If a family fails to correct a family‐caused life‐threatening condition as required by the PHA, the PHA will enforce the family obligations. See 8‐II.H.
The owner will be required to repair an inoperable smoke detector unless the PHA determines that the family has intentionally disconnected it (by removing batteries or other means). In this case, the family will be required to repair the smoke detector within 24 hours.
HUD‐Approved Variances – UPCS‐V
HUD may grant approval for PHAs to use variances, which apply standards contained in local housing codes, other codes adopted by the PHA, or standards adopted as a result of local climatic or geographic conditions. The intent of these requirements is to ensure the utilization of standard housing units and to establish minimum criteria necessary for the Health and Safety of the occupants.
Variances may only be approved by HUD and only if the variance meets or exceeds the performance requirement without unduly limiting the amount and types of rental housing available. HUD will not approve a variance if the change is likely to adversely affect the health or safety of Tenants or severely restrict housing choice.
Once HUD‐approved variances are incorporated into a specific PHA’s inspection process, the Inspector should take these approved variances into account when determining if an inspectable area meets the minimum requirements based on the UPCS‐V minimum standard. If an approved variance was used to qualify or disqualify a unit from the program, the Inspector must include a comment regarding the variance in the DCD 312
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐11 8‐I.D. OWNER AND FAMILY RESPONSIBILITIES [24 CFR 982.404] Family Responsibilities
The family is responsible for correcting the following HQS deficiencies:
Tenant‐paid utilities not in service
Failure to provide or maintain appliances owned by the family Damage to the unit or premises caused by a household member or guest beyond normal wear and tear that results in a breach of the HQS. "Normal wear and tear" is defined as items which could not be charged against the tenant's security deposit under state law or court practice.
Owner Responsibilities
The owner is responsible for all HQS violations not listed as a family responsibility above, even if the violation is caused by the family's living habits (e.g., vermin infestation). However, if the family's actions constitute a serious or repeated lease violation the owner may take legal action to evict the family.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐12 8‐I.E. SPECIAL REQUIREMENTS FOR CHILDREN WITH ELEVATED BLOOD LEAD LEVEL [24 CFR
35.1225; FR Notice 1/13/17; Notice PIH 2017‐13]
If a PHA is notified by a public health department or other medical health care provider, or verifies information from a source other than a public health department or medical health care provider, that a child of less than six years of age, living in an HCV‐assisted unit has been identified as having an elevated blood lead level, the PHA must complete an environmental investigation of the dwelling unit within 15 calendar days after being notified by a public health department or other medical health care provider. The environmental investigation must be completed in accordance with program requirements, and the result of the environmental investigation must be immediately provided to the owner of the dwelling unit. In cases where the public health department has already completed an evaluation of the unit, this information must be provided to the owner.
Within 30 days after receiving the environmental investigation report from the PHA, or the evaluation from the public health department, the owner is required to complete the reduction of identified lead‐based paint hazards in accordance with the lead‐based paint regulations [24 CFR 35.1325 and 35.1330]. If the owner does not complete the “hazard reduction” as required, the dwelling unit is in violation of HQS and the PHA will take action in accordance with Section 8‐II.G.
PHA reporting requirements, and data collection and record keeping responsibilities related to children with an elevated blood lead level are discussed in Chapter 16. 8‐I.F. VIOLATION OF HQS SPACE STANDARDS [24 CFR 982.401, 24 CFR 982.403] A dwelling unit must:
Provide adequate space and security for the family
Have at least one bedroom or living/sleeping room for each two persons A unit that does not meet these HQS space standards is defined as overcrowded.
A living room may be used as sleeping (bedroom) space, but no more than two persons may occupy the space [HCV GB p. 10‐6]. A bedroom or living/sleeping room must have at least:
One window
Two electrical outlets in proper operating condition (permanent overhead or wall‐mounted light fixtures may count as one of the required electrical outlets) If the PHA determines that a unit is overcrowded because of an increase in family size or a change in family composition, the PHA must issue the family a new voucher, and the family and PHA must try to find an acceptable unit as soon as possible. If an acceptable unit is available for rental by the family, the PHA must terminate the HAP contract in accordance with its terms. 314
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐13 Occupancy Standards
Unit Size Persons in Household
(Minimum – Maximum)
Single Room Occupancy (SRO) 1
0 Bedroom 1‐2
1 Bedroom 1‐4
2 Bedrooms 2‐6
3 Bedrooms 3‐8
4 Bedrooms 4‐10
5 Bedrooms 5‐12
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Item 6.
© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐14 PART II: THE INSPECTION PROCESS
8‐II.A. OVERVIEW [24 CFR 982.405]
Types of Inspections
The PHA conducts the following types of inspections as needed. Each type of inspection is discussed in the paragraphs that follow.
Initial Inspections. The PHA conducts initial inspections in response to a request from the family to approve a unit for participation in the HCV program. Annual/Biennial Inspections.
HUD requires the PHA to inspect each unit under lease at least annually or biennially, depending on PHA policy, to confirm that the unit still meets HQS. The inspection may be conducted in conjunction with the family's annual reexamination but also may be conducted separately.
Special Inspections. A special inspection may be requested by the owner, the family, or a third party as a result of problems identified with a unit between annual inspections. Quality Control Inspections. HUD requires that a sample of units be inspected by a supervisor or other qualified individual to evaluate the work of the inspector(s) and to ensure that inspections are performed in compliance with the HQS.
Inspection of PHA‐Owned Units [24 CFR 982.352(b)]
The PHA must obtain the services of an independent entity to perform all HQS inspections in cases where an HCV family is receiving assistance in a PHA‐owned unit. A PHA‐owned unit is defined as a unit that is owned by the PHA that administers the assistance under the consolidated ACC (including a unit owned by an entity substantially controlled by the PHA). The independent agency must communicate the results of each inspection to the family and the PHA. The independent agency must be approved by HUD, and may be the unit of general local government for the PHA jurisdiction (unless the PHA is itself the unit of general local government or an agency of such government).
Inspection Costs [Notice PIH 2016‐05]
The PHA may not charge the family for unit inspections or reinspections [24 CFR 982.405(e)]. In the case of inspections of PHA‐owned units, the PHA may compensate the independent agency from ongoing administrative fee for inspections performed. The PHA and the independent agency may not charge the family any fee or charge for the inspection [24 CFR.982.352(b)].
The PHA may not charge the owner for the inspection of the unit prior to the initial term of the lease or for a first inspection during assisted occupancy of the unit. However, the PHA may charge a reasonable fee to owners for reinspections in two situations: when the owner notifies the PHA that a repair has been made but the deficiency has not been corrected, and when the time for repairs has elapsed and the deficiency has not been corrected. Fees may not be imposed for tenant‐caused damages, for cases in which the inspector could not gain access to the unit, or for new deficiencies discovered during a reinspection. 316
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐15 The owner may not pass the cost of a reinspection fee to the family. Reinspection fees must be added to the PHA’s administrative fee reserves and may only be used for activities related to the provision of tenant‐based assistance.
PHA Policy
The PHA will not charge a fee for failed reinspections. 317
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐16 Notice and Scheduling
The family must allow the PHA to inspect the unit at reasonable times with reasonable notice [24 CFR 982.551(d)].
HACSB Policy
Both the family and the owner will be given reasonable notice of all inspections. Except in the case of a life‐threatening emergency, reasonable notice is considered to be not less than 48 hours. Inspections may be scheduled between 7:30 a.m. and 7:00 p.m.
Generally inspections will be conducted on business days only. In the case of a life‐ threatening emergency, the PHA will give as much notice as possible, given the nature of the emergency.
Owner and Family Inspection Attendance
HUD permits the PHA to set policy regarding family and owner presence at the time of inspection [HCV GB p. 10‐27].
HACSB Policy
At initial inspection of a vacant unit, the PHA will inspect the unit in the presence of the owner or owner's representative. The presence of a family representative is permitted, but is not required.
When a family occupies the unit at the time of inspection an adult family member or an adult authorized to represent the family must be present for the inspection. 318
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐17 8‐II.B. INITIAL HQS INSPECTION [24 CFR 982.401(a)]
Initial Inspections [FR Notice 1/18/17]
The PHA may, but is not required to, approve assisted tenancy and start HAP if the unit fails HQS inspection, but only if the deficiencies identified are non‐life‐threatening. Further, the PHA may, but is not required to, authorize occupancy if a unit passed an alternative inspection in the last 24 months.
HACSB Policy
The unit must pass the HQS inspection on or before the effective date of the HAP contract.
The PHA will not rely on alternative inspections and will conduct an HQS inspection for each unit prior to executing a HAP contract with the owner.
Timing of Initial Inspections
HUD requires PHAs with fewer than 1,250 budgeted units to complete the initial inspection, determine whether the unit satisfies HQS, and notify the owner and the family of the determination within 15 days of submission of the Request for Tenancy Approval (RTA). For PHAs with 1,250 or more budgeted units, to the extent practicable such inspection and determination must be completed within 15 days. The 15‐day period is suspended for any period during which the unit is not available for inspection [982.305(b)(2)].
HACSB Policy
The PHA will complete the initial inspection, determine whether the unit satisfies HQS, and notify the owner and the family of the determination within 15 days of submission of the Request for Tenancy Approval (RTA).
Inspection Results and Re‐inspections
HACSB Policy
If any HQS violations are identified, the owner will be notified of the deficiencies and be given a time frame to correct them. If requested by the owner, the time frame for correcting the deficiencies may be extended by the PHA for good cause. The PHA will re‐ inspect the unit within 5 business days of the date the owner notifies the PHA that the required corrections have been made.
If the time period for correcting the deficiencies (or any PHA‐approved extension) has elapsed, or the unit fails HQS at the time of the re‐inspection, the PHA will notify the owner and the family that the unit has been rejected and that the family must search for another unit. The PHA may agree to conduct a second re‐inspection, for good cause, at the request of the family and owner.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐18 Following a failed re‐inspection, the family may submit a new Request for Tenancy Approval after the owner has made repairs, if they are unable to locate another suitable unit.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐19 Utilities
Generally, at initial lease‐up the owner is responsible for demonstrating that all utilities are in working order including those utilities that the family will be responsible for paying.
HACSB Policy
If utility service is not available for testing at the time of the initial inspection, the PHA will allow the utilities to be placed in service after the unit has met all other HQS requirements. The PHA will re‐inspect the unit to confirm that utilities are operational before the HAP contract is executed by the PHA.
Appliances [Form HUD‐52580]
HACSB Policy
If the family is responsible for supplying the stove and/or refrigerator, the PHA will allow the stove and refrigerator to be placed in the unit after the unit has met all other HQS requirements. The required appliances must be in place before the HAP contract is executed by the PHA. The PHA will execute the HAP contract based upon a certification from the family that the appliances have been installed and are working. A confirmatory inspection will be scheduled within 30 days of HAP contract approval. 321
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐20 8‐II.C. ANNUAL / BIENNIAL HQS INSPECTIONS [24 CFR 982.405 and 982.406, Notice PIH 2016‐ 05]
Scheduling the Inspection
Each unit under HAP contract must be inspected within 24 months of the last full HQS inspection. If a PHA desires to make inspections on a more frequent basis, it may do so.
HACSB Policy
If an adult family member or other authorized adult cannot be present on the scheduled date, the family should request that the PHA reschedule the inspection. The PHA and family will agree on a new inspection date that generally should take place within 5 business days of the originally‐scheduled date. The PHA may schedule an inspection more than 5 business days after the original date for good cause.
If the family misses the first scheduled appointment without requesting a new inspection date, the PHA will automatically schedule a second inspection. Generally, if the family misses two scheduled inspections without PHA approval, the PHA will consider the family to have violated its obligation to make the unit available for inspection. This may result in termination of the family’s assistance in accordance with Chapter 12.
The PHA will conduct a full HQS inspection within 12 months following the initial inspection. If the HQS inspection passes, subsequent inspection will be conducted biennially. If any inspection following the initial inspection fails the HQS inspection, subsequent inspections will be conducted on an annual basis.
The PHA will not rely on an alternative inspection standards. 8‐II.D. SPECIAL INSPECTIONS [24 CFR 982.405(g)]
If a participant or government official reports a life‐threatening condition which the owner would be required to repair within 24 hours, the PHA must inspect the unit within 24 hours of notification. If the reported condition is not life‐threatening, the PHA must inspect the unit within 15 days of notification.
HACSB Policy
During a special inspection, the PHA generally will inspect only those deficiencies that were reported. However, the inspector will record any additional HQS deficiencies that are observed and will require the responsible party to make the necessary repairs.
At the PHA’s discretion, the PHA may elect to conduct a full annual inspection. 8‐II.E. QUALITY CONTROL INSPECTIONS [24 CFR 982.405(b); HCV GB, p. 10‐32] HUD requires a PHA supervisor or other qualified person to conduct quality control inspections of a sample of units to ensure that each inspector is conducting accurate and complete inspections and that there is consistency in the application of the HQS. 322
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐21 The unit sample must include only units that have been inspected within the preceding 3 months. The selected sample will include (1) each type of inspection (initial, annual, and special), (2) inspections completed by each inspector, and (3) units from a cross‐section of neighborhoods.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐22 8‐II.F. INSPECTION RESULTS AND REINSPECTIONS FOR UNITS UNDER HAP CONTRACT Notification of Corrective Actions
The owner and the family will be notified in writing of the results of all inspections. When an inspection identifies HQS failures, the PHA will determine (1) whether or not the failure is a life‐ threatening condition and (2) whether the family or owner is responsible.
HACSB Policy
When life‐threatening conditions are identified, the PHA will immediately notify both parties by telephone, facsimile, or email. The notice will specify who is responsible for correcting the violation. The corrective actions must be taken within 24 hours of the PHA’s notice.
When failures that are not life‐threatening are identified, the PHA will send the owner and the family a written notification of the inspection results within 5 business days of the inspection. The written notice will specify who is responsible for correcting the violation, and the time frame within which the failure must be corrected. Generally not more than 30 days will be allowed for the correction.
The notice of inspection results will inform the owner that if life‐threatening conditions are not corrected within 24 hours, and non‐life threatening conditions are not corrected within the specified time frame (or any PHA‐approved extension), the owner’s HAP will be abated in accordance with PHA policy (see 8‐II.G.). Likewise, in the case of family caused deficiencies, the notice will inform the family that if corrections are not made within the specified time frame (or any PHA‐approved extension, if applicable) the family’s assistance will be terminated in accordance with PHA policy (see Chapter 12). 324
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐23 Extensions
For conditions that are life‐threatening, the PHA cannot grant an extension to the 24 hour corrective action period. For conditions that are not life‐threatening, the PHA may grant an exception to the required time frames for correcting the violation, if the PHA determines that an extension is appropriate [24 CFR 982.404].
HACSB Policy
Extensions will be granted in cases where the PHA has determined that the owner has made a good faith effort to correct the deficiencies and is unable to for reasons beyond the owner’s control. Reasons may include, but are not limited to:
A repair cannot be completed because required parts or services are not available.
A repair cannot be completed because of weather conditions.
A reasonable accommodation is needed because the family includes a person with disabilities.
The length of the extension will be determined on a case by case basis, but will not exceed 60 days, except in the case of delays caused by weather conditions. In the case of weather conditions, extensions may be continued until the weather has improved sufficiently to make repairs possible. The necessary repairs must be made within 15 calendar days, once the weather conditions have subsided. 325
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐24 Reinspections
HACSB Policy
HUD does not require PHAs to physically reinspect to verify that an HQS fail has been corrected, with the exception of initial HQS inspections and all PBV unit HQS inspections.
The PHA will always physically reinspect for life‐threatening HQS fail items.
For non‐life threatening fails, at the PHA’s discretion only, the PHA may accept the following as verification that the fail item has been cured:
1. Where items can be cured through viewing electronically, Skype or other electronic viewing means;
2. The owner or the tenant may submit a picture clearly demonstrating that the fail item has been repaired;
3. Owner email where the email address clearly is that of the owner or property manager; or
4. Certification signed by the owner and the tenant that the fail item has been repaired.
If a re‐inspection takes place, the PHA will conduct a re‐inspection immediately following the end of the corrective period, or any PHA approved extension.
The family and owner will be given reasonable notice of the re‐inspection appointment.
If the deficiencies have not been corrected by the time of the re‐inspection, the PHA will send a notice of abatement to the owner, or in the case of family caused violations, a notice of termination to the family, in accordance with PHA policies. If the PHA is unable to gain entry to the unit in order to conduct the scheduled re‐inspection, the PHA will consider the family to have violated its obligation to make the unit available for inspection. This may result in termination of the family’s assistance in accordance with Chapter 12.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐25 8‐II.G. ENFORCING OWNER COMPLIANCE
If the owner fails to maintain the dwelling unit in accordance with HQS, the PHA must take prompt and vigorous action to enforce the owner obligations.
HAP Abatement
If an owner fails to correct HQS deficiencies by the time specified by the PHA, HUD requires the PHA to abate housing assistance payments no later than the first of the month following the specified correction period (including any approved extension) [24 CFR 985.3(f)]. No retroactive payments will be made to the owner for the period of time the rent was abated. Owner rents are not abated as a result of HQS failures that are the family's responsibility.
HACSB Policy
The PHA will make all HAP abatements effective the first of the month following the expiration of the PHA specified correction period (including any extension).
The PHA will inspect abated units within 5 business days of the owner's notification that the work has been completed. Payment will resume effective on the day the unit passes inspection.
During any abatement period the family continues to be responsible for its share of the rent.
The owner must not seek payment from the family for abated amounts and may not use the abatement as cause for eviction.
HAP Contract Termination
The PHA must decide how long any abatement period will continue before the HAP contract will be terminated. The PHA should not terminate the contract until the family finds another unit, provided the family does so in a reasonable time [HCV GB p. 10‐29] and must give the owner reasonable notice of the termination. The PHA will issue a voucher to permit the family to move to another unit as described in Chapter 10.
HACSB Policy
The maximum length of time that HAP may be abated is 90 days. However, if the owner completes corrections and notifies the PHA before the termination date of the HAP contract, the PHA may rescind the termination notice if (1) the family still resides in the unit and wishes to remain in the unit and (2) the unit passes inspection.
Reasonable notice of HAP contract termination by the PHA is 30 days. 8‐II.H. ENFORCING FAMILY COMPLIANCE WITH HQS [24 CFR 982.404(b)] Families are responsible for correcting any HQS violations listed in paragraph 8.I.D. If the family fails to correct a violation within the period allowed by the PHA (and any extensions), the PHA will terminate the family’s assistance, according to the policies described in Chapter 12.
If the owner carries out a repair for which the family is responsible under the lease, the owner may bill the family for the cost of the repair.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐26 PART III: RENT REASONABLENESS [24 CFR 982.507]
8‐III.A. OVERVIEW
Except in the case of certain LIHTC‐ and HOME‐assisted units, no HAP contract can be approved until the PHA has determined that the rent for the unit is reasonable. The purpose of the rent reasonableness test is to ensure that a fair rent is paid for each unit rented under the HCV program.
HUD regulations define a reasonable rent as one that does not exceed the rent charged for comparable, unassisted units in the same market area. HUD also requires that owners not charge more for assisted units than for comparable units on the premises. This part explains the method used to determine whether a unit’s rent is reasonable.
PHA‐Owned Units [24 CFR 982.352(b)]
In cases where an HCV family is receiving assistance in a PHA‐owned unit, the PHA must obtain the services of an independent entity to determine rent reasonableness in accordance with program requirements, and to assist the family in negotiating the contract rent when the family requests assistance. A PHA‐owned unit is defined as a unit that is owned by the PHA that administers the assistance under the consolidated ACC (including a unit owned by an entity substantially controlled by the PHA). The independent agency must communicate the results of the rent reasonableness determination to the family and the PHA. The independent agency must be approved by HUD, and may be the unit of general local government for the PHA jurisdiction (unless the PHA is itself the unit of general local government or an agency of such government).
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐27 8‐III.B. WHEN RENT REASONABLENESS DETERMINATIONS ARE REQUIRED Owner‐Initiated Rent Determinations
The PHA must make a rent reasonableness determination at initial occupancy and whenever the owner requests a rent adjustment.
The owner and family first negotiate the rent for a unit. The PHA (or independent agency in the case of PHA‐owned units) will assist the family with the negotiations upon request. At initial occupancy the PHA must determine whether the proposed rent is reasonable before a HAP Contract is signed. The owner must not change the rent during the initial lease term.
Subsequent requests for rent adjustments must be consistent with the lease between the owner and the family. Rent increases will not be approved unless any failed items identified by the most recent HQS inspection have been corrected.
HACSB Policy
After the initial occupancy period, the owner may request a rent adjustment in accordance with the owner’s lease. For rent increase requests after initial lease‐up, the PHA may request owners to provide information about the rents charged for other units on the premises, if the premises include more than 4 units. In evaluating the proposed rents in comparison to other units on the premises the PHA will consider unit size and length of tenancy in the other units.
The PHA will determine whether the requested increase is reasonable within 10 business days of receiving the request from the owner. The owner will be notified of the determination in writing.
All rents adjustments will be effective the first of the month following 60 days after the PHA’s receipt of the owner’s request or on the date specified by the owner, whichever is later.
PHA‐ and HUD‐Initiated Rent Reasonableness Determinations HUD requires the PHA to make a determination of rent reasonableness (even if the owner has not requested a change) if there is a 10 percent decrease in the fair market rent that goes into effect at least 60 days before the contract anniversary date. HUD also may direct the PHA to make a determination at any other time. The PHA may decide that a new determination of rent reasonableness is needed at any time.
HACSB Policy
In addition to the instances described above, the PHA will make a determination of rent reasonableness at any time after the initial occupancy period if: (1) the PHA determines that the initial rent reasonableness determination was in error or (2) the PHA determines that the information provided by the owner about the unit or other units on the same premises was incorrect.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐28 LIHTC‐ and HOME‐Assisted Units [24 CFR 982.507(c)]
For units receiving low‐income housing tax credits (LIHTCs) or units assisted under HUD’s HOME Investment Partnerships (HOME) Program, a rent comparison with unassisted units is not required if the voucher rent does not exceed the rent for other LIHTC‐ or HOME‐assisted units in the project that are not occupied by families with tenant‐based assistance.
For LIHTCs, if the rent requested by the owner does exceed the LIHTC rents for non‐voucher families, the PHA must perform a rent comparability study in accordance with program regulations. In such cases, the rent shall not exceed the lesser of: (1) the reasonable rent as determined from the rent comparability study; or (2) the payment standard established by the PHA for the unit size involved.
