Designated Housing; Public Housing Designated for Occupancy by Disabled, Elderly, or Disabled and Elderly Families
Federal RegisterJan 7, 1994
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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-P-01]
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: Proposed rule.
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SUMMARY: This proposed rule would implement 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 certain
requirements, to designate public housing projects, or portions of
public housing projects, for occupancy by disabled families; elderly
families; or disabled families and elderly families.
This proposed rule would also amend 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 both elderly families and disabled families. The
regulations would continue to provide for preference for disabled
families and elderly families in public housing projects that house a
population of disabled families and elderly families. However, certain
amendments would be 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.
DATES: Comment due date: March 8, 1994.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Office of General Counsel, Rules Docket
Clerk, room 10276, Department of Housing and Urban Development, 451
Seventh Street, SW., Washington, DC 20410. Communications should refer
to the above docket number and title. A copy of each communication
submitted will be available for public inspection and copying on
weekdays between 7:30 a.m. and 5:30 p.m. at the above address.
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. Paperwork Reduction Act Statement
The information collection requirements contained in this proposed
rule have been submitted to the Office of Management and Budget for
review under the Paperwork Reduction Act of 1980. No person may be
subjected to a penalty for failure to comply with these information
collection requirements until the requirements have been approved and
assigned an OMB control number. The OMB control number, when assigned,
will be announced by separate notice in the Federal Register. The
public reporting burden for the collection of information requirements
contained in this proposed rule is estimated to include the time for
reviewing the instructions, searching existing data sources, gathering
and maintaining the data needed, and completing and reviewing the
collection of information.
Information on the estimated public reporting burden is provided
under the preamble heading, Other Matters. Send comments regarding this
burden estimate or any other aspect of this collection of information,
including suggestions for reducing this burden, to the Department of
Housing and Urban Development, Rules Docket Clerk, 451 Seventh Street,
SW., room 10276, Washington, DC 20410; and to the Office of Information
and Regulatory Affairs, Office of Management and Budget, New Executive
Office Building, room 3001, Washington, DC 20503, Attention: HUD Desk
Officer.
II. Overview of Section 622(a) of the 1992 Act
Section 622(a) of the Housing and Community Development Act of 1992
(Pub.L. 102-550, approved October 28, 1992) (the 1992 Act) 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) disabled families and
elderly families. (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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Section 7 provides for designation of public housing projects, or
portions of public housing projects (see section 7(a)(1)). Section 7
further provides that in determining priority for occupancy in
designated projects, a PHA may make units in the designated project
available only to the types of families for whom the project is
designated (see section 7(a)(2)).
Section 7(f) provides that a project may be designated following
HUD review and approval of the PHA's written plan for allocating its
housing resources among the various populations that it serves, and its
plan for securing additional housing resources sufficient to provide
housing assistance to not less than the number of non-elderly disabled
families that would have been housed by the PHA if occupancy in a
project, or portion thereof, was not restricted to certain families as
a result of a PHA's designation of a project. The information, at a
minimum, to be contained in the allocation plan, and which is listed in
section 7(f)(2), is information pertaining to current residents of the
project to be designated, the PHA's current housing inventory, families
on waiting lists, and future demand for particular types of housing.
Section 7(f)(4) establishes the criteria by which the Department will
approve or disapprove a PHA's allocation plan.
In connection with allocating its housing resources among the
various populations that it serves, section 7(d) provides that each PHA
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 PHA. (This ``title'' refers to title VI
of the 1992 Act--``Housing for Elderly Persons and Persons with
Disabilities.'') To meet such needs, section 7(d) provides that PHAs,
wherever practicable and in accordance with any allocation plan, may:
(1) Provide housing in which supportive services are provided,
facilitated, or coordinated, such as mixed housing, shared housing,
family housing, group homes, congregate housing and other housing as
the PHA considers appropriate; (2) carry out major reconstruction of
obsolete public housing projects and reconfiguration of public housing
dwelling units; and (3) provide tenant-based assistance under section
811(b)(1) of the National Affordable Housing Act (NAHA) (Pub. L. 101-
625, approved November 28, 1990; see 42 U.S.C. 8013).
With respect to projects to be designated for occupancy by disabled
families, section 7(e) requires the PHA to comply with all the
requirements of section 7 (which include submission of the allocation
plan) and to submit for HUD review and approval an ``application for
designated housing for disabled families.'' This application requires
the PHA to include a supportive services plan, which describes the
needs of the disabled families that the designated housing is expected
to serve, and provides for delivery of supportive services appropriate
to meet the disabled family's needs.
Section 7(f)(5) requires PHAs that receive permission to operate
designated housing to submit not less than once every two years, an
updated allocation plan, and describes the information that must be
included, at a minimum, in the updated plan. This information is
directed to helping the PHA and the Department determine whether the
initial data and projections provided in the allocation plan were
accurate.
Section 7 establishes certain requirements that must be followed in
the PHA's operation of designated housing. (See sections 7(a)(4), 7(b),
7(c) and 7(g).) These requirements address, among other things, such
issues as (1) tenant choice to live in designated projects; (2)
vacancies in designated projects (i.e., units that are vacant for more
than 60 consecutive days), and (3) prohibition against requiring
tenants (who are not members of the group for whom a project was
designated) to vacate designated housing.
III. Proposed Rule
This section of the preamble provides a summary of the proposed
organization and principal provisions of new part 945, and the proposed
conforming amendments that would be made to 24 part 960, subpart D.
Proposed Part 945--Designated Housing--PHA Housing Designated for
Occupancy by Disabled, Elderly, or Disabled and Elderly Families
New part 945 would be divided into three subparts: Subpart A--
General; Subpart B--Application and Approval Procedures; and Subpart
C--Operating Designated Housing.
Subpart A--General
Subpart A would set forth the purpose of part 945, and the general
policies applicable to the designated housing process. These general
policies include, among others, that designation of projects is limited
to PHAs, and ``projects'' eligible for designation are limited to
public housing projects.
Subpart A also would define the principal terms used in part 945.
Several terms proposed to be included in the definition section of
subpart A are those defined in section 621 of the 1992 Act, which
amended section 3(b) of the 1937 Act. Section 3(b) contains the
statutory definitions for certain terms used in the 1937 Act. Several
of the terms defined in section 621 are applicable to the designated
housing process, such as: ``family,'' ``elderly person,'' ``near-
elderly person,'' and ``person with disabilities.''
The definitions for ``family'' and ``elderly person'' and other
related terms (e.g., ``single person'') 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. (For example, the
definition of ``person with disabilities'' would replace two
definitions in part 912--``disabled person'' and ``handicapped
person.'') 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 proposed by this rule to be included in part 945).
If the part 912 final rule is published before the part 945 final rule,
the part 945 final rule, rather than define terms such as ``family,''
and ``elderly person,'' will list these terms in the part 945
definition section, and cross-reference to the definitions provided in
part 912. If the part 945 final rule is published before the part 912
final rule, the definition section of the part 945 will be amended at
the time of publication of the part 912 final rule to cross-reference
to the definitions provided 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. Additionally, by placing these definitions in one location,
it reduces the number of program regulations that must be amended to
reflect changes in these terms as a result of statutory amendments, or
administrative policy decisions.
