Designated HousingPublic Housing Designated for Occupancy by Disabled, Elderly, or Disabled and Elderly Families; Final Rule DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

SUMMARY: This final rule implements section 622(a) of the Housing and

Community Development Act of 1992. Section 622(a) provides public

housing agencies (PHAs) with the option, subject to the requirements of

this part, to designate public housing projects, or portions of public

housing projects, for occupancy by disabled families; elderly families;

or mixed populations (i.e., disabled families and elderly families).

This final rule also amends existing regulations, which currently

provide for preference for elderly families and disabled families, and

discretionary preference for near-elderly families in ``public housing

projects for the elderly''--that is, public housing projects that house

mixed populations (``mixed population projects''). This final rule

continues to provide for preference for disabled families and elderly

families in ``mixed population projects.'' However, certain amendments

were made to include new and revised definitions pertaining to

``family'' as set forth in section 621 of the 1992 Act, and to provide

for recognition of the designated housing process.

EFFECTIVE DATE: May 13, 1994.

FOR FURTHER INFORMATION CONTACT: Edward Whipple, Director, Occupancy

Division, Department of Housing and Urban Development, 451 Seventh

Street, SW., room 4206, Washington, DC 20410. Telephone number (202)

708-0744 (this is not a toll-free number). Hearing-impaired persons may

contact these offices via TDD by calling (202) 708-9300 or 1-(800) 877-

8339.

SUPPLEMENTARY INFORMATION:

I. Background--Proposed Rule

On January 7, 1994 (59 FR 1244), the Department published a

proposed rule that would implement section 622(a) of the Housing and

Community Development Act of 1992 (Pub. L. 102-550, approved October

28, 1992) (the 1992 Act). Section 622(a) amended section 7 of the

United States Housing Act of 1937 (the 1937 Act) (42 U.S.C. 1437e) to

provide public housing agencies (PHAs)1 with the option, subject

to certain requirements, to designate public housing projects, or

portions of public housing projects for occupancy by (1) disabled

families; (2) elderly families; or (3) mixed populations (``designated

housing''). (Section 7 of the 1937 Act, previously titled ``Congregate

Housing'' was retitled ``Designated Housing'' by the 1992 Act. Unless

the context indicates otherwise, the references to section 7 in this

preamble are to section 7 as amended by section 622(a) of the 1992

Act.)

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\1\ Section 626 of the 1992 Act provides that the amendments

made by subtitle B of title VI of the 1992 Act (which amendments

pertain to the authority of PHAs to provide designated housing)

shall not apply to lower income housing developed or operated

pursuant to a contract between HUD and an Indian housing authority.

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The January 7, 1994 proposed rule incorporated the statutory

requirements for obtaining approval to designate public housing for

occupancy by disabled families or by elderly families, and supplemented

the statutory requirements with regulatory ones. By the expiration of

the public comment period on March 8, 1994, 101 comments were received.

Approximately another 200 comments were received within the two weeks

following the expiration of the public comment period. All comments

timely submitted were reviewed and considered. In order not to delay

final rulemaking on designated housing, the Department made every

effort to review the 200 comments received after the close of the

public comment period. The Department believes that the comments

addressed in the preamble to this rule reflect the major concerns and

issues raised by all commenters.

The commenters included housing authorities, associations

representing housing authorities, elderly persons, organizations

representing the interests of elderly persons, persons with

disabilities, organizations representing persons with disabilities,

State and local offices on aging, and State and local offices that

address such matters as mental health, human services and

rehabilitative services. The majority of the commenters were housing

authorities.

A number of commenters expressed support for the Department's

proposed implementation of section 622, and praised the Department's

efforts to strike a balance between section 622 and the civil rights

protections for persons with disabilities contained in the Fair Housing

Act, section 504 of the Rehabilitation Act of 1973 and the Americans

with Disabilities Act. However, the majority of the commenters were

highly critical of the proposed rule. While the commenters in favor of

the proposed rule were primarily persons with disabilities, their

advocacy organizations, and State and local offices that address

disability issues, supporters of the proposed rule also included

housing authorities. While the commenters opposed to the rule were

predominantly housing authorities, associations representing housing

authorities, elderly persons and their advocacy organizations, and

State and local offices that address elderly issues, these commenters

were joined by persons with disabilities and their advocacy

organizations in voicing objections to sections of the proposed rule.

The provisions in the proposed rule that received the greatest

criticism were those provisions that addressed the allocation plan and

the supportive service plan requirements. The commenters stated that

the Department made both plans unnecessarily complex and unduly

burdensome, with the result being that it would be impossible for PHAs

to obtain approval to designate housing for elderly families or

disabled families.

The Department is appreciative of all comments submitted on the

January 7, 1994 proposed rule. While many commenters simply expressed

their general support or opposition to the proposed rule, other

commenters carefully reviewed the rule, and offered detailed and

helpful comments on regulatory implementation of section 622. The

Department is aware that PHAs and other members of the public are

anxious to have final regulations issued for section 622, and that the

rulemaking process has taken longer than anticipated or desired. The

Department believes, however, that this final rule, which takes into

consideration public comment, improves the designated housing process

and better serves PHAs and the families that they house.

II. Clarification of Relationship of Designated Housing Process to

Statutes Prohibiting Nondiscrimination Against Elderly Persons or

Persons With Disabilities

Certain questions and issues raised by a few commenters made the

Department aware that there may be some misunderstanding about the

obligations of PHAs that operate designated housing under statutes that

contain civil rights protections for elderly persons and persons with

disabilities.

Notwithstanding the permissibility of PHAs to designate public

housing projects for occupancy by elderly families or by disabled

families, PHAs must comply with section 504 of the Rehabilitation Act

of 1973, the Fair Housing Act, the Age Discrimination Act, the

Americans with Disabilities Act, and other applicable civil rights

statutes and their implementing regulations. Section 622 does not alter

the obligations and requirements imposed on PHAs by these statutes and

their implementing regulations.

For example, a PHA may not deny an elderly person who also is a

person with disabilities admission to a designated project for elderly

families, in whole or in part, on the basis of the elderly person's

disability. Similarly, a PHA may not deny a person with disabilities

admission to a designated project for disabled families on the basis of

the person's age.

The Department also notes that several commenters criticized the

proposed rule on the basis that it appeared overly concerned with the

housing needs of non-elderly disabled families. The Department does not

believe that the concern for the housing needs for non-elderly disabled

families as expressed in the proposed rule, and in this final rule, is

unfounded or inconsistent with the statute.

The Department is aware, as was the Congress in enacting this

legislation, that the majority of projects to be designated will be for

elderly families, and the group that will be most affected by this

designation will be non-elderly disabled families. Even without the

requirement to submit a supportive service plan in addition to the

allocation plan, persons with disabilities are not demanding their own

separate housing projects as are elderly families. Thus, out of concern

that non-elderly disabled persons may have public housing assistance

reduced as a result of designation of projects for elderly families,

the Congress requires in section 622 that a PHA, in planning how it

will allocate its housing resources among the families that it serves,

must secure additional housing resources ``that will be sufficient to

provide assistance to not less than the number of non-elderly disabled

families that would have been housed if occupancy in such units were

not restricted pursuant to this section.'' The proposed rule's concern,

and that of this final rule, that persons with disabilities not be

under-served by the designated housing process is not inconsistent with

the statute.

III. Overview of the Final Rule

This section provides a summary of the significant changes made to

the designated housing process by this final rule in response to public

comment. This section also discusses those provisions of the proposed

rule about which substantial comments were received requesting change,

and for which the Department declined to adopt the recommended change.

Additional Housing Resources

Inclusion of Additional Housing Resources for Which PHAs ``Plan To

Apply''

The final rule revises Secs. 945.103 and 945.203 which address

additional housing resources. As revised, these sections provide that

additional housing resources that a PHA may use to meet the housing

needs of non-elderly disabled families who would have been housed in a

project but for its designation as a project for elderly families

include ``housing resources for which the PHA plans to apply during the

period covered by the allocation plan and that it has a reasonable

expectation of obtaining.''

The commenters on this provision are correct that the statute

permits inclusion in the allocation plan of housing resources for which

the PHA ``plans to apply.'' The statute also provides that projections

contained in the allocation plan must be ``reasonable''. Thus, in

including in an allocation plan a description of those housing

resources for which the PHA intends to apply, the PHA must have a

reasonable expectation of obtaining these housing resources.

Additionally, the time period within which the PHA plans to apply for

additional housing resources should be limited, and the regulation

limits the time period to that period covered by the allocation plan.

By ``reasonable expectation of obtaining,'' the Department means

that circumstances and factors relevant to the PHA's application for

additional housing resources, indicate that the PHA has a reasonable

chance to obtain these additional resources. For example, if the

Department intends to make 3,000 units available on a competitive basis

in a given region, and the PHA applies for 2,500 units, the chance that

the PHA will be awarded 2,500 of the 3,000 units to be competitively

distributed is not reasonable.

Commenters who requested the inclusion of ``planned'' housing

resources in the allocation plan noted that these housing resources can

be further addressed in the biennial updates of the allocation plan.

For example, if a PHA relies upon using housing resources for which it

intends to apply, and subsequently fails to apply for the housing

resources, or applies but was unsuccessful in obtaining the additional

housing resources, the PHA must account for the lack of the additional

housing resources in the biennial update of the allocation plan.

Depending upon the reasons that the ``planned'' additional housing

resources were not obtained, the Department can take appropriate

action, including changes in the designation of the project, or require

the PHA to take appropriate action at the time of review of the

biennial update.

Additional Housing Resources Must Be Those Owned or Controlled, or To

Be Owned or Controlled by PHAs

The Department did not adopt the suggestion of several commenters

that the final rule include housing resources owned by other entities

that are willing to work in conjunction with the PHA. As noted above,

the statute is clear that the housing resources to be addressed in the

allocation plan are those that a PHA owns or controls, or will

eventually own or control. Section 622 provides that a PHA must have

``a plan for securing sufficient additional resources that the agency

owns, controls, or has received preliminary notification that it will

obtain, or for which the agency plans to apply * * *.''

Revision to List of Examples of Additional Housing Resources for

Persons With Disabilities

The final rule removes the majority of the examples of additional

housing resources that a PHA could utilize to provide housing

assistance to the non-elderly disabled persons that would have been

housed in a project were it not for designation of the project as a

project for elderly families. On further consideration, the examples of

additional housing resources, which did not constitute an all inclusive

list, are more appropriately included in a notice or Handbook. The

final rule retains examples of those additional housing resources that

will probably be utilized by the majority of PHAs as additional housing

resources.