8‐III.C. HOW COMPARABILITY IS ESTABLISHED
Factors to Consider
HUD requires PHAs to take into consideration the factors listed below when determining rent comparability. The PHA may use these factors to make upward or downward adjustments to the rents of comparison units when the units are not identical to the HCV‐assisted unit. Location and age
Unit size including the number of rooms and square footage of rooms The type of unit including construction type (e.g., single family, duplex, garden, low‐rise, high‐rise)
The quality of the units including the quality of the original construction, maintenance and improvements made
Amenities, services, and utilities included in the rent Units that Must Not Be Used as Comparables
Comparable units must represent unrestricted market rents. Therefore, units that receive some form of federal, state, or local assistance that imposes rent restrictions cannot be considered comparable units. These include units assisted by HUD through any of the following programs:
Section 8 project‐based assistance, Section 236 and Section 221(d)(3) Below Market Interest Rate (BMIR) projects, HOME or Community Development Block Grant (CDBG) program‐assisted units in which the rents are subsidized; units subsidized through federal, state, or local tax credits; units subsidized by the Department of Agriculture rural housing programs, and units that are rent‐controlled by local ordinance.
Note: Notice PIH 2011‐46, issued August 17, 2011, provides further guidance on the issue of what constitutes an assisted unit.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐29 Rents Charged for Other Units on the Premises
The Request for Tenancy Approval (HUD‐52517) requires owners to provide information, on the form itself, about the rent charged for other unassisted comparable units on the premises if the premises include more than 4 units.
By accepting the PHA payment each month the owner certifies that the rent is not more than the rent charged for comparable unassisted units on the premises. If asked to do so, the owner must give the PHA information regarding rents charged for other units on the premises. 331
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐30 8‐III.D . PHA RENT REASONABLENESS METHODOLOGY
How Market Data Is Collected
HACSB Policy
The PHA or its authorized contractor will collect and maintain data on market rents in the PHA's jurisdiction. Information sources may include newspapers, realtors, market surveys, inquiries of owners and other available sources. The data will be maintained by bedroom size and market areas. Market areas may be defined by zip codes, census tract, neighborhood, and identifiable natural or man‐made boundaries. The data will be updated on an ongoing basis and rent information that is more than 12 months old will be eliminated from the database.
How Rents Are Determined
HACSB Policy
The rent for a unit proposed for HCV assistance will be compared to the rent charged for comparable units in the same market area. The PHA will develop a range of prices for comparable units by bedroom size within defined market areas. Units proposed for HCV assistance will be compared to the units within this rent range. Because units may be similar, but not exactly like the unit proposed for HCV assistance, the PHA may make adjustments to the range of prices to account for these differences.
The adjustment must reflect the local market. Not all differences in units require adjustments (e.g., the presence or absence of a garbage disposal may not affect the rent in some market areas).
Adjustments may vary by unit type (e.g., a second bathroom may be more valuable in a three‐bedroom unit than in a two‐bedroom).
The adjustment must reflect the rental value of the difference—not its construction costs (e.g., it might cost $20,000 to put on a new roof, but the new roof might not make any difference in what a tenant would be willing to pay because rental units are presumed to have functioning roofs).
When a comparable project offers rent concessions (e.g., first month rent‐free, or reduced rent) reported monthly rents will be adjusted accordingly. For example, if a comparable project reports rents of $500/month but new tenants receive the first month's rent free, the actual rent for the unit would be calculated as follows: $500 x 11 months = 5500/12 months = actual monthly rent of $488.
The PHA will notify the owner of the rent the PHA can approve based upon its analysis of rents for comparable units. The owner may submit information about other comparable units in the market area. The PHA will confirm the accuracy of the information provided and consider this additional information when making rent determinations. The owner must submit any additional information within 5 business days of the PHA’s request for information or the owner’s request to submit information. 332
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐31 EXHIBIT 8‐1: OVERVIEW OF HUD HOUSING QUALITY STANDARDS
Note: This document provides an overview of HQS. For more detailed information see the following documents:
24 CFR 982.401, Housing Quality Standards (HQS)
Housing Choice Voucher Guidebook, Chapter 10.
HUD Housing Inspection Manual for Section 8 Housing
HUD Inspection Form, form HUD‐52580 (3/01) and Inspection Checklist, form HUD‐52580‐A (9/00)
Sanitary Facilities
The dwelling unit must include sanitary facilities within the unit. The sanitary facilities must be usable in privacy and must be in proper operating condition and adequate for personal cleanliness and disposal of human waste.
Food Preparation and Refuse Disposal
The dwelling unit must have space and equipment suitable for the family to store, prepare, and serve food in a sanitary manner.
Space and Security
The dwelling unit must provide adequate space and security for the family. This includes having at least one bedroom or living/sleeping room for each two persons.
Thermal Environment
The unit must have a safe system for heating the dwelling unit. Air conditioning is not required but if provided must be in proper operating condition. The dwelling unit must not contain unvented room heaters that burn gas, oil, or kerosene. Portable electric room heaters or kitchen stoves with built‐in heating units are not acceptable as a primary source of heat for units located in climatic areas where permanent heat systems are required.
Illumination and Electricity
Each room must have adequate natural or artificial illumination to permit normal indoor activities and to support the health and safety of occupants. The dwelling unit must have sufficient electrical sources so occupants can use essential electrical appliances. Minimum standards are set for different types of rooms. Once the minimum standards are met, the number, type and location of electrical sources are a matter of tenant preference.
UPCS‐V Electricity Requirements
All outlets within 6 feet of a water source must be equipped with a ground fault circuit interrupter (GFCI) for all UPCS‐V inspections.
Structure and Materials
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐32 The dwelling unit must be structurally sound. Handrails are required when four or more steps (risers) are present, and protective railings are required when porches, balconies, and stoops are thirty inches or more off the ground. The elevator servicing the unit must be working [if there is one]. Manufactured homes must have proper tie‐down devices capable of surviving wind loads common to the area.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐33 Interior Air Quality
The dwelling unit must be free of air pollutant levels that threaten the occupants’ health. There must be adequate air circulation in the dwelling unit. Bathroom areas must have one open‐able window or other adequate ventilation. Any sleeping room must have at least one window. If a window was designed to be opened, it must be in proper working order.
Water Supply
The dwelling unit must be served by an approved public or private water supply that is sanitary and free from contamination. Plumbing fixtures and pipes must be free of leaks and threats to health and safety.
Lead‐Based Paint
Lead‐based paint requirements apply to dwelling units built prior to 1978 that are occupied or can be occupied by families with children under six years of age, excluding zero bedroom dwellings. Owners must:
Disclose known lead‐based paint hazards to prospective tenants before the lease is signed, provide all prospective families with "Protect Your Family from Lead in Your Home", Stabilize deteriorated painted surfaces and conduct hazard reduction activities within 30 days when identified by the PHA
Notify tenants each time such an activity is performed Conduct all work in accordance with HUD safe practices As part of ongoing maintenance ask each family to report deteriorated paint. Maintain covered housing without deteriorated paint if there is a child under six in the family
For units occupied by elevated blood lead level (lead poisoned) children under six years of age, a risk assessment must be conducted (paid for by the PHA). If lead hazards are identified during the environmental investigation, the owner must complete hazard reduction activities within 30 days.
See HCV GB p. 10‐15 for a detailed description of these requirements. For additional information on lead‐based paint requirements see 24 CFR 35, Subparts A, B, M, and R.
Access
Use and maintenance of the unit must be possible without unauthorized use of other private properties. The building must provide an alternate means of exit in case of fire.
All living areas of a unit must be accessible through one main entryway. Units which require a person to exit the unit to an outside area in order to access another area of the unit are not permissible.
Site and Neighborhood
335
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐34 The site and neighborhood must be reasonably free from disturbing noises and reverberations, excessive trash or vermin, or other dangers to the health, safety, and general welfare of the occupants.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐35 Sanitary Condition
The dwelling unit and its equipment must be in sanitary condition and free of vermin and rodent infestation. The unit must have adequate barriers to prevent infestation.
Smoke Detectors
Smoke detectors must be installed in accordance with and meet the requirements of the National Fire Protection Association Standard (NFPA) 74 (or its successor standards). If the dwelling unit is occupied by any person with a hearing impairment, smoke detectors must have an appropriate alarm system as specified in NFPA 74 (or successor standards).
Hazards and Heath/Safety
The unit, interior and exterior common areas accessible to the family, the site, and the surrounding neighborhood must be free of hazards to the family's health and safety. 337
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐36 338
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐37 EXHIBIT 8‐2: SUMMARY OF TENANT PREFERENCE AREAS
RELATED TO HOUSING QUALITY
Note: This document provides an overview of unit and site characteristics and conditions for which the family determines acceptability. For more detailed information see the following documents:
Housing Choice Voucher Guidebook, Chapter 10.
HUD Housing Inspection Manual for Section 8 Housing
HUD Inspection Form, form HUD‐52580 (3/01) and Inspection Checklist, form HUD‐52580‐A (9/00)
Provided the minimum housing quality standards have been met, HUD permits the family to determine whether the unit is acceptable with regard to the following characteristics. Sanitary Facilities. The family may determine the adequacy of the cosmetic condition and quality of the sanitary facilities, including the size of the lavatory, tub, or shower; the location of the sanitary facilities within the unit; and the adequacy of the water heater. Food Preparation and Refuse Disposal. The family selects size and type of equipment it finds acceptable. When the family is responsible for supplying cooking appliances, the family may choose to use a microwave oven in place of a conventional oven, stove, or range. When the owner is responsible for providing cooking appliances, the owner may offer a microwave oven in place of an oven, stove, or range only if other subsidized and unsubsidized units on the premises are furnished with microwave ovens only. The adequacy of the amount and type of storage space, the cosmetic conditions of all equipment, and the size and location of the kitchen are all determined by the family.
Space and Security. The family may determine the adequacy of room sizes and room locations. The family is also responsible for deciding the acceptability of the type of door and window locks.
Energy conservation items. The family may determine whether the amount of insulation, presence of absence of storm doors and windows and other energy conservation items are acceptable.
Illumination and Electricity. The family may determine whether the location and the number of outlets and fixtures (over and above those required to meet HQS standards) are acceptable or if the amount of electrical service is adequate for the use of appliances, computers, or stereo equipment.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 8‐38 (6) Structure and Materials. Families may determine whether minor defects, such as lack of paint, or worn flooring or carpeting will affect the livability of the unit. (7) Indoor Air. Families may determine whether window and door screens, filters, fans, or other devices for proper ventilation are adequate to meet the family’s needs. However, if screens are present they must be in good condition.
(8) Sanitary Conditions. The family determines whether the sanitary conditions in the unit, including minor infestations, are acceptable.
(9) Neighborhood conditions. Families may determine whether neighborhood conditions such as the presence of drug activity, commercial enterprises, and convenience to shopping will affect the livability of the unit.
Families have no discretion with respect to lead‐based paint standards and smoke detectors. 340
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 9‐1 Chapter 9
GENERAL LEASING POLICIES
INTRODUCTION
Chapter 9 covers the lease‐up process from the family's submission of a Request for Tenancy Approval to execution of the HAP contract.
In order for the PHA to assist a family in a particular dwelling unit, or execute a Housing Assistance Payments (HAP) contract with the owner of a dwelling unit, the PHA must determine that all the following program requirements are met:
The unit itself must qualify as an eligible unit [24 CFR 982.305(a)] The unit must be inspected by the PHA and meet the Housing Quality Standards (HQS) [24 CFR 982.305(a)]
The lease offered by the owner must be approvable and must include the required Tenancy Addendum [24 CFR 982.305(a)]
The rent to be charged by the owner for the unit must be reasonable [24 CFR 982.305(a)] The owner must be an eligible owner, approvable by the PHA, with no conflicts of interest [24 CFR 982.306]
For families initially leasing a unit only: Where the gross rent of the unit exceeds the applicable payment standard for the family, the share of rent to be paid by the family cannot exceed 40 percent of the family’s monthly adjusted income [24 CFR 982.305(a)] 341
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 9‐2 9‐I.A. TENANT SCREENING
The PHA has no liability or responsibility to the owner or other persons for the family’s behavior or suitability for tenancy [24 CFR 982.307(a)(1)].
The PHA may elect to screen applicants for family behavior or suitability for tenancy. See Chapter 3 for a discussion of the PHA’s policies with regard to screening applicant families for program eligibility [24 CFR 982.307(a)(1)].
The owner is responsible for screening and selection of the family to occupy the owner’s unit.
At or before PHA approval of the tenancy, the PHA must inform the owner that screening and selection for tenancy is the responsibility of the owner [24 CFR 982.307(a)(2)]. The PHA must also inform the owner or manager or his/her rights and obligations under the Violence against Women Act of 2013 (VAWA) [24 CFR 5.2005(a)(2)].
The PHA must provide the owner with the family’s current and prior address (as shown in the PHA records) and the name and address (if known to the PHA) of the landlord at the family’s current and prior address [24 CFR 982.307(b)(1)].
The PHA is permitted, but not required, to offer the owner other information in the PHA’s possession about the tenancy history or drug trafficking of family members [24 CFR 982.307(b)(2)].
The PHA’s policy on providing information to the owner must be included in the family’s briefing packet [24 CFR 982.307(b)(3)].
The PHA may not disclose to the owner any confidential information provided by the family in response to a PHA request for documentation of domestic violence, dating violence, sexual assault or stalking except at the written request or with the written consent of the individual providing the documentation [24 CFR 5.2007(b)(4)].
HACSB Policy
The PHA will not screen applicants for family behavior or suitability for tenancy unless in the case of PHA owned housing, in which case suitability will be screened.
The PHA will provide the owner information in the PHA’s possession about the tenancy history, if requested.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 9‐3 9‐I.B. REQUESTING TENANCY APPROVAL [Form HUD‐52517]
After the family is issued a voucher, the family must locate an eligible unit, with an owner or landlord willing to participate in the voucher program. Once a family finds a suitable unit and the owner is willing to lease the unit under the program, the owner and the family must request the PHA to approve the assisted tenancy in the selected unit.
The owner and the family must submit two documents to the PHA:
Completed Request for Tenancy Approval (RTA) – Form HUD‐52517 Copy of the proposed lease, including the HUD‐prescribed Tenancy Addendum – Form HUD‐ 52641‐A
The RTA contains important information about the rental unit selected by the family, including the unit address, number of bedrooms, structure type, year constructed, utilities included in the rent, and the requested beginning date of the lease, necessary for the PHA to determine whether to approve the assisted tenancy in this unit.
Owners must certify to the most recent amount of rent charged for the unit and provide an explanation for any difference between the prior rent and the proposed rent.
Owners must certify that they are not the parent, child, grandparent, grandchild, sister or brother of any member of the family, unless the PHA has granted a request for reasonable accommodation for a person with disabilities who is a member of the tenant household.
For units constructed prior to 1978, owners must either 1) certify that the unit, common areas, and exterior have been found to be free of lead‐based paint by a certified inspector; or 2) attach a lead‐based paint disclosure statement.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 9‐4 Both the RTA and the proposed lease must be submitted no later than the expiration date stated on the voucher. [HCV GB p.8‐15].
HACSB Policy
The RTA must be signed by both the family and the owner.
The owner may not submit the RTA on behalf of the family.
Completed RTA (including the proposed dwelling lease) must be submitted as hard copies and in‐person.
The family may not submit, and the PHA will not process, more than one (1) RTA at a time.
When the family submits the RTA the PHA will review the RTA for completeness.
If the RTA is incomplete (including lack of signature by family, owner, or both), or if the dwelling lease is not submitted with the RTA, the PHA will notify the family and the owner of the deficiencies.
Missing information and/or missing documents will only be accepted as hard copies, in‐person, by mail, or by fax. The PHA will not accept missing information over the phone.
The PHA will also review the terms of the RTA for consistency with the terms of the proposed lease.
If the terms of the RTA are not consistent with the terms of the proposed lease, the PHA will notify the family and the owner of the discrepancies.
Corrections to the terms of the RTA and/or the proposed lease will only be accepted as hard copies, in‐person, by mail or by fax. The PHA will not accept corrections by phone.
Because of the time sensitive nature of the tenancy approval process, the PHA will attempt to communicate with the owner and family by phone, fax, or email. The PHA will use mail when the parties cannot be reached by phone, fax, or email. 9‐I.C. OWNER PARTICIPATION
The PHA does not formally approve an owner to participate in the HCV program. However, there are a number of criteria where the PHA may deny approval of an assisted tenancy based on past owner behavior, conflict of interest, or other owner‐related issues. There are also criteria for which the PHA must disapprove an owner. No owner has a right to participate in the HCV program [24 CFR 982.306(e)]
See Chapter 13 for a full discussion of owner qualification to participate in the HCV program. 344
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 9‐5 9‐I.D. ELIGIBLE UNITS
There are a number of criteria that a dwelling unit must meet in order to be eligible for assistance under the voucher program. Generally, a voucher‐holder family may choose any available rental dwelling unit on the market in the PHA’s jurisdiction. This includes the dwelling unit they are currently occupying.
Ineligible Units [24 CFR 982.352(a)]
The PHA may not assist a unit under the voucher program if the unit is a public housing or Indian housing unit; a unit receiving project‐based assistance under section 8 of the 1937 Act (42 U.S.C. 1437f); nursing homes, board and care homes, or facilities providing continual psychiatric, medical, or nursing services; college or other school dormitories; units on the grounds of penal, reformatory, medical, mental, and similar public or private institutions; a unit occupied by its owner or by a person with any interest in the unit.
PHA‐Owned Units [24 CFR 982.352(b)]
Otherwise eligible units that are owned or substantially controlled by the PHA issuing the voucher may also be leased in the voucher program. In order for a PHA‐owned unit to be leased under the voucher program, the unit must not be ineligible housing and the PHA must inform the family, both orally and in writing, that the family has the right to select any eligible unit available for lease and that the family is free to select a PHA‐owned unit without any pressure or steering by the PHA.
HACSB Policy
The PHA does have eligible PHA‐owned units available for leasing under the voucher program.
Special Housing Types [24 CFR 982 Subpart M]
HUD regulations permit, but do not generally require, the PHA to permit families to use voucher assistance in a number of special housing types in accordance with the specific requirements applicable to those programs. These special housing types include single room occupancy (SRO) housing, congregate housing, group home, shared housing, manufactured home space (where the family owns the manufactured home and leases only the space), cooperative housing and homeownership option. See Chapter 15 for specific information and policies on any of these housing types that the PHA has chosen to allow.
The regulations do require the PHA to permit use of any special housing type if needed as a reasonable accommodation so that the program is readily accessible to and usable by persons with disabilities.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 9‐6 Duplicative Assistance [24 CFR 982.352(c)]
A family may not receive the benefit of HCV tenant‐based assistance while receiving the benefit of any of the following forms of other housing subsidy, for the same unit or for a different unit:
Public or Indian housing assistance;
Other Section 8 assistance (including other tenant‐based assistance); Assistance under former Section 23 of the United States Housing Act of 1937 (before amendment by the Housing and Community Development Act of 1974); Section 101 rent supplements;
Section 236 rental assistance payments;
Tenant‐based assistance under the HOME Program;
Rental assistance payments under Section 521 of the Housing Act of 1949 (a program of the Rural Development Administration);
Any local or State rent subsidy;
Section 202 supportive housing for the elderly;
Section 811 supportive housing for persons with disabilities; (11) Section 202 projects for non‐elderly persons with disabilities (Section 162 assistance); or Any other duplicative federal, State, or local housing subsidy, as determined by HUD. For this purpose, 'housing subsidy' does not include the housing component of a welfare payment, a social security payment received by the family, or a rent reduction because of a tax credit.
Housing Quality Standards (HQS) [24 CFR 982.305 and 24 CFR 982.401] In order to be eligible, the dwelling unit must be in decent, safe and sanitary condition. This determination is made using HUD’s Housing Quality Standards (HQS) and/or equivalent state or local standards approved by HUD. See Chapter 8 for a full discussion of the HQS standards, as well as the process for HQS inspection at initial lease‐up. 346
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 9‐7 Unit Size
In order to be eligible, the dwelling unit must be appropriate for the number of persons in the household. A family must be allowed to lease an otherwise acceptable dwelling unit with fewer bedrooms than the number of bedrooms stated on the voucher issued to the family, provided the unit meets the applicable HQS space requirements [24 CFR 982.402(d)]. The family must be allowed to lease an otherwise acceptable dwelling unit with more bedrooms than the number of bedrooms stated on the voucher issued to the family. See Chapter 5 for a full discussion of subsidy standards.
Rent Reasonableness [24 CFR 982.305 and 24 CFR 982.507] In order to be eligible, the dwelling unit must have a reasonable rent. The rent must be reasonable in relation to comparable unassisted units in the area and must not be in excess of rents charged by the owner for comparable, unassisted units on the premises. See Chapter 8 for a full discussion of rent reasonableness and the rent reasonableness determination process.
Rent Burden [24 CFR 982.508]
Where a family is initially leasing a unit and the gross rent of the unit exceeds the applicable payment standard for the family, the family share cannot exceed 40 percent of the family’s adjusted monthly income. The term “family share” refers to the amount the family pays toward rent and utilities. The gross rent for the unit minus the total housing assistance payment (HAP) for the unit equals the family share. See Chapter 6 for a discussion of calculation of gross rent, the use of payment standards, and calculation of family income, family share of rent and HAP. 347
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 9‐8 9‐I.E. LEASE AND TENANCY ADDENDUM
The family and the owner must execute a written dwelling lease agreement for the assisted unit. This written lease is a contract between the tenant family and the owner; the PHA is not a party to this contract.
The tenant must have legal capacity to enter a lease under State and local law. 'Legal capacity' means that the tenant is bound by the terms of the lease and may enforce the terms of the lease against the owner [24 CFR 982.308(a)]
Lease Form and Tenancy Addendum [24 CFR 982.308]
If the owner uses a standard lease form for rental to unassisted tenants in the locality or the premises, the lease must be in such standard form. If the owner does not use a standard lease form for rental to unassisted tenants, the owner may use another form of lease. The HAP contract prescribed by HUD contains the owner's certification that if the owner uses a standard lease form for rental to unassisted tenants, the lease for the assisted tenants is in such standard form.
All provisions in the HUD‐required Tenancy Addendum must be added word‐for‐word to the owner's standard lease form. The Tenancy Addendum includes the HUD requirements for the tenancy. Because it is a part of the lease, the tenant shall have the right to enforce the Tenancy Addendum against the owner. If there is a conflict between the owner’s lease and the Tenancy Addendum, the terms of the Tenancy Addendum shall prevail over any other provisions of the lease.
HACSB Policy
The PHA does not provide a model or standard dwelling lease for owners to use in the HCV program.
Lease Information [24 CFR 982.308(d)]
The assisted dwelling lease must contain all of the required information as listed below:
The names of the owner and the tenant(s):
The unit rented (address, apartment number, and any other information needed to identify the contract unit)
The term of the lease (initial term and any provisions for renewal) The amount of the monthly rent to owner
A specification of what utilities and appliances are to be supplied by the owner, and what utilities and appliances are to be supplied by the family 348
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 9‐9 Term of Assisted Tenancy
The initial term of the assisted dwelling lease must be for at least one year [24 CFR 982.309].
The initial lease term is also stated in the HAP contract.