Other terms defined in part 945 include ``housing,'' ``project,''
``portion of project,'' ``public housing,'' ``service provider,''
``supportive services,'' and ``public housing projects for disabled
families and elderly families.''
``Housing,'' and ``public housing'' would have the same meaning as
``project'' in part 945 to reflect the interchangeable use of these
terms in section 7. ``Project'' would be defined to mean low-income
housing developed, acquired or assisted by a PHA under the U.S. Housing
Act of 1937 (other than section 8) and for which there is an Annual
Contributions Contract (ACC) between HUD and the PHA.
The definition for ``project'' would provide that, unless otherwise
indicated in part 945, wherever the term ``project'' appears in part
945 it includes the plural, and also includes the term ``portion of a
project.'' Project is defined in this encompassing manner because a PHA
may request designation of one or more of the following: A single
project, one or more projects, a portion of a project, or portions of
several projects.
The term ``portion of a project'' would be defined to include a
building or buildings (in a multi-building project), a floor or floors
of a building or buildings, or a certain number of dwelling units in a
project or projects. The definition would clarify that designation of a
portion of a project does not require that the buildings, floors, or
units designated for occupancy by disabled families or elderly families
be contiguous. The buildings, floors, and units may be scattered
throughout PHA projects.
The definition for ``service provider'' would be modeled on the
definition provided for this term in the Congregate Housing Service
Program interim rule published in the Federal Register on December 8,
1992 (57 FR 58042).
With respect to ``public housing projects for disabled families and
elderly families,'' part 945 will include this term in its definition
section, and cross-reference to the definition provided in part 960,
subpart D. As will be discussed later in this preamble under the
proposed amendments to part 960, the term ``public housing project for
disabled families and elderly families'' will be defined to mean (1) a
public housing project or portion of a project that was reserved for
occupancy by disabled families and elderly families at its inception
(and has retained that character), or (2) although not so reserved at
its inception, a public housing project or portion of a project for
which the PHA has obtained HUD's approval to give preference in tenant
selection for all units in the project to disabled families and elderly
families. Subpart D currently uses the term ``designated'' and not
``reserved.'' However, to avoid confusion with the designated housing
process provided by new part 945, a process which requires the
submission of an allocation plan, HUD proposes to use the term
``reserved'' in connection with projects for which a PHA provides
preference for disabled families and elderly families in accordance
with part 960, subpart D.
Subpart B--Application and Approval Procedures
Subpart B would incorporate the requirements established by section
7 for obtaining HUD approval to designate public housing for occupancy
by disabled families or elderly families. Consistent with section 7,
subpart B would provide that to designate a public housing project for
occupancy by disabled families or elderly families, a PHA must submit
to HUD, and receive HUD approval of, the allocation plan required by
section 7(f).
The allocation plan would consist of the data required to be
included by section 7(f), and includes additional items added by the
Department, which items are consistent with the type of information
solicited under section 7(f). The information solicited by section 7(f)
is intended to help the PHA and HUD determine whether designation of a
project will (1) benefit the group for whom the project is proposed to
be designated, and (2) not adversely affect families who are not
members of the group for whom the project is to be designated.
In incorporating the statutory components of the allocation plan,
the Department has altered the statutory language of an information
item only where the Department considered further clarification or
elaboration was needed. The Department does not propose through this
rule to prescribe methods by which the PHA should calculate the number
of families, number of units, or the number of times housing assistance
may be denied or delayed to a family in order to arrive at the
information required to be included in the allocation plan. The
Department prefers to allow each PHA to rely on its own occupancy
policies and procedures (including procedures for maintaining waiting
lists) and other methods that may be derived by the PHA for producing
the information required to be included in the allocation plan.
* * * The Department, however, specifically requests comment from
PHAs on whether additional guidance is needed on how to determine one
or more of the information items required to be included in the
allocation plan.
The Department added to the allocation plan requirements the goals
or objectives which the PHA should strive to achieve in allocating its
housing resources among the population it serves. These goals or
objectives include the following.
First, the PHA should strive to provide, regardless of the
designation proposed to be made, as broad a range of housing choices
(with respect to types of housing, types of housing features (e.g.
accessible units for persons with disabilities) and accessible location
to social, commercial facilities, such as shopping markets) that would
be available to elderly families and disabled families if there was no
designation of projects in accordance with part 945.
Second, the PHA should strive to provide its disabled families with
the most integrated setting possible. Under the designated housing
process, the PHA only should seek to provide public housing that
separates families on the basis of disability when the types of
supportive services required by disabled families necessitate the
concentration of families in a single location (i.e., a building,
contiguous floors or units). An example of a supportive service that
may require the concentration of families in a single location is the
service of a live-in attendant, and to achieve efficiency in cost and
delivery of this service, several families may share the services of
this attendant.
The Department may disapprove an allocation plan which fails to
indicate that the PHA strived to (1) provide as broad a range of
housing choices that would have been available to elderly families and
disabled families if there had been no designation, or (2) provide its
disabled families with the most integrated setting possible.
In addition to the above two objectives, section 7 requires that
the allocation plan disclose the PHA's strategy for securing additional
housing resources that will be sufficient to provide housing assistance
to not less than the number of non-elderly disabled families that would
have been housed by the PHA if there was no designated project. The
proposed rule would provide, consistent with section 7(f)(2)(G) that
these resources must be owned or controlled by the PHA, or that the PHA
has received preliminary notification that it will obtain these
resources, or the PHA intends to apply for these resources. The
requirement to secure housing resources sufficient to address the
housing needs of the PHA's non-elderly disabled families who would have
been housed but for the designation of a project is not to be construed
as a requirement for one-for-one replacement of housing assistance.
Rather, this requirement is intended to ensure that persons with
disabilities not be under-served by the PHA that designates a project
for occupancy only by elderly families. The types of housing resources
available to the PHA, and the methods by which a PHA may obtain
additional housing resources include the following:
The PHA may utilize vacancies and turnover in other public housing
projects that are not designated and that are not intended to be
designated, as well as turnover in section 8 certificates and vouchers.
The PHA may provide local preferences for a specific number of non-
elderly disabled persons, in accordance with 24 CFR 960.211, for public
housing general occupancy projects, public housing projects for
disabled families and elderly families as provided in 24 CFR part 960,
subpart D, or for the section 8 certificate or voucher program. In
choosing this method, the PHA must demonstrate that the preference will
result in the desired increase in the number of non-elderly disabled
persons housed.
The PHA may provide for allocation of a certain number of public
housing units (existing or new) or section 8 certificates or vouchers,
which will be accompanied by a supportive services package. This may be
achieved by the PHA entering into an agreement with a supportive
service provider to make available a certain number of units in
exchange for the provider delivering supportive services to disabled
families. In accordance with the objective to maintain the most
integrated housing setting, public housing units allocated for this
purpose should not be contiguous, except where the type of supportive
services to be provided require that the families be concentrated in a
single location. The units or certificates or vouchers provided under
this method would be allocated to non-elderly disabled families in the
order of their application date on the waiting list. Clients of the
service provider delivering the supportive services would not be
provided these units, or certificates or vouchers, before other non-
elderly disabled families already on the PHA's waiting list who need
the supportive services being offered with this housing assistance.