For the benefit of commenters who found the list helpful, the

possible options for additional housing resources for persons with

disabilities include but are not limited to the following:

(1) Normal turn-over of units in existing projects;

(2) Providing local preferences for a specific number of non-

elderly disabled persons for a specific general occupancy project or

projects, in accordance with the preference provisions of 24 CFR

960.211; for mixed population projects, as provided in 24 CFR part 960,

subpart D; or for section 8 certificates and vouchers. Within the

context of the PHA's overall preference system, there must be a

demonstration that the preference will result in the desired increase

in the number of non-elderly disabled persons housed;

(3) Convert a project that currently houses mixed populations to

general occupancy project, which provide a more integrated setting;

(4) Allocation of a certain number of existing or new public

housing units or section 8 certificates or vouchers, which will be

accompanied by a supportive services package, which may be achieved by

the PHA entering into an agreement with a supportive service provider

to make these units or certificates or vouchers available in exchange

for the provider delivering supportive services to disabled families.

Clients of the service provider delivering the supportive services may

not be provided these units or certificates or vouchers before other

non-elderly disabled families already in occupancy or on the PHA's

waiting list;

(5) Use of modernization funds to reconfigure units and buildings

to appropriate sizes or uses for non-elderly disabled families;

(6) Designation of projects for occupancy only by disabled families

(projects designated for occupancy by disabled families must have a

supportive service plan in accordance with the requirements of

Sec. 945.205);

(7) Allocation to non-elderly disabled families of units in other

projects owned or controlled by the PHA that will be vacated by elderly

families who will relocate to the project designated for occupancy by

elderly families;

(8) Use of public housing development funds, or funds appropriated

for major reconstruction of obsolete public housing to provide housing

for disabled families;

(9) Use of all or a portion of net increases in units available for

occupancy in a project as a result of the rehabilitation of vacant

units in this project which had been uninhabitable.

Projects Subject to the Requirements of Part 945

Clarification of Exemption From Designation Requirements for Mixed

Population Projects Under Part 960

The majority of commenters understood that a PHA with a project

that houses a mixed population of elderly families and disabled

families (``mixed population project''), and that intends to continue

to house a mixed population of elderly families and disabled families,

is not required to comply with the designation requirements of new part

945. Other commenters stated that the proposed rule was not clear

whether mixed population projects were required to comply with the part

945 designation requirements.

The final rule includes additional language to clarify that mixed

population projects are exempt from the designation requirements of

part 945. The final rule also clarifies that the fact that a mixed

population project houses persons with disabilities does not require a

supportive service plan, as does a project that is designated for

occupancy by disabled families under part 945.

Supportive Services Required Only for Designated Housing for Disabled

Families

Several commenters expressed confusion about when supportive

services are required by the designated housing process. PHAs are

required by statute, and by this regulation, to provide or obtain

supportive services only for projects designated for occupancy by

disabled families. However, in designating a project for elderly

families, the PHA must consider the needs of non-elderly disabled

applicants for services currently provided in the project to be

designated for elderly families.

Section 7(d) provides, in relevant part, that ``in designing,

developing, otherwise acquiring and operating, designating and

providing housing and assistance under this title, each public housing

agency shall meet to the extent practicable, the housing and service

needs of eligible families applying for assistance under this title as

provided in any allocation plan of the agency approved under subsection

(f).''

In an effort to reflect ``the extent practicable'' language of

section 7(d), Sec. 945.103 of the proposed rule contained a paragraph

(paragraph (d)) which stated that the requirements of Sec. 945.205 to

submit a supportive service plan for approval to designate public

housing for disabled families was not to be construed to mean that PHAs

may provide supportive services only to those disabled families

occupying designated housing for disabled families.

The purpose of paragraph (d) in Sec. 945.103 was to encourage PHAs

that may be currently providing supportive services to elderly families

occupying public housing to continue to provide those services. The

fact that a PHA may be able to deliver supportive services, or is

currently delivering supportive services to elderly families, or to

disabled families not occupying a designated project does not bring the

PHA within the scope of the requirements of part 945.

Because of the confusion over this issue expressed by a number of

commenters, the final rule removes paragraph (d) in Sec. 945.103 from

the final rule. The Department, however, continues to encourage PHAs to

meet to the extent practicable the housing and supportive service needs

of all eligible families applying for assistance.

New and Revised Definitions

Defining ``Mixed Population Project''

The final rule provides a definition for ``mixed population

project.'' ``Mixed population project'' is defined to mean a public

housing project reserved for occupancy by elderly families and disabled

families. As discussed in the preceding section, these projects are not

required to meet the designation requirements of part 945, but must be

reserved for occupancy by elderly families and disabled families in

accordance with the requirements of 24 CFR part 960.

Revising the Definitions for the Various Categories of ``Families''

The final rule also introduces a new term to clarify the specific

category of families under discussion. Instead of referring frequently,

and awkwardly, as was done in the proposed rule to ``families who are

members of the group for whom the project is to be designated for

occupancy,'' the final rule uses the term ``designated family.''

``Designated family'' is defined to mean the category of families

for whom a project has been designated. Depending upon the designation

to be made, designated families will be either elderly families or

disabled families.

The final rule provides, as did the proposed rule, definitions for

the statutory terms ``families,'' ``elderly families,'' ``disabled

families,'' and ``near-elderly families,'' but the final rule defines

these terms in their singular context rather than the plural context.

Additionally, the final rule makes some clarifying changes to these

definitions.

``Elderly family'' is defined to clarify that an elderly family may

include one or more elderly persons with disabilities, and members of

the family who are not elderly.

``Near-elderly family'' is defined to clarify that a near-elderly

family may include one or more near-elderly persons with disabilities,

and members of the family who are not near-elderly.

``Disabled family'' is revised to clarify that this term includes a

person with disabilities who is also elderly or near-elderly. An

elderly person with disabilities would be eligible to reside in a

designated project-disabled, designated project-elderly, or a mixed

population project, subject, of course, to availability of units in

these projects, and the person's place on the waiting list.

As noted in the preamble to the January 7, 1994 proposed rule, the

definitions for ``family,'' ``elderly family,'' and related terms are

currently contained in 24 CFR part 912, entitled ``Definition of Family

and Other Related Terms; Occupancy by Single Persons.'' Part 912,

however, has not yet been amended to reflect the revised definitions

provided by section 621 or to add the new terms defined in section 621.

Under separate final rulemaking, part 912 will be amended to include

several of the revised and new definitions set forth in section 621

(and which are included in this final rule). When the part 912 rule is

published in final, the Department will amend the regulations in part

945 to remove the definitions from part 945 and to cross-reference to

the definitions in part 912. The advantage in keeping these definitions

in part 912 (which was established to define ``family'' and related

terms) is that part 912 offers a convenient location to place the

definitions for terms that are applicable to all public housing

programs.

Revised Definition of ``Service Provider''

In response to the many public comments that objected to the

``licensing requirement'' for service providers, the final rule revises

the definition of ``service provider'' to remove the requirement that

the service provider must be licensed under State or local law. In lieu

of this requirement, the final rule provides that the service provider

be ``qualified and experienced'' in the provision of supportive

services. ``Qualified'' means that if the type of supportive services

to be delivered by the service provider requires a State or local

license, the service provider must be in compliance with these laws.

Revised Definition of Supportive Services

In response to public comment, specifically by persons with

disabilities, the definition of ``supportive services'' is revised to

clarify that this term refers to non-housing services available to

persons residing in a development for which there is a need and demand

by disabled families. The qualifier of ``non-housing'' before the word

``services'' is to clarify that supportive services do not include

plumbing, minor repair and maintenance of dwelling units that the

housing authority is required to provide under the lease. The provision

of supportive services in a designated project does not relieve the PHA

of its obligation to provide similar services in other developments for

persons with disabilities as required by 24 CFR part 8.

The inclusion of the phrase ``for which there is a need and

demand'' is to emphasize that PHAs should not designate public housing

projects for occupancy by disabled families unless the disabled

families served by the PHA and to whom the PHA intends to offer

occupancy in the designated project clearly indicate a need and demand

for the proposed supportive services. The consensus among commenters

who indicated that they were persons with disabilities or who

represented the interests of persons with disabilities was that

designated housing for disabled families is not the preferred

residential setting of persons with disabilities.

Allocation Plan--Development and Contents

The final rule significantly consolidates and streamlines the

information required to be included in the allocation plan, without,

however, reducing information necessary to determine the possible

adverse impact that the designation process may have on elderly

families or disabled families, particularly non-elderly disabled

families.

Removal of Allocation Plan Objectives

Section 945.203(a)(2) of the proposed rule contained language that

encouraged PHAs, in developing their allocation plan to strive to

provide, regardless of the designation to be made, as broad a range of

housing choice as possible to elderly families and disabled families

with respect to the level of supportive services, and availability of

accessible units. Additionally, this section stated that PHAs should

strive to provide, regardless of the designation to be made, housing

for disabled families in the most integrated setting possible.

Several commenters stated that although these objectives are

laudable, their inclusion in a regulation is inappropriate, and at

variance with the statutory requirements. Other commenters stated that

the inclusion of these objectives in the rule added to the complexity

of the rule because it was unclear whether these objectives were

intended to be advisory or mandatory, and it was unclear whether a PHA

could designate a project for elderly families if these objectives were

not met. A few commenters stated that the final rule should be revised

to require compliance with these objectives.

The objectives listed in Sec. 945.293(a)(2) of the proposed rule

are advisory and not mandatory. The Department agrees with the

commenters that these objectives are laudable, but acknowledges that

these objectives are just that--``objectives'' and not

``requirements''. Accordingly, to comply with the statute and minimize

confusion concerning what is required to be addressed in the plan, and

what is not, the final rule removes these objectives from the

regulation. The Department is confident that without the regulatory

reminder, PHAs will strive to meet these objectives. The Department's

confidence is based in part on the improved public participation

procedures for allocation plan development required by this final rule,

and which are discussed below. The Department believes that these

procedures will provide PHAs with valuable input on proposed allocation

plans, including any possible problems, and options for expanding

housing choice and creating integrated settings.

Revised Consultation Procedures for the Plan Development

A number of commenters criticized the ``public consultation

process'' of the proposed rule on the basis that the rule simply

mirrored the statutory language, and failed to provide adequate

guidance on the extent of consultation involved. The Department found

merit in the commenters' criticism and the final rule provides for a

two-stage consultation process.

The first consultation occurs at the pre-plan development stage,

and the final rule specifies the parties that must be consulted at a

minimum. The second consultation occurs after plan development, but

before submission of the plan to the Department. The final rule

requires the PHA to provide for review and comment on the allocation

plan by all members of the public. This two-stage consultation process

was recommended by several commenters.

For the first stage of the consultation process, the final rule

requires the PHA to consult with the State or unit of general local

government where the project is located. (In response to public comment

the phrase ``where the project was located'' was changed from the

proposed rule phrase of ``in whose jurisdiction the area served by the

PHA is located.'') The final rule also provides for PHAs to consult

with representative advocacy groups, where these groups exist, for each

of the following categories of families: Disabled families, elderly

families and families with children. The final rule establishes

consultation with public housing residents (again in the pre-plan

development stage) by requiring consultation with the representatives

of the residents of the buildings proposed for designation, as a

minimum requirement.

