocation plan. A PHA that wishes to amend or revise its plan later
than 90 days after HUD disapproval must begin the hearing and
consultation process again.
(2) Failure to submit updated plan. If the PHA fails to submit the
updated plan as required by this paragraph (f), the Secretary may
revoke the designation in accordance with the provisions of paragraph
(f)(4)(ii) of this section.
(3) Contents of updated plan. The updated allocation plan shall
contain, at a minimum, the following information:
(i) The most recent update of the allocation plan data, and
projections for the next two years;
(ii) An assessment of the accuracy of the projections contained in
previous plans and in the updated allocation plan;
(iii) The number of times a vacancy was filled in accordance with
Sec. 945.303(c);
(iv) A discussion of the impact of the designation on the
designated project and the other public housing projects operated by
the PHA, using the data obtained from the system developed in
Sec. 945.203(c), including
(A) The number of times there was a substantial increase in
delaying housing assistance to families on the PHA's waiting list
because projects were designated; and
(B) The number of times there was a substantial increase in denying
housing assistance to families on the PHA's waiting list because
projects were designated;
(v) A plan for adjusting the allocation of designated units, if
necessary.
(4) Criteria for approval of updated plan. (i) HUD shall approve an
updated allocation plan based on HUD's review and assessment of the
updated plan, using the criteria in (d) of this section. If HUD
considers it appropriate, the review and assessment shall include any
on-site review and monitoring of PHA performance in the administration
of its designated housing and in the allocation of the PHA's housing
resources. Notification of approval or disapproval of the updated
allocation plan shall be provided in accordance with paragraph (e) of
this section;
(ii) If a PHA's updated plan is not approved, HUD may require PHAs
to change the designation of existing or planned projects to other
categories, such as general occupancy or mixed population projects.
(5) Notification of approval or disapproval of updated plan. HUD
shall notify each PHA submitting an updated plan of approval or
disapproval of the updated plan, in accordance with the form of
notification and within the time periods required by paragraph (e) of
this section.
(Approved by the Office of Management and Budget under control
number 2577-0192.)
Sec. 945.205 Designated housing for disabled families.
(a) General. (1) In general, HUD will approve designated projects
for disabled families only if there is a clear demonstration that there
is both a need and a demand by disabled families for such designation.
In the absence of such demonstrated need and demand, PHAs should
provide for the housing needs of disabled families in the most
integrated setting possible.
(2) To designate a project for disabled families, a PHA must submit
the allocation plan required by Sec. 945.203 and the supportive service
plan described in paragraph (b) of this section.
(3) In its allocation plan,
(i) The PHA may not designate a project for persons with a specific
disability;
(ii) The designated project does not have to be made up of
contiguous units. PHAs are encouraged to place the units in the
project, whether contiguous or not, in the most integrated setting
possible.
(4) The consultation process for the allocation plan provided in
Sec. 945.203(b) and consultation process for the supportive service
plan provided in this section may occur concurrently.
(5) If the PHA conducts surveys to determine the need or demand for
a designated project for disabled families or for supportive services
in such project, the PHA must protect the confidentiality of the survey
responses.
(b) Supportive Service Plan. The plan shall describe how the PHA
will provide or arrange for the provision of the appropriate supportive
services requested by the disabled families who will occupy the
designated housing and who have expressed a need for these services.
(1) Contents of plan. The supportive service plan, at a minimum,
must:
(i) Identify the number of disabled families who need the
supportive services and who have expressed an interest in receiving
them;
(ii) Describe the types of supportive services that will be
provided, and, if known, the length of time the supportive services
will be available;
(iii) Identify each service provider to be utilized, and describe
the experience of the service provider in delivering supportive
services;
(iv) Describe how the supportive services will be provided to the
disabled families that the designated housing is expected to serve (how
the services will be provided depends upon the type of service offered;
e.g., if the package includes transportation assistance, how
transportation assistance will be provided to disabled families);
(v) Identify all sources of funding upon which the PHA is relying
to deliver supportive services to residents of the designated housing
for disabled families, or the supportive service resources to be
provided in lieu of funding;
(vi) Submit evidence of a specific contractual commitment or
commitments provided to the PHA by the sources identified in paragraph
(b)(1)(v) of this section to make funds available for supportive
services, or the delivery of supportive services available to the PHA
for at least two calendar years;
(vii) Identify any public and private service providers, advocates
for the interests of designated housing families, and other interested
parties with whom the PHA consulted in the development of this
supportive service plan, and summarize the comments and recommendations
made by these parties. (These comments must be maintained for a period
of five years, and be available for review by HUD as provided in
paragraph (b)(2)(vii) of this section.);
(viii) If applicable, address the need for residential supervision
of disabled families (on-site supervision within the designated
housing) and how this supervision is to be provided;
(ix) Include any other information that the PHA determines would
assist HUD in assessing the suitability of the PHA's supportive service
plan; and
(x) Include any additional information that HUD may request, and
which is appropriate to a determination of the suitability of the
supportive service plan.
