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Comments on HUD's RFI on CDBG Disaster Recovery

Tuesday, February 21, 2023

By electronic transmission to http://www.regulations.gov

February 21, 2023

Regulations Division
Office of General Counsel
Department of Housing and Urban Development
451 7th Street SW, Room 10276
Washington, DC 20410-0500

Re: Docket Number FR-6336-N-01: Request for Information for HUD’s Community Development Block Grant Disaster Recovery (CDBG-DR) Rules, Waivers, and Alternative Requirements

To Whom It May Concern:

The National Council on Disability (NCD) appreciates the opportunity to provide comments responding to your Request for Information (RFI). NCD is an independent federal agency charged with advising the President, Congress, and other federal agencies regarding policies, programs, practices, and procedures that affect people with disabilities. Natural disasters have unique and profound impacts on the lives of people with disabilities. Major contributors to these impacts are a history of inequity in disaster planning, disaster response, and community redevelopment after disasters. This is an ongoing concern of NCD and a topic where we hold considerable knowledge.

Because the focus of CDBG-DR grant funds is to address long-term housing recovery and other needs, particularly for the most vulnerable communities, we agree with the Administration’s finding that CDBG-DR is uniquely positioned to advance equity and prioritize disadvantaged communities after disasters. In fact, it is imperative that it does. We commend HUD for its intention to revise the process for implementing CDBG-DR grants, and for your plan to publish a CDBG-DR universal notice with comprehensive and uniform requirements governing CDBG-DR funding so that disaster recovery is conducted in a more equitable manner.

Before responding to specific RFI’s we provide HUD with background information on the plight of people disabilities after disasters and during the pandemic as that information provides important context to our responses to the RFI.

Background on People with Disabilities After Disasters

Most people with disabilities who leave their homes due to a disaster do not return to their communities. Recent Census Bureau data reveal that people with disabilities are more likely than any other population to face major hardships due to a major disaster, including disproportionate displacement from their homes.1 The data also show that, compared to those without disabilities, displaced people with disabilities face high levels of isolation, squalid living conditions, shortages of food and water and electricity, and permanent dislocation. This data is aligned with years of reports from people with disabilities who have been displaced by disasters and with information that NCD has gathered.

In NCD’s report, Preserving Our Freedom: Ending Institutionalization of People with Disabilities During and After Disasters, NCD described the experiences of people with disabilities who were displaced due to several recent natural disasters, many of whom were unnecessarily institutionalized and faced tremendous barriers in reentering the community.2 One of the barriers to re-entry after disasters was a lack of housing to return to after disaster recovery. NCD found that states were not required to allocate federal disaster recovery funding to equitably address the needs of homeowners, renters, and people experiencing homelessness prior to the disaster, as identified in FEMA and HUD’s assessments and other data. As a result, after past disasters, states had diverted resources away from people with the greatest needs—including low-income renters and people experiencing homelessness—to relatively higher-income homeowners. NCD also noted that a 2010 GAO report recommended that Congress provide more direction to states in how to allocate CDBG-DR funds, stating that, “Without specific direction on how to better target disaster related CDBG-DR funds for the redevelopment of homeowner and rental units after future disasters, states’ allocations of assistance to homeowners and renters may again result in significant differences in the level of assistance provided.”3

Based on our findings in Preserving our Freedom, NCD made several recommendations to address disparities and increase equitable recovery for people with disabilities:

  • [HUD, Congress] should require states receiving federal disaster recovery funding to allocate CDBG-DR resources equitably to address their housing and infrastructure needs, according to FEMA and HUD’s assessments and other data.
  • HUD should implement GAO’s recommendation to provide states with specific direction on how to allocate disaster recovery dollars equitably between homeowners, renters, and people experiencing homelessness prior to the disaster, according to FEMA and HUD’s unmet needs assessment and other data.
  • States receiving CDBG-DR funding should ensure that all damaged or destroyed federally subsidized affordable rental homes are replaced on a one-for-one basis.