For the second stage of the consultation process, the final rule

provides for public participation review and comment on the plan. The

commenters stated that this type of public participation process would

provide all families affected by the designation with the opportunity

to express their support, voice their objections, and offer comments on

the proposed allocation plan. The Department agrees with the

commenters, and the final rule requires that following completion of

the draft allocation plan (and the draft of any update of the

allocation plan) the PHA shall:

(1) Issue public notices regarding its intent to create designated

housing and the availability of the draft allocation plan;

(2) Contact those parties, with whom the PHA is required by

regulation to consult, and other individuals and agencies that

expressed an interest in the PHA's plan;

(3) Allow not less than 30 days for public comment on the draft

allocation plan;

(4) Make free copies of the draft allocation plan available upon

request and in accessible format, when appropriate; and

(5) Conduct at least one public meeting on the draft allocation

plan.

The requirement to consult with certain groups and individuals, and

the requirement to provide public participation in the development of

the allocation plan is to assist the PHA in better identifying issues,

problems, and benefits involved in the proposed action. However, the

final decision concerning the project to be designated, and how the PHA

proposes to allocate its available housing resources rests with the

PHA.

Submission of Summary of Comments, and Not Transcripts

The final rule continues to allow PHAs to submit a summary of

comments received on the allocation plan. A few commenters stated that

submission of a summary of the comments is in conflict with the

statutory requirement.

The statute provides, in relevant part, that the allocation plan

shall include ``any comments of agencies, organizations or persons with

whom the PHA consults.'' The Department believes that the statutory

language is sufficiently broad to permit submission of a summary of the

comments received on the allocation plan. The PHA must maintain the

original comments on file, and must make these comments available for

inspection by the Department and the public.

Other commenters stated that the proposed rule was unclear whether

transcripts of meetings were required, and if transcripts were

required, the commenters stated that this requirement is too

burdensome. In referring to transcripts of meetings in the proposed

rule, the Department did not intend to require a transcript of a

meeting. Rather, the proposed rule intended to require retention of a

transcript if a PHA decided to have a transcript made of a meeting. The

final rule, however, removes all references to meeting transcripts. If

taken, the PHA should maintain the transcript on file, together with

comments received on the allocation plan, to be made available for

inspection by the public. Comments made at a meeting by members of the

public should be included in the summary of comments.

Retention of Five Year Recordkeeping Requirement for Comments

Several comments complained that the five year recordkeeping

requirement for the retention of comments submitted on the allocation

plan was too lengthy a period. The commenters suggested that a two-year

retention period should be sufficient.

The Department disagrees with the commenters. PHAs should maintain

the original comments received on the allocation plan to cover at least

two biennial updates. The Department believes that the five-year record

retention period is in the best interest of PHAs, and is not unduly

burdensome.

Removal of Requirement To Discuss Advantages and Disadvantages of

Designation

The final rule removes the requirement for the PHA to address in

the allocation plan the advantages and disadvantages that the choice of

designation is expected to have on families served by the PHA. The

Department agrees with the commenters that the advantages and

disadvantages should be apparent by the information provided in the

allocation plan.

Retention of Requirement To Document the Number of Families Who Will Be

Denied or Delayed Housing

A few commenters requested that the final rule not include the

statutory requirements for PHAs to ``document the number and duration

of instances in which housing assistance for eligible applicants will

be denied or delayed by the agency because of a lack of appropriately

designated units.'' The Department declines to remove this requirement

from the rule because it is a statutory requirement.

Clarification That Delays of Concern Are Those That Are Caused by the

Designation Process

In response to public comment, the final rule clarifies that the

denial of or delay in housing assistance with which the Department is

concerned in part 945 is that which results from the designation of

project. Delays that are caused by matters unrelated to the designation

process are not those that will result in re-evaluation of the

appropriateness of a PHA's designation of a project. For example, as

one commenter noted, some PHAs have very low turn-over in their

projects that results in denial of or delay in housing assistance that

is unrelated to the designation process. Also, a PHA that implements

stricter screening procedures can be expected to have an increased rate

of denial of housing assistance among all applicants.

Determining the Extent of Denial of or Delay in Housing Assistance

Several commenters indicated that they were uncertain what the

statute meant by ``excessive,'' and requested the Department define

``excessive'' in terms of a number or percentage. Instead of defining

this term, the Department has replaced ``excessive'' with

``substantial.''

As discussed in the previous section, there may be a variety of

circumstances having nothing to do with the designation of housing that

may give rise to delays in housing assistance. The Department is

interested in knowing whether the designation of project under part 945

is causing a denial of or delay in housing assistance for a substantial

number of tenants. That is, has the number of applicants denied housing

assistance increased as a result of the designation, or (or perhaps

also) has there been an increase (a lengthening) in the duration of

time an applicant must wait for housing assistance as a result of the

designation.

Revision to Requirement To Maintain Access to Similar Services and

Housing Facilities

The proposed rule required PHAs to describe the steps to be taken

to ensure that disabled families (if a project was to be designated for

elderly families) and elderly families (if a project was to be

designated for disabled families) maintain access to services and

housing facilities similar to those that otherwise would have been

available to them at the project if the project had not been

designated.

A number of commenters objected to this requirement on the basis

that the regulatory language was too broad, and it would be impossible

for PHAs to guarantee similar access to all services and amenities

available to them before designation. The Department agrees with the

commenters, and has revised this section of the allocation plan. The

rule now requires PHAs to describe the steps taken to facilitate access

to supportive services provided by other agencies at the designated

project.

This section, however, imposes an affirmative duty on a PHA to fund

at least the same level of supportive services needed and requested by

non-elderly disabled families that the PHA funds for elderly families

in the designated project.

Revision to Requirement Concerning Accessible Units

The proposed rule required the PHA to describe the steps to be

taken to replace any accessible units that will be unavailable as a

result of the designation. A few commenters noted that PHAs are already

mandated by section 504 to assess and provide for accessibility needs,

and recommended this provision refer to the PHA's obligations under

section 504 obligations.

The Department agrees, and final rule requires the PHA to describe

the steps taken by the PHA to affirmatively meet its obligations under

24 CFR part 8 to respond to any need for accessible units that will no

longer be available to applicants who need these units.

Removal of Requirement To Provide Information on Existing Occupancy

Policy and Procedures

The final rule also removes the requirement for the PHA to provide

information on the PHA's existing occupancy policies and procedures,

and to include a description of the PHA's HUD-approved Tenant Selection

and Assignment Plan. With respect to the PHA's admission policies and

procedures, the final rule requires the PHA to describe any changes the

PHA intends to make in its admission policies to accommodate the

proposed designation.

Allocation Plan Approval or Disapproval

Approval of Plan Because of HUD Failure To Respond Within Timeframes

The final rule clarifies that if HUD fails to approve or disapprove

an allocation plan within the timeframes imposed by statute, and set

forth in this regulation, an allocation plan will be considered

approved.

Time Limits on Resubmission of Disapproved Allocation Plans

The proposed rule provided that if the Department disapproves an

initial allocation plan, a PHA shall have a period of not less than 45

days following notification of disapproval to submit amendments to the

plan, or to submit a revised plan. ``A period of not less than 45

days'' is the language used in the statute. A few commenters read this

provision to mean that only 45 days would be permitted. Other

commenters requested that there be no time limitation imposed on the

resubmission of an allocation plan.

The final rule continues to provide PHAs, consistent with the

statute, with a period of at least 45 days to submit amendments to the

plan or to submit a revised plan. The Department, however, declines to

adopt the suggestion of some commenters that there be no time

limitation on submission of a revised plan. In fact, on further

consideration, the Department has decided to impose a maximum time

limit on when a disapproved plan may be resubmitted. The Department

believes that the passage of a substantial period of time may affect

the data originally reported in the allocation plan, and may make it

necessary for the PHA to hold another public meeting. Accordingly, the

final rule provides that PHAs will have a period of no less than 45

days, and no more than 90 to resubmit an initial allocation plan

originally disapproved.

The Department believes that 90 days represents a reasonable

maximum period within which to submit a revised plan. An allocation

plan that may require more than 90 days to make it an approvable plan,

in all likelihood, indicates serious underlying problems with the plan.

Accordingly, the PHA and the families that it houses are better served

by restarting the allocation plan development process.

The Department declines to apply, as one commenter suggested, one

time limit to all revised plans. Some revisions required of allocation

plans may take minimal time on the part of the PHA, and therefore 45

days will be sufficient, while other revisions may require use of the

longer 90-day period.

Designated Housing for Disabled Families

The final rule makes several changes to Sec. 945.205 that addresses

the supportive service plan component for obtaining approval to

designate projects for disabled families. To obtain approval to

designate a project for disabled families, section 622 requires

submission of an allocation plan and a supportive service plan.

Supportive Service Plan Is Statutory Requirement

Many commenters objected to the requirement to submit a supportive

service plan in order to obtain approval for designated housing for

disabled families. The commenters stated that it is not only unfair to

disabled families, it is unfair to PHAs. Several commenters stated that

this requirement reinforces the stereotype that persons with

disabilities have special needs and are incapable of living

independently. Other commenters stated that if the supportive service

plan is going to be required for housing for disabled families, it also

should be required for housing for elderly families.

The requirement to submit a supportive service plan for designated

housing for disabled families is a statutory requirement, not a

regulatory one. However, the Department has made changes to this

provision of the final rule with the intention of minimizing the

administrative burden, and with the intention of clarifying when this

type of housing should be considered as an alternative housing for

persons with disabilities.

Demonstrated Need and Demand for This Housing

The final rule provides that HUD will approve designation of a

project for disabled families only where there is a clear demonstration

of both a need and demand for such designation, and in the absence of

such demonstrated need and demand, PHAs should provide for the housing

needs of disabled families in the most integrated setting possible. The

inclusion of a demonstration or evidence that there is a clear need and

demand for housing that is limited to persons with disabilities is in

response to commenters from the disability community who stressed that

this type of housing should not be the automatic alternative to

designated housing for elderly families.

Admission to Designated Projects for Disabled Families Need Not Be

Based on Need for Services

Although the designation of a project for disabled families should

arise only where there is a real need and demand for this type of

housing (i.e., where persons with disabilities express the need or

demand for the services to be provided) once the project is

established, admission to this project is not to be conditioned on a

person with disabilities needing or opting for the service. A person

with disabilities who chooses to reside in this project, and is next on

the waiting list, should not be denied occupancy because the person

does not need or have any interest in using the services to be provided

to this project.

Non-Contiguous Units Encouraged but Not Required

A few commenters objected to the proposed rule's implied

prohibition against designating contiguous units. Designation of

contiguous units is, by no means, prohibited by this final rule.