Additionally, occupancy of these units may not be limited to members of
a particular disability group, but may be limited to persons who need
the available supportive services (as will be discussed later in this
preamble, projects designated for disabled families may not be
designated for occupancy only by persons with a specific disability).
This type of additional housing resource may be selected by a PHA that
has a population of non-elderly disabled families who would not
otherwise benefit from the housing without the supportive services.
The PHA may use modernization funds to reconfigure units and
buildings to appropriate sizes or uses for non-elderly disabled
families.
The PHA may designate projects, or portions of projects, for
occupancy by disabled families (note that projects designated for
occupancy by disabled families must have a supportive service plan).
The PHA may allocate to non-elderly disabled families the units
vacated in other PHA projects by elderly families who intend to
relocate to a project designated for occupancy by elderly families.
Consistent with section 7(d)(1), the PHA may utilize housing owned
or controlled by the PHA in which supportive services are provided,
facilitated, or coordinated, such as mixed housing, shared housing,
family housing, group homes, congregate housing, and other housing as
the PHA considers appropriate.
Consistent with section 7(d)(2), the PHA may use development funds
or funds for major reconstruction of obsolete public housing (MROP) to
provide housing for disabled families in accordance with section 624 of
the 1992 Act, which provides for development and reconstruction of
housing for disabled families from funds, which may be not less than
five percent, of funds reserved, respectively, for public housing
development and for MROP.
Consistent with section 7(d)(3), the PHA may provide tenant-based
assistance under the Supportive Housing for Persons with Disabilities
Program (section 811 of the NAHA).
Additionally, a PHA may use 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 the project which previously had been
uninhabitable.
The foregoing provides a few examples of ways in which PHAs may
secure additional housing resources for non-elderly disabled families.
* * * The Department specifically requests comment from PHAs on any
problems they may foresee with the above examples provided by the
Department, and suggestions for other methods by which PHAs may obtain
additional housing resources.
In securing additional housing resources, PHAs must take into
account the supportive service needs of disabled persons, especially
those persons with disabilities who require units with accessible
features. The PHA should be able to make this assessment on information
provided by its public housing waiting list, and from information
collected in the comprehensive housing affordability strategy (CHAS)
provided in accordance with section 105 of the NAHA. Consideration of
the accessibility needs of persons with disabilities is not a new
requirement proposed to be imposed on PHAs through this proposed rule.
The Department's regulations at 24 CFR part 8 implementing section 504
of the Rehabilitation Act of 1973 (29 U.S.C. 794) require PHAs to
assess, on a PHA-wide basis, the needs of current tenants and
applicants on its waiting list for accessible units. In reiterating
this requirement in this proposed rule, the Department seeks to ensure
that PHAs will not reduce the availability of accessible units that
would have been allocated to persons with disabilities were it not for
the designation of a project as elderly-only.
In reviewing a PHA's strategy for addressing the current and future
housing needs of the families in the PHA's jurisdiction, HUD will
examine closely both the PHA's proposed allocation of its immediately
available housing resources (e.g., vacancies in projects, available
section 8 certificates or vouchers), and the PHA's plan to secure and
allocate additional housing resources that it owns or controls. HUD
will not approve an allocation plan that does not adequately provide
for the housing needs of (1) families who are members of the group for
whom a project was designated, (2) families who are not members of the
group for whom a project was designated, or (3) both of these groups.
In deciding how its housing resources will be allocated, the PHA should
strive to provide disabled families and elderly families with dwelling
units, whether in designated housing or non-designated housing, that
are comparable to units that would have been offered to them if there
were no designated project.
HUD also will not approve an allocation plan that reduces the
available current supply of housing for non-elderly disabled families,
and provides for increased housing for these families at some distant,
or indefinite, point in the future. For example, HUD will not approve
an allocation plan submitted by a PHA that has a percentage of non-
elderly disabled families on its waiting list that is two to three
times the percentage residing in public housing, and through which plan
the PHA (1) requests designation of an elderly-only project, and (2)
proposes, as its only additional housing resource for non-elderly
disabled families on its waiting list, a public housing project that
has yet to be built. Since development of public housing is a complex
and competitive process, such a proposal falls substantially short of
adequately addressing the housing needs of non-elderly disabled
families on a PHA's waiting list.
An approvable allocation plan is one that, given the housing
inventory of the PHA and the population it serves, provides its
disabled families and elderly families with as broad a range of housing
choice as possible, with respect to the level of supportive services
provided, the availability of accessible units, and integration with
other family groups (i.e., non-elderly families, non-disabled families,
and families with children).
Subpart B would not require a PHA to submit an allocation plan and
seek formal designation for public housing projects which currently
house a combination of disabled families and elderly families, or for a
project in which the PHA intends to house a combination of disabled
families and elderly families. The Department does not seek to impose
on PHAs the administrative burden of preparing an allocation plan for
providing housing to a combination of disabled families and elderly
families where no administrative burden of this type is currently
imposed on PHAs for this type of housing. (As will be discussed later
in this preamble, PHAs must, however, obtain approval for this type of
housing under 24 part 960, subpart D.) To require submission of an
allocation plan solely for the purpose that the PHA may provide,
continue to provide, or provide in the future, public housing projects
that house a combination of disabled families and elderly families may
discourage PHAs from continuing to provide this type of housing.
The proposed rule, however, would require that public housing
projects for disabled families and elderly families must obtain
designation as housing for disabled families and elderly families when
a PHA decides to submit an allocation plan for designation of a public
housing project, or portion thereof, for occupancy by disabled
families, or by elderly families. In its allocation plan, the PHA would
identify any public housing projects that house disabled families and
elderly families and that were approved as housing for these two types
of families in accordance with 24 CFR part 960, subpart D.
``Designation'' as housing for disabled families and elderly families
would be granted to these projects when designation is granted for the
PHA's proposed housing for disabled families or housing for elderly
families. If a PHA does not seek designation of housing for elderly
families or for disabled families, the PHA is not required to obtain
designation for its mixed housing of disabled families and elderly
families.
For designation of housing for occupancy by disabled families,
section 7(e) requires submission and approval of an ``application for
designated housing for disabled families'' in addition to the PHA
meeting the other requirements imposed by section 7, which requirements
include the submission of the allocation plan. The information required
by section 7(e) to be contained in this application largely focuses on
the PHA's supportive services plan. Section 7(e) requires that the PHA
describe the supportive service needs of the persons with disabilities
that the proposed designated project is expected to serve, and the
manner in which these services will be provided to the disabled
families; and identify the service provider who will provide the
supportive services to the designated housing population. (The service
provider is the person or entity licensed under applicable State or
local law to provide the supportive services for the designated housing
population.)
