On September 23, 14 members of Congress, including Chairman of the Subcommittee on Housing and Insurance Blaine Luetkemeyer, submitted a letter to HUD requesting additional information about HUD guidance on the application of Fair Housing Act standards regarding the use of criminal records when admitting tenants. According to the guidance, if a policy or practice that restricts access to housing on the basis of criminal history results in a disparate impact on individuals of a particular race, national origin, or other protected class, such a policy or practice may be unlawful under the Fair Housing Act, even if the provider had no intent to discriminate.
The letter explicitly states that the members of Congress agree that discrimination against individuals with criminal histories should be eradicated, however the letter notes concerns stemming from legal and operating questions for property owners, managers and tenants. Specifically, members of Congress request that HUD provide them with additional information on
- HUD’s steps to reconcile the guidance with judicial decisions, most specifically Texas Department of Housing and Community Affairs v. the Inclusive Communities Project.
- HUD’s efforts to ensure uniformity in FHA compliance efforts pursuant to the rule.
- Research, analysis and data sources used by HUD in conceiving, drafting, and finalizing this guidance, along with information that HUD will use to support criminal screening policies and practices in HUD supported housing.
NAHRO’s Community Revitalization and Development and Housing Committees will meet at NAHRO’s National Conference in New Orleans to begin a white paper highlighting best practices that PHAs can follow to comply with the HUD guidance. NAHRO’s past coverage of HUD’s guidance can be found here.
On September 21, HUD released an interim report, conducted by Econometrica Inc., that examines how the Rental Assistance Demonstration (RAD) program is performing. According to the report, by October 2015, public housing agencies (PHAs) that participated in the program successfully generated $2.5 billion in new investment to preserve and improve the public housing stock, leveraging $9 in capital for every $1 of public housing funds. In HUD’s press release, Secretary Castro noted that “[t]he early returns are in and RAD is proving itself to be an exciting new tool that allows us to ensure safe, quality housing for low-income Americans. As we continue to evaluate this demonstration, it’s already clear that RAD is helping to preserve an important piece of our nation’s affordable housing stock.”
NAHRO is pleased to see the success of RAD program in helping PHAs leverage needed dollars. However, more administrative capacity is required from HUD to ensure successful, streamlined RAD transactions.
RAD is not a panacea to fix our public housing properties. Although it works for some PHAs, it will not work all PHAs. It is imperative that policymakers renew their commitment to adequate funding for the program, and RAD remains just one tool that PHAs can use to modernize their public housing units.
HUD’s press release can be found here.
On September 20, HUD’s Office of Public and Indian Housing Issued HUD Notice PIH-2016-13 entitled Guidance on Property and Casualty Insurance Issues. The Notice provides guidance on the procedures, restrictions, reporting requirements and eligible uses related to casualties for Operating or Capital Funds. The Notice also modifies existing guidance on the eligibility of units that have been subject to a casualty for continued Operating Funds.
The Notice specifies that costs of repairing or rebuilding public housing projects due to damage or destruction caused by casualties, emergencies or natural disasters are eligible Capital Fund expenses. Costs may eventually be covered with insurance proceeds or, if approved by HUD, in a separate grant from the annual appropriations set-aside funds for emergency and natural disasters. PHAs are not required to repay the Capital Fund unless the proceeds cover the same work funded by an Emergency or Disaster grant.
PHAs are also allowed to use Operating Funds for emergency work due to unforeseeable and unpreventable emergencies that include damage to the physical structure of a PHA’s housing stock. PHAs must reimburse their operating account for any expenses that were initially covered with Operating Funds. PHAs must use insurance or disaster proceeds to reimburse their operating account up to the amount received.
The Notice further discusses steps PHAs must take in the event of rebuilding or demolishing damaged properties from unforeseeable and unpreventable emergencies.
On September 21, 2016, HUD will publish a final rule titled “Equal Access in Accordance with an Individual’s Gender Identity in Community Planning and Development Programs” in the Federal Register. The final rule, which builds upon HUD’s February 2012 Equal Access Rule, will add a new section to HUD’s general program regulations (24 CFR Part 5) requiring HUD CPD program recipients and subrecipients to provide transgender persons and other persons who do not identify with the sex they were assigned at birth with access to program benefits, services and accommodations in accordance with their gender identity.
The final rule will also amend HUD’s definition of “gender identity” so that it more clearly reflects the difference between actual and perceived gender identity and eliminate the current prohibition on inquiries related to sexual orientation or gender identity. Additionally, the final rule makes a technical amendment to the definition of “sexual orientation” to conform with the Office of Personnel Management’s current definition.
Elsewhere in the Federal Register, HUD will be requesting public comment on a proposed document entitled “Equal Access Regardless of Sexual Orientation, Gender Identity, or Marital Status” for owners or operators of CPD-funded shelters, housing, facilities, and other buildings to post on bulletin boards and in other public spaces where information is typically made available.
A link to the proposed document, as well as deeper analysis of the final rule, will be forthcoming for NAHRO members.
HUD has released its list of PHAS High Performers for Federal Fiscal Year (FY) 2017 Capital Fund calculations. For the Department’s preparations for calculating the Capital Fund formula for FY 2017, the Department is using the FY 2015 PHAS designations to determine which PHAs are on the High Performer bonus for the 2017 formula calculations. PHAs should validate whether they are on the High Performer list by reviewing the Capital Fund Calculation spreadsheet (available on the Office of Capital Improvements website).
PHAs that believe there is an error in the calculation of their PHAS score for FY 2015 must email an explanation of the error to the Real Estate Assessment Center (REAC) at PHAS@hud.gov no later than October 31.