The Department recognizes that where projects are designated for

occupancy by elderly families, the units or floors designated will, in

all likelihood, be contiguous, reflecting the preference of elderly

families to reside in proximity to one another. As stated earlier in

this preamble, the preference of the persons with disabilities who

commented on this rule is to reside in an integrated setting, and not

be limited to projects that house only disabled families, or that house

only disabled families and elderly families. Thus, the reference to

non-contiguous units in the regulation is to encourage PHAs to consider

more integrated settings for persons with disabilities.

Clarification of When Service Provider Must Be Licensed

As discussed earlier in this preamble, the final rule removes the

requirement that service providers must be licensed, unless licensing

for the type of service to be provided is required by State or local

law.

Consultation Procedures for Supportive Service Plan

The final rule provides the same consultation process for the

supportive service plan that is required of the allocation plan. For

PHAs that intend to designate a project for disabled families the

consultation process for the supportive service plan may be performed

concurrently with the allocation plan.

IV. Discussion of Public Comments

Many of the issues raised by commenters have been addressed in

section III of this preamble, which provided a summary of the principal

features of the designated housing process as implemented by this final

rule. Therefore, these issues are not re-addressed in this section.

This section discusses additional issues raised by the commenters, and

the Department's response to these issues. These comments may or may

not have prompted additional, but less significant, changes to the

rule. The comments are discussed in the context of the particular

subpart or section of the rule to which they pertain.

In addition to not discussing issues already addressed in section

III of the preamble, the following does not discuss comments that were

either generally laudatory or generally critical of the proposed rule,

either of style or substantive comment, or that offered editorial

suggestions, or suggestions regarding format that would not affect the

meaning of the regulatory provisions.

Section 945.105 Definitions

Comment: Two commenters recommended that the definition of

``persons with disabilities'' be revised to eliminate the implication

that these persons must have multiple disabilities to qualify as a

``person with disabilities.'' Their suggested term was ``person with

one or more disabilities.''

Response: The term ``person with disabilities'' is the term used in

section 622, and is also the term used in the Americans with

Disabilities Act (ADA) (although, as discussed in the next response,

the definition for this term is not identical in section 622 and the

ADA). The Department believes that the definition for this term makes

clear that to qualify as a person with disabilities, the individual

need not have more than one disability.

Comment: Two commenters stated that the definition of ``person with

disabilities'' should be revised to conform to the definition provided

in the Americans with Disabilities Act.

Response: The definitions for the various categories of ``persons''

and ``families'' used in section 622 of the 1992 Act, are provided in

section 621 of the 1992 Act. The final rule reflects the definition for

``person with disabilities'' set forth in section 621. Additionally,

neither the Americans with Disabilities Act or section 504 of the

Rehabilitation Act of 1973 amended the U.S. Housing Act of 1937 to

replace the 1937 Act's definition of ``persons with disabilities.''

Comment: One commenter stated that the age distinction for ``near-

elderly person'' is too low and should be raised to 55. Two commenters

stated that the definition of ``disabled families'' should include an

age restriction, such as 55 or 50 years of age. Another commenter

stated that the definition of ``elderly family'' should exclude any

child under the age of 55.

Response: The statute defines all of these terms (``near-elderly

person,'' ``disabled family'' and ``elderly family'') and the

Department is without authority to adopt the recommendations made by

these commenters.

Section 621 defines ``near-elderly person'' as a person who is at

least 50 years of age, but below the age of 62.

The statute does not provide for an age restriction in the

definition of ``disabled family'' nor does it exclude as an ``elderly

family'' a family with children who are neither elderly or near-

elderly. In fact in the final rule, the definition of ``disabled

family'' rule clarifies that this term includes persons and other

members of the family who may be elderly, near-elderly, or who are

neither elderly, or near-elderly. The definition of ``elderly family''

clarifies that this term includes persons and other members of the

family who may be persons with disabilities or who are neither elderly

nor near-elderly.

Comment: One commenter requested that the Department provide a

definition for ``accessible'' when used in the context of a dwelling

unit.

Response: The definition section of the final rule includes a

definition for ``accessible unit.'' The final rule provides that the

term ``accessible unit'' has the meaning given this term under the

second definition of ``accessible'' in 24 CFR 8.3, which is a

definition familiar to PHAs.

Section 945.203 Allocation plan

Comment: Two commenters requested that the final rule require PHAs

to explain the methods used in arriving at information required by the

allocation plan.

Response: The Department declines to impose this requirement on

PHAs. Much of the information required by the allocation plan will be

derived from the PHA's waiting list, or from the locality's CHAS, or

other local housing needs survey. Members of the public that may be

interested in determining how a PHA arrived at the information

disclosed in its allocation plan may inquire about this at the public

meeting to be held on the allocation plan. Some of the information will

be derived from the PHA's self-evaluation under section 504.

Comment: Several commenters supported the use of the CHAS as a

source of information required to be included in the allocation plan,

but other commenters stated that the CHAS is not a useful source of

information or is not required in their jurisdictions.

Response: The statute specifically includes the CHAS as a source of

data for the allocation plan. For localities where there is no CHAS,

the final rule provides for use of any other local housing needs

survey.

Comment: One commenter stated that in determining additional

housing resources that are needed to house non-elderly disabled

persons, the rule should clearly state that if the same number of units

would be offered to the applicant group not allowed in designated

units, as would have been offered before the designation, then no new

units are needed.

Response: The Department believes that this point need not be

explicitly stated in the rule. The statute and this final rule require

the PHA to disclose its plan for securing additional housing resources

that will be sufficient to provide assistance to not less than the

number of non-elderly disabled families that would have been housed but

for the designation. If the PHA has the ``additional'' housing

resources on hand, and need not secure other housing resources, then

this is what the PHA will state in its allocation plan.

Comment: One commenter stated that it was trivial for the

Department to require the PHA to describe any incentives offered to

implement voluntary transfers to achieve the objectives of the

designation.

Response: The Department is interested in how a PHA is successful

in motivating families to move to a designated project, or motivating

families to move from a project proposed to be designated.

Additionally, the information provided by PHAs on this matter may be

useful to other PHAs.

Comment: Many comments were received on the types of additional

housing resources to be provided to non-elderly disabled families.

Persons within the disability community were divided on what

constitutes acceptable additional housing resources. Some commenters

stated that section 8 certificates and vouchers were not suitable

housing resources for persons with disabilities. The majority of

individual commenters (as opposed to advocacy organizations) requested

the use of more section 8 certificates and vouchers for persons with

disabilities. Other commenters stated that replacing public housing

units with residency in a group home, or shared housing is not

comparable to residency in a private apartment and should not be

acceptable.

Response: The statute provides for consideration of a variety of

alternative housing resources for non-elderly disabled families,

including section 8 certificates and vouchers, mixed housing,

congregate housing, shared housing, and group homes. Accordingly, the

Department cannot exclude consideration of use of these types of

housing assistance by regulation. The final rule, however, provides for

greater public input in the allocation plan than did the proposed rule.

This provides an opportunity for persons with disabilities, and their

representatives, to voice their objections, if any, to the additional

housing resources for non-elderly disabled families proposed to be used

by the PHA. The Department will look very carefully at any plan about

which there were strong objections raised by persons with disabilities.

Comment: A few commenters asked how the allocation plan is to

indicate that it gave fair consideration of comments received on the

allocation plan.

Response: The PHA should explain how it did or did not revise its

plan in response to public comment. Generally, the Department will be

interested in a PHA's response to substantial negative comment on a

proposed allocation plan.

Comment: Three commenters objected to the fact that the proposed

rule did not include a list of various housing options for elderly

families.

Response: As noted earlier in this preamble, the Congress and the

Department anticipate that most, if not all, allocation plans will

provide for designation of public housing projects for occupancy by

elderly families. This is why the statute specifically requires PHAs to

address housing resources that will be available for non-elderly

disabled families. In the event a PHA designates a project for

occupancy by disabled families, and the designation will result in

denial of or delay in housing assistance to elderly families, then the

PHA must address this issue in its allocation plan.

Comment: Nine commenters stated that approval or disapproval of an

allocation plan should be based only on the statutory requirements.

Another commenter stated that the only basis for disapproval should be

an indication that there will be disparate waiting times for groups

waiting to be housed. Three commenters stated that the rule should make

clear that the Department will not approve an allocation plan which

fails to promote fair housing or which is submitted by a PHA for which

there is documented history of discrimination against various types of

families.

Response: The Department has made only a few editorial changes to

Sec. 945.203(d) which addresses the allocation plan approval criteria.

This section tracks the statutory language. The statute provides that

the allocation plan shall be approved if the Department determines that

based on the plan ``and the comments submitted on the plan''--``the

information contained in the plan is complete and accurate and the

projections are reasonable, implementation of the plan will not result

in excessive vacancy rates, and the plan (as described in the statute)

can reasonably be achieved.'' The fact that the approval section of the

regulation may focus on particular information to be contained in the

plan (and the completeness and accuracy of this information), or

emphasize the reasonableness of certain projections to be made does not

mean that the Department has departed from the statutory approval

criteria.

Comment: One commenter suggested that the final rule require that a

PHA whose plan has been disapproved by the Department, must undergo

public review and comment before resubmission of the plan to the

Department.

Response: As discussed in section III of this preamble, the

Department shared the concern expressed by the commenter, and has

revised the provision in the rule that addresses when a revised plan

may be submitted. The rule now provides that if a revised plan is

submitted within the period set by the Department which will be no less

than 45 days, but no more than 90 days, the PHA need not undergo a

second consultation process. However, after 90 days, the Department is

concerned that factors and data may have changed that will affect

families served by the PHA, and that therefore make it necessary for

the PHA to once again invite public review and comment. Accordingly,

the Department established a maximum time limit of 90 days.

Comment: Three commenters requested that the final rule provide for

PHAs to follow the same public participation requirements on updated

plans that govern the initial plans.

Response: The final rule imposes (as did the proposed rule) the

same public participation requirements on updated plans, as imposed on

initial allocation plans. This is a statutory requirement. Section 622

provides that ``in preparing the initial allocation plan, or updates of

a plan, for submission under this section, a public housing agency

shall consult with * * *.''

Comment: Three commenters stated that the requirement to submit

updated allocation plans every two years is burdensome.

Response: The requirement to submit biennial updates is a statutory

requirement.

Comment: Two commenters stated that the Department exceeds its

statutory authority in providing that projects for which updated plans

were disapproved will revert to occupancy status before designation.

Response: The Department disagrees with the commenter. The Congress

would not have required PHAs to submit updated plans every two years if

the Congress were not concerned that there may be instances in which

designated housing is a failure. That is, the Congress was concerned

that the number of families who have been denied housing assistance, or

the delay in providing housing assistance has increased substantially

as a result of designated housing, to cite two examples of concern. If

one of these consequences were to occur, the Department cannot permit

the PHA to continue to operate designated housing for which the impact

is adverse for a substantial number of families or a protected class of

families. However, the Department has revised the final rule to clarify

that disapproval of the updated plan will not result in automatic

reversal of a designated project to its predesignation occupancy

status. As with the initial allocation plan, there may be factors that

a PHA can, and is willing to change, that will correct the situation

and minimize the adverse impact of the designated housing process on

the families served by the PHA.