The HUD program regulations permit the PHA to approve a shorter initial lease term if certain conditions are met.
HACSB Policy
The PHA will approve an initial lease term of less than one (1) year if it will improve the opportunities for leasing for the tenant as it is the standard market practice.
During the initial term of the lease, the owner may not raise the rent to owner [24 CFR 982.309].
Any provisions for renewal of the dwelling lease will be stated in the dwelling lease [HCV Guidebook, pg. 8‐22]. There are no HUD requirements regarding any renewal extension terms, except that they must be stated in the dwelling lease if they exist.
The PHA may execute the HAP contract even if there is less than one year remaining from the beginning of the initial lease term to the end of the last expiring funding increment under the consolidated ACC. [24 CFR 982.309(b)].
Security Deposit [24 CFR 982.313 (a) and (b)]
The owner may collect a security deposit from the tenant. The PHA may prohibit security deposits in excess of private market practice, or in excess of amounts charged by the owner to unassisted tenants. However, if the PHA chooses to do so, language to this effect must be added to Part A of the HAP contract [Form HUD‐52641].
HACSB Policy
The PHA will allow the owner to collect any security deposit amount the owner determines is appropriate. Therefore, no modifications to the HAP contract will be necessary.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 9‐10 Separate Non‐Lease Agreements between Owner and Tenant
Owners may not demand or accept any rent payment from the family in excess of the rent to the owner as approved by the PHA minus the PHA’s housing assistance payments to the owner [24 CFR 982.451(b)(4)].
The owner may not charge the tenant extra amounts for items customarily included in rent in the locality, or provided at no additional cost to unsubsidized tenants in the premises [24 CFR 982.510(c)].
HACSB Policy
The PHA permits owners and families to execute separate, non‐lease agreements for services, appliances (other than range and refrigerator) and other items that are not included in the lease.
Any items, appliances, or other services that are customarily provided to unassisted families as part of the dwelling lease with those families, or are permanently installed in the dwelling unit must be included in the dwelling lease for the assisted family. These items, appliances or services cannot be placed under a separate non‐lease agreement between the owner and family. Side payments for additional rent, or for items, appliances or services customarily provided to unassisted families as part of the dwelling lease for those families, are prohibited.
Any items, appliances, or other services that are not customarily provided to unassisted families as part of the dwelling lease with those families, are not permanently installed in the dwelling unit and where the family has the sole option of not utilizing the item, appliance or service, may be included in a separate non‐lease agreement between the owner and the family.
The family is not liable and cannot be held responsible under the terms of the assisted dwelling lease for any charges pursuant to a separate non‐lease agreement between the owner and the family. Non‐payment of any charges pursuant to a separate non‐lease agreement between the owner and the family cannot be a cause for eviction or termination of tenancy under the terms of the assisted dwelling lease.
Separate non‐lease agreements that involve additional items, appliances or other services may be considered amenities offered by the owner and may be taken into consideration when determining the reasonableness of the rent for the property. 350
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 9‐11 PHA Review of Lease
The PHA will review the dwelling lease for compliance with all applicable requirements.
HACSB Policy
If the dwelling lease is incomplete or incorrect, the PHA will notify the family and the owner of the deficiencies. Missing and corrected lease information will only be accepted as hard copies, in‐person, by mail, or by fax. The PHA will not accept missing and corrected information over the phone.
Because the initial leasing process is time‐sensitive, the PHA will attempt to communicate with the owner and family by phone, fax, or email. The PHA will use mail when the parties can’t be reached by phone, fax, or email.
The PHA is permitted, but is not required, to review the lease to determine if the lease complies with State and local law and is permitted to decline to approve the tenancy if the PHA determines that the lease does not comply with State or local law [24 CFR 982.308(c)] HACSB Policy
The PHA will not review the owner’s lease for compliance with state/local law. 351
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 9‐12 9‐I.F. TENANCY APPROVAL [24 CFR 982.305]
After receiving the family's Request for Tenancy Approval, with proposed dwelling lease, the PHA must promptly notify the family and owner whether the assisted tenancy is approved.
Prior to approving the assisted tenancy and execution of a HAP contract, the PHA must ensure that all required actions and determinations, discussed in Part I of this chapter have been completed.
These actions include ensuring that the unit is eligible; the unit has been inspected by the PHA and meets the Housing Quality Standards (HQS); the lease offered by the owner is approvable and includes the required Tenancy Addendum; the rent to be charged by the owner for the unit must is reasonable; where the family is initially leasing a unit and the gross rent of the unit exceeds the applicable payment standard for the family, the share of rent to be paid by the family does not exceed 40 percent of the family’s monthly adjusted income [24 CFR 982.305(a)]; the owner is an eligible owner, not disapproved by the PHA, with no conflicts of interest [24 CFR 982.306]; the family and the owner have executed the lease, including the Tenancy Addendum, and the lead‐based paint disclosure information [24 CFR 982.305(b)].
HACSB Policy
The PHA will complete its determination within 10 business days of receiving all required information.
If the terms of the RTA/proposed lease are changed for any reason, including but not limited to negotiation with the PHA, the PHA will obtain corrected copies of the RTA and proposed lease, signed by the family and the owner.
Corrections to the RTA/proposed lease will only be accepted as hard copies, in‐ person, by mail, or by fax. The PHA will not accept corrections over the phone.
If the PHA determines that the tenancy cannot be approved for any reason, the owner and the family will be notified in writing and given the opportunity to address any reasons for disapproval. The PHA will instruct the owner and family of the steps that are necessary to obtain approval of the tenancy.
Where the tenancy is not approvable because the unit is not approvable, the family must continue to search for eligible housing within the timeframe of the issued voucher.
If the tenancy is not approvable due to rent affordability or rent reasonableness, the PHA will attempt to negotiate the rent with the owner. If a new, approvable rent is negotiated, the tenancy will be approved. If the owner is not willing to negotiate an approvable rent, the family must continue to search for eligible housing within the timeframe of the issued voucher.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 9‐13 9‐I.G. HAP CONTRACT EXECUTION [24 CFR 982.305]
The HAP contract is a written agreement between the PHA and the owner of the dwelling unit.
Under the HAP contract, the PHA agrees to make housing assistance payments to the owner on behalf of the family, and the owner agrees to comply with all program requirements as stated in the HAP contract.
The HAP contract form is prescribed by HUD.
If the PHA has given approval for the family of the assisted tenancy, the owner and the PHA must execute the HAP contract.
The term of the HAP contract must be the same as the term of the lease [24 CFR 982.451(a)(2)].
The PHA is permitted to execute a HAP contract even if the funding currently available does not extend for the full term of the HAP contract.
The PHA must make a best effort to ensure that the HAP contract is executed before the beginning of the lease term. Regardless, the HAP contract must be executed no later than 60 calendar days from the beginning of the lease term.
The PHA may not pay any housing assistance payment to the owner until the HAP contract has been executed. If the HAP contract is executed during the period of 60 calendar days from the beginning of the lease term, the PHA will pay housing assistance payments after execution of the HAP contract (in accordance with the terms of the HAP contract), to cover the portion of the lease term before execution of the HAP contract (a maximum of 60 days).
Any HAP contract executed after the 60 day period is void, and the PHA may not pay any housing assistance payment to the owner.
HACSB Policy
The owner and the assisted family will execute the dwelling lease and the owner must provide a copy to the PHA. The PHA will ensure that both the owner and the assisted family receive copies of the dwelling lease.
The owner and the PHA will execute the HAP contract. The PHA will not execute the HAP contract until the owner has submitted IRS form W‐9. The PHA will ensure that the owner receives a copy of the executed HAP contract.
See Chapter 13 for a discussion of the HAP contract and contract provisions. 353
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 9‐14 9‐I.H. CHANGES IN LEASE OR RENT [24 CFR 982.308]
If the tenant and the owner agree to any changes in the lease, such changes must be in writing, and the owner must immediately give the PHA a copy of such changes. The lease, including any changes, must remain in accordance with the requirements of this chapter.
Generally, PHA approval of tenancy and execution of a new HAP contract are not required for changes in the lease. However, under certain circumstances, the execution of a new lease and HAP contract are required. These circumstances include:
Changes in lease requirements governing tenant or owner responsibilities for utilities or appliances
Changes in lease provisions governing the term of the lease The family moves to a new unit, even if the unit is in the same building or complex In these cases, if the HCV assistance is to continue, the family must submit a new Request for Tenancy Approval (RTA) along with a new dwelling lease containing the proposed changes. A new tenancy must then be approved in accordance with this chapter.
Where the owner is changing the amount of the rent to owner, the owner must notify the PHA at least 60 days before any such changes go into effect [24 CFR 982.308(g)(4)]. The PHA will agree to such an increase only if the amount of the rent to owner is considered reasonable according to the rent reasonableness standards discussed in Chapter 8. If the requested rent is not found to be reasonable, the owner must either reduce the requested rent increase, or terminate the tenancy in accordance with the terms of the lease.
No rent increase is permitted during the initial term of the lease [24 CFR 982.309(a)(3)].
HACSB Policy
Where the owner is requesting a rent increase, the PHA will determine whether the requested increase is reasonable within 10 business days of receiving the request from the owner. The owner will be notified of the determination in writing.
Rent increases will go into effect on the first of the month following the 60 day period after the owner notifies the PHA of the rent change or on the date specified by the owner, whichever is later.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐1 Chapter 10
MOVING WITH CONTINUED ASSISTANCE AND PORTABILITY
INTRODUCTION
Freedom of housing choice is a hallmark of the housing choice voucher (HCV) program. In general, HUD regulations impose few restrictions on where families may live or move with HCV assistance. This chapter sets forth HUD regulations and PHA policies governing moves within or outside the PHA’s jurisdiction in two parts:
Part I: Moving with Continued Assistance. This part covers the general rules that apply to all moves by a family assisted under the PHA’s HCV program, whether the family moves to another unit within the PHA’s jurisdiction or to a unit outside the PHA’s jurisdiction under portability.
Part II: Portability. This part covers the special rules that apply to moves by a family under portability, whether the family moves out of or into the PHA’s jurisdiction. This part also covers the special responsibilities that the PHA has under portability regulations and procedures.
PART I: MOVING WITH CONTINUED ASSISTANCE
10‐I.A. ALLOWABLE MOVES
HUD lists six regulatory conditions under which an assisted family is allowed to move to a new unit with continued assistance. Permission to move is subject to the restrictions set forth in section 10‐I.B.
The family has a right to terminate the lease on notice to the owner (for the owner’s breach or otherwise) and has given a notice of termination to the owner in accordance with the lease [24 CFR 982.314(b)(3)]. If the family terminates the lease on notice to the owner, the family must give the PHA a copy of the notice at the same time [24 CFR 982.314(d)(1)]. The lease for the family’s unit has been terminated by mutual agreement of the owner and the family [24 CFR 982.314(b)(1)(ii)].
HACSB Policy
If the family and the owner mutually agree to terminate the lease for the family’s unit, the family must give the PHA a copy of the termination agreement. 355
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐2 The owner has given the family a notice to vacate, has commenced an action to evict the family, or has obtained a court judgment or other process allowing the owner to evict the family [24 CFR 982.314(b)(2)]. The family must give the PHA a copy of any owner eviction notice [24 CFR 982.551(g)].
The family or a member of the family is or has been the victim of domestic violence, dating violence, sexual assault or stalking and the move is needed to protect the health or safety of the family or family member [24 CFR 982.314(b)(4)]. This condition applies even when the family has moved out of its unit in violation of the lease, with or without prior notification to the PHA, if the family or family member who is the victim reasonably believed that he or she was imminently threatened by harm from further violence if he or she remained in the unit [24 CFR 982.314(b)(4), 24 CFR 982.353(b)]. The PHA must adopt an emergency transfer plan as required by regulations at 24 CFR 5.2007(e).
HACSB Policy
If a family requests permission to move with continued assistance based on a claim that the move is necessary to protect the health or safety of a family member who is or has been the victim of domestic violence, dating violence, sexual assault or stalking, the PHA will request documentation in accordance with section 16‐IX.D of this plan.
The PHA reserves the right to waive the documentation requirement if it determines that a statement or other corroborating evidence from the family or family member will suffice. In such cases the PHA will document the waiver in the family’s file.
Before granting an emergency transfer, the PHA will ensure the victim is eligible to receive continued assistance based on the citizenship or immigration status of the victim.
The PHA has adopted an emergency transfer plan, which is included as Exhibit 16‐3 to this plan.
The PHA has terminated the assisted lease for the family’s unit for the owner’s breach [24 CFR 982.314(b)(1)(i)].
The PHA determines that the family’s current unit does not meet the HQS space standards because of an increase in family size or a change in family composition. In such cases, the PHA must issue the family a new voucher, and the family and PHA must try to find an acceptable unit as soon as possible. If an acceptable unit is available for the family, the PHA must terminate the HAP contract for the family’s old unit in accordance with the HAP contract terms and must notify both the family and the owner of the termination. The HAP contract terminates at the end of the calendar month that follows the calendar month in which the PHA gives notice to the owner. [24 CFR 982.403(a) and (c)] 356
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐3 10‐I.B. RESTRICTIONS ON MOVES
A family’s right to move is generally contingent upon the family’s compliance with program requirements [24 CFR 982.1(b)(2)]. HUD specifies two conditions under which a PHA may deny a family permission to move and two ways in which a PHA may restrict moves by a family.
Denial of Moves
HUD regulations permit the PHA to deny a family permission to move under the following conditions:
Insufficient Funding
The PHA may deny a family permission to move either within or outside the PHA’s jurisdiction if the PHA does not have sufficient funding for continued assistance [24 CFR 982.314(e)(1)].
However, Notice PIH 2016‐092 significantly restricts the ability of PHAs to deny permission to move due to insufficient funding and places further requirements on PHAs regarding moves denied due to lack of funding. The requirements found in this notice are mandatory.
HACSB Policy
The PHA will deny a family permission to move on grounds that the PHA does not have sufficient funding for continued assistance if (a) the move is initiated by the family, not the owner or the PHA; (b) the PHA can demonstrate that the move will, in fact, result in higher subsidy costs; (c) the PHA can demonstrate, in accordance with the policies in Part VIII of Chapter 16, that it does not have sufficient funding in its annual budget to accommodate the higher subsidy costs; and (d) for portability moves, the receiving PHA is not absorbing the voucher.
If the PHA does not have sufficient funding for continued assistance, but the family must move from their unit (e.g., the unit failed HQS), the family may move to a higher cost unit if the move is within the PHA’s jurisdiction. The PHA, however, will not allow the family to move under portability in this situation if the family wishes to move to a higher cost area.
For both moves within the PHA’s jurisdiction and outside under portability, the PHA will not deny a move due to insufficient funding if the PHA previously approved the move and subsequently experienced a funding shortfall if the family cannot remain in their current unit. The PHA will rescind the voucher in this situation if the family will be allowed to remain in their current unit.
The PHA will create a list of families whose moves have been denied due to insufficient funding. The PHA will keep the family’s request open indefinitely, and when funds become available, the families on this list will take precedence over families on the waiting list. The PHA will use the same procedures for notifying families with open requests to move when funds become available as it uses for notifying families on the waiting list (see section 4‐III.D).
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐4 The PHA will inform the family of its policy regarding moves denied due to insufficient funding in a letter to the family at the time the move is denied.
Grounds for Denial or Termination of Assistance
The PHA may deny a family permission to move if it has grounds for denying or terminating the family’s assistance [24 CFR 982.314(e)(2)].
HACSB Policy
If the PHA has grounds for denying or terminating a family’s assistance, the PHA will act on those grounds in accordance with the regulations and policies set forth in Chapters 3 and 12, respectively. In general, it will deny a family permission to move for this reason; however it retains the discretion to allow for moves under special circumstances.
If the family owes the PHA money, including if the family is currently under any existing repayment agreement, the PHA will deny the family permission to move. 358
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐5 Restrictions on Elective Moves [24 CFR 982.314(c)]
HUD regulations permit the PHA to prohibit any elective move by a participant family during the family’s initial lease term. They also permit the PHA to prohibit more than one elective move by a participant family during any 12‐month period. However, such prohibitions, if adopted, do not apply when the family or a member of the family is or has been the victim of domestic violence, dating violence, sexual assault or stalking and the move is needed to protect the health or safety of the family or family member. (For the policy on documentation of abuse, see section 10‐I.A.) In addition, the PHA may not establish a policy permitting moves only at reexamination [Notice PIH 2016‐09].
HACSB Policy
The PHA will deny a family permission to make an elective move during the family’s initial lease term. This policy applies to moves within the PHA’s jurisdiction or outside it under portability.
The PHA will also deny a family permission to make more than one elective move during any 12‐month period. This policy applies to all assisted families residing in the PHA’s jurisdiction.
The PHA will consider exceptions to these policies for the following reasons: to protect the health or safety of a family member (e.g., lead‐based paint hazards, domestic violence, witness protection programs), or to address an emergency situation over which a family has no control.
In addition, the PHA will allow exceptions to these policies for purposes of reasonable accommodation of a family member who is a person with disabilities (see Chapter 2). 359
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐6 10‐I.C. MOVING PROCESS
Notification
If a family wishes to move to a new unit, the family must notify the PHA and the owner before moving out of the old unit or terminating the lease on notice to the owner [24 CFR 982.314(d)(2)]. If the family wishes to move to a unit outside the PHA’s jurisdiction under portability, the notice to the PHA must specify the area where the family wishes to move [24 CFR 982.314(d)(2)]. The notices must be in writing [24 CFR 982.5].
Approval
HACSB Policy
Upon receipt of a family’s notification that it wishes to move, the PHA will determine whether the move is approvable in accordance with the regulations and policies set forth in sections 10‐I.A and 10‐I.B. The PHA will notify the family in writing of its determination within 10 business days following receipt of the family’s notification.
Reexamination of Family Income and Composition
HACSB Policy
For families approved to move to a new unit within the PHA’s jurisdiction, the PHA may perform a new annual reexamination.
For families moving into or families approved to move out of the PHA’s jurisdiction under portability, the PHA will follow the policies set forth in Part II of this chapter.
Voucher Issuance and Briefing
HACSB Policy
For families approved to move to a new unit within the PHA’s jurisdiction, the PHA will issue a new voucher within 10 business days of the PHA’s written approval to move.
The family’s attendance at a mover briefing is required. The PHA will follow the policies set forth in Chapter 5 on voucher term, extension, and expiration. If a family does not locate a new unit within the term of the voucher and any extensions, the family may remain in its current unit with continued voucher assistance if the owner agrees and the PHA approves. Otherwise, the family will lose its assistance.
For families moving into or families approved to move out of the PHA’s jurisdiction under portability, the PHA will follow the policies set forth in Part II of this chapter. 360
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐7 Housing Assistance Payments [24 CFR 982.311(d)]
When a family moves out of an assisted unit, the PHA may not make any housing assistance payment to the owner for any month after the month the family moves out. The owner may keep the housing assistance payment for the month when the family moves out of the unit.
If a participant family moves from an assisted unit with continued tenant‐based assistance, the term of the assisted lease for the new assisted unit may begin during the month the family moves out of the first assisted unit. Overlap of the last housing assistance payment (for the month when the family moves out of the old unit) and the first assistance payment for the new unit, is not considered to constitute a duplicative housing subsidy. 361
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐8 PART II: PORTABILITY
10‐II.A. OVERVIEW
Within the limitations of the regulations and this plan, a participant family or an applicant family that has been issued a voucher has the right to use tenant‐based voucher assistance to lease a unit anywhere in the United States providing that the unit is located within the jurisdiction of a PHA administering a tenant‐based voucher program [24 CFR 982.353(b)]. The process by which a family obtains a voucher from one PHA and uses it to lease a unit in the jurisdiction of another PHA is known as portability. The PHA that issues the voucher is called the initial PHA. The PHA that has jurisdiction in the area to which the family wants to move is called the receiving PHA.
The receiving PHA has the option of administering the family’s voucher for the initial PHA or absorbing the family into its own program. Under the first option, the receiving PHA provides all housing services for the family and bills the initial PHA for the family’s housing assistance payments and the fees for administering the family’s voucher. Under the second option, the receiving PHA pays for the family’s assistance with its own program funds, and the initial PHA has no further relationship with the family. The initial PHA must contact the receiving PHA via email or other confirmed delivery method to determine whether the receiving PHA will administer or absorb the initial PHA’s voucher. Based on the receiving PHA’s response, the initial PHA must determine whether they will approve or deny the portability request [Notice PIH 2016‐09].
PHAs commonly act as both the initial and receiving PHA because families may move into or out of their jurisdiction under portability. Each role involves different responsibilities. The PHA will follow the rules and policies in section 10‐II.B when it is acting as the initial PHA for a family. It will follow the rules and policies in section 10‐II.C when it is acting as the receiving PHA for a family.
In administering portability, the initial PHA and the receiving PHA must comply with financial procedures required by HUD, including the use of HUD‐required forms [24 CFR 982.355(e)(5)].
PHAs must also comply with billing and payment deadlines. HUD may reduce an administrative fee to an initial or receiving PHA if the PHA does not comply with HUD portability requirements [24 CFR 982.355(e)(7)].
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐9 10‐II.B. INITIAL PHA ROLE
Allowable Moves under Portability
A family may move with voucher assistance only to an area where there is at least one PHA administering a voucher program [24 CFR 982.353(b)]. If there is more than one PHA in the area, the initial PHA may choose the receiving PHA [24 CFR 982.355(b)].
Applicant families that have been issued vouchers as well as participant families may qualify to lease a unit outside the PHA’s jurisdiction under portability. HUD regulations and PHA policy determine whether a family qualifies.
Applicant Families
Under HUD regulations, most applicant families qualify to lease a unit outside the PHA’s jurisdiction under portability. However, HUD gives the PHA discretion to deny a portability move by an applicant family for the same two reasons that it may deny any move by a participant family: insufficient funding and grounds for denial or termination of assistance. If a PHA intends to deny a family permission to move under portability due to insufficient funding, the PHA must notify HUD within 10 business days of the determination to deny the move [24 CFR 982.355(e)].
HACSB Policy
In determining whether or not to deny an applicant family permission to move under portability because the PHA lacks sufficient funding or has grounds for denying assistance to the family, the initial PHA will follow the policies established in section 10‐ I.B of this chapter. If the PHA does deny the move due to insufficient funding, the PHA will notify HUD in writing within 10 business days of the PHA’s determination to deny the move.
In addition, the PHA may establish a policy denying the right to portability to nonresident applicants during the first 12 months after they are admitted to the program [24 CFR 982.353(c)].
HACSB Policy
The PHA will allow for portability for applicant families within the first 12 months that they are admitted to the program. However, nonresident families will only be permitted to exercise portability after they have spent a minimum of 60‐days, or the initial voucher term, searching for a unit within the PHAs jurisdiction. Prior to requesting portability the family must request an extension of voucher term. If neither the head of household nor the spouse/cohead of an applicant family had a domicile (legal residence) in the PHA’s jurisdiction at the time that the family’s eligibility was determined, the family will be considered a nonresident family.