(2) Public review and comment on the supportive service plan. In
preparing the initial supportive service plan, or any update of the
supportive service plan, the PHA shall:
(i) Issue public notices regarding its intention to provide
supportive services to designated housing for disabled families and the
availability of the draft supportive service plan;
(ii) Send notices directly to interested individuals and agencies
that have contacted the PHA and have expressed an interest in the
supportive service plan, and to parties specified in paragraph
(b)(1)(vii) of this section;
(iii) Allow not less than 30 days for public comment on the
supportive service plan;
(iv) Make free copies of the draft plan available upon request, and
in accessible format, when appropriate;
(v) Conduct at least one public meeting regarding the supportive
service plan;
(vi) Give fair consideration to all comments received; and
(vii) Retain any records of the public meetings held on the
supportive service plan, and any written comments received on the
supportive service plan for a period of five years, from the date of
submission of the supportive service plan. These records must be
available for review by HUD.
(c) Approval. HUD shall approve designated housing for disabled
families if the allocation plan meets the requirements of Sec. 945.203,
including demonstrating both a need and a demand for designated housing
for disabled families, and if HUD determines on the basis of the
information provided in the supportive service plan that:
(1) There is a sufficient number of persons with disabilities who
have expressed an interest in occupying a designated project for
disabled families, and who have expressed a need and demand for the
supportive services that will be provided;
(2) The supportive services are adequately designed to meet the
needs of the disabled families who have indicated a desire for them;
(3) The service provider has current or past experience
administering an effective supportive service delivery program for
persons with disabilities;
(4) If residential supervision is required, a written commitment to
provide this supervision in the designated housing.
(Approved by the Office of Management and Budget under control
number 2577-0192.)
Subpart C--Operating Designated Housing
Sec. 945.301 General requirements.
The application procedures and operation of designated projects
shall be in conformity with the regulations of this part, and the
regulations applicable to PHAs in 24 CFR Chapter IX, including 24 CFR
parts 913, 960 and 966, and, in particular, the nondiscrimination
requirements of 24 CFR 960.211(b)(3), that include but are not limited
to section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), Fair
Housing Act (42 U.S.C. 3601-3619), title VI of the Civil Rights Act of
1964 (42 U.S.C. 2000d), section 3 of the Housing and Urban Development
Act of 1968 (12 U.S.C. 1701u), the Age Discrimination Act (42 U.S.C.
6101-6107), Executive Order 11246 (3 CFR 1964-1965 Comp., p. 339),
Executive Order 11063, as amended by Executive Order 12259 (3 CFR 1958-
1963 Comp., p. 652 and 3 CFR 1980 Comp., p. 307), the Americans with
Disabilities Act (42 U.S.C. 12101-12213) (to the extent the Americans
with Disabilities Act is applicable) and the implementing regulations
of these statutes and authorities; and other applicable Federal, State,
and local laws prohibiting discrimination and promoting equal
opportunity.
Sec. 945.303 Requirements governing occupancy in designated housing.
(a) Priority for occupancy. Except as provided in paragraph (c) of
this section, in determining priority for admission to designated
housing, the PHA shall make units in the designated housing available
only to designated families.
(b) Compliance with preference regulations. Among the designated
families, the PHA shall give preference in accordance with the
preferences in 24 CFR part 960, subpart B.
(c) Eligibility of other families for housing designated for
elderly families--(1) Insufficient elderly families. If there are an
insufficient number of elderly families for the units in a project
designated for elderly families, the PHA may make dwelling units
available to near-elderly families, who qualify for preferences under
24 CFR part 960, subpart B. The election to make dwelling units
available to near-elderly families if there are an insufficient number
of elderly families should be explained in the PHA's allocation plan.
(2) Insufficient elderly families and near-elderly families. If
there are an insufficient number of elderly families and near-elderly
families for the units in a project designated for elderly families,
the PHA shall make available to all other families any dwelling unit
that is:
(i) Ready for re-rental and for a new lease to take effect; and
(ii) Vacant for more than 60 consecutive days.
(d) Tenant choice of housing. (1) Subject to paragraph (d)(2) of
this section, the decision of any disabled family or elderly family not
to occupy or accept occupancy in designated housing shall not have an
adverse affect on:
(i) The family's admission to or continued occupancy in public
housing; or
(ii) The family's position on or placement on a public housing
waiting list.
(2) The protection provided by paragraph (d)(1) of this section
shall not apply to any family who refuses to occupy or accept occupancy
in designated housing because of the race, color, religion, sex,
disability, familial status, or national origin of the occupants of the
designated housing or the surrounding area.