Section 945.205 Designated housing for disabled families

Comment: One commenter stated that the two year commitment for a

service provider may be in violation of some State laws that permit

only one-year contracts.

Response: The Department is sympathetic to this situation. However,

the statute requires that a designated project for disabled families

cannot be approved without a supportive service plan. The Department

must have some assurance that if it approves the designated project for

disabled families, the supportive services will remain in place at

least until the PHA submits its updated allocation plan.

Comment: Nine commenters stated that it will be difficult if not

impossible to identify the supportive service needs of disabled

families. These commenters stated that HUD must keep in mind that PHAs

can no longer require disclosure of specific disabling conditions.

Response: The Department recognizes the difficulties for PHAs to

identify the specific disabling condition of persons with disabilities,

and the designated housing process does not impose this type of

investigation on PHAs. The designated housing process, as implemented

by this final rule, intends for PHAs to informally survey residents and

potential residents about service needs and desires. The Department's

experience, generally, is that the public is not shy about expressing

needs and desires. From this survey, the PHA should be able to

determine the services that residents actually need and demand, and

those that the PHA believes that it can reasonably provide.

Comment: Two commenters stated that the PHA should be required to

document the need for specific supportive services it intends to

provide.

Response: As discussed in Section III of the preamble, the

revisions made to the approval process for designated housing for

disabled families impose this type of requirement. The final rule

provides that designated housing for disabled families will be approved

if the allocation plan meets the requirements of Sec. 945.203 and

demonstrates both a need and a demand for designated housing for

disabled families. The need and demand will be based on the information

provided in the supportive service plan that will (or should) evidence

the need and demand for the services to be provided to families

occupying this project.

Comment: Six commenters stated that the final rule should provide

that supportive services not be linked to a project, but must be

portable.

Response: For designated housing for disabled families, the

supportive services are project specific. (However, the units in the

project that constitute the designated housing need not be contiguous;

and the Department encourages non-contiguous units.) The project

specific aspect recognizes that if projects are designated for disabled

families the designation in itself establishes ``separate housing'' for

the designated families, even if non-contiguous units comprise the

designated housing. Whenever the PHA undertakes designation of a

project for disabled families, the Department wants assurance that

there are sufficient numbers of persons with disabilities who are

current tenants or applicants on the waiting list who express a need

and demand for housing that provides supportive services (i.e.,

designated housing for disabled families).

Comment: Eleven commenters stated that the rule must clarify that

designated projects for disabled families are also available to persons

not needing, or opting for supportive services.

Response: As discussed in section III of the preamble, the final

rule makes this clarification.

Comment: One commenter stated that the final rule should require

PHAs to determine which disabled families will occupy designated

housing for disabled families.

Response: The final rule requires PHAs, as part of the approval

process for designated housing for disabled families, to demonstrate

the need and demand for this type of housing. The Department believes

that this requirement will address the concern expressed by the

commenter.

Comment: Seven commenters requested that the final rule clarify

what is meant by residential supervision. The commenters stated that

they did not want PHAs to use residential supervision to provide a more

restrictive type of public housing for persons with disabilities.

Response: ``Residential supervision'' refers to the assistance

provided by a person or persons who either lives at the designated

project for disabled families, or makes himself or herself available to

persons with disabilities who may need assistance on a 24-hour or on-

call basis. Generally, residential supervision assistance is provided

to persons who, as a result of seizures or paralysis, for example, may

need assistance to be provided on a flexible basis (e.g., on-call) and

to be available within proximity to where the person resides. The

specific need for residential supervision must be documented in the

supportive service plan.

Section 945.303 Requirements governing occupancy in designated housing

Comment: One commenter requested that the final rule contain

regulations to permit expedited removal of disruptive tenants.

Response: The Department's regulations in 24 CFR part 966,

governing lease and grievance procedures in public housing, already

address this issue.

Section 945.301 Operating designated housing

Comment: Two commenters stated that the requirement to operate

designated housing in conformance with civil rights laws should be

extended to the allocation plan development stages.

Response: The Department agrees with this comment, and this section

of the final rule provides that ``the application procedures and

operation of designated projects'' shall be in conformity with the

applicable civil rights and nondiscrimination statutes. Conformity with

applicable civil rights and nondiscrimination statutes includes

submission of the needs assessment and transition plan required by 24

CFR 8.25.

Part 960, Subpart D--Preference for Disabled Families and Elderly

Families in Public Housing Projects for Disabled Families and Elderly

Families

Comment: One commenter stated that the proposed rule did not make

clear that elderly housing under part 960 is not the same as elderly

housing under part 945.

Response: The Department believes that the editorial changes made

to part 960 in the final rule clarify the distinction between projects

meeting the requirements of part 945, and those meeting the

requirements of part 960. For example, the Department has changed the

title to subpart D to read ``Preferences for Elderly Families and

Disabled Families in Mixed Population Projects'' and uses this term

``mixed population project'' throughout the subpart D. Use of the term

``mixed population project'' should clarify that projects meeting the

requirements of subpart D house both elderly families and disabled

families.

Comment: Six commenters stated that reference in Sec. 960.407 to

the 10 percent limitation on families without a Federal preference

should be revised to read ``50 percent.''

Response: The Department has not yet issued its final regulation on

Federal preferences. Once the Federal preferences final rule is

published, the Department will make a conforming amendment to part 960,

subpart D to reflect the 50 percent.

Comments on the Information Collection Requirements

Comment: Ten commenters stated that the Department grossly

underestimated the time for completion of the allocation plan.

Response: The Department believes that the substantial changes made

to the allocation plan requirements by this final rule bring the plan

more in line with the estimated burden hours.

Other Comments and Recommendations

Comment: Three commenters stated that they expect the most vigorous

possible oversight by the Department of the allocation planning

process, not only at the first step of initial approval, but biennial

updates.

Response: The Department has every intention to monitor, through

careful review of initial allocation plans and biennial updates, the

operation of designated housing, and its impact on families served by

PHAs that operate designated housing. Monitoring also will include

monitoring and compliance reviews under section 504, investigations of

complaints under section 504, the Fair Housing Act, and other civil

rights authorities.

Comment: Four commenters stated that the final rule should require

PHAs to preserve some mixed-use or general occupancy housing for

persons with disabilities.

Response: The Department certainly encourages, but cannot require,

PHAs to maintain mixed-used or general occupancy projects for persons

with disabilities.

V. Other Matters

Environmental Impact

A Finding of No Significant Impact with respect to the environment

was made in accordance with HUD regulations at 24 CFR part 50, which

implements section 102(2)(c) of the National Environmental Policy Act

of 1969 (NEPA) at the time of development of the proposed rule. This

Finding of No Significant Impact remains applicable to this final rule,

and is available for public inspection between 7:30 a.m. and 5:30 p.m.

weekdays in the Office of the Rules Docket Clerk, Office of the General

Counsel, Department of Housing and Urban Development, room 10276, 451

Seventh Street, SW., Washington, DC 20410.

Executive Order 12866

This final rule was reviewed by the Office of Management and Budget

under Executive Order 12866 as a significant regulatory action. Any

changes made in this rule as a result of that review are clearly

identified in the docket file, which is available for public inspection

in the Office of HUD's Rule's Docket Clerk, room 10276, 451 Seventh St.

SW., Washington, DC.

Impact on Small Entities

The Secretary, in accordance with the Regulatory Flexibility Act (5

U.S.C. 605(b)), has reviewed this final rule before publication and by

approving it certifies that the rule will not have a significant impact

on a substantial number of small entities. The final rule establishes

the requirements and procedures by which PHAs may designate projects,

or portions of projects, for occupancy only by (1) elderly families,

(2) disabled families, or (3) disabled families and elderly families.

The rule incorporates the requirements established by statute for such

designation. The designation of housing for occupancy by elderly

families, disabled families, or disabled families and elderly families

is an option provided to, not a requirement imposed on, PHAs by this

rule.

Executive Order 12606, The Family

The General Counsel, as the Designated Official under Executive

Order 12606, The Family, has determined that this final rule would not

have potential for significant impact on family formation, maintenance,

and general well-being within the meaning of the order. This final rule

implements the designation process provided by section 622 of the 1992

Act, the purpose of which is to assist PHAs in meeting the housing and

supportive service needs of disabled families and elderly families. The

supportive services provided by PHAs to disabled and elderly families

are expected to assist these families in avoiding possible

institutionalization, and to reduce unnecessary stress and financial

burden on these families. Thus, the supportive services component of

the program is anticipated to have a beneficial impact on disabled

families and elderly families.

Since the designation process, however, provides for elderly-only

housing and disabled-only housing, there is the possibility that the

designation process authorized by section 622 of the 1992 Act would

limit the availability of housing for (1) disabled families (if a PHA

designates elderly family-only housing), (2) elderly families (if a PHA

designates disabled family-only housing) or (3) families with children

(if a PHA designates disabled families and/or elderly family-only

housing), and thus adversely impact the maintenance and well-being of

these families. (Although it should be noted that PHAs would be

required to admit eligible elderly families with children to designated

projects for elderly families, and admit eligible disabled families

with children to projects designated for disabled families.) The final

rule, however, provides certain protections for all family types,

including the protection provided by HUD's review and approval of a

PHA's housing allocation plan. The purpose of this review is to ensure

that the availability of public housing, and other housing resources

available to the PHA, is not reduced for any of these families,

especially non-elderly disabled families. Thus, the impact on family

maintenance and well being that may result from the designation

process, as implemented by the Department through this rule, would not

be significant within the meaning of the order.

Executive Order 12612, Federalism

The General Counsel, as the Designated Official under section 6(a)

of Executive Order 12612, Federalism, has determined that this final

rule would not have substantial, direct effects on States, on their

political subdivisions, or on their relationship with the Federal

government, or on the distribution of power and responsibilities among

the various levels of government. The is limited to implementing the

procedures under which PHAs may opt, subject to certain requirements

and procedures, to designate public housing projects, or portions of

public housing projects, for occupancy by elderly families, disabled

families, or disabled families and elderly families.

Regulatory Agenda

This rule was listed as sequence number 1635 in the Department's

Semiannual Agenda of Regulations, published on October 25, 1993 (58 FR

56402, 56448) under Executive Order 12291 and the Regulatory

Flexibility Act.

List of Subjects

24 CFR Part 945

Aged, Grant programs--housing and community development,

Individuals with disabilities, Public housing, Reporting and

recordkeeping requirements.

24 CFR Part 960

Aged, Grant programs--housing and community development,

Individuals with disabilities, Public housing.

Accordingly, title 24 of the Code of Federal Regulations is amended

as follows:

1. A new part 945, consisting of Secs. 945.101 through 945.303, is

added to read as follows:

PART 945--DESIGNATED HOUSING--PUBLIC HOUSING DESIGNATED FOR

OCCUPANCY BY DISABLED, ELDERLY, OR DISABLED AND ELDERLY FAMILIES

Subpart A--General

Sec.