The PHA will consider exceptions to this policy for purposes of reasonable accommodation (see Chapter 2) or reasons related to domestic violence, dating 363
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐10 violence, sexual assault or stalking. However, any exception to this policy is subject to the approval of the receiving PHA [24 CFR 982.353(c)(3)]. 364
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐11 Participant Families
The initial PHA must not provide portable assistance for a participant if a family has moved out of its assisted unit in violation of the lease [24 CFR 982.353(b)]. The Violence against Women Act of 2013 (VAWA) creates an exception to this prohibition for families who are otherwise in compliance with program obligations but have moved to protect the health or safety of a family member who is or has been a victim of domestic violence, dating violence, sexual assault or stalking and who reasonably believed he or she was imminently threatened by harm from further violence if he or she remained in the unit [24 CFR 982.353(b)].
HACSB Policy
The PHA will determine whether a participant family may move out of the PHA’s jurisdiction with continued assistance in accordance with the regulations and policies set forth here and in sections 10‐I.A and 10‐I.B of this chapter. The PHA will notify the family of its determination in accordance with the approval policy set forth in section 10‐I.C of this chapter.
Determining Income Eligibility
Applicant Families
An applicant family may lease a unit in a particular area under portability only if the family is income eligible for admission to the voucher program in that area [24 CFR 982.353(d)(3)]. The family must specify the area to which the family wishes to move [Notice 2012‐42].
The initial PHA is responsible for determining whether the family is income eligible in the area to which the family wishes to move [24 CFR 982.355(c)(1)]. If the applicant family is not income eligible in that area, the PHA must inform the family that it may not move there and receive voucher assistance [Notice PIH 2016‐09].
Participant Families
The income eligibility of a participant family is not re‐determined if the family moves to a new jurisdiction under portability [24 CFR 982.353(d)(2), 24 CFR 982.355(c)(1)].
Reexamination of Family Income and Composition
No new reexamination of family income and composition is required for an applicant family.
HACSB Policy
For a participant family approved to move out of its jurisdiction under portability, the PHA generally will conduct a reexamination of family income and composition only if the family’s annual reexamination must be completed on or before the initial billing deadline specified on form HUD‐52665, Family Portability Information.
The PHA will make any exceptions to this policy necessary to remain in compliance with HUD regulations.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐12 Briefing
The regulations and policies on briefings set forth in Chapter 5 of this plan require the PHA to provide information on portability to all applicant families that qualify to lease a unit outside the PHA’s jurisdiction under the portability procedures. Therefore, no special briefing is required for these families.
HACSB Policy
No formal briefing will be required for a participant family wishing to move outside the PHA’s jurisdiction under portability. However, the PHA will provide the family with the same oral and written explanation of portability that it provides to applicant families selected for admission to the program (see Chapter 5).
The PHA will provide the name, address, and phone of the contact for the PHA in the jurisdiction to which they wish to move. The PHA will advise the family that they will be under the RHA’s policies and procedures, including subsidy standards and voucher extension policies.
Voucher Issuance and Term
An applicant family has no right to portability until after the family has been issued a voucher [24 CFR 982.353(b)]. In issuing vouchers to applicant families, the PHA will follow the regulations and procedures set forth in Chapter 5.
HACSB Policy
For participating families approved to move under portability, the PHA will issue a new voucher within 10 business days of the PHA’s written approval to move.
The term of the voucher will be 120 days
Voucher Extensions and Expiration
HACSB Policy
The PHA will approve no extensions to a voucher issued to an applicant or participant family porting out of the PHA’s jurisdiction except under the following circumstances:
(a) the initial term of the voucher will expire before the portable family will be issued a voucher by the receiving PHA, (b) the family decides to return to the initial PHA’s jurisdiction and search for a unit there, or (c) the family decides to search for a unit in a third PHA’s jurisdiction. In such cases, the policies on voucher extensions set forth in Chapter 5, section 5‐II.E, of this plan will apply, including the requirement that the family apply for an extension in writing prior to the expiration of the initial voucher term.
To receive or continue receiving assistance under the initial PHA’s voucher program, a family that moves to another PHA’s jurisdiction under portability must be under HAP contract in the receiving PHA’s jurisdiction within 60 days following the expiration date of the initial PHA’s voucher term (including any extensions). (See below under “Initial Billing Deadline” for one exception to this policy.)
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐13 Preapproval Contact with the Receiving PHA
Prior to approving a family’s request to move under portability, the initial PHA must contact the receiving PHA via e‐mail or other confirmed delivery method to determine whether the receiving PHA will administer or absorb the family’s voucher. Based on the receiving PHA’s response, the initial PHA must determine whether it will approve or deny the move [24 CFR 982.355(c)(3)].
HACSB Policy
The PHA will use e‐mail, when possible, to contact the receiving PHA regarding whether the receiving PHA will administer or absorb the family’s voucher.
Initial Notification to the Receiving PHA
After approving a family’s request to move under portability, the initial PHA must promptly notify the receiving PHA via email or other confirmed delivery method to expect the family [24 CFR 982.355(c)(3); 24 CFR 982.355(c)(7)]. The initial PHA must also advise the family how to contact and request assistance from the receiving PHA [24 CFR 982.355(c)(6)].
HACSB Policy
Because the portability process is time‐sensitive, the PHA will notify the receiving PHA by phone, fax, or e‐mail to expect the family. The initial PHA will also ask the receiving PHA to provide any information the family may need upon arrival, including the name, fax, e‐mail address, and telephone number of the staff person responsible for business with incoming portable families and procedures related to appointments for voucher issuance. The PHA will pass this information along to the family. The PHA will also ask for the name, address, telephone number, fax and e‐mail of the person responsible for processing the billing information.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐14 Sending Documentation to the Receiving PHA
The initial PHA is required to send the receiving PHA the following documents:
Form HUD‐52665, Family Portability Information, with Part I filled out [Notice PIH 2016‐09]
A copy of the family’s voucher [Notice PIH 2016‐09]
A copy of the family’s most recent form HUD‐50058, Family Report, or, if necessary in the case of an applicant family, family and income information in a format similar to that of form HUD‐50058 [24 CFR 982.355(c)(4), Notice PIH 2016‐09] Copies of the income verifications backing up the form HUD‐50058, including a copy of the family’s current EIV data [24 CFR 982.355(c)(4), Notice PIH 2016‐09] HACSB Policy
In addition to these documents, the PHA will provide the following information, if available, to the receiving PHA:
Social security numbers (SSNs)
Documentation of SSNs for all nonexempt household members whose SSNs have not been verified through the EIV system
Documentation of legal identity
Documentation of citizenship or eligible immigration status Documentation of participation in the earned income disallowance (EID) benefit Documentation of participation in a family self‐sufficiency (FSS) program The PHA will notify the family in writing regarding any information provided to the receiving PHA [HCV GB, p. 13‐3].
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐15 Initial Billing Deadline [Notice PIH 2016‐09]
The deadline for submission of initial billing is 90 days following the expiration date of the voucher issued to the family by the initial PHA. In cases where suspension of the voucher delays the initial billing submission, the receiving PHA must notify the initial PHA of delayed billing before the billing deadline and document the delay is due to the suspension. In this case, the initial PHA must extend the billing deadline by 30 days.
If the initial PHA does not receive a billing notice by the deadline and does not intend to honor a late billing submission, it must notify the initial PHA in writing. The initial PHA may report to HUD it may report to HUD the receiving PHA’s failure to comply with the deadline.
If the initial PHA will honor the late billing, no action is required.
HACSB Policy
If the PHA has not received an initial billing notice from the receiving PHA within the billing deadline, it will contact the receiving PHA to inform them that it will not honor a late billing submission and will return any subsequent billings that it receives on behalf of the family. The PHA will send the receiving PHA a written confirmation of its decision by mail.
The PHA will allow an exception to this policy if the family includes a person with disabilities and the late billing is a result of a reasonable accommodation granted to the family by the receiving PHA.
Monthly Billing Payments [24 CFR 982.355(e), Notice PIH 2016‐09] If the receiving PHA is administering the family’s voucher, the receiving PHA bills the initial PHA for housing assistance payments and administrative fees. When reimbursing for administrative fees, the initial PHA must promptly reimburse the receiving PHA for the lesser of 80 percent of the initial PHA ongoing administrative fee or 100 percent of the receiving PHA’s ongoing administrative fee for each program unit under contract on the first day of the month for which the receiving PHA is billing the initial PHA under portability. If the administrative fees are prorated for the HCV program, the proration will apply to the amount of the administrative fee for which the receiving PHA may bill [24 CFR 982.355(e)(2)].
The initial PHA is responsible for making billing payments in a timely manner. The first billing amount is due within 30 calendar days after the initial PHA receives Part II of form HUD‐52665 from the receiving PHA. Subsequent payments must be received by the receiving PHA no later than the fifth business day of each month. The payments must be provided in a form and manner that the receiving PHA is able and willing to accept.
The initial PHA may not terminate or delay making payments under existing portability billing arrangements as a result of over leasing or funding shortfalls. The PHA must manage its tenant‐ based program in a manner that ensures that it has the financial ability to provide assistance for families that move out of its jurisdiction under portability and are not absorbed by receiving PHAs as well as for families that remain within its jurisdiction. 369
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The initial PHA will utilize direct deposit to ensure that the payment is received by the deadline unless the receiving PHA notifies the initial PHA that direct deposit is not acceptable to them.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐17 Annual Updates of Form HUD‐50058
If the initial PHA is being billed on behalf of a portable family, it should receive an updated form HUD‐50058 each year from the receiving PHA. If the initial PHA fails to receive an updated 50058 by the family’s annual reexamination date, the initial PHA should contact the receiving PHA to verify the status of the family. The initial PHA must continue paying the receiving PHA based on the last form HUD‐50058 received, unless instructed otherwise by HUD. The initial PHA may seek absorption of the vouchers by following steps outlined in Notice PIH 2016‐09.
Denial or Termination of Assistance [24 CFR 982.355(c)(17)] At any time, either the initial PHA or the receiving PHA may make a determination to deny or terminate assistance with the family in accordance with 24 CFR 982.552 and 24 CFR 982.553. (For PHA policies on denial and termination, see Chapters 3 and 12, respectively.) 371
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐19 10‐II.C. RECEIVING PHA ROLE
If a family has a right to lease a unit in the receiving PHA’s jurisdiction under portability, the receiving PHA must provide assistance for the family [24 CFR 982.355(10)]. HUD may determine in certain instances that a PHA is not required to accept incoming portable families, such as a PHA in a declared disaster area. However, the PHA must have approval in writing from HUD before refusing any incoming portable families [24 CFR 982.355(b)].
Administration of the voucher must be in accordance with the receiving PHA’s policies. This requirement also applies to policies of Moving to Work agencies. The receiving PHA procedures and preferences for selection among eligible applicants do not apply to the family, and the receiving PHA waiting list is not used [24 CFR 982.355(c)(10)]. The family’s unit, or voucher, size is determined in accordance with the subsidy standards of the receiving PHA [24 CFR 982.355(c)(12)], and the receiving PHA’s policies on extensions of the voucher term apply [24 CFR 982.355(c)(14)].
Responding to Initial PHA’s Request
The receiving PHA must respond via e‐mail or other confirmed delivery method to the initial PHA’s inquiry to determine whether the family’s voucher will be billed or absorbed [24 CFR 982.355(c)(3)]. If the receiving PHA informs the initial PHA that it will be absorbing the voucher, the receiving PHA cannot reverse its decision at a later date without consent of the initial PHA (24 CFR 982.355(c)(4).
HACSB Policy
The PHA will use e‐mail, when possible, to notify the initial PHA whether it will administer or absorb the family’s voucher.
Initial Contact with Family
When a family moves into the PHA’s jurisdiction under portability, the family is responsible for promptly contacting the PHA and complying with the PHA’s procedures for incoming portable families [24 CFR 982.355(c)(3)]. The family’s failure to comply may result in denial or termination of the receiving PHA’s voucher [24 CFR 982.355(c)(8)].
If the voucher issued to the family by the initial PHA has expired, the receiving PHA must contact the initial PHA to determine if it will extend the voucher [24 CFR 982.355(c)(13)]. An informal hearing is not required when a voucher has expired without the family leasing a unit.
If for any reason the receiving PHA refuses to process or provide assistance to a family under the portability procedures, the family must be given the opportunity for an informal review or hearing [Notice PIH 2016‐09]. (For more on this topic, see later under “Denial or Termination of Assistance.”)
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HUD allows the receiving PHA to require a briefing for an incoming portable family as long as the requirement does not unduly delay the family’s search [Notice PIH 2016‐09].
HACSB Policy
The PHA will not require the family to attend a briefing. The PHA will provide the family with a briefing packet (as described in Chapter 5) and, in an individual briefing, will orally inform the family about the PHA’s payment and subsidy standards, procedures for requesting approval of a unit, the unit inspection process, and the leasing process.
Income Eligibility and Reexamination
The receiving PHA does not redetermine eligibility for a portable family that was already receiving assistance in the initial PHA’s voucher program [24 CFR 982.355(c)(9)]. If the receiving PHA opts to conduct a new reexamination for a current participant family, the receiving PHA may not delay issuing the family a voucher or otherwise delay approval of a unit [24 CFR 982.355(c)(11)].
HACSB Policy
For any family moving into its jurisdiction under portability, the PHA will conduct a new reexamination of family income and composition. However, the PHA will not delay issuing the family a voucher for this reason. Nor will the PHA delay approving a unit for the family until the reexamination process is complete unless the family is an applicant and the PHA cannot otherwise confirm that the family is income eligible for admission to the program in the area where the unit is located.
In conducting its own reexamination, the PHA will rely upon any verifications provided by the initial PHA to the extent that they (a) accurately reflect the family’s current circumstances and (b) were obtained within the last 120 days. Any new information may be verified by documents provided by the family and adjusted, if necessary, when third party verification is received.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐21 Voucher Issuance
When a family moves into its jurisdiction under portability, the receiving PHA is required to issue the family a voucher [24 CFR 982.355(c)(13)]. The family must submit a request for tenancy approval to the receiving PHA during the term of the receiving PHA’s voucher [24 CFR 982.355(c)(15)].
Timing of Voucher Issuance
HUD expects the receiving PHA to issue the voucher within two weeks after receiving the family’s paperwork from the initial PHA if the information is in order, the family has contacted the receiving PHA, and the family complies with the receiving PHA’s procedures [Notice PIH 2012‐42].
HACSB Policy
When a family ports into its jurisdiction, the PHA will issue the family a voucher based on the paperwork provided by the initial PHA unless the family’s paperwork from the initial PHA is incomplete, the family’s voucher from the initial PHA has expired or the family does not comply with the PHA’s procedures. The PHA will update the family’s information when verification has been completed.
Voucher Term
The term of the receiving PHA’s voucher may not expire before 30 calendar days from the expiration of the initial PHA’s voucher [24 CFR 982.355(c)(13)]. If the initial PHA extends the term of the voucher, the receiving PHA’s voucher may not expire before 30 days from the new expiration date of the initial PHA’s voucher [Notice PIH 2016‐09].
HACSB Policy
The receiving PHA’s voucher will expire 30 calendar days from the expiration of the initial PHA’s voucher. If the initial PHA extends the term of the voucher, the receiving PHA’s voucher will expire 30 calendar days from the new expiration date of the initial PHA’s voucher.
Voucher Extensions [24 CFR 982.355(c)(6), Notice 2016‐09] Once the receiving PHA issues the portable family a voucher, the receiving PHA’s policies on extensions of the voucher term apply. The receiving PHA must inform the initial PHA of any extension granted to the term of the voucher. It must also bear in mind the billing deadline provided by the initial PHA. Unless willing and able to absorb the family, the receiving PHA should ensure that any voucher expiration date would leave sufficient time to process a request for tenancy approval, execute a HAP contract, and deliver the initial billing to the initial PHA.
HACSB Policy
The PHA generally will not extend the term of the voucher that it issues to an incoming portable family unless the PHA plans to absorb the family into its own program, in which case it will follow the policies on voucher extension set forth in section 5‐II.E. 375
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐22 The PHA will consider an exception to this policy as a reasonable accommodation to a person with disabilities (see Chapter 2).
Voucher Suspensions [24 CFR 982.303, 24 CFR 982.355(c)(15)] If the family submits a request for tenancy approval during the term of the receiving PHA’s voucher, the PHA must suspend the term of that voucher. The term of the voucher stops from the date that the family submits a request for PHA approval of the tenancy until the date the PHA notifies the family in writing whether the request has been approved or denied [24 CFR 982.4(b)] (see Section 5‐II.E).
Notifying the Initial PHA
The receiving PHA must promptly notify the initial PHA if the family has leased an eligible unit under the program or if the family fails to submit a request for tenancy approval for an eligible unit within the term of the receiving PHA’s voucher [24 CFR 982.355(c)(16)]. The receiving PHA is required to use Part II of form HUD‐52665, Family Portability Information, for this purpose [Notice PIH 2016‐09]. (For more on this topic and the deadline for notification, see below under “Administering a Portable Family’s Voucher.”)
If an incoming portable family ultimately decides not to lease in the jurisdiction of the receiving PHA but instead wishes to return to the initial PHA’s jurisdiction or to search in another jurisdiction, the receiving PHA must refer the family back to the initial PHA. In such a case the voucher of record for the family is once again the voucher originally issued by the initial PHA.
Any extension of search time provided by the receiving PHA’s voucher is only valid for the family’s search in the receiving PHA’s jurisdiction [Notice PIH 2016‐09].
Administering a Portable Family’s Voucher
Portability Billing [24 CFR 982.355(e)]
To cover assistance for a portable family that was not absorbed, the receiving PHA bills the initial PHA for housing assistance payments and administrative fees. The amount of the housing assistance payment for a portable family in the receiving PHA’s program is determined in the same manner as for other families in the receiving PHA’s program.
The receiving PHA may bill the initial PHA for the lesser of 80 percent of the initial PHA’s ongoing administrative fee or 100 percent of the receiving PHA’s ongoing administrative fee for each program unit under contract on the first day of the month for which the receiving PHA is billing the initial PHA under portability. If the administrative fees are prorated for the HCV program, the proration will apply to the amount of the administrative fee for which the receiving PHA may bill (i.e., the receiving PHA may bill for the lesser of 80 percent of the initial PHA’s prorated ongoing administrative fee or 100 percent of the receiving PHA’s ongoing administrative fee).
If both PHAs agree, the PHAs may negotiate a different amount of reimbursement.
HACSB Policy
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐23 Unless the PHA negotiates a different amount of reimbursement with the initial PHA, the PHA will bill the initial PHA the maximum amount of administrative fees allowed, ensuring any administrative fee proration has been properly applied.
Initial Billing Deadline
If a portable family’s search for a unit is successful and the receiving PHA intends to administer the family’s voucher, the receiving PHA must submit its initial billing notice (Part II of form HUD‐ 52665) in time that the notice will be received no later than 90 days following the expiration date of the family’s voucher issued by the initial PHA [Notice PIH 2016‐09]. This deadline may be extended for 30 additional days if the delay is due to suspension of the voucher’s term (see Initial Billing Section). A copy of the family’s form HUD‐50058, Family Report, completed by the receiving PHA must be attached to the initial billing notice. The receiving PHA may send these documents by mail, fax, or e‐mail.
HACSB Policy
The PHA will send its initial billing notice by fax or e‐mail, if necessary, to meet the billing deadline but will also send the notice by regular mail.
If the receiving PHA fails to send the initial billing by the deadline it is required to absorb the family into its own program unless (a) the initial PHA is willing to accept the late submission or (b) HUD requires the initial PHA to honor the late submission (e.g., because the receiving PHA is overleased) [Notice PIH 2016‐09].
Ongoing Notification Responsibilities [Notice PIH 2016‐09, HUD‐52665] Annual Reexamination. The receiving PHA must send the initial PHA a copy of a portable family’s updated form HUD‐50058 after each annual reexamination for the duration of time the receiving PHA is billing the initial PHA on behalf of the family, regardless of whether there is a change in the billing amount.
HACSB Policy
The PHA will send a copy of the updated HUD‐50058 by regular mail no later than 10 business days after the effective date of the reexamination.
Change in Billing Amount. The receiving PHA is required to notify the initial PHA, using form HUD‐52665, of any change in the billing amount for the family as a result of:
A change in the HAP amount (because of a reexamination, a change in the applicable payment standard, a move to another unit, etc.)
An abatement or subsequent resumption of the HAP payments Termination of the HAP contract
Payment of a damage/vacancy loss claim for the family Termination of the family from the program
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐24 The timing of the notice of the change in the billing amount should correspond with the notification to the owner and the family in order to provide the initial PHA with advance notice of the change. Under no circumstances should the notification be later than 10 business days following the effective date of the change in the billing amount. If the receiving PHA fails to send Form HUD‐52665 within 10 days of effective date of billing changes, the initial PHA is not responsible for any increase prior to notification. If the change resulted in a decrease in the monthly billing amount, the initial PHA will offset future monthly payments until the difference is reconciled.
Late Payments [Notice PIH 2016‐09]
If the initial PHA fails to make a monthly payment for a portable family by the fifth business day of the month, the receiving PHA must promptly notify the initial PHA in writing of the deficiency. The notice must identify the family, the amount of the billing payment, the date the billing payment was due, and the date the billing payment was received (if it arrived late). The receiving PHA must send a copy of the notification to the Office of Public Housing (OPH) in the HUD area office with jurisdiction over the receiving PHA. If the initial PHA fails to correct the problem by the second month following the notification, the receiving PHA may request by memorandum to the director of the OPH with jurisdiction over the receiving PHA that HUD transfer the unit in question. A copy of the initial notification and any subsequent correspondence between the PHAs on the matter must be attached. The receiving PHA must send a copy of the memorandum to the initial PHA. If the OPH decides to grant the transfer, the billing arrangement on behalf of the family ceases with the transfer, but the initial PHA is still responsible for any outstanding payments due to the receiving PHA.
Overpayments [Notice PIH 2016‐09]
In all cases where the receiving PHA has received billing payments for billing arrangements no longer in effect, the receiving PHA is responsible for returning the full amount of the overpayment (including the portion provided for administrative fees) to the initial PHA.
In the event that HUD determines billing payments have continued for at least three months because the receiving PHA failed to notify the initial PHA that the billing arrangement was terminated, the receiving PHA must take the following steps:
Return the full amount of the overpayment, including the portion provided for administrative fees, to the initial PHA.
Once full payment has been returned, notify the Office of Public Housing in the HUD area office with jurisdiction over the receiving PHA of the date and the amount of reimbursement to the initial PHA.
At HUD’s discretion, the receiving PHA will be subject to the sanctions spelled out in Notice PIH 2016‐09.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 10‐25 Denial or Termination of Assistance
At any time, the receiving PHA may make a determination to deny or terminate assistance to a portable family for family action or inaction [24 CFR 982.355(c)(17)].