NCD’s 2022 report, Strengthening the HCBS Ecosystem – Responding to Dangers of Congregate Settings during COVID-19, written in response to the disproportionate amount of deaths of people with disabilities who were living in institutional settings when the pandemic struck, focuses on the lack of affordable and accessible housing as a substantial problem for people with disabilities, making it easier to become institutionalized after a disaster and harder to leave institutional settings.4 During the pandemic, that problem was life-threatening for people with disabilities residing in congregate settings. The report discusses weaknesses in HUD’s ability to monitor compliance with federal accessibility requirements for housing construction that are tied to the receipt of federal funds. NCD notes that HUD’s oversight on housing construction for compliance with federal civil rights and nondiscrimination laws counts on recipient assurances. This self-reporting perpetuates the dearth of accessible housing and has been shown to be costly, as thousands of accessible housing units are not being constructed, or are constructed incorrectly, while recipients continue to receive millions in taxpayer dollars and people with disabilities remain on waitlists for accessible housing. The report provides examples of cities who received federal financial assistance to construct large housing developments but did not comply with the accessibility requirements under HUD’s Section 504 regulation.5 As a result, thousands of accessible housing units that were supposed to be constructed for people with mobility disabilities were not built - worsening the ongoing housing shortage for people with disabilities in those cities. Years later, in both cities, these much-needed units remain largely unavailable.  Federal funds should not be used to perpetuate discrimination.

When recipients and subrecipients of federal financial assistance, like CDBG or CDBG-DR funds, do not comply with the construction requirements under the Fair Housing Act and HUD’s Section 504 regulation, it significantly lessens housing opportunities for people with disabilities and contributes to unnecessary and unwanted placement and displacement (in the case of a disaster) in institutional settings for too many. Those waiting for affordable, accessible housing opportunities include a portion of the institutionalized population of over 600 thousand who are on wait lists for Medicaid Home and Community-Based Services, some of whom ended up in institutional settings after a major disaster; individuals with disabilities currently in the community but in inappropriate housing (limited or no accessibility); and thousands who are on public housing authority wait lists for an opening in one of the five percent, high accessibility units required under HUD’S Section 504 regulation.

NCD’s recommendations to HUD included several on increased monitoring during the design and construction stages of federally-assisted housing development and the following:

As a part of federal implementation of Section 504, HUD is obligated to collect assurances of compliance with Section 504, including the accessibility requirements. HUD should undertake a review of its various grant programs to ensure that it is collecting appropriate programmatic and construction assurances and provide guidance to grantees to ensure they understand what this means for new construction, substantial alteration, other alterations, and program access, as well as obligations related to nondiscrimination, reasonable accommodations, effective communication, among others.

Response to Specific Questions in the RFI

5. Advancing Equity

e. What additional guidance, data, or support can HUD provide to help grantees comply with fair housing and civil rights requirements and allocate resources equitably across housing types?

Response: Equitable and successful recovery means that people with disabilities who are displaced due to a disaster can come back to live in their communities. One way to  achieve this is to ensure that CDBG-DR fund recipients understand their obligations under federal civil rights laws regarding accessible design and construction requirements for federally-assisted housing.

To help ensure equity in disaster recovery for people with disabilities, HUD should:

  1. Clearly inform recipients, in a stand-alone section of the comprehensive, universal notice and the funding requirements, that recipients are required to comply with civil rights and nondiscrimination laws as a condition of receipt of CDBG-DR funds and, by law, this requirement cannot be waived.
  2. Provide recipients of CDBG-DR funds with full information on the Fair Housing Act’s design and construction requirements, and on the construction requirements under HUD’s Section 504 regulations. We recommend that the comprehensive notice include, at minimum, include the following:
  3. A description of the Fair Housing Act regarding requirements for constructing  multifamily dwellings. For example -

Title VIII of the Civil Rights Act of 1968, as amended, (42 U.S.C. 3601 et seq.) (the ‘‘Fair Housing Act’’) prohibits discrimination in housing and housing-related transactions based on race, color, religion, national origin, sex, disability and familial status. The Act provides, that unlawful discrimination against persons with disabilities includes the failure to design and construct covered multifamily dwellings for first occupancy after March 13, 1991, in a manner that ‘‘(1) the public and common use portions of such dwellings are readily accessible to and usable by handicapped persons; (2) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and (3) all premises within such dwellings contain the following features of adaptive design: (a) An accessible route into and through the dwelling; (b) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (c) reinforcements in bathroom walls to allow later installation of grab bars; and (d) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. 42 U.S.C. 3604(f)(3)(C).6

  1. A statement describing the types of dwellings that at the design and construction        apply to, e.g., housing that is for rent or for sale, transitional housing, student housing, assisted living housing, some homeless shelters, time shares, and dormitories.
  2. A list of resources, such as:
  1. The comprehensive, universal notice should include information on the Section 504 requirements for federally-assisted housing.