945.101 Purpose.

945.103 General policies.

945.105 Definitions.

Subpart B--Application and Approval Procedures

945.201 Approval to designate housing.

945.203 Allocation plan.

945.205 Designated housing for disabled families.

Subpart C--Operating Designated Housing

945.301 General requirements.

945.303 Requirements governing occupancy in designated housing.

Authority: 42 U.S.C. 1473e; 42 U.S.C. 3535(d).

Subpart A--General

Sec. 945.101 Purpose.

The purpose of this part is to provide for designated housing as

authorized by section 7 of the U.S. Housing Act of 1937 (42 U.S.C.

1437e). Section 7 provides public housing agencies with the option,

subject to the requirements and procedures of this part, to designate

public housing projects, or portions of public housing projects, for

occupancy by disabled families, elderly families, or mixed populations

of disabled families and elderly families.

Sec. 945.103 General policies.

(a) Agency participation. Participation in this program is limited

to public housing agencies (PHAs) (as this term is defined in 24 CFR

913.102) that elect to designate public housing projects for occupancy

by disabled families, elderly families, or disabled families and

elderly families, as provided by this part.

(b) Eligible housing--(1) Designation of public housing. Projects

eligible for designation under this part are public housing projects as

described in the definition of ``project'' in Sec. 945.105.

(2) Additional housing resources. To meet the housing and

supportive service needs of elderly families, and disabled families,

including non-elderly disabled families, who will not be housed in a

designated project, PHAs shall utilize housing resources that they own,

control, or have received preliminary notification that they will

obtain (e.g., section 8 certificates and vouchers). They also may

utilize housing resources for which they plan to apply during the

period covered by the allocation plan, and that they have a reasonable

expectation of obtaining. PHAs also may utilize, to the extent

practicable, any housing facilities that they own or control in which

supportive services are already provided, facilitated or coordinated,

such as mixed housing, shared housing, family housing, group homes, and

congregate housing.

(3) Exemption of mixed population projects. A PHA with a public

housing project with a mixed population of elderly families and

disabled families that plans to house them in such project in

accordance with the requirements of 24 CFR part 960, subpart D, is not

required to meet the designation requirements of this part.

(c) Family Participation in designated housing--(1) Voluntary

participation. The election to reside in designated housing is

voluntary on the part of a family. No disabled family or elderly family

may be required to reside in designated housing, nor shall a decision

not to reside in designated housing adversely affect the family with

respect to occupancy of another appropriate project.

(2) Meeting stated eligibility requirements. Nothing in this part

shall be construed to require or permit a PHA to accept for admission

to a designated project a disabled family or elderly family who does

not meet the stated eligibility requirements for occupancy in the

project (for example, income), as set forth in HUD's regulations in 24

CFR parts 912 and 913, and in the PHA's admission policies.

Sec. 945.105 Definitions.

As used in this part:

Act means the United States Housing Act of 1937 (42 U.S.C. 1437-

1440).

Accessible units means units that meet the requirement of

accessibility with respect to dwellings as set forth in the second

definition of ``accessible'' in 24 CFR 8.3.

Allocation plan. See Sec. 945.201.

CHAS means the comprehensive housing affordability strategy

required by section 105 of the National Affordable Housing Act (42

U.S.C. 12705) or any successor plan prescribed by HUD.

Designated family means the category of family for whom the project

is designated (e. g., elderly family in a project designated for

elderly families).

Designated housing or designated project means a project (or

projects), or a portion of a project (or projects) (as these terms are

defined in this section), that has been designated in accordance with

the requirements of this part.

Disabled family means a family whose head or spouse or sole member

is a person with disabilities. The term ``disabled family'' may include

two or more persons with disabilities living together, and one or more

persons with disabilities living with one or more persons who are

determined to be essential to the care or well-being of the person or

persons with disabilities. A disabled family may include persons with

disabilities who are elderly.

Elderly family means a family whose head, spouse, or sole member is

an elderly person. The term ``elderly family'' includes an elderly

person, two or more elderly persons living together, and one or more

elderly persons living with one or more persons who are determined to

be essential to the care or well-being of the elderly person or

persons. An elderly family may include elderly persons with

disabilities and other family members who are not elderly.

Elderly person means a person who is at least 62 years of age.

Family includes but is not limited to a single person as defined in

this part, a displaced person (as defined in 24 CFR part 912), a

remaining member of a tenant family, a disabled family, an elderly

family, a near-elderly family, and a family with children. It also

includes an elderly family or a disabled family composed of one or more

elderly persons living with one or more disabled persons.

Housing has the same meaning as ``project,'' which is defined in

this section.

HUD or Department means the Department of Housing and Urban

Development including any Field Offices to which authority has been

delegated to perform functions under this part.

Mixed population project means a public housing project reserved

for elderly families and disabled families. This is the project type

referred to in NAHA as being designated for elderly and disabled

families. A PHA that has a mixed population project or intends to

develop one need not submit an allocation plan or request a

designation. However, the project must meet the requirements of 24 CFR

part 960 subpart D.

NAHA means the National Affordable Housing Act (Pub.L. 101-625,

approved November 28, 1990).

Near-elderly family means a family whose head, spouse, or sole

member is a near-elderly person. The term ``near-elderly family''

includes two or more near-elderly persons living together, and one or

more near-elderly persons living with one or more persons who are

determined to be essential to the care or well-being of the near-

elderly person or persons. A near-elderly family may include other

family members who are not near-elderly.

Near-elderly person means a person who is at least 50 years of age

but below the age of 62, who may be a person with a disability.

Non-elderly disabled person means a person with a disability who is

less than 62 years of age.

Person with disabilities means a person who--

(a) Has disability as defined in section 223 of the Social Security

Act (42 U.S.C. 423), or

(b) Is determined to have a physical, mental, or emotional

impairment that--

(1) Is expected to be of long-continued and indefinite duration,

(2) Substantially impedes his or her ability to live independently,

and

(3) Is of such a nature that such ability could be improved by more

suitable housing conditions, or

(c) Has a developmental disability as defined in section 102 of the

Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C.

6001(5)).

The term ``person with disabilities'' does not exclude persons who have

the disease of acquired immunodeficiency syndrome or any conditions

arising from the etiologic agent for acquired immunodeficiency

syndrome.

Portion of project includes: One or more buildings in a multi-

building project; one or more floors of a project or projects; a

certain number of dwelling units in a project or projects. (Designation

of a portion of a project does not require that the buildings, floors

or units be contiguous.)

Project means low-income housing developed, acquired, or assisted

by a PHA under the U.S. Housing Act of 1937 (other than section 8) for

which there is an Annual Contributions Contract (ACC) between HUD and

the PHA. For purposes of this part, the terms housing and public

housing mean the same as project. Additionally, as used in this part,

and unless the context indicates otherwise, the term project when used

in the singular includes the plural, and when used in the plural,

includes the singular, and also includes a ``portion of a project,'' as

defined in this section.

Public housing or public housing project. See definition of

``project'' in this section.

Public housing agency or PHA. See 24 CFR 913.102.

Secretary means the Secretary of Housing and Urban Development.

Service provider means a person or organization qualified and

experienced in the provision of supportive services, and that is in

compliance with any licensing requirements imposed by State or local

law for the type of service or services to be provided. The service

provider may provide the service on either a for-profit or not-for-

profit basis.

Single person means a person who lives alone or intends to live

alone, who is not an elderly person, a person with disabilities, a

displaced person, or the remaining member of a tenant family.

Supportive service plan. See Sec. 945.205.

Supportive services means services available to persons residing in

a development, requested by disabled families and for which there is a

need, and may include, but are not limited to, meal services, health-

related services, mental health services, services for nonmedical

counseling, meals, transportation, personal care, bathing, toileting,

housekeeping, chore assistance, safety, group and socialization

activities, assistance with medications (in accordance with any

applicable State laws), case management, personal emergency response,

and other appropriate services.

Subpart B--Application and Approval Procedures

Sec. 945.201 Approval to designate housing.

(a) Designated housing for elderly families. To designate a project

for occupancy by elderly families, a PHA must have a HUD-approved

allocation plan that meets the requirements of Sec. 945.203.

(b) Designated housing for disabled families. To designate a

project for occupancy by disabled families, a PHA must have a HUD-

approved allocation plan that meets the requirements of Sec. 945.203,

and a HUD-approved supportive service plan that meets the requirements

of Sec. 945.205.

(c) Designated housing for elderly families and disabled families.

(1) A PHA that provides or intends to provide a mixed population

project (a project for both elderly families and disabled families) is

not required to meet the requirements of this part. The PHA is required

to meet the requirements of 24 CFR part 960, subpart D.

(2) A PHA that intends to provide designated housing for elderly

families or for disabled families must identify any existing or planned

mixed population projects, reserved under 24 CFR part 960, subpart B,

as additional housing resources, in its allocation plan, in accordance

with Sec. 945.203(c)(6).

Sec. 945.203 Allocation plan.

(a) Applicable terminology. (1) As used in this section, the terms

``initial allocation plan'' refers to the PHA's first submission of an

allocation plan, and ``updated allocation plan'' refers to the biennial

update (once every two years) of this plan, which is described in

paragraph (f) of this section.

(2) As provided in Sec. 945.105, the term ``project'' includes the

plural (``projects'') and includes a portion of a project.

(b) Consultation in plan development. These consultation

requirements apply to the development of an initial allocation plan as

provided in paragraph (c) of this section, or any update of the

allocation plan as provided in paragraph (f) of this section.

(1) In preparing the draft plan, the PHA shall consult with:

(i) The State or unit of general local government where the project

is located;

(ii) Public and private service providers;

(iii) Representative advocacy groups for each of these family

types: disabled families, elderly families, and families with children,

where such advocacy groups exist;

(iv) Representatives of the residents of the PHA's projects

proposed for designation, including representatives from resident

councils or resident management corporations where they exist; and

(v) Other parties that the PHA determines would be interested in

the plan, or other parties that have contacted the PHA and expressed an

interest in the plan.

(2) Following the completion of the draft plan, the PHA shall:

(i) Issue public notices regarding its intention to designate

housing and the availability of the draft plan for review;

(ii) Contact directly those individuals, agencies and other

interested parties specified in paragraph (b)(1) of this section, and

advise of the availability of the draft plan for review;

(iii) Allow not less than 30 days for public comment on the draft

allocation plan;

(iv) Make free copies of the draft plan available upon request, and

in accessible format, when appropriate;

(v) Conduct at least one public meeting on the draft allocation

plan;

(vi) Give fair consideration to all comments received; and

(vii) Retain any records of public meetings held on the allocation

plan (or updated plan) and any written comments received on the plan

for a period of five years commencing from the date of submission of

the allocation plan to HUD. These records must be available for review

by HUD.