In the case of a termination, the PHA should provide adequate notice of the effective date to the initial PHA to avoid having to return a payment. In no event should the receiving PHA fail to notify the initial PHA later than 10 business days following the effective date of the termination of the billing arrangement [HUD‐52665; Notice PIH 2016‐09].
HACSB Policy
If the PHA elects to deny or terminate assistance for a portable family, the PHA will notify the initial PHA within 10 business days after the informal review or hearing if the denial or termination is upheld. The PHA will base its denial or termination decision on the policies set forth in Chapter 3 or Chapter 12, respectively. The informal review or hearing will be held in accordance with the policies in Chapter 16. The receiving PHA will furnish the initial PHA with a copy of the review or hearing decision.
Absorbing a Portable Family
The receiving PHA may absorb an incoming portable family into its own program when the PHA executes a HAP contract on behalf of the family or at any time thereafter providing that the PHA has funding available under its annual contributions contract (ACC) [24 CFR 982.355(d)(1), Notice PIH 2016‐09].
If the receiving PHA absorbs a family from the point of admission, the admission will be counted against the income targeting obligation of the receiving PHA [24 CFR 982.201(b)(2)(vii)].
If the receiving PHA absorbs a family after providing assistance for the family under a billing arrangement with the initial PHA, the receiving PHA must send an updated form HUD‐52665 to the initial PHA no later than 10 business days following the effective date of the termination of the billing arrangement. [Notice PIH 2016‐09].
HACSB Policy
If the PHA decides to absorb a portable family upon the execution of a HAP contract on behalf of the family, the PHA will notify the initial PHA by the initial billing deadline specified on form HUD‐52665. The effective date of the HAP contract will be the effective date of the absorption.
If the PHA decides to absorb a family after that, it will provide the initial PHA with 30 days’ advance notice, but no later than 10 business days following the effective date of the termination of the billing arrangement.
Following the absorption of an incoming portable family, the family is assisted with funds available under the consolidated ACC for the receiving PHA’s voucher program [24 CFR 982.355(d)], and the receiving PHA becomes the initial PHA in any subsequent moves by the family under portability [24 CFR 982.355(e)(4)].
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 11‐1 Chapter 11
REEXAMINATIONS
INTRODUCTION
The PHA is required to reexamine each family’s income and composition at least annually, and to adjust the family’s level of assistance accordingly. Interim reexaminations are also needed in certain situations. This chapter discusses both annual and interim reexaminations, and the recalculation of family share and subsidy that occurs as a result. HUD regulations and PHA policies concerning reexaminations are presented in three parts:
Part I: Annual Reexaminations. This part discusses the process for conducting annual reexaminations.
Part II: Interim Reexaminations. This part details the requirements for families to report changes in family income and composition between annual reexaminations.
Part III: Recalculating Family Share and Subsidy Amount. This part discusses the recalculation of family share and subsidy amounts based on the results of annual and interim reexaminations.
Policies governing reasonable accommodation, family privacy, required family cooperation, and program abuse, as described elsewhere in this plan, apply to both annual and interim reexaminations.
PART I: ANNUAL REEXAMINATIONS [24 CFR 982.516]
11‐I.A. OVERVIEW
The PHA must conduct a reexamination of family income and composition at least annually.
This includes gathering and verifying current information about family composition, income, and expenses. Based on this updated information, the family’s income and rent must be recalculated. This part discusses the schedule for annual reexaminations, the information to be collected and verified, and annual reexamination effective dates. 381
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 11‐2 11‐I.B STREAMLINED ANNUAL REEXAMINATIONS [24 CFR 982.516(b)] HUD permits PHAs to streamline the income determination process for family members with fixed sources of income. While third‐party verification of all income sources must be obtained during the intake process and every three years thereafter, in the intervening years the PHA may determine income from fixed sources by applying a verified cost of living adjustment (COLA) or rate of interest. The PHA may, however, obtain third‐party verification of all income, regardless of the source. Further, upon request of the family, the PHA must perform third‐party verification of all income sources.
Fixed sources of income include Social Security and SSI benefits, pensions, annuities, disability or death benefits, and other sources of income subject to a COLA or rate of interest. The determination of fixed income may be streamlined even if the family also receives income from other non‐fixed sources.
Two streamlining options ae available, depending upon the percentage of the family’s income that is received from fixed sources. If at least 90 percent of the family’s income is from fixed sources, the PHA may streamline the verification of fixed income and may choose whether to verify non‐fixed income amounts in years where no fixed‐income review is required. If the family receives less than 90 percent of its income from fixed sources, the PHA may streamline the verification of fixed income and must verify non‐fixed income annually.
HACSB Policy
The PHA will streamline the annual reexamination process by applying the verified COLA or interest rate to fixed‐income sources. The PHA will document in the file how the determination that a source of income was fixed was made.
If a family member with a fixed source of income is added, the PHA will use third‐party verification of all income amounts for that family member.
If verification of the COLA or rate of interest is not available, the PHA will obtain third‐ party verification of income amounts.
Third‐party verification of fixed sources of income will be obtained during the intake process and at least once every three years thereafter.
Third‐party verification of non‐fixed income will be obtained annually regardless of the percentage of family income received from fixed sources. 382
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 11‐4 11‐I.C. SCHEDULING ANNUAL REEXAMINATIONS
The PHA must establish a policy to ensure that the annual reexamination for each family is completed within a 12‐month period, and may require reexaminations more frequently [HCV GB p. 12‐1].
HACSB Policy
The PHA will begin the annual reexamination process 90 days in advance of its scheduled effective date. Generally, the PHA will schedule annual reexamination effective dates to coincide with the family’s anniversary date.
Anniversary date is defined as 12 months from the effective date of the family’s last annual reexamination or, during a family’s first year in the program, from the effective date of the family’s initial examination (admission).
If the family moves to a new unit, the PHA will not perform a new annual reexamination.
The PHA also may schedule an annual reexamination for completion prior to the anniversary date for administrative purposes.
Notification of and Participation in the Annual Reexamination Process The PHA is required to obtain the information needed to conduct annual reexaminations. How that information will be collected is left to the discretion of the PHA. However, PHAs should give tenants who were not provided the opportunity the option to complete Form HUD‐92006 at this time [Notice PIH 2009‐36].
HACSB Policy
Families generally are required to participate in an annual reexamination interview, which must be attended by all adult household members, including live‐in aide. If participation in an in‐person interview poses a hardship because of a family member’s disability, the family should contact the PHA to request a reasonable accommodation (see Chapter 2).
Notification of annual reexamination interviews will be sent by first‐class mail and will contain the date, time, and location of the interview. In addition, it will inform the family of the information and documentation that must be brought to the interview.
If the family is unable to attend a scheduled interview, the family should contact the PHA in advance of the interview to schedule a new appointment. If a family does not attend the scheduled interview, the PHA will send a second notification with a new interview date and appointment time.
If a family fails to attend two scheduled interviews without PHA approval, or if the notice is returned by the post office with no forwarding address, a notice of termination (see Chapter 12) will be sent to the family’s address of record, and to any alternate address provided in the family’s file.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 11‐5 An advocate, interpreter, or other assistant may assist the family in the interview process. The family and the PHA must execute a certification attesting to the role and the assistance provided by any such third party.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 11‐6 11‐I.D. CONDUCTING ANNUAL REEXAMINATIONS
As part of the annual reexamination process, families are required to provide updated information to the PHA regarding the family’s income, expenses, and composition [24 CFR 982.551(b)].
HACSB Policy
Families will be asked to bring all required information (as described in the reexamination notice) to the reexamination appointment. The required information will include a PHA‐designated reexamination form, an Authorization for the Release of Information/Privacy Act Notice, as well as supporting documents or forms related to the family’s income, expenses, and family composition.
Any required documents or information that the family is unable to provide at the time of the interview must be provided within 30 calendar days of the interview, or as requested by the PHA. If the family is unable to obtain the information or materials within the required time frame, the family may request an extension.
If the family does not provide the required documents or information within the required time period (plus any extensions), the family will be sent a notice of termination (See Chapter 12).Additionally, HUD recommends that at annual reexaminations PHAs ask whether the tenant, or any member of the tenant’s household, is subject to a lifetime sex offender registration requirement in any state [Notice PIH 2012‐28].
HACSB Policy
At the annual reexamination, the PHA will ask whether the tenant, or any member of the tenant’s household, is subject to a sex offender registration requirement in any state. The PHA will use the Dru Sjodin National Sex Offender database to verify the information provided by the tenant.
If the PHA proposes to terminate assistance based on lifetime sex offender registration information, the PHA must notify the household of the proposed action and must provide the subject of the record and the tenant a copy of the record and an opportunity to dispute the accuracy and relevance of the information prior to termination. [24 CFR 5.903(f) and 5.905(d)]. (See Chapter 12.)
The information provided by the family generally must be verified in accordance with the policies in Chapter 7. Unless the family reports a change, or the PHA has reason to believe a change has occurred in information previously reported by the family, certain types of information that are verified at admission typically do not need to be re‐verified on an annual basis. These include:
Legal identity
Age
Social security numbers
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 11‐7 A person’s disability status
Citizenship or immigration status
If adding a new family member to the unit causes overcrowding according to the Housing Quality Standards (HQS) (see Chapter 8), the PHA must issue the family a new voucher, and the family and PHA must try to find an acceptable unit as soon as possible. If an acceptable unit is available for rental by the family, the PHA must terminate the HAP contract in accordance with its terms [24 CFR 982.403].
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 11‐8 11‐I.E. DETERMINING ONGOING ELIGIBILITY OF CERTAIN STUDENTS [24 CFR 982.552(b)(5)] Section 327 of Public Law 109‐115 established new restrictions on the ongoing eligibility of certain students (both part‐ and full‐time) who are enrolled in institutions of higher education.
If a student enrolled in an institution of higher education is under the age of 24, is not a veteran, is not married, does not have a dependent child, and is not a person with disabilities receiving HCV assistance as of November 30, 2005, the student’s eligibility must be reexamined along with the income eligibility of the student’s parents on an annual basis. In these cases, both the student and the student’s parents must be income eligible for the student to continue to receive HCV assistance. If, however, a student in these circumstances is determined independent from his or her parents or is considered a vulnerable youth in accordance with PHA policy, the income of the student’s parents will not be considered in determining the student’s ongoing eligibility.
Students who reside with parents in an HCV assisted unit are not subject to this provision. It is limited to students who are receiving assistance on their own, separately from their parents.
HACSB Policy
During the annual reexamination process, the PHA will determine the ongoing eligibility of each student who is subject to the eligibility restrictions in 24 CFR 5.612 by reviewing the student’s individual income as well as the income of the student’s parents. If the student has been determined “independent” from his/her parents or is considered a vulnerable youth based on the policies in Sections 3‐II.E and 7‐II.E, the parents’ income will not be reviewed.
If the student is no longer income eligible based on his/her own income or the income of his/her parents, the student’s assistance will be terminated in accordance with the policies in Section 12‐I.D.
If the student continues to be income eligible based on his/her own income and the income of his/her parents (if applicable), the PHA will process a reexamination in accordance with the policies in this chapter.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 11‐9 11‐I.F. EFFECTIVE DATES
The PHA must establish policies concerning the effective date of changes that result from an annual reexamination [24 CFR 982.516].
HACSB Policy
In general, an increase in the family share of the rent that results from an annual reexamination will take effect on the family’s anniversary date, and the family will be notified at least 30 days in advance.
If less than 30 days remain before the scheduled effective date, the increase will take effect on the first of the month following the end of the 30‐day notice period.
If a family moves to a new unit, the increase will take effect on the effective date of the new lease and HAP contract, and no 30‐day notice is required.
If the PHA chooses to schedule an annual reexamination for completion prior to the family’s anniversary date for administrative purposes, the effective date will be determined by the PHA, but will always allow for the 30‐day notice period.
If the family causes a delay in processing the annual reexamination, increases in the family share of the rent will be applied retroactively, to the scheduled effective date of the annual reexamination. The family will be responsible for any overpaid subsidy and may be offered a repayment agreement in accordance with the policies in Chapter 16.
In general, a decrease in the family share of the rent that results from an annual reexamination will take effect on the family’s anniversary date.
If a family moves to a new unit, the decrease will take effect on the effective date of the new lease and HAP contract.
If the PHA chooses to schedule an annual reexamination for completion prior to the family’s anniversary date for administrative purposes, the effective date will be determined by the PHA.
If the family causes a delay in processing the annual reexamination, decreases in the family share of the rent will be applied prospectively, from the first day of the month following completion of the reexamination processing.
Delays in reexamination processing are considered to be caused by the family if the family fails to provide information requested by the PHA by the date specified, and this delay prevents the PHA from completing the reexamination as scheduled. 389
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 11‐10 PART II: INTERIM REEXAMINATIONS [24 CFR 982.516]
11‐II.A. OVERVIEW
Family circumstances may change between annual reexaminations. HUD and PHA policies dictate what kinds of information about changes in family circumstances must be reported, and under what circumstances the PHA must process interim reexaminations to reflect those changes. HUD regulations also permit the PHA to conduct interim reexaminations of income or family composition at any time. When an interim reexamination is conducted, only those factors that have changed are verified and adjusted [HCV GB, p. 12‐10].
In addition to specifying what information the family must report, HUD regulations permit the family to request an interim determination if other aspects of the family’s income or composition changes. The PHA must complete the interim reexamination within a reasonable time after the family’s request.
This part includes HUD and PHA policies describing what changes families are required to report, what changes families may choose to report, and how the PHA will process both PHA‐ and family‐initiated interim reexaminations.
11‐II.B. CHANGES IN FAMILY AND HOUSEHOLD COMPOSITION
The family is required to report all changes in family composition. The PHA must adopt policies prescribing when and under what conditions the family must report changes in income and family composition. However, due to family obligations under the program, the PHA has limited discretion in this area.
HACSB Policy
The PHA will conduct interim reexaminations to account for any changes in household composition that occur between annual reexaminations.
New Family Members Not Requiring PHA Approval
The addition of a family member as a result of birth, adoption, or court‐awarded custody does not require PHA approval. However, the family is required to promptly notify the PHA of the addition [24 CFR 982.551(h)(2)].
HACSB Policy
The family must inform the PHA of the birth, adoption, or court‐awarded custody of a child within 30 calendar days.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 11‐11 New Family and Household Members Requiring Approval
With the exception of children who join the family as a result of birth, adoption, or court‐ awarded custody, a family must request PHA approval to add a new family member [24 CFR 982.551(h)(2)] or other household member (live‐in aide or foster child) [24 CFR 982.551(h)(4)].
When any new family member is added, the PHA must make appropriate adjustments in the family share of the rent and the HAP payment at the effective date of either the annual or interim reexamination[24 CFR 982.516(e)(2)].
If a change in family size causes a violation of Housing Quality Standards (HQS) space standards (see Chapter 8), the PHA must issue the family a new voucher, and the family and PHA must try to find an acceptable unit as soon as possible. If an acceptable unit is available for rental by the family, the PHA must terminate the family’s HAP contract in accordance with its terms [24 CFR 982.403].
HACSB Policy
Families must request PHA approval to add a new family member, live‐in aide, foster child, or foster adult. This includes any person not on the lease who is expected to stay in the unit for more than 14 consecutive days or 30 cumulative days within a 12‐month period and therefore no longer qualifies as a “guest.” Requests must be made in writing and approved by the PHA prior to the individual moving into the unit.
The PHA will not approve the addition of a new family or household member unless the individual meets the PHA’s eligibility criteria (see Chapter 3) and documentation requirements (see Chapter 7, Part II). Any adult family member that moves out of the unit may not move in for one year from the date the family member moved out.
The PHA will not approve the addition of a foster child, foster adult or other adult household member if it will cause a violation of HQS space standards.
If the PHA determines an individual meets the PHA’s eligibility criteria and documentation requirements, the PHA will provide written approval to the family. If the approval of a new family member or live‐in aide will cause overcrowding according to HQS standards, the approval letter will explain that the family will be issued a voucher and will be required to move.
If the PHA determines that an individual does not meet the PHA’s eligibility criteria or documentation requirements, the PHA will notify the family in writing of its decision to deny approval of the new family or household member and the reasons for the denial.
The PHA will make its determination within 10 business days of receiving all information required to verify the individual’s eligibility.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 11‐12 Departure of a Family or Household Member
Families must promptly notify the PHA if any family member no longer lives in the unit [24 CFR 982.551(h)(3)]. Because household members are considered when determining the family unit (voucher) size [24 CFR 982.402], the PHA also needs to know when any live‐in aide, foster child, or foster adult ceases to reside in the unit.
HACSB Policy
If a family member ceases to reside in the unit, the family must inform the PHA immediately and no later than 30 calendar days. This requirement also applies to family members who had been considered temporarily absent, who are now permanently absent.
If a live‐in aide, foster child, or foster adult ceases to reside in the unit, the family must inform the PHA immediately and no later than 30 calendar days. 392
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 11‐13 11‐II.C. CHANGES AFFECTING INCOME OR EXPENSES
Interim reexaminations can be scheduled either because the PHA has reason to believe that changes in income or expenses may have occurred, or because the family reports a change.
When a family reports a change, the PHA may take different actions depending on whether the family reported the change voluntarily, or because it was required to do so.
PHA‐Initiated Interim Reexaminations
PHA‐initiated interim reexaminations are those that are scheduled based on circumstances or criteria defined by the PHA. They are not scheduled because of changes reported by the family.
HACSB Policy
The PHA will conduct interim reexaminations in each of the following instances:
For families receiving the Earned Income Disallowance (EID), the PHA will conduct an interim reexamination at the start and conclusion of the 24‐month eligibility period.
If the family has reported zero income or that they receive less than $2,400 annual income (gross income after exclusions), the PHA will conduct an interim reexamination at minimum, once every 4 months, as long as the family continues to report that they have no income.
If at the time of the annual reexamination, it is not feasible to anticipate a level of income for the next 12 months (e.g. seasonal or cyclic income), the PHA will schedule an interim reexamination to coincide with the end of the period for which it is feasible to project income.
The PHA may conduct an interim reexamination at any time in order to correct an error in a previous reexamination, or to investigate a fraud complaint. 393
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 11‐14 Family‐Initiated Interim Reexaminations
The PHA must adopt policies prescribing when and under what conditions the family must report changes in family income or expenses [24 CFR 982.516(c)]. In addition, HUD regulations require that the family be permitted to obtain an interim reexamination any time the family has experienced a change in circumstances since the last determination [24 CFR 982.516(b)(2)].
Required Reporting
HUD regulations give the PHA the freedom to determine the circumstances under which families will be required to report changes affecting income.
HACSB Policy
Families are required to report all increases in income within 30 calendar days of the date the change takes effect. Changes in employment resulting in an increase of two‐ hundred dollars ($200) or more per month, changes in position, and/or place of employment will require and interim reexamination.
Optional Reporting
The family may request an interim reexamination any time the family has experienced a change in circumstances since the last determination [24 CFR 982.516(b)(2)]. The PHA must process the request if the family reports a change that will result in a reduced family income [HCV GB, p. 12‐ 9].
If a family reports a decrease in income from the loss of welfare benefits due to fraud or non‐ compliance with a welfare agency requirement to participate in an economic self‐sufficiency program, the family’s share of the rent will not be reduced [24 CFR 5.615]. For more information regarding the requirement to impute welfare income see Chapter 6.
HACSB Policy
If a family reports a change that it was not required to report and that would result in an increase in the family share of the rent, the PHA will note the information in the tenant file, but will not conduct an interim reexamination.
If a family reports a change that it was not required to report and that would result in a decrease in the family share of rent, the PHA will conduct an interim reexamination. See Section 11‐II.D. for effective dates.
Families may report changes in income or expenses at any time. 394
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 11‐15 11‐II.D. PROCESSING THE INTERIM REEXAMINATION
Method of Reporting
HACSB Policy
The family may notify the PHA of changes only in writing. If the family provides oral notice, the PHA will require the family to submit the changes in writing.
Generally, the family will be required to attend an interview for an interim reexamination.
Based on the type of change reported, the PHA will determine the documentation the family will be required to submit. The family must submit any required information or documents within 30 calendar days or as requested by the PHA. This time frame may be extended for good cause with PHA approval. The PHA will accept required documentation by mail, by fax, or in person.
Effective Dates
The PHA must establish the time frames in which any changes that result from an interim reexamination will take effect [24 CFR 982.516(d)]. The changes may be applied either retroactively or prospectively, depending on whether there is to be an increase or a decrease in the family share of the rent, and whether the family reported any required information within the required time frames [HCV GB, p. 12‐10].
HACSB Policy
If the family share of the rent is to increase:
The increase generally will be effective on the first of the month following 30 days’ notice to the family.
If a family fails to report a change within the required time frames, or fails to provide all required information within the required time frames, the increase will be applied retroactively, to the date it would have been effective had the information been provided on a timely basis. The family will be responsible for any overpaid subsidy and may be offered a repayment agreement in accordance with the policies in Chapter 16.
If the family share of the rent is to decrease:
The decrease will be effective on the first day of the month following the month in which the change was reported, all required documentation was submitted and the change was verified.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 11‐16 PART III: RECALCULATING FAMILY SHARE AND SUBSIDY AMOUNT 11‐III.A. OVERVIEW
After gathering and verifying required information for an annual or interim reexamination, the PHA must recalculate the family share of the rent and the subsidy amount, and notify the family and owner of the changes [24 CFR 982.516(d)(2), HCV 12‐6 and 12‐10]. While the basic policies that govern these calculations are provided in Chapter 6, this part lays out policies that affect these calculations during a reexamination.
11‐III.B. CHANGES IN PAYMENT STANDARDS AND UTILITY ALLOWANCES In order to calculate the family share of the rent and HAP amount correctly, changes in payment standards, subsidy standards, or utility allowances may need to be updated and included in the PHA’s calculations.
Specific policies governing how subsidy standards, payment standards, and utility allowances are applied are discussed below.
Payment Standards [24 CFR 982.505]
The family share of the rent and HAP calculations must use the correct payment standard for the family, taking into consideration the family unit size, the size of unit, and the area in which the unit is located [HCV GB, p. 12‐5]. See Chapter 6 for information on how to select the appropriate payment standard.
When the PHA changes its payment standards or the family’s situation changes, new payment standards are applied at the following times:
If the PHA’s payment standard amount changes during the term of the HAP contract, the date on which the new standard is applied depends on whether the standard has increased or decreased:
- If the payment standard amount has increased, the increased payment standard will be applied at the first annual reexamination following the effective date of the increase in the payment standard.
- If the payment standard amount has decreased, during the term of a HAP contract, the PHA is not required to reduce the payment standard as the HAP contract remains in effect. At the family’s second annual reexamination, the PHA may, but is not required to, apply the decreased payment standard or may gradually implement the reduced payment standard (See Chapter 6 for the PHA’s policy on decreases in the payment standard).
