February 23, 2023
Source: Administration for Community Living (ACL)
The Department of Housing and Urban Development (HUD) seeks comments on a recently published proposed rule implementing the Fair Housing Act’s mandate to “affirmatively further fair housing” with actions to overcome patterns of discrimination, promote fair housing choices, and eliminate disparities in housing opportunities. The Fair Housing Act offers protections on the basis of race, color, national origin, religion, sex (including gender identity and sexual orientation), familial status, and disability.
The proposed rule provides that housing programs must consider people with disabilities and accessibility needs as central concepts when assessing and addressing barriers to fair and equitable housing, and even explicitly requires that these programs consult with organizations that advocate on behalf of older adults and people with disabilities — such as centers for independent living and aging and disability resource centers.
About the Proposed Rule and its Impact for Older Adults and People with Disabilities
The proposed rule outlines the process through which HUD-funded housing programs — including localities, states, and Public Housing Authorities (PHAs) — should assess barriers to fair and equitable housing in their communities and commit to actions to address these barriers. The process centers around an Equity Plan which would be submitted to HUD for approval every five years. The Equity Plan is a modified version of the Assessment of Fair Housing currently in use.
Equity Plans would include an analysis of fair housing data and issues in the community being served, a description of the public engagement that the program undertook to develop the analysis, and the establishment of goals, strategies, and meaningful actions to address the identified issues. In addition, housing programs would submit an annual evaluation outlining progress towards the goals set in the Equity Plans and any necessary modifications. Since the Equity Plan would be submitted a year before other important five-year plans such as the Consolidated Plan, these broader housing plans must incorporate the goals and commitments identified in the Equity Plan.
In general, the proposed rule is designed to:
- Emphasize goal-setting in Equity Plans, as well as the responsiveness of these goals to identified local fair housing issues.
- Increase transparency. For example, HUD would post submitted Equity Plans on its website and accept comments from the public while the Equity Plan is under review.
- Enhance HUD technical assistance to local communities and provide mechanisms for regular program evaluation and greater accountability.
The proposed rule includes several changes of relevance to the disability and aging communities. For example, the proposed rule incorporates disability and accessibility into the definitions of key concepts that housing programs must address in their Equity Plans. Specifically, the proposed rule:
- Incorporates housing needs of people with disabilities of all ages, including consideration of the need for accessible housing, into the Equity Plan’s definition of “affordable housing opportunities.”
- Defines “fair housing choice” for persons with disabilities as providing “a realistic opportunity to obtain and maintain housing with accessibility features meeting the individual’s disability-related needs, housing provided in the most integrated setting appropriate to an individual’s needs, and housing where community assets are accessible to individuals with disabilities, including voluntary disability-related services that an individual needs to live in such housing.”
- Notes the relevance of the Supreme Court’s Olmstead v L.C. decision and the integration mandate of Section 504 of the Rehabilitation Act in defining terms such as “integration.” The proposed rule states that “for individuals with disabilities, integration also means that such individuals are able to access housing and services in the most integrated setting appropriate to the individual’s needs.”
The proposed rule also requires housing programs to seek input from the community as they identify barriers to fair housing in their area and develop their Equity Plan. It requires consultation with different types of organizations, including organizations that advocate on behalf of individuals with disabilities and older adults. The rule explicitly includes centers for independent living, protection & advocacy agencies, aging and disability resource centers, and councils on developmental disabilities as examples of the organizations that must be included. Community engagement must also include holding community meetings to gather public input at different times of the day and in different locations throughout the jurisdiction to afford more members of the public, including people with disabilities and older adults, greater opportunity to provide feedback.
HUD seeks public comments, including from disability and aging stakeholders, through April 10. Comments can be submitted online through Regulations.gov. This HUD guide offers tips on commenting and instructions on how to submit comments by mail. In the notice of proposed rulemaking, HUD has identified a number of questions on which they are particularly interested in receiving feedback. For example:
- Should HUD require program participants to utilize different technology to conduct outreach and engagement? If so, which technologies have proven to be successful tools for community engagement? Are these technologies usable by individuals with disabilities, including those who utilize assistive technology or require reasonable accommodations such as real-time captioning or sign-language interpreters?
- Are there different or additional regulatory changes HUD could make to the proposed rule that would be more effective in affirmatively furthering fair housing, including ways to improve access to community assets and other housing-related opportunities for members of protected class groups, including historically underserved communities, individuals with disabilities, and other vulnerable populations?
- Does the analysis in proposed § 5.154 lend itself to identifying fair housing issues for each of the following protected class groups: race, color, national origin, sex, religion, familial status, and disability? If not, how can HUD improve this aspect of the analysis to better serve this purpose? Are there additional data sources that would assist in facilitating this analysis? Should HUD require that a minimum number of meetings be held at various times of day and various accessible locations to ensure that all members of a community have an opportunity to be heard? Should HUD require that at least one meeting be held virtually?
For more information and resources on housing for people with disabilities and older adults, visit the Housing and Services Resource Center, a partnership between ACL and HUD. The HSRC Fair Housing page compiles a variety of additional resources for the aging and disability networks, including the Engaging the Disability Community in Fair Housing Planning Webinar Series.