(c) Contents of initial plan. The initial allocation plan shall

contain, at a minimum, the information set forth in this paragraph (c).

(1) Identification of the project to be designated and type of

designation to be made. The PHA must:

(i) Identify the type of designation to be made (i.e., housing for

disabled families or housing for elderly families);

(ii) Identify the building(s), floor(s), or unit(s) to be

designated and their location, or if specific units are not designated,

the number to be designated; and

(iii) State the reasons the building(s), floor(s), or unit(s) were

selected for designation.

(2) Identification of groups and persons consulted and comments

submitted. The PHA must:

(i) Identify the groups and persons with whom the PHA has consulted

in the development of the allocation plan;

(ii) Include a summary of comments received on the plan from the

groups and persons consulted; and

(iii) Describe how the plan addresses these comments.

(3) Profile of proposed designated project in pre-designation

state. This component of the plan must include, for the projects,

buildings, or portions of buildings to be designated:

(i) The total number of families currently occupying the project,

and

(A) The number of families who are members of the group for whom

the project is to be designated, and

(B) The number of families who are not members of the group for

whom the project is to be designated;

(ii) An estimate of the total number of elderly families and

disabled families who are potential tenants of the project (i.e., as

the project now exists), based on information provided by:

(A) The waiting list from which vacancies in the project are

filled; and

(B) A local housing needs survey, if available, such as the CHAS,

for the jurisdiction within which the area served by the PHA is

located;

(iii) An estimate of the number of potential tenants who will need

accessible units based on information provided by:

(A) The needs assessment prepared in accordance with 24 CFR 8.25,

and

(B) A housing needs survey, if available, such as the CHAS or HUD-

prescribed successor survey;

(iv) The number of units in the project that became vacant and

available for occupancy during the year preceding the date of

submission of the allocation plan to HUD;

(v) The average length of vacancy for dwelling units in the project

for the year preceding the date of submission of the allocation plan to

HUD;

(vi) An estimate of the number of units in the project that the PHA

expects to become vacant and available for occupancy during the two-

year period following the date of submission of the allocation plan to

HUD (i.e., if the project were not to be designated);

(vii) An estimate of the average length of time elderly families

and non-elderly persons with disabilities currently have to wait for a

dwelling unit.

(4) Projected profile of project in designated state. This

component of the plan must:

(i) Identify the source of the families for the designated project

(e.g., current residents of the project, families currently on the

waiting list, residents of other projects, and potential tenants based

on information from the local housing needs survey);

(ii) For projects proposed to be designated for occupancy by

elderly families an estimate of the number of:

(A) Units in the project that are anticipated to become vacant and

available for occupancy during the two-year period following the date

of submission of the allocation plan to HUD;

(B) Near-elderly families who may be needed to fill units in the

designated project for elderly families, as provided in

Sec. 945.303(c);

(iii) Describe any impact the designation may have on the average

length of time applicants in the group for which the project is

designated and other applicants will have to wait for a dwelling unit.

(5) PHA occupancy policies and procedures. This component of the

plan must describe any changes the PHA intends to make in its admission

policies to accommodate the designation, including:

(i) How the waiting list will be maintained;

(ii) How dwelling units will be assigned; and

(iii) How records will be maintained to document the effect on all

families who would have resided in the designated project if it had not

been designated.

(6) Strategy for addressing the current and future housing needs of

the families in the PHA's jurisdiction. The PHA must:

(i) Identify the housing resources currently owned or controlled by

the PHA, including any mixed population projects, in existence, as

provided in 24 CFR part 960, subpart D, that will be available to these

families;

(ii) Describe the steps to be taken by the PHA to respond to any

need for accessible units that will no longer be available for

applicants who need them. The PHA has a continuing obligation under

section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) to

provide accessible dwellings even if the project designation removes

accessible dwellings from the inventory of possible dwellings for non-

elderly persons with disabilities;

(iii) If a project is being designated for elderly families,

describe the steps the PHA will take to facilitate access to supportive

services by non-elderly disabled families. The services should be

equivalent to those available in the designated project and requested

by non-elderly disabled families. If the PHA funds supportive services

for the designated project for elderly families, the PHA must provide

the same level of services, upon the request of non-elderly disabled

families.

(iv) If a project is being designated for elderly families,

identify the additional housing resources that the PHA determines will

be sufficient to provide assistance to not less than the number of non-

elderly disabled families that would have been housed by the PHA if

occupancy in units in the designated project were not restricted to

elderly families (one-for-one replacement is not required). Among these

resources may be:

(A) Normal turnover in existing projects;

(B) Existing housing stock that previously was not available to or

considered for non-elderly disabled families. Examples are dwellings in

general occupancy (family) projects that are reconfigured to meet the

dwelling size needs of the non-elderly disabled families, or were

previously occupied by elderly families who will relocate to the

designated project for elderly families, or were previously vacant

because there had not been a demand for dwellings of that size in that

location;

(C) Housing for which the PHA has received preliminary notification

that it will obtain; and

(D) Housing for which the PHA plans to apply during the period

covered by the allocation plan, and which it has a reasonable

expectation of obtaining.

(v) Where a project is being designated for elderly families,

explain how the PHA plans to secure the required additional housing

resources. In the case of housing for which the PHA plans to apply, the

PHA must provide sufficient information about the housing resource and

its application to establish that the PHA can reasonably expect to

obtain the housing.

(vi) Describe incentives, if any, that the PHA intends to offer to:

(A) Families who are members of the group for whom a project was

designated to achieve voluntary transfers to the designated project;

and

(B) Families who are not members of the group for whom a project

was designated to achieve voluntary transfers from the project proposed

to be designated;

(d) Criteria for allocation plan approval. HUD shall approve an

initial allocation plan, or updated allocation plan, if HUD determines

that:

(1) The information contained in the plan is complete and accurate

(a plan that is incomplete, i.e., missing required statements or items,

will be disapproved), and the projections are reasonable;

(2) Implementation of the plan will not result in a substantial

increase in the vacancy rates in the designated project;

(3) Implementation of the plan will not result in a substantial

increase in delaying or denying housing assistance to families on the

PHA's waiting list because of designating projects;

(4) The plan for securing sufficient additional housing resources

for non-elderly disabled persons can reasonably be achieved; and

(5) The plan conforms to the requirements of this part.

(e) Allocation plan approval or disapproval.--(1) Written

notification. HUD shall notify each PHA, in writing, of approval or

disapproval of the initial or updated allocation plan.

(2) Timing of notification. An allocation plan shall be considered

to be approved by HUD if HUD fails to provide the PHA with notification

of approval or disapproval of the plan, as required by paragraph (e)(1)

of this section, within:

(i) 90 days after the date of submission of an allocation plan that

contains comments, as provided in paragraph (c)(2) of this section; or

(ii) 45 days after the date of submission of all other plans,

including

(A) Initial plans for which no comments were received;

(B) Updated plans, as provided in paragraph (f) of this section;

and

(C) Revised initial plans or revised updated plans, as provided in

paragraph (e)(4) of this section.

(3) Approval limited solely to approval of designated housing.

HUD's approval of an initial plan or updated allocation plan under this

section may not be construed to constitute approval of any request for

assistance for major reconstruction of obsolete projects, assistance

for development or acquisition of public housing, or assistance under

24 CFR part 890 (supportive housing for persons with disabilities).

(4) Resubmission following disapproval. If HUD disapproves an

initial allocation plan, a PHA shall have a period of not less than 45

days or more than 90 days following notification of disapproval as

provided in paragraph (e)(2) of this section, to submit amendments to

the plan, or to submit a revised plan.

(f) Biennial update of plan.--(1) General. Each PHA that owns or

operates a public housing project that is designated for occupancy

under this part shall update its allocation plan not less than once

every two years, from the date of HUD approval of the initial

allocation plan. A PHA that wishes to amend or revise its plan later

than 90 days after HUD disapproval must begin the hearing and

consultation process again.

(2) Failure to submit updated plan. If the PHA fails to submit the

updated plan as required by this paragraph (f), the Secretary may

revoke the designation in accordance with the provisions of paragraph

(f)(4)(ii) of this section.

(3) Contents of updated plan. The updated allocation plan shall

contain, at a minimum, the following information:

(i) The most recent update of the allocation plan data, and

projections for the next two years;

(ii) An assessment of the accuracy of the projections contained in

previous plans and in the updated allocation plan;

(iii) The number of times a vacancy was filled in accordance with

Sec. 945.303(c);

(iv) A discussion of the impact of the designation on the

designated project and the other public housing projects operated by

the PHA, using the data obtained from the system developed in

Sec. 945.203(c), including

(A) The number of times there was a substantial increase in

delaying housing assistance to families on the PHA's waiting list

because projects were designated; and

(B) The number of times there was a substantial increase in denying

housing assistance to families on the PHA's waiting list because

projects were designated;

(v) A plan for adjusting the allocation of designated units, if

necessary.

(4) Criteria for approval of updated plan. (i) HUD shall approve an

updated allocation plan based on HUD's review and assessment of the

updated plan, using the criteria in (d) of this section. If HUD

considers it appropriate, the review and assessment shall include any

on-site review and monitoring of PHA performance in the administration

of its designated housing and in the allocation of the PHA's housing

resources. Notification of approval or disapproval of the updated

allocation plan shall be provided in accordance with paragraph (e) of

this section;

(ii) If a PHA's updated plan is not approved, HUD may require PHAs

to change the designation of existing or planned projects to other

categories, such as general occupancy or mixed population projects.

(5) Notification of approval or disapproval of updated plan. HUD

shall notify each PHA submitting an updated plan of approval or

disapproval of the updated plan, in accordance with the form of

notification and within the time periods required by paragraph (e) of

this section.

(Approved by the Office of Management and Budget under control

number 2577-0192.)

Sec. 945.205 Designated housing for disabled families.

(a) General. (1) In general, HUD will approve designated projects

for disabled families only if there is a clear demonstration that there

is both a need and a demand by disabled families for such designation.

In the absence of such demonstrated need and demand, PHAs should

provide for the housing needs of disabled families in the most

integrated setting possible.

(2) To designate a project for disabled families, a PHA must submit

the allocation plan required by Sec. 945.203 and the supportive service

plan described in paragraph (b) of this section.

(3) In its allocation plan,

(i) The PHA may not designate a project for persons with a specific

disability;

(ii) The designated project does not have to be made up of

contiguous units. PHAs are encouraged to place the units in the

project, whether contiguous or not, in the most integrated setting

possible.

(4) The consultation process for the allocation plan provided in

Sec. 945.203(b) and consultation process for the supportive service

plan provided in this section may occur concurrently.

(5) If the PHA conducts surveys to determine the need or demand for

a designated project for disabled families or for supportive services

in such project, the PHA must protect the confidentiality of the survey

responses.

(b) Supportive Service Plan. The plan shall describe how the PHA

will provide or arrange for the provision of the appropriate supportive

services requested by the disabled families who will occupy the

designated housing and who have expressed a need for these services.