The application for designated housing for disabled families should
not be construed to mean, and subpart B would clarify that it does not
mean, that PHAs only may provide supportive services to disabled
families occupying designated projects for disabled families. As
discussed earlier in Section II of this preamble, section 7(d) provides
that PHAs shall meet, to the extent practicable, the housing and
supportive service needs of eligible families applying for assistance
under this title. Since eligible families applying for assistance under
title VI of the 1992 Act include elderly families, the regulation
encourages PHAs to provide supportive services to projects designated
for occupancy by elderly families, and by disabled families and elderly
families, in addition to providing supportive services to those
projects designated for occupancy by disabled families. The Department
recognizes that PHAs have been providing supportive services to elderly
families occupying public housing. A supportive services plan is not
necessary to continue the delivery of these services to elderly
families, or to initiate the delivery of supportive services to elderly
families occupying designated housing for elderly families.
In designating a project (or portion thereof) for occupancy by
disabled families, a PHA may not designate the project for occupancy by
persons who have a specific disability. For example, PHAs may not
designate a project for occupancy only by persons who have
developmental disabilities, or by persons with HIV disease. PHAs may
limit access to a designated project to only those persons who need the
types of services that are being provided.
In addition to listing the information required to be contained in
the allocation plan and in the application for designated housing for
disabled families, subpart B would list the information to be included
in the PHA's updated allocation plan. Consistent with section 7,
subpart B requires each PHA that owns or operates a designated housing
project to update its allocation plan not less than once every two
years. The updated allocation plan allows HUD to determine whether the
projections made by the PHA (e.g., with respect to occupancy in the
designated housing project, availability of housing for families who
are not members of the group for whom the project was designated) were
accurate.
Subpart B also would specify the criteria governing approval of
these documents, and the procedures applicable to the submission of
these documents to HUD, and notification of approval or disapproval by
HUD.
* * * The Department specifically invites PHAs and other interested
members of the public to comment on the requirements of the allocation
plan and of the application for designated housing for disabled
families, and to offer any suggestions on how these requirements may be
revised in a way that will facilitate the production of this
information by the PHA without, however, forfeiting any information
that is necessary to accurately assess the impact of designated housing
on the families served by the PHA. As noted earlier in this preamble,
the purpose of the information required to be submitted in subpart B is
to assist the PHA and the Department in assessing the advantages and
disadvantages, if any, of designated housing. Therefore, in commenting
on the requirements of subpart B, the Department requests the
commenters to be mindful of this purpose, and of those requirements
that are statutorily imposed.
Subpart C--Operating Designated Housing
Subpart C would require designated projects to be operated in
conformity with all applicable public housing regulations and
requirements, including compliance with nondiscrimination and
accessibility requirements and regulations. Subpart C also would
incorporate the special admission and occupancy requirements imposed by
section 7.
The special admission and occupancy requirements applicable to
designated housing include, among others, that in determining priority
for admission to occupancy in projects that have been designated in
accordance with the procedures established in section 7, the PHA may
make units in such projects available only to the types of families for
whom the project is designated. For designated projects for elderly
families, section 7 permits PHAs to make units available to near-
elderly families if there are an insufficient number of elderly
families to fill all the units in a designated project.
The special admission and occupancy requirements applicable to
designated housing also include a provision that, notwithstanding the
authority to make units in a designated project available only to the
types of families for whom the project is designated, the PHA shall
make any dwelling unit that is ready for occupancy in such a project
and that has been vacant for more than 60 consecutive days generally
available for occupancy without regard to the types of families for
whom the project was designated.
Compliance with Nondiscrimination and Accessibility Requirements in
the Designated Housing Process.
With respect to compliance with nondiscrimination and accessibility
requirements, the proposed rule would provide that the approval to
operate a designated project does not relieve a PHA of its obligations
to comply with the Fair Housing Act (42 U.S.C. 3601-3619) and with
section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). While a
PHA may designate a project or portion thereof for occupancy solely by
disabled families and/or elderly families, in accordance with the
procedures of part 945, the PHA also must administer the designated
project, as well as its additional housing resources, in a manner that
does not violate either section 504 or the Fair Housing Act.
An example of application of the Fair Housing Act requirements is
as follows. A person with a disability who is residing in a project
designated for occupancy by disabled families requires an accommodation
in service that differs from the supportive services provided to the
designated project. If it is determined that the accommodation (1) may
be necessary to afford the individual equal opportunity for the use and
enjoyment of a dwelling unit or public and common use areas, and (2) is
reasonable (i.e., a reasonable accommodation), the accommodation must
be provided by the PHA in accordance with the requirements of the Fair
Housing Act. Alternatively, if a person with a disability requires a
reasonable accommodation and has been offered, but has declined, to
live in a designated project where supportive services are provided,
the PHA must provide the reasonable accommodation, even if the
accommodation is identical or similar to the services provided in the
designated project.
An example of the application of section 504 requirements is as
follows. A PHA designates a certain number of units scattered within a
public housing project for occupancy by persons with disabilities, some
of whom are in need of various features of accessible design within the
dwelling units and premises, and all of whom are in need of a range of
regularly provided supportive services, such as meal services,
transportation, nonmedical counseling, and assistance with housekeeping
and other chores. The PHA cannot require a person who uses a wheelchair
to live in the designated project. Section 504 requires, to the maximum
extent feasible, and subject to reasonable health and safety
requirements, that accessible dwelling units be made available
throughout the PHA's projects, and in a range of sizes and amenities.
Section 504 also requires housing adjustments when such adjustments to
policies and practices do not change the basic nature of the program,
or result in undue financial and administrative burdens. Section 504
also requires PHAs to operate each existing housing program or activity
receiving Federal financial assistance so that the program or activity,
when viewed in its entirety, is readily accessible to and usable by
individuals with disabilities. Providing the person who uses a
wheelchair with an accessible unit (other than a unit in the designated
project) that accommodates the individual's needs would comply with the
requirements of section 504. Further, it should be noted that section
7(b)(1) provides that the decision of any disabled family not to accept
occupancy in an appropriate type of project shall not adversely affect
the family's opportunities to be offered other appropriate housing
assistance.
In addition to compliance with the Fair Housing Act and section 504
requirements, the Department has determined that title II of the
Americans with Disabilities Act (ADA) (42 U.S.C. 12101-12165) applies
to all PHAs, regardless of their source of funding. Title II of the ADA
(``Public Services'') applies to any program, service, or activity
provided or made available by States and local governments or any
department, agency, special purpose district or other instrumentality
of a State or local government. (The Department will be publishing
guidance for PHAs with respect to title II of the ADA in the near
future.)2
---------------------------------------------------------------------------
\2\The Department notes that title III of the ADA (Public
Accommodations and Services Operated by Private Entities) may apply
to PHAs in certain situations. Although title III pertains to
private entities, and not public entities (which include PHAs), the
applicability of title III to PHAs may arise in the designated
housing process in connection with housing at which certain
activities are conducted that would cause the housing to be
classified as a ``place of accommodation'' under title III. PHAs are
encouraged to obtain further information from the Department of
Justice about the possible applicability of title III.