If the family moves to a new unit, or a new HAP contract is executed due to changes in the lease (even if the family remains in place) the current payment standard applicable to the family will be used when the new HAP contract is processed. 396
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 11‐17 Subsidy Standards [24 CFR 982.505(c)(4)]
If there is a change in the family unit size that would apply to a family during the HAP contract term, either due to a change in family composition, or a change in the PHA’s subsidy standards (see Chapter 5), the new family unit size must be used to determine the payment standard amount for the family at the family’s first annual reexamination following the change in family unit size.
HACSB Policy
If a unit is overcrowded:
Overcrowding is considered a non‐life threatening HQS fail. If the PHA determines that a unit is overcrowded because of an increase in family size or a change in family composition, the PHA must issue the family a new voucher, and the family and PHA must try to find an acceptable unit as soon as possible. As soon as possible will be defined as no longer than 90‐days. If an acceptable unit is available for rental by the family, the PHA must terminate the HAP contract in accordance with its terms.
If a unit is under occupied:
If the PHA determines that a unit is under occupied because of a decrease in family size or change in family composition, including the removal of live in aide, the PHA will make notify the family that effective as of the family’s first annual reexamination or 90‐days from the change, whichever is sooner, the family’s payment standard will change to the appropriate payment standard. The family will also be given the option to move to an appropriate sized unit.
Utility Allowances [24 CFR 982.517(d)]
The family share of the rent and HAP calculations must reflect any changes in the family’s utility arrangement with the owner, or in the PHA’s utility allowance schedule [HCV GB, p. 12‐5].
Chapter 16 discusses how utility allowance schedules are established.
When there are changes in the utility arrangement with the owner, the PHA must use the utility allowances in effect at the time the new lease and HAP contract are executed.
At reexamination, the PHA must use the PHA current utility allowance schedule [HCV GB p/18‐ 8].
HACSB Policy
Revised utility allowances will be applied to a family’s rent and subsidy calculations at the first annual reexamination after the allowance is adopted. 11‐III.C. NOTIFICATION OF NEW FAMILY SHARE AND HAP AMOUNT 397
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 11‐18 The PHA must notify the owner and family of any changes in the amount of the HAP payment [HUD‐52641, HAP Contract]. The notice must include the following information [HCV GB, p. 12‐ 6]:
The amount and effective date of the new HAP payment
The amount and effective date of the new family share of the rent The amount and effective date of the new tenant rent to owner The family must be given an opportunity for an informal hearing regarding the PHA’s determination of their annual or adjusted income, and the use of such income to compute the housing assistance payment [24 CFR 982.555(a)(1)(i)] (see Chapter 16).
HACSB Policy
The notice to the family will include the annual and adjusted income amounts that were used to calculate the family share of the rent and the housing assistance payment. The notice also will state the procedures for requesting an informal hearing. 11‐III.D. DISCREPANCIES
During an annual or interim reexamination, the PHA may discover that information previously reported by the family was in error, or that the family intentionally misrepresented information. In addition, the PHA may discover errors made by the PHA. When errors resulting in the overpayment or underpayment of subsidy are discovered, corrections will be made in accordance with the policies in Chapter 13.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐1 Chapter 12
TERMINATION OF ASSISTANCE AND TENANCY
HUD regulations specify mandatory and optional grounds for which a PHA can terminate a family’s assistance. They also specify the circumstances under which an owner may terminate the tenancy of an assisted family. This chapter describes the policies that govern mandatory and optional terminations of assistance, and termination of tenancy by the owner. It is presented in three parts:
Part I: Grounds for Termination of Assistance. This part describes the various circumstances under which assistance under the program can be terminated by the family or by the PHA.
Part II: Approach to Termination of Assistance. This part describes the policies and the process that the PHA will use in evaluating decisions on whether to terminate assistance due to actions or inactions of the family where termination is an option. It specifies the alternatives that the PHA may consider in lieu of termination, the criteria the PHA will use when deciding what action to take, and the steps the PHA must take when terminating a family’s assistance.
Part III: Termination of Tenancy by the Owner. This part describes the HUD policies that govern the owner’s right to terminate an assisted tenancy.
PART I: GROUNDS FOR TERMINATION OF ASSISTANCE
12‐I.A. OVERVIEW
HUD requires the PHA to terminate assistance for certain actions and inactions of the family and when the family no longer requires assistance due to increases in family income. HUD permits the PHA to terminate assistance for certain other actions or inactions of the family. In addition, a family may decide to withdraw from the program and terminate their HCV assistance at any time by notifying the PHA.
12‐I.B. FAMILY NO LONGER REQUIRES ASSISTANCE [24 CFR 982.455] As a family’s income increases, the amount of the housing assistance payment decreases. If the amount of assistance provided by the PHA is reduced to zero, the family's assistance terminates automatically 180 days after the last HAP payment.
HACSB Policy
If a participating family receiving zero assistance experiences a change in circumstances that would result in a HAP payment to the owner, the family must notify the PHA of the change and request an interim reexamination before the expiration of the 180‐day period. A change in circumstance is defined as a change that is of no fault of the family, i.e. employer pay cut, employer layoffs, loss of benefits, death of a family member. 399
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐2 12‐I.C. FAMILY CHOOSES TO TERMINATE ASSISTANCE
The family may request that the PHA terminate housing assistance payments on behalf of the family at any time.
HACSB Policy
The request to terminate assistance should be made in writing and signed by the head of household, and spouse or cohead if applicable. Before terminating the family’s assistance, the PHA will follow the notice requirements in Section 12‐II.F. 12‐I.D. MANDATORY TERMINATION OF ASSISTANCE
HUD requires the PHA to terminate assistance in the following circumstances.
Eviction [24 CFR 982.552(b)(2), 24 CFR 5.2005(c)(1)]
The PHA must terminate assistance whenever a family is evicted from a unit assisted under the HCV program for a serious or repeated violation of the lease. As discussed further in section 12‐ II.E, incidents of actual or threatened domestic violence, dating violence, stalking, sexual assault or sexual assault may not be construed as serious or repeated violations of the lease by the victim or threatened victim of such violence or stalking.
HACSB Policy
A family will be considered evicted if the family moves after a legal eviction order has been issued, whether or not physical enforcement of the order was necessary.
If a family moves after the owner has given the family an eviction notice for serious or repeated lease violations but before a legal eviction order has been issued, termination of assistance is not mandatory. In such cases the PHA will determine whether the family has committed serious or repeated violations of the lease based on available evidence and may terminate assistance or take any of the alternative measures described in section 12‐II.C. In making its decision, the PHA will consider the factors described in sections 12‐II.D and 12‐II.E. Upon consideration of such factors, the PHA may, on a case‐ by‐case basis, choose not to terminate assistance.
Serious and repeated lease violations will include, but not be limited to, nonpayment of rent, disturbance of neighbors, destruction of property, or living or housekeeping habits that cause damage to the unit or premises and criminal activity. Generally, the criterion to be used will be whether or not the reason for the eviction was the fault of the tenant or guests.
Failure to Provide Consent [24 CFR 982.552(b)(3)]
The PHA must terminate assistance if any family member fails to sign and submit any consent form they are required to sign for a regular or interim reexamination. See Chapter 7 for a complete discussion of consent requirements.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐3 Failure to Document Citizenship [24 CFR 982.552(b)(4) and [24 CFR 5.514(c)] The PHA must terminate assistance if (1) a family fails to submit required documentation within the required timeframe concerning any family member’s citizenship or immigration status; (2) a family submits evidence of citizenship and eligible immigration status in a timely manner, but United States Citizenship and Immigration Services (USCIS) primary and secondary verification does not verify eligible immigration status of the family; or (3) a family member, as determined by the PHA, has knowingly permitted another individual who is not eligible for assistance to reside (on a permanent basis) in the unit.
For (3) above, such termination must be for a period of at least 24 months. This does not apply to ineligible noncitizens already in the household where the family’s assistance has been prorated. See Chapter 7 for a complete discussion of documentation requirements.
Failure to Disclose and Document Social Security Numbers [24 CFR 5.218(c), Notice PIH 2012‐10]
The PHA must terminate assistance if a participant family fails to disclose the complete and accurate social security numbers of each household member and the documentation necessary to verify each social security number.
However, if the family is otherwise eligible for continued program assistance, and the PHA determines that the family’s failure to meet the SSN disclosure and documentation requirements was due to circumstances that could not have been foreseen and were outside of the family’s control, the PHA may defer the family’s termination and provide the opportunity to comply with the requirement within a period not to exceed 90 calendar days from the date the PHA determined the family to be noncompliant.
HACSB Policy
The PHA will defer the family’s termination and provide the family with the opportunity to comply with the requirement for a period of 90 calendar days for circumstances beyond the participant’s control such as delayed processing of the SSN application by the SSA, natural disaster, fire, death in the family, or other emergency, if there is a reasonable likelihood that the participant will be able to disclose an SSN by the deadline.
Methamphetamine Manufacture or Production [24 CFR 982.553(b)(1)(ii)] The PHA must terminate assistance if any household member has ever been convicted of the manufacture or production of methamphetamine on the premises of federally‐assisted housing.
HACSB Policy
The PHA will terminate assistance if any household member has ever been convicted of the manufacture or production of methamphetamine on any premises, whether federally‐assisted housing or not.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐4 Lifetime Registered Sex Offenders [Notice PIH 2012‐28]
Should a PHA discover that a member of an assisted household was subject to a lifetime registration requirement at admission and was erroneously admitted after June 25, 2001, the PHA must immediately terminate assistance for the household member.
HACSB Policy
The PHA will terminate assistance if any household member is subject to any sex offender registration requirement.
In this situation, the PHA must offer the family the opportunity to remove the ineligible family member from the household. If the family is unwilling to remove that individual from the household, the PHA must terminate assistance for the household.
Failure of Students to Meet Ongoing Eligibility Requirements [24 CFR 982.552(b)(5) and FR 4/10/06]
If a student enrolled at an institution of higher education is under the age of 24, is not a veteran, is not married, does not have dependent children, is not residing with his/her parents in an HCV assisted household, and is not a person with disabilities receiving HCV assistance as of November 30, 2005, the PHA must the terminate the student’s assistance if, at the time of reexamination, either the student’s income or the income of the student’s parents (if applicable) exceeds the applicable income limit.
If a participant household consists of both eligible and ineligible students, the eligible students shall not be terminated, but must be issued a voucher to move with continued assistance in accordance with program regulations and PHA policies, or must be given the opportunity to lease in place if the terminated ineligible student members elect to move out of the assisted unit.
Death of the Sole Family Member [24 CFR 982.311(d) and Notice PIH 2010‐9] The PHA must immediately terminate program assistance for deceased single member households.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐5 12‐I.E. MANDATORY POLICIES AND OTHER AUTHORIZED TERMINATIONS Mandatory Policies [24 CFR 982.553(b) and 982.551(l)]
HUD requires the PHA to establish policies that permit the PHA to terminate assistance if the PHA determines that:
Any household member is currently engaged in any illegal use of a drug, or has a pattern of illegal drug use that interferes with the health, safety, or right to peaceful enjoyment of the premises by other residents
Any household member’s abuse or pattern of abuse of alcohol may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents Any household member has violated the family’s obligation not to engage in any drug‐ related criminal activity
Any household member has violated the family’s obligation not to engage in violent criminal activity
Use of Illegal Drugs and Alcohol Abuse
HACSB Policy
The PHA will terminate a family’s assistance if any household member is currently engaged in any illegal use of a drug, or has a pattern of illegal drug use that interferes with the health, safety, or right to peaceful enjoyment of the premises by other residents.
The PHA will terminate assistance if any household member’s abuse or pattern of abuse of alcohol threatens the health, safety, or right to peaceful enjoyment of the premises by other residents.
Currently engaged in is defined as any use of illegal drugs during the previous twelve months.
The PHA will consider all credible evidence, including but not limited to, any record of arrests, convictions, or eviction of household members related to the use of illegal drugs or abuse of alcohol.
A record of arrest(s) will not be used as the basis for the termination or proof that the participant engaged in disqualifying criminal activity.
In making its decision to terminate assistance, the PHA will consider alternatives as described in Section 12‐II.C and other factors described in Sections 12‐II.D and 12‐II.E.
Upon consideration of such alternatives and factors, the PHA may, on a case‐by‐case basis, choose not to terminate assistance.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐6 Drug‐Related and Violent Criminal Activity [24 CFR 5.100] Drug means a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).
Drug‐related criminal activity is defined by HUD as the illegal manufacture, sale, distribution, or use of a drug, or the possession of a drug with intent to manufacture, sell, distribute or use the drug.
Violent criminal activity means any criminal activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage.
HACSB Policy
The PHA will terminate a family’s assistance if any household member has violated the family’s obligation not to engage in any drug‐related or violent criminal activity during participation in the HCV program.
The PHA will consider all credible evidence, including but not limited to, any record of arrests and/or convictions of household members related to drug‐related or violent criminal activity, and any eviction or notice to evict based on drug‐related or violent criminal activity.
A record of arrest(s) will not be used as the basis for the termination or proof that the participant engaged in disqualifying criminal activity.
In making its decision to terminate assistance, the PHA will consider alternatives as described in Section 12‐II.C and other factors described in Sections 12‐II.D and 12‐II.E.
Upon consideration of such alternatives and factors, the PHA may, on a case‐by‐case basis, choose not to terminate assistance.
Other Authorized Reasons for Termination of Assistance
[24 CFR 982.552(c), 24 CFR 5.2005(c)]
HUD permits the PHA to terminate assistance under a number of other circumstances. It is left to the discretion of the PHA whether such circumstances in general warrant consideration for the termination of assistance. As discussed further in section 12‐II.E, the Violence against Women Act of 2013 explicitly prohibits PHAs from considering incidents of, or criminal activity directly related to, domestic violence, dating violence, stalking, sexual assault or sexual assault as reasons for terminating the assistance of a victim of such abuse.
Additionally, per the alternative requirements listed in the Federal Register notice dated December 29, 2014, PHAs are no longer permitted to terminate assistance to a family due to the family’s failure to meet its obligations under the Family Self‐Sufficiency (FSS) contract of participation [FR Notice 12/29/14].
HACSB Policy
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐7 The PHA will not terminate a family’s assistance because of the family’s failure to meet its obligations under the Family Self‐Sufficiency(FSS) program, unless in the case of a FUP Youth where failure to meet obligations under an FSS program contract is a mandatory reason for termination of assistance.
The PHA will terminate a family’s assistance if:
The family has failed to comply with any family obligations under the program.
See Exhibit 12‐1 for a listing of family obligations and related PHA policies.
Any family member has been evicted from federally‐assisted housing in the last five years.
Any PHA has ever terminated assistance under the program for any member of the family.
Any family member has committed fraud, bribery, or any other corrupt or criminal act in connection with any federal housing program.
The family currently owes rent or other amounts to any PHA, or landlord or property owner in connection with the HCV, Certificate, Moderate Rehabilitation or public housing programs.
The family has not reimbursed any PHA for amounts the PHA paid to an owner under a HAP contract for rent, damages to the unit, or other amounts owed by the family under the lease.
The family has breached the terms of a repayment agreement entered into with the PHA.
A family member has engaged in or threatened violent or abusive behavior toward PHA personnel, including agents or contractors of the PHA.
Abusive or violent behavior towards PHA personnel includes verbal as well as physical abuse or violence. Use of racial epithets, or other language, written or oral, that is customarily used to intimidate may be considered abusive or violent behavior.
Threatening refers to oral or written threats or physical gestures that communicate intent to abuse or commit violence.
In making its decision to terminate assistance, the PHA will consider alternatives as described in Section 12‐II.C and other factors described in Sections 12‐II.D and 12‐II.E.
Upon consideration of such alternatives and factors, the PHA may, on a case‐by‐case basis, choose not to terminate assistance.
Family Absence from the Unit [24 CFR 982.312]
The family may be absent from the unit for brief periods. The PHA must establish a policy on how long the family may be absent from the assisted unit. However, the familymay not be absent from the unit for a period of more than 180 consecutive calendar days for any reason.
Absence in this context means that no member of the family is residing in the unit. 405
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Except in the case of absence for medical reasons, if the family is absent from the unit for more than 90 consecutive calendar days, the family’s assistance will be terminated.
In the case of absence due to verified medical reasons, a family may not be absent for more than 180‐ consecutive calendar days. Notice of termination will be sent in accordance with Section 12‐II.F.
Insufficient Funding [24 CFR 982.454]
The PHA may terminate HAP contracts if the PHA determines, in accordance with HUD requirements, that funding under the consolidated ACC is insufficient to support continued assistance for families in the program.
HACSB Policy
The PHA will determine whether there is sufficient funding to pay for currently assisted families according to the policies in Part VIII of Chapter 16. If the PHA determines there is a shortage of funding, prior to terminating any HAP contracts, the PHA will determine if any other actions can be taken to reduce program costs.
In the event that the PHA decides to stop issuing vouchers as a result of a funding shortfall, and the PHA is not assisting the required number of special purpose vouchers (NED families and family unification program (FUP) families), when the PHA resumes issuing vouchers, the PHA will issue vouchers first to the special purpose voucher families on its waiting list until it has reached the required number of special purpose vouchers, when applicable.
If after implementing all reasonable cost cutting measures there is not enough funding available to provide continued assistance for current participants, the PHA will terminate HAP contracts as a last resort.
Prior to terminating any HAP contracts, the PHA will inform the local HUD field office.
The PHA will terminate the minimum number needed in order to reduce HAP costs to a level within the PHA’s annual budget authority.
If the PHA must terminate HAP contracts due to insufficient funding, the PHA will do so in accordance with the following criteria and instructions:
Families comprising the required number of special purpose vouchers, including non‐elderly disabled (NED) and family unification program (FUP) will be the last to be terminated.
Families that have been on the program the longest will be terminated first, excluding the elderly and disabled families.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐9 PART II: APPROACH TO TERMINATION OF ASSISTANCE
12‐II.A. OVERVIEW
The PHA is required by regulation to terminate a family’s assistance for certain actions or inactions of the family. For other types of actions or inactions of the family, the regulations give the PHA the authority to either terminate the family’s assistance or to take another action. This part discusses the various actions the PHA may choose to take when it has discretion, and outlines the criteria the PHA will use to make its decision about whether or not to terminate assistance. It also specifies the requirements for the notification to the family of the PHA’s intent to terminate assistance.
12‐II.B. METHOD OF TERMINATION [24 CFR 982.552(a)(3)]
Termination of assistance for a participant may include any or all of the following:
Terminating housing assistance payments under a current HAP contract, Refusing to enter into a new HAP contract or approve a lease, or Refusing to process a request for or to provide assistance under portability procedures. 12‐II.C. ALTERNATIVES TO TERMINATION OF ASSISTANCE
Change in Household Composition
As a condition of continued assistance, the PHA may require that any household member who participated in or was responsible for an offense no longer resides in the unit [24 CFR 982.552(c)(2)(ii)].
HACSB Policy
As a condition of continued assistance, the head of household must certify that the culpable family member has vacated the unit and will not be permitted to visit or to stay as a guest in the assisted unit. The family must present evidence of the former family member’s current address upon PHA request.
Repayment of Family Debts
HACSB Policy
If a family owes amounts to the PHA, as a condition of continued assistance, the PHA will require the family to repay the full amount or to enter into a repayment agreement, within 30 days of receiving notice from the PHA of the amount owed. See Chapter 16 for policies on repayment agreements.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐10 12‐II.D. CRITERIA FOR DECIDING TO TERMINATE ASSISTANCE
Evidence
For criminal activity, HUD permits the PHA to terminate assistance if a preponderance of the evidence indicates that a household member has engaged in the activity, regardless of whether the household member has been arrested or convicted [24 CFR 982.553(c)].
HACSB Policy
The PHA will use the concept of the preponderance of the evidence as the standard for making all termination decisions.
Preponderance of the evidence is defined as evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.
Preponderance of the evidence may not be determined by the number of witnesses, but by the greater weight of all evidence
Consideration of Circumstances [24 CFR 982.552(c)(2)(i)] The PHA is permitted, but not required, to consider all relevant circumstances when determining whether a family’s assistance should be terminated.
HACSB Policy
The PHA will consider the following facts and circumstances when making its decision to terminate assistance:
The seriousness of the case, especially with respect to how it would affect other residents’ safety or property
The effects that termination of assistance may have on other members of the family who were not involved in the action or failure to act The extent of participation or culpability of individual family members, including whether the culpable family member is a minor or a person with disabilities or (as discussed further in section 12‐II.E) a victim of domestic violence, dating violence, sexual assault, or sexual assault
The length of time since the violation occurred, including the age of the individual at the time of the conduct, as well as the family’s recent history and the likelihood of favorable conduct in the future
While a record of arrest(s) will not be used as the basis for termination, an arrest may, however, trigger an investigation to determine whether the participant actually engaged in disqualifying criminal activity. As part of its investigation, the PHA may obtain the police report associated with the arrest and consider the reported circumstances of the arrest. The PHA may also consider:
Any statements made by witnesses or the participant not included in the police report
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐11 Whether criminal charges were filed
Whether, if filed, criminal charges were abandoned, dismissed, not prosecuted, or ultimately resulted in an acquittal
Any other evidence relevant to determining whether or not the participant engaged in disqualifying activity
Evidence of criminal conduct will be considered if it indicates a demonstrable risk to safety and/or property
In the case of drug or alcohol abuse, whether the culpable household member is participating in or has successfully completed a supervised drug or alcohol rehabilitation program or has otherwise been rehabilitated successfully The PHA will require the participant to submit evidence of the household member’s current participation in or successful completion of a supervised drug or alcohol rehabilitation program, or evidence of otherwise having been rehabilitated successfully.
In the case of program abuse, the dollar amount of the overpaid assistance and whether or not a false certification was signed by the family Reasonable Accommodation [24 CFR 982.552(c)(2)(iv)]
If the family includes a person with disabilities, the PHA’s decision to terminate the family’s assistance is subject to consideration of reasonable accommodation in accordance with 24 CFR Part 8.
HACSB Policy
If a family indicates that the behavior of a family member with a disability is the reason for a proposed termination of assistance, the PHA will determine whether the behavior is related to the disability. If so, upon the family’s request, the PHA will determine whether alternative measures are appropriate as a reasonable accommodation. The PHA will only consider accommodations that can reasonably be expected to address the behavior that is the basis of the proposed termination of assistance. See Chapter 2 for a discussion of reasonable accommodation.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐12 12‐II.E. TERMINATIONS RELATED TO DOMESTIC VIOLENCE, DATING VIOLENCE, SEXUAL
ASSAULT, OR STALKING
This section describes the protections against termination of assistance that the Violence against Women Act of 2013 (VAWA) provides for victims of domestic violence, dating violence, and stalking. For general VAWA requirements, key VAWA definitions, and PHA policies pertaining to notification, documentation, and confidentiality, see section 16‐IX of this plan.
