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Notice

Federal Housing Administration (FHA) Healthcare Facility Documents: Documents Eligible for Electronic Submission-30-Day Notice of Information Collection

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Start Preamble

AGENCY:

Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.

ACTION:

Notice.

SUMMARY:

On March 14, 2013, HUD published in the Federal Register a notice that announced that FHA's healthcare facility documents completed the notice and comment processes under the Paperwork Reduction Act of 1995 (PRA), and had been assigned a control number, 2502-0605, by the Office of Management and Budget (OMB). The assignment of a control number concluded a 10-month process through which HUD solicited Start Printed Page 11115public comment to update 115 healthcare facility documents to reflect current policy and practices, to improve accountability by all parties involved in FHA's healthcare facility transactions and strengthen risk management.

On September 10, 2013, HUD published a notice in the Federal Register that solicited, for a period of 60 days, public comment on this collection solely on the issue of which healthcare facility documents are eligible for electronic submission. HUD did not address this issue as part of the previous notice and comment process, but recognized the importance, efficiency, and reduction of burden that electronic submission of documents can achieve, and solicited public comment on the healthcare facility documents that HUD had determined may be submitted, but are not required to be submitted, electronically.

In addition, in response to comments received after March 14, 2013 by participants in healthcare facility transactions, HUD has made several changes to one of the documents, the Intercreditor Agreement, form HUD-92322-ORCF.

This notice provides for and solicits comment on the possibility of electronic submission, changes made to the Intercreditor Agreement and to the entire proposed collection of information. The entire collection subject to this notice is available for review at www.hud.gov/​232forms.

The purpose of this notice is to allow for an additional 30 days of public comment.

DATES:

Comment Due Date: March 31, 2014.

ADDRESSES:

Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Patrick Fuchs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806. Email: OIRA_Submission@omb.eop.gov.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

John M. Hartung, Director, Policy and Risk Management Analysis, Office of Residential Care Facilities, Office of Healthcare Programs, Office of Housing, U.S. Department of Housing and Urban Development, 1222 Spruce Street, Room 3.203, St. Louis, MO 63103-2836; telephone (314) 418-5238 (this is not a toll-free number). Persons with hearing or speech disabilities may access this number through TTY by calling the toll-free Federal Relay Service at (800) 877-8339.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

I. Background

A. 2012 PRA Process on Substance of Healthcare Facility Documents

On May 3, 2012, at 77 FR 26304, and consistent with the PRA, HUD published a notice in the Federal Register seeking public comment for a period of 60 days (60-day Notice) on HUD's proposed update and revisions to a set of production, underwriting, asset management, closing, and other documents used in connection with transactions involving healthcare facilities, excluding hospitals (collectively, the healthcare facility documents), that are insured pursuant to section 232 of the National Housing Act (Section 232). In conjunction with publication of the 60-day Notice, the proposed revised healthcare facility documents (115 documents) were made available at: www.hud.gov/​232forms. In addition to presenting unmarked versions of the documents, this Web site, to the extent applicable, presented the proposed healthcare facility documents as a redline/strikeout against the updated multifamily rental project closing documents to highlight the changes made to facilitate a healthcare transaction. Where the proposed healthcare facility documents were based on existing healthcare facility documents, the proposed healthcare facility documents, in addition to being presented in an unmarked format, were presented in redline/strikeout format so that reviewers could see the changes proposed to the existing healthcare facility documents.[1]

As a special outreach to the public on proposed changes to the healthcare facility documents and Section 232 program regulations, HUD hosted a forum on May 31, 2012, in Washington, DC. (See http://portal.hud.gov/​hudportal/​HUD?​src=​/​press/​multimedia/​videos.) While comments were raised and discussed at the forum, HUD encouraged forum participants to file written comments through the www.regulations.gov Web site so that all comments would be more easily accessible to interested parties. All comments, whether submitted through www.regulations.gov or raised at the forum, were considered in the development of the revised documents which were published on November 21, 2012 (77 FR 69870), and for which, consistent with the PRA, comment was solicited for an additional 30 days (30-day Notice).