We recommend that the universal notice include, at a minimum, the following:

Section 504 Construction Requirements

Section 504 requires that recipients of federal financial assistance ensure that their programs and activities are readily accessible to and usable by individuals with disabilities.

As of July 11, 1988, newly-constructed housing and non-housing facilities must be designed and constructed to be readily accessible to and usable by persons with disabilities. In new construction multifamily housing projects, a minimum of 5 percent of the total dwelling units (or at least one unit, whichever is greater) must be made accessible for persons with mobility impairments. An additional 2 percent of the total units (or at least one unit, whichever is greater) must be made accessible for persons with hearing or vision impairments. In circumstances where greater need is demonstrated, HUD may prescribe higher percentages or numbers.

Physical accessibility requirements also apply to any alterations of existing housing and non-housing facilities. Under HUD’s Section 504 regulation, alterations include any change in a facility or a change to its permanent fixtures or equipment. If alterations are undertaken to a multifamily housing project that has fifteen or more units and the cost of the alterations is 75 percent or more of the replacement cost of the completed facility, this qualifies as “substantial alteration,” in which all of the new construction provisions of HUD’s Section 504 regulation apply.

Designated accessible units must be made accessible in accordance with HUD’s Section 504 architectural accessibility standards. The accessibility standard under HUD’s Section 504 regulation is the Uniform Federal Accessibility Standards (UFAS). 7

  1. The universal notice should provide additional resources on the Section 504 requirements, such as:
  1. The universal notice should clarify that the Section 504 requirements are in addition to the Fair Housing design and construction requirements.
  2. The universal notice should require an express acknowledgment of having read the notice and an agreement to comply with its applicable obligations.

1. Reducing Administrative Burden and Accelerating Recovery.

k. What types of technical assistance should HUD offer grantees to support a timely, equitable, resilient, and successful recovery?

Response:  Providing grantees with the information described above will assist them in complying with federal civil rights laws in their recovery efforts, thereby increasing equitable and successful recovery after disasters. Other technical assistance could include training on the Fair Housing Act and Section 504 design and construction requirements for both recipients and subrecipients of CDBG-DR funds. Fair Housing Accessibility First, a HUD initiative, includes an instruction curriculum developed by a team of architects and other Fair Housing Act accessibility experts to provide critical information on various Fair Housing Act accessibility related subject matters.8 Technical assistance can also include a comprehensive seminar by the Office of Fair Housing and Equal Opportunity, titled Fair Housing, Civil Rights, and Equity Requirements with CDBG-DR and CDBG-MIT Grants.9

Are there phases of CDBG-DR grants ( e.g., initial administrative work, action plan development, program implementation, etc.) where providing more intensive technical assistance would be more effective?

Response: Technical assistance on civil rights obligations for design and construction of housing should begin with comprehensive information in the universal notice. Training on the Fair Housing Act and Section 504 design and construction requirements should be suggested to, or required for, grantees at the action plan development and implementation stages. Subrecipients should also be provided with technical assistance.

What types of technical assistance should States offer local government subrecipients to support a timely, equitable, resilient, and successful recovery?

Response: Because subrecipients play a large role in the development of housing, it is imperative that States provide local government subrecipients with the same information on civil rights and nondiscrimination laws that we recommend above for inclusion in the comprehensive, universal notice for grantees, and to the greatest extent possible, in technical assistance.

7. Replacing Disaster-damaged Housing Units, Minimizing Displacement, and Incentivizing Affordable Housing Development

Should CDBG-DR notices continue to waive and provide alternative requirements for the one-for-one replacement housing requirements at section 104(d)(2)(A)(i) and (ii) and (d)(3) (42 U.S.C. 5304(d)(2)(A)(i) and (i) and (d)(3)) of the HCDA and 24 CFR 42.375 for disaster-damaged owner-occupied lower-income dwelling units that meet the grantee’s definition of “not suitable for rehabilitation?” To expedite recovery, HUD waives this requirement for disaster-damaged owner-occupied units that meet the grantee’s definition for “not suitable for rehabilitation.” CDBG-DR grantees have the discretion to define “not suitable for rehabilitation,” but must include their definition in their action plan for disaster recovery.