(1) Contents of plan. The supportive service plan, at a minimum,

must:

(i) Identify the number of disabled families who need the

supportive services and who have expressed an interest in receiving

them;

(ii) Describe the types of supportive services that will be

provided, and, if known, the length of time the supportive services

will be available;

(iii) Identify each service provider to be utilized, and describe

the experience of the service provider in delivering supportive

services;

(iv) Describe how the supportive services will be provided to the

disabled families that the designated housing is expected to serve (how

the services will be provided depends upon the type of service offered;

e.g., if the package includes transportation assistance, how

transportation assistance will be provided to disabled families);

(v) Identify all sources of funding upon which the PHA is relying

to deliver supportive services to residents of the designated housing

for disabled families, or the supportive service resources to be

provided in lieu of funding;

(vi) Submit evidence of a specific contractual commitment or

commitments provided to the PHA by the sources identified in paragraph

(b)(1)(v) of this section to make funds available for supportive

services, or the delivery of supportive services available to the PHA

for at least two calendar years;

(vii) Identify any public and private service providers, advocates

for the interests of designated housing families, and other interested

parties with whom the PHA consulted in the development of this

supportive service plan, and summarize the comments and recommendations

made by these parties. (These comments must be maintained for a period

of five years, and be available for review by HUD as provided in

paragraph (b)(2)(vii) of this section.);

(viii) If applicable, address the need for residential supervision

of disabled families (on-site supervision within the designated

housing) and how this supervision is to be provided;

(ix) Include any other information that the PHA determines would

assist HUD in assessing the suitability of the PHA's supportive service

plan; and

(x) Include any additional information that HUD may request, and

which is appropriate to a determination of the suitability of the

supportive service plan.

(2) Public review and comment on the supportive service plan. In

preparing the initial supportive service plan, or any update of the

supportive service plan, the PHA shall:

(i) Issue public notices regarding its intention to provide

supportive services to designated housing for disabled families and the

availability of the draft supportive service plan;

(ii) Send notices directly to interested individuals and agencies

that have contacted the PHA and have expressed an interest in the

supportive service plan, and to parties specified in paragraph

(b)(1)(vii) of this section;

(iii) Allow not less than 30 days for public comment on the

supportive service plan;

(iv) Make free copies of the draft plan available upon request, and

in accessible format, when appropriate;

(v) Conduct at least one public meeting regarding the supportive

service plan;

(vi) Give fair consideration to all comments received; and

(vii) Retain any records of the public meetings held on the

supportive service plan, and any written comments received on the

supportive service plan for a period of five years, from the date of

submission of the supportive service plan. These records must be

available for review by HUD.

(c) Approval. HUD shall approve designated housing for disabled

families if the allocation plan meets the requirements of Sec. 945.203,

including demonstrating both a need and a demand for designated housing

for disabled families, and if HUD determines on the basis of the

information provided in the supportive service plan that:

(1) There is a sufficient number of persons with disabilities who

have expressed an interest in occupying a designated project for

disabled families, and who have expressed a need and demand for the

supportive services that will be provided;

(2) The supportive services are adequately designed to meet the

needs of the disabled families who have indicated a desire for them;

(3) The service provider has current or past experience

administering an effective supportive service delivery program for

persons with disabilities;

(4) If residential supervision is required, a written commitment to

provide this supervision in the designated housing.

(Approved by the Office of Management and Budget under control

number 2577-0192.)

Subpart C--Operating Designated Housing

Sec. 945.301 General requirements.

The application procedures and operation of designated projects

shall be in conformity with the regulations of this part, and the

regulations applicable to PHAs in 24 CFR Chapter IX, including 24 CFR

parts 913, 960 and 966, and, in particular, the nondiscrimination

requirements of 24 CFR 960.211(b)(3), that include but are not limited

to section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), Fair

Housing Act (42 U.S.C. 3601-3619), title VI of the Civil Rights Act of

1964 (42 U.S.C. 2000d), section 3 of the Housing and Urban Development

Act of 1968 (12 U.S.C. 1701u), the Age Discrimination Act (42 U.S.C.

6101-6107), Executive Order 11246 (3 CFR 1964-1965 Comp., p. 339),

Executive Order 11063, as amended by Executive Order 12259 (3 CFR 1958-

1963 Comp., p. 652 and 3 CFR 1980 Comp., p. 307), the Americans with

Disabilities Act (42 U.S.C. 12101-12213) (to the extent the Americans

with Disabilities Act is applicable) and the implementing regulations

of these statutes and authorities; and other applicable Federal, State,

and local laws prohibiting discrimination and promoting equal

opportunity.

Sec. 945.303 Requirements governing occupancy in designated housing.

(a) Priority for occupancy. Except as provided in paragraph (c) of

this section, in determining priority for admission to designated

housing, the PHA shall make units in the designated housing available

only to designated families.

(b) Compliance with preference regulations. Among the designated

families, the PHA shall give preference in accordance with the

preferences in 24 CFR part 960, subpart B.

(c) Eligibility of other families for housing designated for

elderly families--(1) Insufficient elderly families. If there are an

insufficient number of elderly families for the units in a project

designated for elderly families, the PHA may make dwelling units

available to near-elderly families, who qualify for preferences under

24 CFR part 960, subpart B. The election to make dwelling units

available to near-elderly families if there are an insufficient number

of elderly families should be explained in the PHA's allocation plan.

(2) Insufficient elderly families and near-elderly families. If

there are an insufficient number of elderly families and near-elderly

families for the units in a project designated for elderly families,

the PHA shall make available to all other families any dwelling unit

that is:

(i) Ready for re-rental and for a new lease to take effect; and

(ii) Vacant for more than 60 consecutive days.

(d) Tenant choice of housing. (1) Subject to paragraph (d)(2) of

this section, the decision of any disabled family or elderly family not

to occupy or accept occupancy in designated housing shall not have an

adverse affect on:

(i) The family's admission to or continued occupancy in public

housing; or

(ii) The family's position on or placement on a public housing

waiting list.

(2) The protection provided by paragraph (d)(1) of this section

shall not apply to any family who refuses to occupy or accept occupancy

in designated housing because of the race, color, religion, sex,

disability, familial status, or national origin of the occupants of the

designated housing or the surrounding area.

(3) The protection provided by paragraph (d)(1) of this section

shall apply to an elderly family or disabled family that declines to

accept occupancy, respectively, in a designated project for elderly

families or for disabled families, and requests occupancy in a general

occupancy project or in a mixed population project.

(e) Appropriateness of dwelling unit to family size. This part may

not be construed to require a PHA to offer a dwelling in a designated

project to any family who is not of appropriate family size for the

dwelling unit. The temporary absence of a child from the home due to

placement in foster care is not considered in determining family

composition and family size.

(f) Prohibition of evictions. Any tenant who is lawfully residing

in a dwelling unit in a public housing project may not be evicted or

otherwise required to vacate the unit because of the designation of the

project, or because of any action taken by HUD or the PHA in accordance

with this part.

(g) Prohibition of coercion to accept supportive services. As with

other HUD-assisted housing, no disabled family or elderly family

residing in designated housing may be required to accept supportive

services made available by the PHA under this part.

(h) Availability of grievance procedures in 24 CFR part 966. The

grievance procedures in 24 CFR part 966, subpart B, which applies to

public housing tenants, is applicable to this part.

PART 960--ADMISSION TO, AND OCCUPANCY OF, PUBLIC HOUSING

2. The authority citation for part 960 continues to read as

follows:

Authority: 42 U.S.C. 1437a, 1437c, 1437d, 1437n, 3535(d).

3. The heading of subpart D is revised, Sec. 960.409 is removed,

and Secs. 960.401, 960.403, 960.405, and 960.407 are revised to read as

follows:

Subpart D--Preference for Elderly Families and Disabled Families in

Mixed Population Projects

Sec. 960.401 Purpose.

This subpart establishes a preference for elderly families and

disabled families for admission to mixed population public housing

projects, as defined in Sec. 960.405.

Sec. 960.403 Applicability.

(a) This subpart applies to all dwelling units in mixed population

projects (as defined in Sec. 960.405), or portions of mixed population

projects, assisted under the U.S. Housing Act of 1937. These projects

formerly were known as elderly projects.

(b) This subpart does not apply to section 23 and section 10(c)

leased housing projects or the section 23 Housing Assistance Payments

Program where the owners enter into leases directly with the tenants,

or to the Section 8 Housing Assistance Payments Program, the Low-Rent

Housing Homeownership Opportunities Program (Turnkey III), the Mutual

Help Homeownership Opportunities Program, or to Indian Housing

Authorities. (For applicability to Indian Housing Authorities, see part

905 of this chapter.) Additionally, this subpart is not applicable to

projects designated for elderly families or designated for disabled

families in accordance with 24 CFR part 945.

Sec. 960.405 Definitions.

Designated housing. See definition of ``designated housing'' in 24

CFR part 945.

Disabled families. See definition of ``disabled families'' in 24

CFR part 945.

Elderly families. See definition of ``elderly families'' in 24 CFR

part 945.

Mixed population project is a public housing project, or portion of

a project, that was reserved for elderly families and disabled families

at its inception (and has retained that character). If the project was

not so reserved at its inception, the PHA has obtained HUD approval to

give preference in tenant selection for all units in the project (or

portion of project) to elderly families and disabled families. These

projects formerly were known as elderly projects.

Sec. 960.407 Selection preference; other preferences; single person

occupancy.

(a) A PHA must give preference to elderly families and disabled

families equally in determining priority for admission to mixed

population projects. A PHA may not establish a limit on the number of

elderly families or disabled families who may be accepted for occupancy

in a mixed population project.

(b) The PHA must follow its policies and procedures for applying

the Federal preferences contained in subpart B of this part when

selecting applicants for admission from among elderly families and

disabled families.

(c) Elderly families and disabled families who do not qualify for a

Federal preference contained in subpart B of this part, and who are

given preference for admission under paragraph (a) of this section over

non-elderly families and non-disabled families that qualify for such a

Federal preference, are not subject to the statutory 10 percent

limitation on admission of families without a Federal preference over

families with such a Federal preference that may initially receive

assistance in any one-year period, as provided in 24 CFR

960.211(b)(2)(ii).

(d) If an elderly or disabled applicant is a single person, as this

term is defined in 24 CFR part 945, the elderly single person or the

disabled single person shall be given a preference for admission to

mixed population projects over single persons who are neither elderly

nor disabled.

(e) In offering available units to elderly families and disabled

families in mixed population projects, units with accessible features

should first be offered to persons with disabilities who require the

accessibility features of the unit in accordance with the requirements

of 24 CFR 8.27 and 24 CFR 100.202(c)(3).

Dated: April 7, 1994.

Joseph Shuldiner,

Assistant Secretary for Public and Indian Housing.

[FR Doc. 94-8897 Filed 4-12-94; 8:45 am]

BILLING CODE 4210-33-P