In the 30-day Notice, HUD identified substantive changes that were made to the healthcare facility documents in response to public comments submitted on the 60-day Notice, responded to significant issues raised by the commenters, and identified proposed additional changes based on further consideration of certain issues. As was the case with the 60-day Notice, HUD posted on its Web site the further revised healthcare facility documents in (1) a clean format, and (2) in redline/strikeout format, to show the changes made from the versions posted with issuance of the 60-day Notice.

On March 14, 2013, at 78 FR 16279, HUD published in the Federal Register a notice that announced the approval of the healthcare facility documents under the PRA and the assignment of a control number, 2502-0605, by OMB. In addition to announcing the assignment of an OMB control number, HUD advised in the March 14, 2013, notice that additional changes were made to the healthcare facility documents in response to comments submitted on the 30-day Notice. In the March 14, 2013, notice, HUD highlighted additional changes made to the healthcare facility documents, and once again, provided on HUD's Web site at www.hud.gov/​232forms, the final versions of the documents in clean and redline/strikeout formats so that reviewers could see the final changes made to the documents and the clean final versions of the documents.

B. 2013 PRA Process on Eligibility of Electronic Submission

On September 10, 2013, at 78 FR 55282, HUD published in the Federal Register a notice solely seeking comment on the issue of which healthcare facility documents may be submitted electronically. Questions arose on this issue after conclusion of the 2012 PRA process.

In the September 10, 2013, notice, HUD advised that consistent with current practice, HUD requires applications for mortgage insurance to be submitted electronically, and that therefore any healthcare facility documents submitted as part of an application for mortgage insurance must be submitted electronically. Of the other healthcare facility documents, HUD identified 13 documents that must be submitted with original signatures, in hard copy format. These documents are the following: Healthcare Regulatory Agreement—Borrower (HUD-92466-Start Printed Page 11116ORCF); Healthcare Regulatory Agreement—Operator (HUD-92466A-ORCF); Management Certification—Residential Care Facility (HUD-9839-ORCF); Lender Certification (HUD-92434-ORCF); Offsite Bond—Dual Obligee (HUD-92479-ORCF); Performance Bond—Dual Obligee (HUD-92452-ORCF); Payment Bond (HUD-92452A-ORCF); Request for Endorsement (HUD-92455-ORCF); Request for Final Endorsement (HUD-92023-ORCF); Guide for Opinion for Master Tenant's Counsel (HUD-92335-ORCF); Healthcare Regulatory Agreement—Master Tenant (HUD-92337-ORCF); Guide for Opinion of Borrower's Counsel (HUD-91725-ORCF); and Guide for Opinion of Operator's Counsel and Certification (HUD-92325-ORCF). For any of the remaining healthcare facility documents (which must be submitted electronically) or the listed 13 documents (which must be submitted in hard copy), the September 10, 2013, notice advised that HUD neither requires nor prohibits that any of the remaining documents be submitted electronically. Electronic submission is an option.

In the 2012 PRA process, HUD's 30-day Notice, HUD listed in a table all the documents for which approval under the PRA was sought and provided the burden hours and costs calculated for preparation of and submission of each of documents and provided a total aggregate annual cost of $4,393,301. (See 77FR 69887-69889). This table, revised with updated information on burden hours and costs, is included at the end of this notice.

In the September 10, 2013, notice, HUD included the table below, which provides a breakdown of the estimated costs involved in hard copy preparation and shipping, and estimates a $450,000 annual savings in costs if documents are submitted electronically rather than in hard copy.

ItemCost per itemCosts
Printing by Lender1,500 pages at $.04 per page$60.00
Lender Box Preparation$50 per hour and two hours per box100.00
Shipping by Lender to HUD in Field1-40 lb. box20.00
HUD processing preparation (Field and HQ)$50 per hour and 1 hour per box50.00
Shipping by HUD Field to HQ1-40 lb. box20.00
Total1 250.00
Estimated # Boxes per project3
Estimated # of projects per year600
Total Annual Costs(# of boxes × # of projects × cost per box)450,000.00
1 Per box.