Response: No, CDBG-DR grantees should be required to ensure that all damaged or destroyed federally subsidized affordable rental homes are replaced on a one-for-one basis. America’s rental housing crisis directly impacts all states and congressional districts. Even before a disaster hits, most of the lowest-income families living in these communities pay more than half of their limited incomes on rent, leaving few resources to help meet their other basic needs, including food, childcare, healthcare, and transportation. After past disasters, affordable housing stock is often lost and never rebuilt, including accessible units for people with disabilities, exacerbating the affordable rental housing crisis in these communities and displacing low-income families.

In addition to the recommendations above, NCD urges HUD to develop and implement a comprehensive monitoring plan and strategy for all future CDBG-DR grants, similar to the fiscal year 2020 and 2021 monitoring schedule and strategy that HUD developed for the monitoring visits for 2017 grantees.10 To ensure that housing development and redevelopment is equitable and inclusive for people with disabilities, the monitoring plan should include periodic checks on the design and construction of housing to ensure compliance with the requirements of the Fair Housing Act and HUDs Section 504 regulation.

Thank you again for the opportunity to provide comments to inform a revised process for implementing CDBG-DR grants and a comprehensive CDBG-DR universal notice for grantees. The ability to re-enter the community after displacement due to a disaster is a matter of significant importance for people with disabilities and one where their needs have often not been equitably planned for or addressed. We hope that the information and recommendations that we have provided help HUD to ensure that CDBG-DR grantees understand and comply with their civil rights obligations in disaster recovery.

Should you want further information or have questions about anything in this response, please contact Ana Torres-Davis, Senior Attorney Advisor, at atorresdavis@ncd.gov.

Respectfully, 

Andrés J. Gallegos
Chairman

 

 

1 Census Bureau. Week 52 Household Pulse Survey: December 9 - December 19. January 5, 2023. https://www.census.gov/data/tables/2023/demo/hhp/hhp52.html. For an analysis of the data, also see: https://www.eenews.net/articles/majority-of-disabled-people-never-go-home-after-disasters/

2 National Council on Disability (2019).

</assets/uploads/docs/ncd-preserving-our-freedom-508.pdf>

3 The GAO report referenced in the NCD report is: GAO 10-17: Disaster Assistance:

Federal Assistance for Permanent Housing Primarily Benefited Homeowners; Opportunities Exist to Better Target Rental Housing Needs. January 14, 2010.

4 National Council on Disability (2022). </assets/uploads/docs/ncd-strengthening-hcbs-ecosystem-508.pdf>

5 For federally assisted new construction housing projects, Section 504 requires 5% of the dwelling units, or at least one unit, whichever is greater, to be accessible for persons with mobility disabilities. An additional 2% of the dwelling units, or at least one unit, whichever is greater, must be accessible for persons with hearing or visual disabilities. The Section 504 requirements are the highest level of accessibility features required by federal law. See, Section 504: Frequently Asked Questions. https://www.hud.gov/program_offices/fair_housing_equal_opp/disabilities/sect504faq; CRA/LA Agrees to Pay $3.1 Million to Resolve Alleged Misuse of Federal Funds for Inaccessible Housing. https://

www.justice.gov/opa/pr/crala-agrees-pay-31-million-resolve-alleged-misuse-federal-funds-inaccessible-housing; Los Angeles Times, August 30, 2016, “L.A. to spend more than $200 million to settle suit on housing for disabled.” https://www.latimes.com/local/lanow/la-me-ln-housing-settlement-disabled-20160828-snap-story.html.

6 This section is lifted from, Final Rule: Fair Housing Act Design and Construction Requirements; Adoption of Additional Safe Harbors, 85 Fed. Reg. 78957 (December 8, 2020).

7 This section on Section 504 is lifted from PHYSICAL ACCESSIBILITY  at https://www.hud.gov/program_offices/fair_housing_equal_opp/physical_accessibility

8 See, https://www.hud.gov/program_offices/fair_housing_equal_opp/accessibility_first_modules_webinars

9 Located at https://www.youtube.com/watch?v=1HM1zs1BFxE

10 See, Disaster Block Grants: Factors to Consider in Authorizing a Permanent Program, GAO-21-569T (Washington, D.C.: May 19, 2021).

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