VAWA Protections against Termination
VAWA provides four specific protections against termination of HCV assistance for victims of domestic violence, dating violence, sexual assault, or stalking. (Note: The second, third, and fourth protections also apply to terminations of tenancy or occupancy by owners participating in the HCV program, as do the limitations discussed under the next heading.) First, VAWA provides that a PHA may not terminate assistance to a family that moves out of an assisted unit in violation of the lease, with or without prior notification to the PHA, if the move occurred to protect the health or safety of a family member who is or has been the victim of domestic violence, dating violence, sexual assault, or stalking, and who reasonably believed he or she was imminently threatened by harm from further violence if he or she remained in the unit [24 CFR 982.314(b)(4)].
Second, it provides that an incident or incidents of actual or threatened domestic violence, dating violence, sexual assault, or stalking may not be construed either as a serious or repeated lease violation by the victim or as good cause to terminate the assistance of the victim [24 CFR
5.2005(c)(1)].
Third, it provides that criminal activity directly related to domestic violence, dating violence, sexual assault or stalking may not be construed as cause for terminating the assistance of a tenant if a member of the tenant’s household, a guest, or another person under the tenant’s control is the one engaging in the criminal activity and the tenant or affiliated individual or other individual is the actual or threatened victim of the domestic violence, dating violence, sexual assault, or stalking [24 CFR 5.2005(c)(2)].
Fourth, it gives PHAs the authority to terminate assistance to any tenant or lawful occupant who engages in criminal acts of physical violence against family members or others without terminating assistance to, or otherwise penalizing, the victim of the violence [24 CFR 5.2009(a)]. 410
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐13 Limitations on VAWA Protections [24 CFR 5.2005(d) and (e)] VAWA does not limit the authority of a PHA to terminate the assistance of a victim of abuse for reasons unrelated to domestic violence, dating violence, sexual assault, or stalking so long as the PHA does not subject the victim to a more demanding standard than it applies to other program participants [24 CFR 5.2005(d)(1)].
Likewise, VAWA does not limit the authority of a PHA to terminate the assistance of a victim of domestic violence, dating violence, sexual assault or stalking if the PHA can demonstrate an actual and imminent threat to other tenants or those employed at or providing service to the assisted property if the victim is not terminated from assistance [24 CFR 5.2005(d)(2)].
HUD regulations define actual and imminent threat to mean words, gestures, actions, or other indicators of a physical threat that (a) is real, (b) would occur within an immediate time frame, and (c) could result in death or serious bodily harm [24 CFR 5.2005(d)(2) and (e)]. In determining whether an individual would pose an actual and imminent threat, the factors to be considered include:
The duration of the risk
The nature and severity of the potential harm
The likelihood that the potential harm will occur
The length of time before the potential harm would occur [24 CFR 5.2005(e)] In order to demonstrate an actual and imminent threat, the PHA must have objective evidence of words, gestures, actions, or other indicators. Even when a victim poses an actual and imminent threat, however, HUD regulations authorize a PHA to terminate the victim’s assistance “only when there are no other actions that could be taken to reduce or eliminate the threat” [24 CFR 5.2005(d)(3)].
HACSB Policy
In determining whether a program participant who is a victim of domestic violence, dating violence, sexual assault, or stalking is an actual and imminent threat to other tenants or those employed at or providing service to a property, the PHA will consider the following, and any other relevant, factors:
Whether the threat is toward an employee or tenant other than the victim of domestic violence, dating violence, sexual assault, or stalking Whether the threat is a physical danger beyond a speculative threat Whether the threat is likely to happen within na immediate time frame Whether the threat to other tenants or employees can be eliminated in some other way, such as by helping the victim relocate to a confidential location or seeking a legal remedy to prevent the perpetrator from acting on the threat 411
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐14 If the participant wishes to contest the PHA’s determination that he or she is an actual and imminent threat to other tenants or employees, the participant may do so as part of the informal hearing.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐15 Documentation of Abuse [24 CFR 5.2007]
HACSB Policy
When an individual facing termination of assistance for reasons related to domestic violence, dating violence, sexual assault, or stalking claims protection under VAWA, the PHA will request that the individual provide documentation supporting the claim in accordance with the policies in section 16‐IX.D of this plan.
The PHA reserves the right to waive the documentation requirement if it determines that a statement or other corroborating evidence from the individual will suffice. In such cases the PHA will document the waiver in the individual’s file.
Terminating the Assistance of a Domestic Violence Perpetrator Although VAWA provides protection against termination of assistance for victims of domestic violence, it does not provide such protection for perpetrators. VAWA gives the PHA the explicit authority to “terminate assistance to any individual who is a tenant or lawful occupant and who engages in criminal acts of physical violence against family members or others” without terminating assistance to “or otherwise penalizing the victim of such violence who is also a tenant or lawful occupant” [24 CFR 5.2009(a)]. This authority is not dependent on a bifurcated lease or other eviction action by an owner against an individual family member. Further, this authority supersedes any local, state, or other federal law to the contrary. However, if the PHA chooses to exercise this authority, it must follow any procedures prescribed by HUD or by applicable local, state, or federal law regarding termination of assistance. This means that the PHA must follow the same rules when terminating assistance to an individual as it would when terminating the assistance of an entire family [3/16/07 Federal Register notice on the applicability of VAWA to HUD programs].
If the perpetrator remains in the unit, the PHA continues to pay the owner until the PHA terminates the perpetrator from the program. The PHA must not stop paying HAP until 30 days after the owner bifurcates the lease to evict the perpetrator. The PHA may pay HAP for the full month if the 30‐day period will end mid‐month [Notice PIH 2017‐08].
If the perpetrator is the only participant eligible to receive assistance, the PHA will provide any remaining participant a chance to establish eligibility for the program. If the remaining participant cannot do so, the PHA will provide them with 30 days to establish eligibility for another housing program prior to termination of the HAP contract.
HACSB Policy
The PHA will terminate assistance to a family member if the PHA determines that the family member has committed criminal acts of physical violence against other family members or others. This action will not affect the assistance of the remaining, nonculpable family members.
In making its decision, the PHA will consider all credible evidence, including, but not limited to, a signed certification (form HUD‐5382) or other documentation of abuse 413
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐16 submitted to the PHA by the victim in accordance with this section and section 16‐IX.D.
The PHA will also consider the factors in section 12‐II.D. Upon such consideration, the PHA may, on a case‐by‐case basis, choose not to terminate the assistance of the culpable family member.
If the PHA does terminate the assistance of the culpable family member, it will do so in accordance with applicable law, HUD regulations, and the policies in this plan. 414
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐17 12‐II.F. TERMINATION NOTICE
HUD regulations require PHAs to provide written notice of termination of assistance to a family only when the family is entitled to an informal hearing. However, since the family’s HAP contract and lease will also terminate when the family’s assistance terminates [form HUD‐ 52641], it is a good business practice to provide written notification to both owner and family anytime assistance will be terminated, whether voluntarily or involuntarily.
HACSB Policy
Whenever a family’s assistance will be terminated, the PHA will send a written notice of termination to the family and to the owner. The notice will state the date on which the termination will become effective. This date generally will be at least 30 calendar days following the date of the termination notice, but exceptions will be made whenever HUD rules, other PHA policies, or the circumstances surrounding the termination require.
When the PHA notifies an owner that a family’s assistance will be terminated, the PHA will, if appropriate, advise the owner of his/her right to offer the family a separate, unassisted lease.
If a family whose assistance is being terminated is entitled to an informal hearing, the notice of termination that the PHA sends to the family must meet the additional HUD and PHA notice requirements discussed in section 16‐III.C of this plan. VAWA 2013 expands notification requirements to require PHA’s to provide notice of VAWA rights and the HUD 5382 form when a PHA terminates a household’s housing benefits.
HACSB Policy
Whenever the PHA decides to terminate a family’s assistance because of the family’s action or failure to act, the PHA will include in its termination notice the VAWA information described in section 16‐IX.C of this plan and a form HUD‐5382 and form HUD‐5380. The PHA will request that a family member wishing to claim protection under VAWA notify the PHA within 14 business days.
Still other notice requirements apply in two situations:
If a criminal record is the basis of a family’s termination, the PHA must provide a copy of the record to the subject of the record and the tenant so that they have an opportunity to dispute the accuracy and relevance of the record [24 CFR 982.553(d)(2)]. If immigration status is the basis of a family’s termination, as discussed in section 12‐I.D, the special notice requirements in section 16‐III.D must be followed. 415
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐19 PART III: TERMINATION OF TENANCY BY THE OWNER
12‐III.A. OVERVIEW
Termination of an assisted tenancy is a matter between the owner and the family; the PHA is not directly involved. However, the owner is under some constraints when terminating an assisted tenancy. Termination of tenancy for certain reasons will also result in termination of assistance as discussed in this section.
12‐III.B. GROUNDS FOR OWNER TERMINATION OF TENANCY [24 CFR 982.310, 24 CFR
5.2005(c), and Form HUD‐52641‐A, Tenancy Addendum]
During the term of the lease, the owner is not permitted to terminate the tenancy except for serious or repeated violations of the lease, certain violations of state or local law, or other good cause.
Serious or Repeated Lease Violations
The owner is permitted to terminate the family’s tenancy for serious or repeated violations of the terms and conditions of the lease, except when the violations are related to incidents of actual or threatened domestic violence, dating violence, stalking, or sexual assault and the victim is protected from eviction by the Violence against Women Act of 2013 (see section 12‐ II.E). A serious lease violation includes failure to pay rent or other amounts due under the lease.
However, the PHA’s failure to make a HAP payment to the owner is not a violation of the lease between the family and the owner.
Violation of Federal, State, or Local Law
The owner is permitted to terminate the tenancy if a family member violates federal, state, or local law that imposes obligations in connection with the occupancy or use of the premises.
Criminal Activity or Alcohol Abuse
The owner may terminate tenancy during the term of the lease if any covered person—meaning any member of the household, a guest, or another person under the tenant’s control—commits any of the following types of criminal activity (for applicable definitions see 24 CFR 5.100):
Any criminal activity that threatens the health or safety of, or the right to peaceful enjoyment of the premises by, other residents (including property management staff residing on the premises)
Any criminal activity that threatens the health or safety of, or the right to peaceful enjoyment of their residences by, persons residing in the immediate vicinity of the premises Any violent criminal activity on or near the premises Any drug‐related criminal activity on or near the premises However, in the case of criminal activity directly related to domestic violence, dating violence, sexual assault, or stalking if the tenant or an affiliated individual is the victim, the criminal activity may not be construed as cause for terminating the victim’s tenancy (see section 12‐II.E). 417
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐20 The owner may terminate tenancy during the term of the lease if any member of the household is:
Fleeing to avoid prosecution, custody, or confinement after conviction for a crime or an attempt to commit a crime that is a felony under the laws of the place from which the individual flees, or that, in the case of the State of New Jersey, is a high misdemeanor; or Violating a condition of probation or parole imposed under federal or state law.
The owner may terminate tenancy during the term of the lease if any member of the household has engaged in abuse of alcohol that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents.
Evidence of Criminal Activity
The owner may terminate tenancy and evict by judicial action a family for criminal activity by a covered person if the owner determines the covered person has engaged in the criminal activity, regardless of whether the covered person has been arrested or convicted for such activity and without satisfying the standard of proof used for a criminal conviction. This is the case except in certain incidents where the criminal activity directly relates to domestic violence, dating violence, sexual assault, or stalking, and the tenant or an affiliated individual is the victim or threatened victim of the domestic violence, dating violence, sexual assault, or stalking.
Other Good Cause
During the initial lease term, the owner may not terminate the tenancy for “other good cause” unless the owner is terminating the tenancy because of something the family did or failed to do. During the initial lease term or during any extension term, other good cause includes the disturbance of neighbors, destruction of property, or living or housekeeping habits that cause damage to the unit or premises.
After the initial lease term, “other good cause” for termination of tenancy by the owner includes:
Failure by the family to accept the offer of a new lease or revision The owner’s desire to use the unit for personal or family use, or for a purpose other than as a residential rental unit
A business or economic reason for termination of the tenancy (such as sale of the property, renovation of the unit, or desire to lease the unit at a higher rent) After the initial lease term, the owner may give the family notice at any time, in accordance with the terms of the lease.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐21 12‐III.C. EVICTION [24 CFR 982.310(e) and (f) and Form HUD‐52641‐A, Tenancy Addendum] The owner must give the tenant a written notice that specifies the grounds for termination of tenancy during the term of the lease. The tenancy does not terminate before the owner has given this notice, and the notice must be given at or before commencement of the eviction action.
The notice of grounds may be included in, or may be combined with, any owner eviction notice to the tenant.
Owner eviction notice means a notice to vacate, or a complaint or other initial pleading used under state or local law to commence an eviction action. The owner may only evict the tenant from the unit by instituting a court action. The owner must give the PHA a copy of any eviction notice at the same time the owner notifies the family. The family is also required to give the PHA a copy of any eviction notice (see Chapter 5).
HACSB Policy
If the eviction action is finalized in court, the owner must provide the PHA with documentation related to the eviction, including notice of the eviction date, as soon as possible, but no later than 5 business days following the court‐ordered eviction. 419
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐22 12‐III.D. DECIDING WHETHER TO TERMINATE TENANCY [24 CFR 982.310(h), 24 CFR 982.310(h)(4)]
An owner who has grounds to terminate a tenancy is not required to do so, and may consider all of the circumstances relevant to a particular case before making a decision. These might include:
The nature of the offending action
The seriousness of the offending action;
The effect on the community of the termination, or of the owner’s failure to terminate the tenancy;
The extent of participation by the leaseholder in the offending action; The effect of termination of tenancy on household members not involved in the offending activity;
The demand for assisted housing by families who will adhere to lease responsibilities; The extent to which the leaseholder has shown personal responsibility and taken all reasonable steps to prevent or mitigate the offending action; The effect of the owner's action on the integrity of the program.
The owner may require a family to exclude a household member in order to continue to reside in the assisted unit, where that household member has participated in or been culpable for action or failure to act that warrants termination.
In determining whether to terminate tenancy for illegal use of drugs or alcohol abuse by a household member who is no longer engaged in such behavior, the owner may consider whether such household member is participating in or has successfully completed a supervised drug or alcohol rehabilitation program, or has otherwise been rehabilitated successfully (42 U.S.C. 13661). For this purpose, the owner may require the tenant to submit evidence of the household member's current participation in, or successful completion of, a supervised drug or alcohol rehabilitation program or evidence of otherwise having been rehabilitated successfully.
The owner's termination of tenancy actions must be consistent with the fair housing and equal opportunity provisions in 24 CFR 5.105.
An owner’s decision to terminate tenancy for incidents related to domestic violence, dating violence, stalking, or sexual assault is limited by the Violence against Women Act of 2013 (VAWA) and the conforming regulations in 24 CFR Part 5, Subpart L. (See section 12‐II.E.) 12‐III.E. EFFECT OF TENANCY TERMINATION ON THE FAMILY’S ASSISTANCE If a termination is not due to a serious or repeated violation of the lease, and if the PHA has no other grounds for termination of assistance, the PHA may issue a new voucher so that the family can move with continued assistance (see Chapter 10). 420
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐23 EXHIBIT 12‐1: STATEMENT OF FAMILY OBLIGATIONS
Following is a listing of a participant family’s obligations under the HCV program:
The family must supply any information that the PHA or HUD determines to be necessary, including submission of required evidence of citizenship or eligible immigration status. The family must supply any information requested by the PHA or HUD for use in a regularly scheduled reexamination or interim reexamination of family income and composition. The family must disclose and verify social security numbers and sign and submit consent forms for obtaining information.
Any information supplied by the family must be true and complete. The family is responsible for any Housing Quality Standards (HQS) breach by the family caused by failure to pay tenant‐provided utilities or appliances, or damages to the dwelling unit or premises beyond normal wear and tear caused by any member of the household or guest.
HACSB Policy
Damages beyond normal wear and tear will be considered to be damages which could be assessed against the security deposit.
The family must allow the PHA to inspect the unit at reasonable times and after reasonable notice, as described in Chapter 8 of this plan.
The family must not commit any serious or repeated violation of the lease.
HACSB Policy
The PHA will determine if a family has committed serious or repeated violations of the lease based on available evidence, including but not limited to, a court‐ordered eviction or an owner’s notice to evict.
Serious and repeated lease violations will include, but not be limited to, nonpayment of rent, disturbance of neighbors, destruction of property, living or housekeeping habits that cause damage to the unit or premises, and criminal activity. Generally, the criterion to be used will be whether or not the reason for the eviction was the fault of the tenant or guests. Any incidents of, or criminal activity related to, domestic violence, dating violence, stalking or sexual assault will not be construed as serious or repeated lease violations by the victim [24 CFR 5.2005(c)(1)].
The family must notify the PHA and the owner before moving out of the unit or terminating the lease.
HACSB Policy
The family must comply with lease requirements regarding written notice to the owner.
The family must provide written notice to the PHA at the same time the owner is notified.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐24 The family must promptly give the PHA a copy of any owner eviction notice. The family must use the assisted unit for residence by the family. The unit must be the family’s only residence.
The composition of the assisted family residing in the unit must be approved by the PHA.
The family must promptly notify the PHA in writing of the birth, adoption, or court‐awarded custody of a child. The family must request PHA approval to add any other family member as an occupant of the unit.
HACSB Policy
The request to add a family member must be submitted in writing and approved prior to the person moving into the unit. The PHA will determine eligibility of the new member in accordance with the policies in Chapter 3.
The family must promptly notify the PHA in writing if any family member no longer lives in the unit.
If the PHA has given approval, a foster child or a live‐in aide may reside in the unit. The PHA has the discretion to adopt reasonable policies concerning residency by a foster child or a live‐in aide, and to define when PHA consent may be given or denied. For policies related to the request and approval/disapproval of foster children, foster adults, and live‐in aides, see Chapter 3 (Sections I.K and I.M), and Chapter 11 (Section II.B). The family must not sublease the unit, assign the lease, or transfer the unit.
HACSB Policy
Subleasing includes receiving payment to cover rent and utility costs by a person living in the unit who is not listed as a family member.
The family must supply any information requested by the PHA to verify that the family is living in the unit or information related to family absence from the unit. The family must promptly notify the PHA when the family is absent from the unit.
HACSB Policy
Notice is required under this provision only when all family members will be absent from the unit for an extended period. An extended period is defined as any period greater than 30 calendar days. Written notice must be provided to the PHA at the start of the extended absence.
The family must pay utility bills and provide and maintain any appliances that the owner is not required to provide under the lease [Form HUD‐52646, Voucher]. The family must not own or have any interest in the unit, (other than in a cooperative and owners of a manufactured home leasing a manufactured home space). Family members must not commit fraud, bribery, or any other corrupt or criminal act in connection with the program. (See Chapter 14, Program Integrity for additional information).
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 12‐25 Family members must not engage in drug‐related criminal activity or violent criminal activity or other criminal activity that threatens the health, safety or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises. See Chapter 12 for HUD and PHA policies related to drug‐related and violent criminal activity.
Members of the household must not engage in abuse of alcohol in a way that threatens the health, safety or right to peaceful enjoyment of the other residents and persons residing in the immediate vicinity of the premises. See Chapter 12 for a discussion of HUD and PHA policies related to alcohol abuse.
An assisted family or member of the family must not receive HCV program assistance while receiving another housing subsidy, for the same unit or a different unit under any other federal, state or local housing assistance program.
A family must not receive HCV program assistance while residing in a unit owned by a parent, child, grandparent, grandchild, sister or brother of any member of the family, unless the PHA has determined (and has notified the owner and the family of such determination) that approving rental of the unit, notwithstanding such relationship, would provide reasonable accommodation for a family member who is a person with disabilities. [Form HUD‐52646, Voucher]
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐1 Chapter 13
OWNERS
INTRODUCTION
Owners play a major role in the HCV program by supplying decent, safe, and sanitary housing for participating families.
The term “owner” refers to any person or entity with the legal right to lease or sublease a unit to a participant in the HCV program [24 CFR 982.4(b)]. The term “owner” includes a principal or other interested party [24 CFR 982.453; 24 CFR 982.306(f)], such as a designated agent of the owner.
Owners have numerous responsibilities under the program, including screening and leasing to families, maintaining the dwelling unit, enforcing the lease, and complying with various contractual obligations.
The chapter is organized in two parts:
Part I: Owners in the HCV Program. This part discusses the role of an owner in the PHA’s HCV program and highlights key owner rights and responsibilities.
Part II: HAP Contracts. This part explains provisions of the HAP contract and the relationship between the PHA and the owner as expressed in the HAP contract.
For detailed information about HCV program responsibilities and processes, including PHA policies in key areas, owners will need to refer to several other chapters in this plan. Where appropriate, Chapter 13 will reference the other chapters. 424
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐2 425 Item 6.
© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐3 PART I. OWNERS IN THE HCV PROGRAM
13‐I.A. OWNER RECRUITMENT AND RETENTION [HCV GB, pp. 2‐4 to 2‐6] Recruitment
PHAs are responsible for ensuring that very low income families have access to all types and ranges of affordable housing in the PHA’s jurisdiction, particularly housing outside areas of poverty or minority concentration. A critical element in fulfilling this responsibility is for the PHA to ensure that a sufficient number of owners, representing all types and ranges of affordable housing in the PHA’s jurisdiction, are willing to participate in the HCV program.
To accomplish this objective, PHAs must identify and recruit new owners to participate in the program.
HACSB Policy
The PHA will conduct owner outreach to ensure that owners are familiar with the program and its advantages. The PHA will actively recruit property owners with property located outside areas of poverty and minority concentration. These outreach strategies will include:
Distributing printed material about the program to property owners and managers
Contacting property owners and managers by phone or in‐person Holding periodic owner recruitment/information meetings Participating in community based organizations comprised of private property and apartment owners and managers
Developing working relationships with owners and real estate brokers associations
Outreach strategies will be monitored for effectiveness, and adapted accordingly. 426
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐4 Retention
In addition to recruiting owners to participate in the HCV program, the PHA must also provide the kind of customer service that will encourage participating owners to remain active in the program.
HACSB Policy
All PHA activities that may affect an owner’s ability to lease a unit will be processed as rapidly as possible, in order to minimize vacancy losses for owners.
The PHA will provide owners with a handbook that explains the program, including HUD and PHA policies and procedures, in easy‐to‐understand language.
The PHA will give special attention to helping new owners succeed through activities such as:
Providing the owner with a designated PHA contact person.
Coordinating inspection and leasing activities between the PHA, the owner, and the family.
Initiating telephone contact with the owner to explain the inspection process, and providing an inspection booklet and other resource materials about HUD housing quality standards.
Providing other written information about how the program operates, including answers to frequently asked questions.