C. Summary of Changes to the Intercreditor Agreement—Section 232 (HUD 92322-ORCF).

Because of a substantial number of comments from participants in healthcare facility programs after the conclusion of the 2012 PRA process, HUD has revised the Intercreditor Agreement (form HUD-92322). A redline/strikeout showing each proposed change in the revised Intercreditor Agreement is available at www.hud.gov/​232forms. The significant changes, however, can be summarized as follows:

(1) AR Loan Obligations

The definition of what constitutes an AR Loan Obligation was revised. In this regard, instead of delineating particular forms of indebtedness, liabilities, and obligations that must be excluded and may not constitute AR Loan Obligations, the revised definition takes a broader approach, requiring AR Loan Obligations to be directly related to the benefit of the Facility.

(2) Cut-Off Time & Ceased Funding

“Cut-Off Time” is when HUD will no longer subordinate its interest in the accounts receivable of the operator. The events that trigger a Cut-Off Time were clarified. Specifically, rather than allow any defaults to trigger a Cut-Off Time, the revised document introduces the defined term “Ceased Funding” in order to clarify that only defaults of the AR Loan resulting in the AR Lender ceasing to fund trigger a Cut-Off Time.

(3) Notices and Consent Rights

Clarifications were made to HUD and FHA Lender's notice and consent rights to address specifically certain potentially troubling scenarios. The revised document clarifies that AR “over-line” advances (over the agreed maximum commitment amount) require prior written consent by FHA Lender and HUD, but that, within some agreed-upon limits, advances within the maximum commitment amount (but over the borrowing base formula) only require notice not consent. Clarifications were also made to the provision setting forth what modifications can be made to the AR Loan documents without FHA Lender or HUD consent.

D. Summary of Comments Solicited

HUD received no comments in response to the Federal Register Notice published on September 10, 2013. In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting, for an additional 30 days, comments from members of the public and interested parties on:

(1) Whether the documents identified by HUD for originally signed, hard copy submission are necessary in such format for proper performance of the transactions in which the documents are used;

(2) Whether any of the documents not identified as necessary for originally signed, hard copy submission should be submitted only in originally signed, hard copy;

(3) The accuracy of the agency's estimate of the reduced burden and reduced costs for submission of documents electronically;

(4) Whether electronic submission of application documents enhances the utility and efficiency of the transactions in which the documents are used;

(5) Whether electronic submission of other documents enhances the utility and efficiency of the transactions in which the documents are used;

(6) Additional ways, through information technology, to minimize the burden of the collection of information on those who are to respond;

(7) Whether the agency's estimate of the burden of the proposed collection of information is accurate;

(8) Whether the proposed collection of information enhances the utility and efficiency of the transactions in which the documents are used; and

(9) Whether the proposed changes to the Intercreditor Agreement enhance the utility and efficiency of the transactions for which the document is used.

A list of the entire document collection is provided below.Start Printed Page 11117