(3) The protection provided by paragraph (d)(1) of this section
shall apply to an elderly family or disabled family that declines to
accept occupancy, respectively, in a designated project for elderly
families or for disabled families, and requests occupancy in a general
occupancy project or in a mixed population project.
(e) Appropriateness of dwelling unit to family size. This part may
not be construed to require a PHA to offer a dwelling in a designated
project to any family who is not of appropriate family size for the
dwelling unit. The temporary absence of a child from the home due to
placement in foster care is not considered in determining family
composition and family size.
(f) Prohibition of evictions. Any tenant who is lawfully residing
in a dwelling unit in a public housing project may not be evicted or
otherwise required to vacate the unit because of the designation of the
project, or because of any action taken by HUD or the PHA in accordance
with this part.
(g) Prohibition of coercion to accept supportive services. As with
other HUD-assisted housing, no disabled family or elderly family
residing in designated housing may be required to accept supportive
services made available by the PHA under this part.
(h) Availability of grievance procedures in 24 CFR part 966. The
grievance procedures in 24 CFR part 966, subpart B, which applies to
public housing tenants, is applicable to this part.
PART 960--ADMISSION TO, AND OCCUPANCY OF, PUBLIC HOUSING
2. The authority citation for part 960 continues to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437d, 1437n, 3535(d).
3. The heading of subpart D is revised, Sec. 960.409 is removed,
and Secs. 960.401, 960.403, 960.405, and 960.407 are revised to read as
follows:
Subpart D--Preference for Elderly Families and Disabled Families in
Mixed Population Projects
Sec. 960.401 Purpose.
This subpart establishes a preference for elderly families and
disabled families for admission to mixed population public housing
projects, as defined in Sec. 960.405.
Sec. 960.403 Applicability.
(a) This subpart applies to all dwelling units in mixed population
projects (as defined in Sec. 960.405), or portions of mixed population
projects, assisted under the U.S. Housing Act of 1937. These projects
formerly were known as elderly projects.
(b) This subpart does not apply to section 23 and section 10(c)
leased housing projects or the section 23 Housing Assistance Payments
Program where the owners enter into leases directly with the tenants,
or to the Section 8 Housing Assistance Payments Program, the Low-Rent
Housing Homeownership Opportunities Program (Turnkey III), the Mutual
Help Homeownership Opportunities Program, or to Indian Housing
Authorities. (For applicability to Indian Housing Authorities, see part
905 of this chapter.) Additionally, this subpart is not applicable to
projects designated for elderly families or designated for disabled
families in accordance with 24 CFR part 945.
Sec. 960.405 Definitions.
Designated housing. See definition of ``designated housing'' in 24
CFR part 945.
Disabled families. See definition of ``disabled families'' in 24
CFR part 945.
Elderly families. See definition of ``elderly families'' in 24 CFR
part 945.
Mixed population project is a public housing project, or portion of
a project, that was reserved for elderly families and disabled families
at its inception (and has retained that character). If the project was
not so reserved at its inception, the PHA has obtained HUD approval to
give preference in tenant selection for all units in the project (or
portion of project) to elderly families and disabled families. These
projects formerly were known as elderly projects.
Sec. 960.407 Selection preference; other preferences; single person
occupancy.
(a) A PHA must give preference to elderly families and disabled
families equally in determining priority for admission to mixed
population projects. A PHA may not establish a limit on the number of
elderly families or disabled families who may be accepted for occupancy
in a mixed population project.
(b) The PHA must follow its policies and procedures for applying
the Federal preferences contained in subpart B of this part when
selecting applicants for admission from among elderly families and
disabled families.
(c) Elderly families and disabled families who do not qualify for a
Federal preference contained in subpart B of this part, and who are
given preference for admission under paragraph (a) of this section over
non-elderly families and non-disabled families that qualify for such a
Federal preference, are not subject to the statutory 10 percent
limitation on admission of families without a Federal preference over
families with such a Federal preference that may initially receive
assistance in any one-year period, as provided in 24 CFR
960.211(b)(2)(ii).
(d) If an elderly or disabled applicant is a single person, as this
term is defined in 24 CFR part 945, the elderly single person or the
disabled single person shall be given a preference for admission to
mixed population projects over single persons who are neither elderly
nor disabled.
(e) In offering available units to elderly families and disabled
families in mixed population projects, units with accessible features
should first be offered to persons with disabilities who require the
accessibility features of the unit in accordance with the requirements
of 24 CFR 8.27 and 24 CFR 100.202(c)(3).
Dated: April 7, 1994.
Joseph Shuldiner,
Assistant Secretary for Public and Indian Housing.
[FR Doc. 94-8897 Filed 4-12-94; 8:45 am]
BILLING CODE 4210-33-P