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IV. Proposed Amendments to Part 960, Subpart D
Subpart D of part 960, titled ``Preference for Elderly Families and
Discretionary Preference for Near Elderly Families in Public Housing
Projects for the Elderly,'' establishes a preference for elderly
families and disabled families in ``public housing projects for the
elderly.'' Under existing subpart D, the term ``elderly family'' is
defined to include ``disabled family,'' and although subpart D is
titled ``preference for elderly families,'' subpart D in fact
establishes a preference for elderly families and disabled families in
projects that house a combination of elderly families and disabled
families. Subpart D also permits a PHA to give preference to near-
elderly families for admission to public housing projects for elderly
families and disabled families when the PHA determines, in accordance
with Sec. 960.407 (Selection Preference), that there are not enough
elderly families and disabled families to fill all the units in the
project that are currently vacant, or that are expected to be vacant in
the next 12 months.
Existing subpart D provides that a public housing project, or
portion of a project, acquires the identity of a public housing project
that is reserved for occupancy by elderly (and disabled) families if
the project (1) was ``designated for occupancy by the elderly at its
inception (and has retained that character),'' or (2) ``although not so
designated, for which the PHA gives preference in tenant selection
(with HUD approval) for all units in the project (or for a portion of
units in the project) to elderly families.''
Because section 621 of the 1992 Act distinguishes between elderly
families and disabled families, and because section 622 provides for a
``designated housing process,'' changes are required to be made to
subpart D. This proposed rule would amend subpart D to clarify that the
preference established by subpart D for elderly families for admission
to ``public housing projects for elderly families'' is a preference for
elderly families and disabled families, and that projects for elderly
families are projects for elderly families and disabled families.
Accordingly, subpart D would be retitled ``Preference for Disabled
Families and Elderly Families in Public Housing Projects for Elderly
Families and Disabled Families.''
As noted earlier in this preamble, a public housing project for
disabled families and elderly families is a public housing project, or
portion of a project, that was reserved for occupancy by disabled
families and elderly families at its inception (and has retained that
character), or although it 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 to disabled families and elderly families.
As also noted earlier in this preamble, although subpart D uses the
term ``designated'' and not ``reserved'' HUD proposes to use
``reserved'' in connection with the preference process provided by
subpart D to avoid confusion with ``designated housing process''
provided by new part 945. Additionally, to date, the public housing
projects for disabled families and elderly families provided in
accordance with subpart D have not established a limit on the number or
percentage of disabled families that may be admitted to these projects.
Subpart D, as proposed to be revised by this rule, would continue
this practice, and would not establish a limitation or cap on the
number of disabled families that may be admitted to these projects, but
would clarify that the absence of such a limitation is a condition for
approval to operate public housing reserved for occupancy by disabled
families and elderly families. For example, approval to operate a
public housing project for disabled families and elderly families would
not be granted or would be withdrawn if the PHA establishes a policy of
admitting disabled families to only 10 percent of the units with the
remaining 90 percent of the units reserved for elderly families.
The discretionary preference which subpart D currently provides for
near-elderly families in public housing projects for elderly families
(as this term is used in existing subpart D) would be removed. The
discretionary preference for near-elderly families would be limited to
admission to housing designated for occupancy by elderly families under
part 945, in accordance with the requirements of amended section 7,
which imposes such limit.
The amendments that would be made to part 960, subpart D, would
provide for the definitions of ``family'' and related terms to cross-
reference to the definitions for these terms provided in part 945.
Again, however, if the part 912 final rule is published before the part
945 final rule, then subpart D would provide for a cross-reference to
the definition section in part 912.
V. Submission of Allocation Plans in Advance of Final Rulemaking
Allocation plans submitted to HUD before final rulemaking is
completed will be required to comply with the final regulations.
VI. Other Matters
Environmental Impact
A Finding of No Significant Impact with respect to the environment
has been made in accordance with HUD regulations at 24 CFR part 50,
which implements section 102(2)(c) of the National Environmental Policy
Act of 1969 (NEPA). This Finding of No Significant Impact 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 proposed rule was reviewed by the Office of Management and
Budget under Executive Order 12866 as a significant regulatory action.
Impact on Small Entities
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this proposed rule before publication and
by approving it certifies that the proposed rule will not have a
significant impact on a substantial number of small entities. The
proposed rule would establish 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 proposed rule would incorporate 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 proposed rule.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this proposed rule would
not have potential for significant impact on family formation,
maintenance, and general well-being within the meaning of the order.
This proposed rule would implement 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
proposed rule, however, would provide 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 proposed to be 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 proposed
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 proposed rule 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 proposed 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 12866 and the
Regulatory Flexibility Act.
Public Reporting Burden
The information collection requirements contained in this proposed
rule have been submitted to the Office of Management and Budget for
approval under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501-
3520). The following provisions of the proposed rule have been
determined by the Department to contain collection of information
requirements:
----------------------------------------------------------------------------------------------------------------
Number of
Reference Number of responses Hours per Total
Information collection requirement in proposed respondents per response hours\1\
rule respondent
----------------------------------------------------------------------------------------------------------------
Allocation plan................................ Sec. 945.20
3 795 1 20 15,900
Application for designated housing for disabled
families...................................... Sec. 945.20
5 80 1 30 2,400
----------------------------------------------------------------
Total burden hours......................... ........... ........... ........... ........... 18,300
----------------------------------------------------------------------------------------------------------------
\1\There is no annual submission requirement. A PHA may submit an allocation plan or application for designated
housing anytime the PHA seeks to designate a housing project for occupancy by disabled families or elderly
families. Additionally, a PHA may seek designation of more than one project in one allocation plan or one
application.
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, chapter IX of title 24 of the Code of Federal
Regulations would be amended as follows:
1. A new part 945, consisting of Secs. 945.101 through 945.303,
would be 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 Application for 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 and 3535(d).
Subpart A--General
Sec. 945.101 Purpose.
The purpose of this part is to implement the designated housing
process established 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
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, elderly, or disabled 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 which they
own, control, or have received preliminary notification that they will
obtain (e.g., section 8 certificates and vouchers). PHAs also may
utilize any housing facilities which they own or control and 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 public housing projects for disabled families and
elderly families. Except as provided in Sec. 945.201, a PHA which seeks
to house all of its disabled families and elderly families in public
housing projects that have been reserved for occupancy by both disabled
families and elderly families is not required to meet the designation
requirements of this part, but is required to meet the requirements of
24 CFR part 960, subpart D.
(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.
(d) Supportive services. The requirement in Sec. 945.205 to submit
a supportive services plan for approval to designate housing for
disabled families shall not be construed to mean that PHAs only may
provide supportive services to disabled families occupying designated
housing for disabled families. In accordance with section 7(d) of the
Act, PHAs should seek to provide supportive services to all families
occupying designated housing which need such services.
Sec. 945.105 Definitions.
As used in this part:
Act means the United States Housing Act of 1937 (42 U.S.C. 1437-
1440).
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).