New form No.Form nameNumber of respondentsFrequency of responseResponse per annumAverage burden per hour per responseAnnual burden hoursAverage hourly cost per responseAnnual cost
Lender Narratives:
HUD-9001-ORCFLender Narrative 223a7—Main302.57522.001,650$75$123,750
HUD-9001a-ORCFLender Narrative 223a7-Addenda-PCNA302.5751.50112.5758,438
HUD-9001b-ORCFLender Narrative 223a7.223d.232i-Addendum—ALTA/ACSM Land Title Survey302.5750.5037.5752,813
HUD-9001c-ORCFLender Narrative 223a7-Addendum-Environmental302.5750.5037.5752,813
HUD-9001d-ORCFLender Narrative 223a7-Addendum—Other Existing Eligible Indebtedness302.5750.5037.5752,813
HUD-9001e-ORCFLender Narrative 223a7.223d.232i-Addendum-Principal of Borrower302.5750.5037.5752,813
HUD-9001f-ORCFLender Narrative 223a7.223d.232i-Addendum-Operator202.5500.5025751,875
HUD-9001g-ORCFLender Narrative 223a7.223d.232i-Addendum-Management Agent122.5300.5015751,125
HUD-9001h-ORCFLender Narrative 223a7.223d.232i-Addendum-Transfer of Physical Assets302.5750.5037.5752,813
HUD-9001i-ORCFLender Narrative 223a7.223d.232i-Addendum-AR Financing302.5750.5037.5752,813
HUD-9002-ORCFLender Narrative 223f307.522570.0015,750751,181,250
HUD-9003-ORCFLender Narrative 241a41473.002927521,900
HUD-9004-ORCFLender Narrative—New Construction—Single Stage1022087.001,74075130,500
HUD-9005-ORCFLender Narrative—New Construction—2 Stage Initial Submittal1022063.001,2607594,500
HUD-9005a-ORCFLender Narrative—New Construction—2 Stage Final Submittal1022053.001,0607579,500
HUD-9006-ORCFLender Narrative—Substantial Rehabilitation—Single Stage41493.003727527,900
HUD-9007-ORCFLender Narrative—Substantial Rehabilitation—2 Stage Initial Submittal41470.002807521,000
HUD-9007a-ORCFLender Narrative—Substantial Rehabilitation—2 Stage Final Submittal41470.002807521,000
HUD-9008-ORCFLender Narrative—Blended Rate—Single Stage41470.002806217,360
HUD-90025-ORCFLender Narrative—Blended Rate—2 Stage—Initial Submittal41470.002807521,000
HUD-90025a-ORCFLender Narrative—Blended Rate—2 Stage—Final Submittal41470.002807521,000
HUD-9009-ORCFLender Narrative 232(i)—Fire Safety Equipment Installation, without Existing HUD Insured Mortgage521015.00150629,300
HUD-90010-ORCFLender Narrative 232(i)—Fire Safety Equipment Installation, with Existing HUD Insured Mortgage521015.00150629,300
HUD-90011-ORCFLender Narrative 223(d)—Operating Loss Loan12215.0030621,860
HUD-9444-ORCFLender Narrative Cost Certification Supplement22415.0060754,500
Production Certifications:
HUD-90012-ORCFConsolidated Certification—Lender302.5751.0075675,025
HUD-90013-ORCFConsolidated Certification—Borrower771771.0077755,775
Start Printed Page 11118
HUD-90014-ORCFConsolidated Certification—Principal of the Borrower382761.0076755,700
HUD-90015-ORCFConsolidated Certification—Operator352701.0070755,250
HUD-90016-ORCFConsolidated Certification—Parent of Operator352701.0070755,250
HUD-90017-ORCFConsolidated Certification—Management Agent352701.0070755,250
HUD-90018-ORCFConsolidated Certification—Contractors4141.50675450
HUD-90019-ORCFAuditor Certification3130.501.567101
HUD-90022-ORCFCertification for Electronic Submittal35103500.501756711,725
HUD-9445-ORCFCertification of Outstanding Obligations35103501.003508329,050
HUD-91118-ORCFBorrower's Certification—Completion of Critical Repairs24012400.50120759,000
HUD-92434-ORCFLender Certification35103501.003507526,250
HUD-91130-ORCFBuilding Code Certification262520.5026832,158
Construction Documents:
HUD-91123-ORCFDesign Professional's Certification of Liability Insurance262520.5026832,158
HUD-91124-ORCFDesign Architect Certification262520.5026832,158