Tomorrow, HUD will publish in the Federal Register two notices dealing with the Housing Choice Voucher (HCV) program. The first is a proposed information collection highlighting a series of interviews for landlords and tenants in areas served by the five PHAs that participated in the Small Area Fair Marker Rents (SAFMR) Demonstration. The second is guidance for the rule that excludes certain individuals enrolled in an institution of higher education from receiving Section 8 funds.
- Small Area Fair Market Rent Demonstration – HUD is evaluating the SAFMR demonstration. To assist in this evaluation, HUD is looking at how “voucher holders and landlords perceive the shift from traditional area-wide FMRs to SAFMRs.” HUD will interview 70 tenants and 35 landlords in the areas served by the five PHAs in the SAFMR demonstration.
- Eligibility of Independent Students for Assisted Housing Under Section 8 of the U.S. Housing Act of 1937; Additional Supplementary Guidance – Prior appropriations acts stated that if a college student “is under the age of 24, is not a veteran, is unmarried and does not have dependent child” or is ineligible or has at least one parent that is ineligible for assistance, then no Section 8 assistance can be provided for that student. This notice updates the list of items that PHAs, owners, and managers “are required to verify when determining whether a student’s income alone should be used to determine Section 8 eligibility.” The notice also reduces “barriers for vulnerable youth to receive assistance and continue their education.”
The SAFMR Demonstration pre-publication notice can be found here.
The Eligibility of Independent Students for Section 8 Assistance Guidance pre-publication notice can be found here.
An updated Public Housing Authority (PHA) Analysis of Fair Housing (AFH) Tool that takes into account public comments HUD received has been posted for public inspection. HUD continues to state that they are committed to issuing an additional AFH Tool specifically for Qualified-PHAs (QPHA.) To that end, the PHA AFH Tool is intended to be used by non-QPHAs and QPHAs that are collaborating with non-QPHAs.
HUD has made a number of updates to the PHA AFH Tool. The NAHRO Policy Team will continue to review and provide additional analysis of this notice. Below is a brief list of the PHA AFH Tool updates:
- QPHA Insert – This insert is to be used by QPHAs that collaborate with non-QPHAs and covers the required analysis of the QPHA’s service area.
- Contributing Factors – HUD added and made small changes to the descriptions of contributing factors.
- Disparities in Access to Opportunities – The number of questions has been reduced and references to PHA waiting lists have been removed.
- Disability and Access – Two additional question have been added to the tool that relate to interaction of PHAs and individuals with disabilities.
- Instructions – Various sections of the instructions have been updated to provide clarity.
- Fair Housing Analysis of Rental Housing – This section only applies to PHAs that administer a Housing Choice Voucher program and not to PHAs that are Public Housing only.
- Enhancements for PHAs in the Data and Mapping Tool – Specific maps and date related to PHAs are planned along with enhancing the functionality of the maps.
This notice requests comment be submitted within 30 days of issuance. HUD is requesting comment on the notice generally and on 15 specific questions, listed at the end of the notice. NAHRO members should review this notice and provide their comments to HUD. NAHRO will also be providing comment on behalf of our members.
Public inspection of the updated PHA AFH Tool can be done at: https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-22594.pdf.
On September 15, HUD released a Press Release noting that the Office of General Council issued new guidance on the application of the Fair Housing Act to a housing provider’s consideration of a person’s limited ability to read, write, speak or understand English. The guidance “specifically addresses how the disparate treatment and discriminatory effects methods of proof apply in Fair Housing Act cases in which a housing provider bases an adverse housing action – such as a refusal to rent or renew a lease – on an individual’s limited ability to read, write, speak or understand English.”
The guidance notes that:
- Using a person’s LEP to intentionally discriminating against someone because of race, national origin, or another protected characteristic is considered in violation of the Fair Housing Act.
- Intentional discrimination may involve imposing restrictions, targeting individuals for unfair or illegal housing-related services, or failing to comply with the requirement to provide housing-related language assistance services to LEP persons.
- Housing providers may also be in violation of the Fair Housing Act if the provider’s policy has an unjustified discriminatory effect, even when the provider had no intent to discriminate.
- Three steps are used to analyze claims that a housing provider’s use of LEP results in an unjustified discriminatory effect: assessing the discriminatory effect; evaluating whether the challenged policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest; and evaluating whether there is a less discriminatory alternative.
On September 15, HUD sent out an email reminding recipients of HUD funds that FY 2009 grant funds are expiring at the end of this month. Grantees must submit drawdown approvals for these funds by September 16, 2016. The email also notes that “[f]or other funds not approaching expiration, grantees can continue to enter draw down requests to September 28th and the draw will be processed before HUD’s accounting system closes. If a disbursement is received by the Line of Credit Control System (LOCCS) (directly, or via IDIS or DRGR) after September 28th, the request will not be processed until HUD’s accounting system is reopened. HUD’s accounting system is expected to reopen in early October.”
This week HUD’s Office of Inspector General (OIG) released a report that found HUD did not always accurately verify Operating Fund calculations. Although the report found HUD did not always verify the calculation of Operating Fund subsidies, it did note that HUD recaptured the funds once it determined that excess subsidies were provided to PHAs. According to the OIG, more than $12 million in operating funds disbursed to PHAs was not adequately supported, and $116,218 was ineligible.
The report recommends that HUD officials:
- determine whether any of the overpayment of $3.6 million was ineligible and recover the ineligible payments;
- recapture from PHAs the $116,218 ineligibly disbursed for the units that exceeded the limit;
- obtain documentation of the utility expense level amounts and verify the accuracy of the computation of $9 million of Operating Fund subsidies and recapture ineligible amounts;
- enhance controls to ensure that verification procedures for Operating Fund calculations are followed by field office staff;
- continue implementing the reconciliation software application to provide greater assurance that operating fund subsidies are accurately calculated based on correct data, and;
- strengthen controls over record keeping.