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 for occupancy by
either disabled families, elderly families, or disabled families and
elderly families, in accordance with the requirements of this part.
Disabled families means families whose heads (or their spouses), or
whose sole members are persons with disabilities. The term ``disabled
families'' includes a person with disabilities, 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.
Elderly families means families whose heads (or their spouses), or
whose sole members are elderly persons. The term ``elderly families''
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.
Elderly person means a person who is at least 62 years of age.
Families includes but is not limited to a single person (as defined
in 24 CFR part 912), one or more single persons, a displaced person (as
defined in 24 CFR part 912), disabled families, elderly families, near-
elderly families, and families with children.
FY means Federal Fiscal Year (starting with October 1, and ending
September 30, and designated by the calendar year in which it ends).
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 its Regional and Field Offices to which authority
has been delegated to perform functions under this part.
NAHA means the National Affordable Housing Act (Pub. L. 101-625,
approved November 28, 1990).
Near-elderly families means families whose heads (or their
spouses), or whose sole members are near-elderly persons. The term
``near-elderly families'' 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.
Near-elderly person means a person who is at least 50 years of age
but below the age of 62.
Person with disabilities means a person who:
(1) Has a disability as defined in section 223 of the Social
Security Act (42 U.S.C. 423); or
(2) Is determined, pursuant to regulations issued by the Secretary,
to have a physical, mental, or emotional impairment which:
(i) Is expected to be of long-continued and indefinite duration,
(ii) Substantially impedes his or her ability to live
independently, and
(iii) Is of such a nature that such ability could be improved by
more suitable housing conditions, or
(3) 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'' shall 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 but is not limited to: 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 for 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 means any State, county, municipality
or other governmental entity or public body (or agency or
instrumentality thereof) which is authorized to engage in or assist in
the development or operation of low-income housing.
Public housing project for disabled families and elderly families.
See definition in 24 CFR part 960, subpart D.
Secretary means the Secretary of Housing and Urban Development.
Service provider means a person or organization licensed or
otherwise approved in writing by a State or local agency (e.g.,
Department of Health, Department of Human Services or Welfare) to
provide supportive services. The service provider may provide the
service on either a for-profit or not-for-profit basis.
Single person includes a person who lives alone or intends to live
alone, and includes an elderly person, a disabled person, a displaced
person, and the remaining member of a tenant family.
Supportive service plan. See Sec. 945.205.
Supportive services means services designed to meet the special
needs of tenants, and may include 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 application, which includes a supportive service
plan, as required by Sec. 945.205.
(c) Designated housing for disabled families and elderly families.
(1) A PHA which seeks to provide a project for occupancy by only
disabled families and elderly families is not required to meet the
requirements of this part, but is required to meet the requirements of
24 CFR part 960, subpart D.
(2) Designation of a project that already has been approved for
occupancy by disabled families and elderly families under 24 CFR part
960, subpart D is not necessary unless a PHA seeks to provide
designated housing for disabled families or designated housing for
elderly families.
(3) A PHA which seeks to provide designated housing for disabled
families or designated housing for elderly families must identify in
its allocation plan, in accordance with Sec. 945.203(6), any public
housing projects that have been reserved for occupancy by disabled
families and elderly families under 24 CFR part 960, subpart D.
Designation of projects approved under 24 CFR part 960, subpart D, as
designated housing for disabled families and elderly families will be
made automatically upon HUD's approval of:
(i) The PHA's allocation plan, in the case of designated housing
for elderly families; and
(ii) The PHA's allocation plan and application, in the case of
designated housing for disabled families.
Sec. 945.203 Allocation Plan.
(a) General. (1) Applicable terminology. 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. As provided in
Sec. 945.105, the term ``project'' includes the plural (``projects'')
and includes a portion of a project.
(2) Allocation of housing resources. The PHA, in developing a plan
to allocate its housing resources among the population it serves:
(i) Should strive to provide, regardless of the designation
proposed 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 the availability of accessible units;
(ii) Should strive to provide, regardless of the designation
proposed to be made, housing for disabled families in the most
integrated setting possible (designated units need not be contiguous);
(iii) For designated housing for disabled families, may make units
available in conjunction with a specific package of services (such
units may not be limited to persons with a specific disability, but
rather must be made available to all disabled persons who need the
types of services that are being offered).
(b) Consultation in plan development. In preparing the initial
allocation plan, or any update of the allocation plan as provided in
paragraph (f) of this section, the PHA shall consult with:
(1) The State or unit of general local government in whose
jurisdiction the area served by the PHA is located;
(2) Public and private service providers;
(3) Advocates for the interests of disabled families, elderly
families, and families with children;
(4) Representatives of the residents of the PHA's projects,
including representatives from resident councils or resident management
corporations where they exist; and
(5) Other interested parties, including management and residents of
independent living centers, congregate housing and group homes.
(c) Contents of initial plan. The initial allocation plan shall
contain, at a minimum, the information set forth in paragraph (c) of
this section:
(1) Identification of the project to be designated and type of
designation to be made. The first item to be addressed in the
allocation plan is identification of the project to be designated and
the type of designation to be made. The PHA must describe the building
or buildings, floor or floors or units which will comprise the
``designated project'' and their location in the PHA's jurisdiction.
(In providing the identification or location of floors or units to be
designated, the PHA need not identify the precise floors or units to be
designated (e.g., units 202-208, but should identify the projects in
which the designated floors or units are located. The floors or units
need not be contiguous.) The PHA also must state the type of
designation to be made (i.e., housing for disabled families or housing
for elderly families) and the reasons for designation. In discussing
the reasons for the designation, the PHA may refer to data that will be
provided in other parts of the allocation plan.
(2) Identification of groups and persons consulted and comments
submitted. This component of the plan documents that the PHA's proposal
to designate housing under this part was based on consideration of
comments, suggestions and recommendations of all interested parties.
This component of the plan 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 (these comments, and transcripts of any
meetings that may have been held on the PHA's proposal to designate a
project, must be maintained for a period of five years from the date of
submission of the allocation plan, and must be available for review by
HUD, if HUD requests review); and
(iii) Describe how the plan addresses these comments.
(3) Profile of proposed designated project in its pre-designation
state. This component of the plan provides information on the project
proposed to be designated as the project exists and operates in its
pre-designation stage. This component of the plan must include:
(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 of
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 for the project; and
(B) The Comprehensive Housing Affordability Strategy (CHAS) for the
jurisdiction within which the area served by the PHA is located;
(iii) If the project is proposed to be designated as housing for
elderly families, an estimate of the number of potential tenants who
are non-elderly disabled families based on the same sources of
information provided in paragraphs (c)(3)(ii) (A) and (B) of this
section.
(iv) 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) The CHAS for the jurisdiction within which the area served by
the PHA is located;
(v) The number of units in the project which became vacant and
available for occupancy during the year preceding the date of
submission of the allocation plan to HUD;
(vi) 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;
(vii) An estimate of the number of 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.
(viii) An estimate of the average length of time all applicants
currently have to wait for a dwelling unit in the project.