HUD-91127-ORCFFinancial Statement Certification—General Contractor262520.5026671,742
HUD-92408-ORCFHUD Amendment to B108262520.5026751,950
HUD-95379-ORCFHUD Representative's Trip Report26287281.007287554,600
HUD-91129-ORCFLender Certification for New Construction Cost Certifications105.2523.001567511,700
HUD-9442-ORCFMemo for Post-Commitment Early Start of Construction Request3261.00675450
HUD-92415-ORCFRequest for Permission to Commence Construction Prior to Initial Endorsement for Mortgage Insurance (Post-Commitment Early Start of Construction)3260.50383249
HUD-93305-ORCFAgreement and Certification105.2520.5026751,950
HUD-92441-ORCFBuilding Loan Agreement105.2521.0052753,900
HUD-92441a-ORCFBuilding Loan Agreement Supplemental105.2521.0052753,900
HUD-92450-ORCFCompletion Assurance105.2520.5026751,950
HUD-92442-ORCFConstruction Contract105.2521.0052753,900
HUD-92554-ORCFSupplementary Conditions of the Contract for Construction105.2520.50262175,642
HUD-92456-ORCFEscrow Agreement for Incomplete Construction3260.50375225
HUD-92479-ORCFOffsite Bond—Dual Obligee53150.507.575563
HUD-92452-ORCFPerformance Bond—Dual Obligee55.2260.50132172,821
HUD-92452A-ORCFPayment Bond55.2260.501375975
HUD-92455-ORCFRequest for Endorsement105.2521.0052753,900
HUD-92023-ORCFRequest for Final Endorsement105.2521.0052753,900
HUD-92412-ORCFWorking Capital Escrow105.2520.5026751,950
HUD-91125-ORCFStaffing Schedule305.83174.91.00174.96210,844
Additional ORCF Documents:
HUD-91708-ORCFAgreement for Payment of Real Property Taxes1111.0018383
HUD-92576A-ORCFCertificate of Need for Health Facility3260.50383249
HUD-90024-ORCFContact Sheet35103501.003506723,450
HUD-91126-ORCFFinancial Statement Certification15071,0500.505256735,175
HUD-91116-ORCFAddendum to Operating Lease306.51950.5097.521721,158
Start Printed Page 11119
HUD-941-ORCFLenders FHA Number Request Form3011.73510.50175.56210,881
HUD-92264a-ORCFMaximum Insurable Loan Calculation3011.73512.007028358,266
HUD-2-ORCFRequest for Waiver of Housing Directive2081601.001607512,000
HUD-91119-ORCFSchedule of Facilities Owned Operated or Managed35103501.505257539,375
HUD-91110-ORCFSubordination, Non-Disturbance and Attornment Agreement of Operating Lease (SNDA)3011.73510.50175.523340,892
HUD-91111-ORCFSurvey Instructions and Borrower's Certification1801.52700.501358311,205
HUD-91112-ORCFRequest of Overpayment of Firm Application Exam Fee155.1376.950.5038.475672,578
HUD-9839-ORCFManagement Certification—Residential Care Facility5150.502.575188
HUD-92466-ORCFHealthcare Regulatory Agreement—Borrower35103500.5017521737,975
HUD-92466A-ORCFHealthcare Regulatory Agreement—Operator102200.50102172,170
HUD-94000-ORCFSecurity Instrument/Mortgage/Deed of Trust35103500.5017521737,975
HUD-92070-ORCFLease Addendum2120.501217217
HUD-94001-ORCFHealthcare Facility Note35103501.003507526,250
HUD-91710-ORCFResidual Receipts Note—Non Profit Mortgagor52100.50575375
HUD-92420-ORCFSubordination Agreement—Financing72140.5072171,519
HUD-92223-ORCFSurplus Cash Note72140.50775525
HUD-2205A-ORCFBorrower's Certificate of Actual Cost307.52253.50787.57559,063
HUD-92323-ORCFOperator Security Agreement306.51951.0019520039,000
Escrow Documents:
HUD-91128-ORCFInitial Operating Deficit Escrow Calculation Template115551.5082.5836,848
HUD-92414-ORCFLatent Defects Escrow20122400.50120759,000
HUD-9443-ORCFMinor Moveable Escrow262521.0052834,316
HUD-92476-ORCFEscrow Agreement Noncritical Deferred Repairs20122400.50120759,000
HUD-92476B-ORCFEscrow Agreement for Operating Deficits124.857.60.5028.8752,160
HUD-92464-ORCFRequest Approval Advance of Escrow Funds35155251.005257539,375
Asset Management Documents:
HUD-92266-ORCFApplication for Transfer of Physical Assets (TPA)252501.0050834,150
HUD-93332-ORCFCertification of Exigent Health & Safety (EH&S) Issues45614561.004567534,200
HUD-93333-ORCFCertification Physical Condition in Compliance20812080.50104838,632
HUD-93486-ORCFComputation of Surplus Cash701700.5035622,170
HUD-9250-ORCFFunds Authorizations5005.628001.00280075210,000
HUD-9250A-ORCFBorrower Certification and Request Detail152301.0030752,250
HUD-92228-ORCFModel Form Bill of Sale and Assignment202400.5020831,660
HUD-92117-ORCFBorrower's Certification—Completion of Non-Critical Repairs25025000.502507518,750
HUD-92417-ORCFPersonal Financial and Credit Statement175610503.50367583305,025
HUD-93479-ORCFSchedule A—Monthly Report for Establishing Net Income6021201.00120759,000
HUD-93480-ORCFSchedule B—Schedule of Disbursements60127201.007207554,000
HUD-93481-ORCFSchedule C—Schedule of Accounts Payable60127201.007207554,000
Accounts Receivable Documents:
Start Printed Page 11120
HUD-90020-ORCFA/R Financing Certification5031500.507521716,275
HUD-92322-ORCFIntercreditor Agreement (for AR Financed Projects)3051501.5022520045,000
Master Lease Documents:
HUD-92211-ORCFMaster Lease Addendum55251.00252175,425
HUD-92331-ORCFCross-Default Guaranty of Subtenants305.831751.00174.921737,953
HUD-92333-ORCFMaster Lease SNDA305.831750.5087.4521718,977
HUD-92335-ORCFGuide for Opinion of Master Tenant's Counsel305.831751.00174.921737,953
HUD-92337-ORCFHealthcare Regulatory Agreement—Master Tenant305.831750.5087.4521718,977
HUD-92339-ORCFMaster Lease Estoppel Agreement305.831750.5087.4521718,977
HUD-92340-ORCFMaster Tenant Security Agreement305.831751.00174.921737,953
Additional Legal Documents:
HUD-91117-ORCFOperator Estoppel Certificate10022000.5010027527,500
HUD-91725-INST-ORCFInstructions to Guide for Opinion of Borrower's and Operator's Counsel35103500.0002170
HUD-91725-CERT-ORCFExhibit A to Opinion of Borrower's Counsel—Certification35103500.5017521737,975
HUD-91725-ORCFGuide for Opinion of Borrower's Counsel35103502.00700217151,900
HUD-92325-ORCFGuide for Opinion of Operator's Counsel and Certification306.51951.50292.520058,500
TOTALS4,56853920,3228.3044,2211053,794,809
Start Printed Page 11121

Comments must be received by March 31, 2014. Comments must refer to the proposal by name and docket number (FR-5623-N-05) and interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Patrick Fuchs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806. Email: OIRA_Submission@omb.eop.gov.

HUD Desk Officer,

Office of Management and Budget,

New Executive Office Building,

Washington, DC 20503,

Fax number: (202) 395-6947

and

Colette Pollard,

Office of the Chief Information Officer,

Department of Housing and Urban Development,

451 Seventh Street SW.,

Room 4178,

Washington, DC 20410.

Start Signature

Dated: February 20, 2014.

Colette Pollard,

Department Reports Management Officer—Office of the Chief Information Officer.

End Signature End Supplemental Information

Footnotes

1.  Along with the 60-day Notice, HUD published in the Federal Register on May 3, 2012, at 77 FR 26218, a proposed rule that proposed to strengthen regulations for HUD's Section 232 program to reflect current policy and practices, and to improve accountability and strengthen risk management. A final rule following the May 3, 2012, proposed rule, and taking into consideration public comment received on the proposed rule, was published on September 7, 2012, at 77 FR 55120.

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[FR Doc. 2014-04237 Filed 2-26-14; 8:45 am]

BILLING CODE 4210-67-P