(4) Projected profile of project in designated stage. This
component of the plan provides information on projected or anticipated
changes of the information provided in paragraph (c)(3) of this section
as a result of designation of the project. This component of the plan
must:
(i) Discuss the advantages and disadvantages that the choice of
designation is expected to have on families who are members of the
group for whom the project is to be designated for occupancy, and
families who are not members of the group for whom the project is to be
designated;
(ii) Identify the source of selection of families for the
designated project (e.g., from current residents of the project,
families currently on the waiting list for the project, residents of
other projects, and potential tenants for the project based on
information provided by the CHAS);
(iii) For projects proposed to be designated for occupancy by
elderly families, provide an estimate of the number of near-elderly
families who may be needed to fill units in the designated project for
elderly families, as provided in Sec. 945.303(c);
(iv) Describe how the PHA will document:
(A) The number of families who are members of the designated group
who will be denied or delayed housing because of a lack of a sufficient
number of designated units; and
(B) The number of families who are not members of the designated
group who will be denied or delayed housing because of an insufficient
number of non-designated units as a result of the designation;
(v) Provide an estimate of the average length of time all
applicants will have to wait for a dwelling unit as a result of
designation of a project (i.e., this information should be given both
for applicants who are members of the group for whom the project is to
be designated, and for applicants who are not members of the group for
whom the group to be designated).
(5) PHA occupancy policies and procedures. This component of the
plan provides information on the PHA's existing occupancy policies and
procedures, and how these policies and procedures may need to be
altered for purposes of operating designating housing. This component
of the plan must:
(i) Contain a description of the PHA's HUD-Approved Tenant
Selection and Assignment Plan, admission policies and procedures,
including:
(A) How these policies and procedures apply to disabled families
and elderly families, especially the preference system and the transfer
policy;
(B) How the waiting list is maintained; and
(C) How dwelling units are assigned;
(ii) Describe any changes the PHA intends to make in its admission
policies to accommodate the designation.
(6) Strategy for addressing the current and future housing needs of
the families in the PHA's jurisdiction. This component of the plan
describes the PHA's strategy for meeting the current and future housing
needs of the families in the PHA's jurisdiction. This component of the
plan must:
(i) Identify any ``public housing projects for disabled families
and elderly families,'' planned or in existence, as provided in 24 CFR
part 960, subpart D;
(ii) Describe the steps to be taken by the PHA to ensure that
disabled families (if a project is to be designated for occupancy by
elderly families) or elderly families (if a project is to be designated
for occupancy by disabled families) maintain access to services and
housing facilities similar to those that otherwise would have been
available to them if the project had not been designated, and a
description of the housing choices currently available, and anticipated
to be available to these families;
(iii) Describe the steps to be taken by the PHA to replace any
accessible units (accessible to persons with varying types of
disabilities) that will be unavailable (as a result of the designation
of a project that contained such units) to families who need accessible
units;
(iv) In the case of designation of a project for elderly families,
identify the additional housing resources which 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, and the PHA's plan for securing these additional
housing resources (one-for-one replacement is not required). These
additional housing resources may include but are not limited to:
(A) Providing local preferences for a specific number of non-
elderly disabled persons for general occupancy projects in accordance
with the preference provisions of 24 CFR 960.211; for public housing
projects for disabled families and elderly families, 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;
(B) 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 on the PHA's waiting list.
(C) Use of modernization funds to reconfigure units and buildings
to appropriate sizes or uses for non-elderly disabled families;
(D) Designation of projects for occupancy only by disabled families
(projects designated for occupancy by disabled families must have a
supportive services plan in accordance with the requirements of
Sec. 945.205);
(E) Allocation to non-elderly disabled families those 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;
(F) Use of public housing development funds, or funds appropriated
for major reconstruction of obsolete public housing to provide housing
for disabled families;
(G) 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.
(v) Describe any incentives that the PHA intends to offer:
(A) To families who are members of the group for whom a project was
designated for occupancy to achieve voluntary transfers to the
designated project; and
(B) To families who are not members of the group for whom a project
was designated for occupancy to achieve voluntary transfers from the
project proposed to be designated;
(vi) Summarize how the PHA's allocation plan strives to meet the
objectives described in paragraph (a)(2) of this section.
(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 excessive vacancy
rates in the project identified in paragraph (c)(1) of this section;
(3) Implementation of the plan will not result in excessive denial
or delay in housing assistance to families on the PHA's waiting list;
(4) The plan for securing sufficient additional housing resources
for non-elderly disabled persons, as provided under paragraph (c)(6) of
this section, 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, which meets the
requirements and contains the information required by paragraphs (b)
through (d) of this section, 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 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.
(2) Failure to submit updated plan. Failure by the PHA to submit
the updated plan as required by paragraph (f) of this section shall
result in the PHA's designated housing losing its 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) A review of the data and projections contained in the
allocation plan, and the most recent update of the data and
projections;
(ii) An assessment of the accuracy of the projections contained in
the initial allocation plan and in the updated allocation plan;
(iii) The number of times a vacancy was filled in accordance with
Sec. 945.303(d);
(iv) The number of times an application for housing assistance by a
disabled family or elderly family was denied or delayed because of a
lack of appropriately designated units;
(v) The number of times an application for housing assistance by
any family type (disabled, elderly, non-elderly, non-disabled, families
with children, etc.) was denied or delayed because of a lack of an
appropriate number of non-designated units;
(vi) A plan for adjusting the allocation of designated units, if
necessary. This adjustment or reallocation plan shall reflect:
(A) the use of and demand for the designated and non-designated
dwelling units, as revealed by the information submitted as part of the
updated allocation plan; and
(B) An assessment of the availability and adequacy of the
supportive services; and
(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, and where HUD considers appropriate or necessary, 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 Sec. 945.203(e);
(ii) If a PHA's updated plan is not approved, existing projects
that have been designated for occupancy by disabled families or elderly
families will revert to their project type before designation. New
projects (for which there was no previous project type) designated for
occupancy by disabled families or elderly families, will be considered
general occupancy projects. PHAs may request that an existing or new
project which lost its designation as a result of disapproval of the
updated plan be approved as a public housing project for disabled
families and elderly families in accordance with 24 CFR part 960,
subpart D.
(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.
Sec. 945.205 Application for designated housing for disabled families.
(a) General. To designate a project for occupancy by disabled
families, a PHA must submit an application, which shall consist of the
allocation plan required by Sec. 945.203, and the supportive service
plan described in paragraph (b) of this section. A project may not be
designated for occupancy by persons with a specific disability. A PHA,
however, may limit access to a designated project for disabled families
to only those persons who need the types of services that are being
offered.
(b) Supportive service plan. The supportive service plan shall
describe how the PHA will provide or arrange for the provision of
supportive services appropriate to meet the needs of the disabled
families who will occupy the designated housing. The supportive service
plan, at a minimum, must:
(1) Identify the number of disabled families that will need
supportive services;
(2) Describe the types of supportive services that will be needed,
and, where known, the length of time the supportive services will be
needed;
(3) Identify the service provider, and describe the experience of
the service provider in providing supportive services;
(4) Describe the manner in which the supportive services will be
provided to the disabled families that the designated housing is
expected to serve (the manner in which the services will be provided
depends upon the type of service offered; e.g., if the package includes
transportation assistance, how will transportation assistance be
provided to disabled families);
(5) If applicable, explain why the supportive services to be
provided require that the disabled families to be served live in
contiguous units;
(6) Identify all sources of funding available to the PHA (State,
local, other Federal, or private funding) for providing supportive
services to residents of the proposed designated housing, or the
supportive service resources to be provided in lieu of funding;
(7) Submit evidence of the commitment(s) provided to the PHA by
these sources to make the funds, or the delivery of supportive services
available to the PHA for at least two calendar years, and evidence of a
general ongoing commitment from these or other sources to continue to
provide funding or supportive services relevant to the needs of the
families that the designated housing is expected to serve;
(8) 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 from the date of submission of the application, and be
available for review by HUD, if HUD requests review of the comments);
(9) If applicable, address the ability to provide residential
supervision of disabled families (on-site supervision within the
designated housing);
(10) Include any other information which the PHA determines would
assist HUD in assessing the suitability of the PHA's supportive service
plan; and
(11) Include any additional information which HUD may request, and
which is appropriate to a determination of the suitability of the
supportive services plan.
(c) Approval. HUD shall approve an application for designated
housing for disabled families if the allocation plan meets the
requirements of Sec. 945.203, and if HUD determines on the basis of the
information provided in the supportive services plan that:
(1) The persons with disabilities who will occupy the designated
project will receive supportive services based on their individual
needs;
(2) The supportive services are adequately designed to meet the
special needs of the disabled families;
(3) The service provider has sufficient experience in providing
supportive services (i.e., the service provider currently administers
or has past experience administering an effective supportive service
delivery program for persons with disabilities, or has demonstrated
capability to obtain expertise based on other supportive service
program delivery experience;
(4) Residential supervision will be provided in the designated
housing sufficient to facilitate the provision of supportive services,
if necessary. (If residential supervision is to be provided, the
supportive plan includes written commitments from the providers of
supportive services to provide appropriate resident supervision);
(5) Written commitment(s) of support from organizations and
entities appear to be sufficient to provide, or fund the cost of
providing, the supportive services needed by the disabled families that
are expected to occupy the designated housing.
Subpart C--Operating Designated Housing
Sec. 945.301 General requirements.
Designated projects shall be operated 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),
which 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 paragraphs (c)
and (d) of this section, in determining priority for admission to
designated housing, the PHA shall make units in the designated housing
available only to the category of families for whom the project has
been designated for occupancy.
(b) Compliance with preference regulations. Among the category of
families for whom a project has been designated for occupancy, the PHA
shall give preference for occupancy in accordance with the occupancy
preferences set forth in 24 CFR part 960, subpart B.
(c) Eligibility of near-elderly families for designated housing for
the elderly. If a PHA determines that there are insufficient numbers of
elderly families to fill all the units in a project designated for
occupancy by elderly families, the PHA may, in accordance with an
approved allocation plan, provide that near-elderly families, who
qualify for preferences for occupancy under 24 CFR part 960, subpart B,
may occupy dwelling units in the project. If there are insufficient
numbers of near-elderly families to fill all the units in a project
designated for elderly families, the provisions of paragraph (d) of
this section shall apply.
(d) Vacancies in designated housing. Notwithstanding the authority
provided by this part to designate housing for occupancy by disabled
families, elderly families, or disabled families and elderly families,
a PHA shall make available to families, other than the category of
families for whom occupancy in the project has been designated, any
dwelling unit in the designated housing that is:
(1) Ready for re-rental and for a new lease to take effect; and
(2) Vacant for more than 60 consecutive days.
(e) Tenant choice of housing. (1) Subject to paragraph (e)(2) of
this section, the decision of any disabled family or elderly family not
to occupy or accept occupancy in designated housing shall not adversely
affect:
(i) The family's right to continued occupancy in public housing; or
(ii) The family's admission to public housing; or
(iii) The family's place on a public housing waiting list or the
family's placement on a public housing waiting list.
(2) The protection provided by paragraph (e)(1) of this section
shall not apply to any family whose refusal to occupy or accept
occupancy in designated housing is based on the race, color, religion,
sex, disability, familial status, or national origin of the occupants
of the designated housing or the surrounding area. The protection
provided by paragraph (e)(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 a
designated project for disabled families, and requests occupancy in a
general occupancy project or a project that houses both disabled
families and elderly families.
(f) Appropriateness of dwelling unit to family size. This part may
not be construed to require a PHA to offer occupancy in a designated
housing dwelling unit 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.
(g) 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.
(h) Reserved.
(i) 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.
(j) Availability of grievance procedures in 24 CFR part 966. The
grievance procedures in 24 CFR part 966, subpart B, are applicable to
this part.
PART 960--ADMISSION TO, AND OCCUPANCY OF, PUBLIC HOUSING
2. The authority citation for part 960 would continue to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437d, 1437n, 3535(d).
3. The heading of subpart D would be revised, Sec. 960.409 would be
removed, and Secs. 960.401, 960.403, 960.405, and 960.407 would be
revised to read as follows:
Subpart D--Preference for Disabled Families and Elderly Families in
Public Housing Projects for Disabled Families and Elderly Families
Sec.
960.401 Purpose.
960.403 Applicability.
960.405 Definitions.
960.407 Selection preference; other preferences; single person
occupancy.
Sec. 960.401 Purpose.
This subpart establishes a preference for disabled families and
elderly families for admission to public housing projects for disabled
families and elderly families, as defined in Sec. 960.405.
Sec. 960.403 Applicability.
This subpart applies to all dwelling units in public housing
projects, or portions of public housing projects, for disabled families
and elderly families assisted under the U.S. Housing Act of 1937. 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 occupancy by disabled families or elderly 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.
Public housing project for disabled families and elderly families
means a public housing project, or portion of a project, that was
reserved for occupancy by disabled families and elderly families at its
inception (and has retained that character), or although it 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 to disabled
families and elderly families.
Sec. 960.407 Selection preference; other preferences; single person
occupancy.
(a) A PHA must give preference to disabled families and elderly
families in determining priority for admission to public housing
projects for disabled families and elderly families. A PHA may not
establish a limit on the number of disabled families or elderly
families who may be accepted for occupancy in a public housing project
for disabled families and elderly families.
(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 disabled families and
elderly families.
(c) Disabled families and elderly 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 a disabled or elderly applicant is a single person, as this
term is defined in 24 CFR part 912, the disabled single person or the
elderly single person shall be given a preference for admission to
public housing projects for disabled families and elderly families.
(e) In offering available units to disabled families and elderly
families in public housing projects for disabled families and elderly
families, units with accessible features should first be offered to
persons with disabilities that 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: November 18, 1993.
Joseph Shuldiner,
Assistant Secretary for Public and Indian Housing.
[FR Doc. 94-259 Filed 1-6-94; 8:45 am]
BILLING CODE 4210-33-P
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.