Additional services may be undertaken on an as‐needed basis, and as resources permit. 427
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐5 13‐I.B. BASIC HCV PROGRAM REQUIREMENTS
HUD requires the PHA to assist families in their housing search by providing the family with a list of landlords or other parties known to the PHA who may be willing to lease a unit to the family, or to help the family find a unit. Although the PHA cannot maintain a list of owners that are pre‐qualified to participate in the program, owners may indicate to the PHA their willingness to lease a unit to an eligible HCV family, or to help the HCV family find a unit [24 CFR 982.301(b)(11)].
HACSB Policy
Owners that wish to indicate their willingness to lease a unit to an eligible HCV family or to help the HCV family find a unit must notify the PHA. The PHA will maintain a listing of such owners and provide this listing to the HCV family as part of the informational briefing packet.
When a family approaches an owner to apply for tenancy, the owner is responsible for screening the family and deciding whether to lease to the family, just as the owner would with any potential unassisted tenant. The PHA has no liability or responsibility to the owner or other persons for the family’s behavior or suitability for tenancy. See chapters 3 and 9 for more detail on tenant family screening policies and process.
If the owner is willing, the family and the owner must jointly complete a Request for Tenancy Approval (RTA, Form HUD 52517), which constitutes the family's request for assistance in the specified unit, and which documents the owner’s willingness to lease to the family and to follow the program’s requirements. When submitted to the PHA, this document is the first step in the process of obtaining approval for the family to receive the financial assistance it will need in order to occupy the unit. Also submitted with the RTA is a copy of the owner’s proposed dwelling lease, including the HUD‐required Tenancy Addendum (Form HUD‐52641‐A). See Chapter 9 for more detail on request for tenancy approval policies and process.
HUD regulations stipulate requirements for the approval of an assisted tenancy.
The owner must be qualified to participate in the program [24 CFR 982.306]. Some owners are precluded from participating in the program, or from renting to a particular family, either because of their past history with this or another federal housing program, or because of certain conflicts of interest. Owner qualifications are discussed later in this chapter.
The selected unit must be of a type that is eligible for the program [24 CFR 982.305(a)]. Certain types of dwelling units cannot be assisted under the HCV program. Other types may be assisted under certain conditions. See chapter 9 for more detail on unit eligibility policies and process.
The selected unit must meet HUD’s Housing Quality Standards (HQS) and/or equivalent state or local standards approved by HUD [24 CFR 982.305(a)]. The PHA will inspect the owner’s dwelling unit at least annually to ensure that the unit continues to meet HQS requirements. See chapter 8 for a discussion of the HQS standards and policies for HQS inspections at initial lease‐ up and throughout the family’s tenancy.
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐6 The PHA must determine that the proposed rent for the unit is reasonable [24 CFR 982.305(a)].
The rent must be reasonable in relation to comparable unassisted units in the area and must not be in excess of rents charged by the owner for comparable, unassisted units on the premises. See chapter 8 for a discussion of requirements and policies on rent reasonableness, rent comparability and the rent reasonableness determination process.
At initial lease‐up of a unit, if the gross rent exceeds the applicable payment standard, the PHA must ensure that the family share does not exceed 40 percent of the family’s monthly adjusted income [24 CFR 982.305(a)]. See chapter 6 for a discussion of the calculation of family income, family share of rent and HAP.
The dwelling lease must comply with all program requirements [24 CFR 982.308]. Owners are encouraged to use their standard leases when renting to an assisted family. The HUD Tenancy Addendum includes the HUD requirements governing the tenancy and must be added word‐ for‐word to the owner’s lease. See chapter 9 for a discussion of the dwelling lease and tenancy addendum, including lease terms and provisions.
The PHA and the owner must execute a Housing Assistance Payment (HAP) Contract (Form HUD‐52641). The HAP contract format is prescribed by HUD. See chapter 9 for a discussion of the HUD requirements for execution of the HAP contract. 429
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐7 13‐I.C. OWNER RESPONSIBILITIES [24 CFR 982.452]
The basic owner responsibilities in the HCV program are outlined in the regulations as follows:
Compliance with all of the owner’s obligations under the housing assistance payments (HAP) contract and the lease
Performing all management and rental functions for the assisted unit, including selecting a voucher‐holder to lease the unit, and deciding if the family is suitable for tenancy of the unit Maintaining the unit in accordance with the Housing Quality Standards (HQS), including performance of ordinary and extraordinary maintenance
Complying with equal opportunity requirements
Preparing and furnishing to the PHA information required under the HAP contract Collecting the security deposit, the tenant rent, and any charges for unit damage by the family.
Enforcing tenant obligations under the dwelling lease Paying for utilities and services that are not the responsibility of the family as specified in the lease
Allow reasonable modifications to a dwelling unit occupied or to be occupied by a disabled person [24 CFR 100.203]
Complying with the Violence against Women Reauthorization Act of 2013 (VAWA) when screening prospective HCV tenants or terminating the tenancy of an HCV family (see 24 CFR Part 5, Subpart L; 24 CFR 982.310(h)(4); and 24 CFR 982.452(b)(1)) 430
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐8 13‐I.D. OWNER QUALIFICATIONS
The PHA does not formally approve an owner to participate in the HCV program. However, there are a number of criteria where the PHA may deny approval of an assisted tenancy based on past owner behavior, conflict of interest, or other owner‐related issues. No owner has a right to participate in the HCV program [24 CFR 982.306(e)].
Owners Barred from Participation [24 CFR 982.306(a) and (b)] The PHA must not approve the assisted tenancy if the PHA has been informed that the owner has been debarred, suspended, or subject to a limited denial of participation under 24 CFR part
24. HUD may direct the PHA not to approve a tenancy request if a court or administrative agency has determined that the owner violated the Fair Housing Act or other federal equal opportunity requirements, or if such an action is pending.
Leasing to Relatives [24 CFR 982.306(d), HCV GB p. 11‐2] The PHA must not approve a tenancy if the owner is the parent, child, grandparent, grandchild, sister, or brother of any member of the family. The PHA may make an exception as a reasonable accommodation for a family member with a disability. The owner is required to certify that no such relationship exists. This restriction applies at the time that the family receives assistance under the HCV program for occupancy of a particular unit. Current contracts on behalf of owners and families that are related may continue, but any new leases or contracts for these families may not be approved.
Conflict of Interest [24 CFR 982.161; HCV GB p. 8‐19]
The PHA must not approve a tenancy in which any of the following classes of persons has any interest, direct or indirect, during tenure or for one year thereafter:
Any present or former member or officer of the PHA (except a participant commissioner) Any employee of the PHA, or any contractor, subcontractor or agent of the PHA, who formulates policy or who influences decisions with respect to the programs Any public official, member of a governing body, or State or local legislator, who exercises functions or responsibilities with respect to the programs Any member of the Congress of the United States
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐9 HUD may waive the conflict of interest requirements, except for members of Congress, for good cause. The PHA must submit a waiver request to the appropriate HUD Field Office for determination.
Any waiver request submitted by the PHA must include the following [HCV Guidebook pp.11‐2 and 11‐3]:
Complete statement of the facts of the case;
Analysis of the specific conflict of interest provision of the HAP contract and justification as to why the provision should be waived;
Analysis of and statement of consistency with state and local laws. The local HUD office, the PHA, or both parties may conduct this analysis. Where appropriate, an opinion by the state’s attorney general should be obtained;
Opinion by the local HUD office as to whether there would be an appearance of impropriety if the waiver were granted;
Statement regarding alternative existing housing available for lease under the HCV program or other assisted housing if the waiver is denied;
If the case involves a hardship for a particular family, statement of the circumstances and discussion of possible alternatives;
If the case involves a public official or member of the governing body, explanation of his/her duties under state or local law, including reference to any responsibilities involving the HCV program;
If the case involves employment of a family member by the PHA or assistance under the HCV program for an eligible PHA employee, explanation of the responsibilities and duties of the position, including any related to the HCV program; If the case involves an investment on the part of a member, officer, or employee of the PHA, description of the nature of the investment, including disclosure/divestiture plans.
Where the PHA has requested a conflict of interest waiver, the PHA may not execute the HAP contract until HUD has made a decision on the waiver request.
HACSB Policy
In considering whether to request a conflict of interest waiver from HUD, the PHA will consider certain factors such as consistency of the waiver with state and local laws, the existence of alternative housing available to families, the individual circumstances of a particular family, the specific duties of individuals whose positions present a possible conflict of interest, the nature of any financial investment in the property and plans for disclosure/divestiture, and the possible appearance of impropriety. 432
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐10 Owner Actions That May Result in Disapproval of a Tenancy Request [24 CFR 982.306(c)] HUD regulations permit the PHA to disapprove a request for tenancy for various actions and inactions of the owner.
If the PHA disapproves a request for tenancy because an owner is not qualified, it may not terminate the HAP contract for any assisted families that are already living in the owner’s properties unless the owner has violated the HAP contract for those units [HCV GB p. 11‐4].
HACSB Policy
The PHA will refuse to approve a request for tenancy if the PHA becomes aware that any of the following are true:
The owner has violated obligations under a HAP contract under Section 8 of the 1937 Act (42 U.S.C. 1437f);
The owner has committed fraud, bribery or any other corrupt or criminal act in connection with any federal housing program;
The owner has engaged in any drug‐related criminal activity, violent criminal activity, or a registered sex offender;
The owner has a history or practice of non‐compliance with the HQS for units leased under the tenant‐based programs, or with applicable housing standards for units leased with project‐based Section 8 assistance or leased under any other federal housing program;
The owner has a history or practice of failing to terminate tenancy of tenants of units assisted under Section 8 or any other federally assisted housing program for activity engaged in by the tenant, any member of the household, a guest or another person under the control of any member of the household that: (i) Threatens the right to peaceful enjoyment of the premises by other residents; (ii) Threatens the health or safety of other residents, of employees of the PHA, or of owner employees or other persons engaged in management of the housing; (iii) Threatens the health or safety of, or the right to peaceful enjoyment of their residences, by persons residing in the immediate vicinity of the premises; or (iv) Is drug‐related criminal activity or violent criminal activity; The owner has a history or practice of renting units that fail to meet state or local housing codes; or
The owner has not paid state or local real estate taxes, fines, or assessment.
In considering whether to disapprove owners for any of the discretionary reasons listed above, the PHA will consider any mitigating factors. Such factors may include, but are not limited to, the seriousness of the violation in relation to program requirements, the impact on the ability of families to lease units under the program, health and safety of participating families, among others. Upon consideration of such circumstances, the PHA may, on a case‐by‐case basis, choose to approve an owner. 433
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐11 Legal Ownership of Unit
The following represents PHA policy on legal ownership of a dwelling unit to be assisted under the HCV program.
HACSB Policy
The PHA will only enter into a contractual relationship with the legal owner of a qualified unit, or to a party which has legal authority to enter into a lease with the tenant and a HAP Contract with the PHA.
No tenancy will be approved without acceptable documentation of legal ownership or authorization (e.g., deed of trust, proof of taxes for most recent year). 13‐I.E. NON‐DISCRIMINATION [HAP Contract – Form HUD‐52641] The owner must not discriminate against any person because of race, color, religion, sex, national origin, age, familial status, or disability, in connection with any actions or responsibilities under the HCV program and the HAP contract with the PHA.
The owner must cooperate with the PHA and with HUD in conducting any equal opportunity compliance reviews and complaint investigations in connection with the HCV program and the HAP contract with the PHA.
See Chapter 2 for a more thorough discussion of Fair Housing and Equal Opportunity requirements in the HCV program.
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐12 435 Item 6.
© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐13 PART II. HAP CONTRACTS
13‐II.A. OVERVIEW
The HAP contract represents a written agreement between the PHA and the owner of the dwelling unit occupied by a HCV assisted family. The contract spells out the owner’s responsibilities under the program, as well as the PHA’s obligations. Under the HAP contract, the PHA agrees to make housing assistance payments to the owner on behalf of the family approved by the PHA to occupy the unit.
The HAP contract is used for all HCV program tenancies except for assistance under the Section 8 homeownership program, and assistance to families that own a manufactured home and use their assistance to lease the space for the manufactured home. See chapter 15 for a discussion of any special housing types included in the PHA’s HCV program.
When the PHA has determined that the unit meets program requirements and the tenancy is approvable, the PHA and owner must execute the HAP contract. See chapter 9 for a discussion of the leasing process, including provisions for execution of the HAP contract. 436
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐14 13‐II.B. HAP CONTRACT CONTENTS
The HAP contract format is required by HUD, specifically Housing Assistance Payment (HAP) Contract, Form HUD‐52641.
The HAP contract contains three parts.
Part A of the contract includes basic contract information: the names of the tenant and all household members, the address of the contract unit, start and end dates of initial lease term, the amount of initial monthly rent to owner, the amount of initial housing assistance payment, the utilities and appliances to be supplied by owner and tenant, and the signatures of the PHA representative and owner [HCV Guidebook, pp. 11‐10 and 11‐11].
In general, the HAP contract cannot be modified. However, PHAs do have the discretion to add language to Part A of the HAP contract which prohibits the owner from collecting a security deposit in excess of private market practices or in excess of amounts charged to unassisted tenants. PHA policy on the amount of security deposit an owner may collect is found in Chapter 9.
PHAs also have the discretion to add language to Part A of the HAP contract that defines when the housing assistance payment by the PHA is deemed received by the owner (e.g., upon mailing by the PHA or actual receipt by the owner).
HACSB Policy
The PHA has not adopted a policy that defines when the housing assistance payment by the PHA is deemed received by the owner. Therefore, no modifications to the HAP contract will be necessary.
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐15 Part B is the body of the contract. It describes in detail program requirements affecting the owner and owner roles and responsibilities under the HCV program. Most of the requirements contained in Part B of the HAP contract are outlined elsewhere in this plan. Topics addressed in Part B include:
Lease of Contract Unit
Maintenance, Utilities, and Other Services
Term of HAP Contract
Provision and Payment of Utilities and Appliances
Rent to Owner: Reasonable Rent
PHA Payment to Owner
Prohibition of Discrimination
Owner’s Breach of HAP Contract
PHA and HUD Access to Premises and Owner’s Records
Exclusion of Third Party Rights
Conflict of Interest
Assignment of the HAP Contract
Written Notices
Entire Agreement Interpretation
Part C of the contract includes the Tenancy Addendum (Form HUD‐52641‐A). The addendum sets forth the tenancy requirements for the program and the composition of the household, as approved by the PHA. The tenant has the right to enforce the Tenancy Addendum against the owner. The terms of the Tenancy Addendum prevail over any other provisions of the lease. 438
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐16 13‐II.C. HAP CONTRACT PAYMENTS
General
During the term of the HAP contract, and subject to the provisions of the HAP contract, the PHA must make monthly HAP payments to the owner on behalf of the family, at the beginning of each month. If a lease term begins after the first of the month, the HAP payment for the first month is prorated for a partial month.
The amount of the HAP payment is determined according to the policies described in Chapter 6, and is subject to change during the term of the HAP contract. The PHA must notify the owner and the family in writing of any changes in the HAP payment.
HAP payments can be made only during the lease term, and only while the family is residing in the unit.
The monthly HAP payment by the PHA is credited toward the monthly rent to owner under the family’s lease. The total of the rent paid by the tenant and the HAP payment is equal to the rent to owner as specified in the lease.
The family is not responsible for payment of the HAP payment, and the PHA is not responsible for payment of the family share of rent.
The family’s share of the rent cannot be more than the difference between the rent to owner and the HAP payment. The owner may not demand or accept any rent payment from the tenant in excess of this maximum [24 CFR 982.451(b)(4)]. The owner may not charge the tenant extra amounts for items customarily included in rent in the locality, or provided at no additional cost to unsubsidized tenants in the premises [24 CFR 982.510(c)]. See chapter 9 for a discussion of separate, non‐lease agreements for services, appliances and other items that are not included in the lease.
If the owner receives any excess HAP from the PHA, the excess amount must be returned immediately. If the PHA determines that the owner is not entitled to all or a portion of the HAP, the PHA may deduct the amount of overpayment from any amounts due to the owner, including amounts due under any other Section 8 HCV contract. See Chapter 16 for additional detail on owner reimbursement of HAP overpayments.
Owner Certification of Compliance
Unless the owner complies with all provisions of the HAP contract, the owner is not entitled to receive housing assistance payments under the HAP contract [HAP Contract – Form HUD‐52641].
By endorsing the monthly check from the PHA, the owner certifies to compliance with the terms of the HAP contract. This includes certification that the owner is maintaining the unit and premises in accordance with HQS; that the contract unit is leased to the tenant family and, to the best of the owner’s knowledge, the family resides in the unit as the family’s only residence; the rent to owner does not exceed rents charged by the owner for comparable unassisted units 439
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐17 on the premises; and that the owner does not receive (other than rent to owner) any additional payments or other consideration for rent of the contract unit during the HAP term.
Late HAP Payments [24 CFR 982.451(a)(5)]
The PHA is responsible for making HAP payments promptly when due to the owner, in accordance with the terms of the HAP contract. After the first two calendar months of the HAP contract term, the HAP contract provides for late penalties if the PHA fails to make the HAP payment on time.
Penalties for late HAP payments can only be imposed if 1) the penalties are in accordance with generally accepted local rental market practices and law governing penalties for late payment by tenants; 2) it is the owner’s normal business practice to charge late payment penalties for both assisted and unassisted families; and 3) the owner charges the assisted family for late payment of the family’s share of the rent.
The PHA is not required to pay a late payment penalty if HUD determines that the payment is late for reasons beyond the PHA’s control. In addition, late payment penalties are not required if the PHA intentionally delays or denies payment as a remedy to an owner breach of the HAP contract [HCV Guidebook p. 11‐7].
Termination of HAP Payments [24 CFR 982.311(b)]
The PHA must continue making housing assistance payments to the owner in accordance with the HAP contract as long as the tenant continues to occupy the unit and the HAP contract is not violated.
HAP payments terminate when the HAP contract terminates or when the tenancy is terminated in accordance with the terms of the lease.
If the owner has initiated eviction proceedings against the family and the family continues to reside in the unit, the PHA must continue to make housing assistance payments to the owner until the owner has obtained a court judgment or other process allowing the owner to evict the tenant.
HACSB Policy
The owner must inform the PHA when the owner has initiated eviction proceedings against the family and the family continues to reside in the unit.
The owner must inform the PHA when the owner has obtained a court judgment or other process allowing the owner to evict the tenant, and provide the PHA with a copy of such judgment or determination.
After the owner has obtained a court judgment or other process allowing the owner to evict the tenant, the PHA will continue to make HAP payments to the owner until the family actually moves from the unit or until the family is physically evicted from the unit, whichever is earlier. The owner must inform the PHA of the date when the family actually moves from the unit or the family is physically evicted from the unit. 440
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐18 13‐II.D. BREACH OF HAP CONTRACT [24 CFR 982.453]
Any of the following actions by the owner constitutes a breach of the HAP contract:
If the owner violates any obligations under the HAP contract including failure to maintain the unit in accordance with HQS
If the owner has violated any obligation under any other HAP contract under Section 8 If the owner has committed fraud, bribery or any other corrupt or criminal act in connection with any federal housing program
For projects with mortgages insured by HUD or loans made by HUD, if the owner has failed to comply with the regulation for the applicable program; or if the owner has committed fraud, bribery or any other corrupt or criminal act in connection with the mortgage or loan If the owner has engaged in drug‐related criminal activity If the owner has committed any violent criminal activity If the PHA determines that a breach of the HAP contract has occurred, it may exercise any of its rights and remedies under the HAP contract.
The PHA rights and remedies against the owner under the HAP contract include recovery of any HAP overpayment, suspension of housing assistance payments, abatement or reduction of the housing assistance payment, termination of the payment or termination of the HAP contract.
The PHA may also obtain additional relief by judicial order or action.
The PHA must notify the owner of its determination and provide in writing the reasons for the determination. The notice may require the owner to take corrective action by an established deadline. The PHA must provide the owner with written notice of any reduction in housing assistance payments or the termination of the HAP contract.
HACSB Policy
Before the PHA invokes a remedy against an owner, the PHA will evaluate all information and documents available to determine if the contract has been breached.
If relevant, the PHA will conduct an audit of the owner’s records pertaining to the tenancy or unit.
If it is determined that the owner has breached the contract, the PHA will consider all of the relevant factors including the seriousness of the breach, the effect on the family, the owner’s record of compliance and the number and seriousness of any prior HAP contract violations.
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐19 13‐II.E. HAP CONTRACT TERM AND TERMINATIONS
The term of the HAP contract runs concurrently with the term of the dwelling lease [24 CFR 982.451(a)(2)], beginning on the first day of the initial term of the lease and terminating on the last day of the term of the lease, including any lease term extensions.
The HAP contract and the housing assistance payments made under the HAP contract terminate if [HCV Guidebook pp.11‐4 and 11‐5, pg. 15‐3]:
The owner or the family terminates the lease;
The lease expires;
The PHA terminates the HAP contract;
The PHA terminates assistance for the family;
The family moves from the assisted unit. In this situation, the owner is entitled to keep the housing assistance payment for the month when the family moves out of the unit. 180 calendar days have elapsed since the PHA made the last housing assistance payment to the owner;
The family is absent from the unit for longer than the maximum period permitted by the PHA;
The Annual Contributions Contract (ACC) between the PHA and HUD expires The PHA elects to terminate the HAP contract.
HACSB Policy
The PHA may elect to terminate the HAP contract in each of the following situations:
Available program funding is not sufficient to support continued assistance for families in the program [24 CFR 982.454];
The unit does not meet HQS size requirements due to change in family composition [24 CFR 982.403] – see chapter 8;
The unit does not meet HQS [24 CFR 982.404] – see chapter 8; The family breaks up [HUD Form 52641] – see chapter 3;
The owner breaches the HAP contract [24 CFR 982.453(b)] – see Section 13‐II.D. 442
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐20 If the PHA terminates the HAP contract, the PHA must give the owner and the family written notice. The notice must specify the reasons for the termination and the effective date of the termination. Once a HAP contract is terminated, no further HAP payments may be made under that contract [HCV Guidebook pg.15‐4].
HACSB Policy
In all cases, the PHA will provide the owner with 30 days notice of HAP contract termination. The owner is not entitled to any housing assistance payment after this period, and must return to the PHA any housing assistance payment received after this period.
If the family moves from the assisted unit into a new unit, even if the new unit is in the same building or complex as the assisted unit, the HAP contract for the assisted unit terminates. A new HAP contract would be required [HCV GB, p. 11‐17].
When the family moves from an assisted unit into a new unit, the term of the HAP contract for the new unit may begin in the same month in which the family moves out of its old unit. This is not considered a duplicative subsidy [HCV GB, p. 8‐22]. 443
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 13‐21 13‐II.F. CHANGE IN OWNERSHIP / ASSIGNMENT OF THE HAP CONTRACT [HUD‐52641]
The HAP contract cannot be assigned to a new owner without the prior written consent of the PHA.
An owner under a HAP contract must notify the PHA in writing prior to a change in the legal ownership of the unit. The owner must supply all information as requested by the PHA.
Prior to approval of assignment to a new owner, the new owner must agree to be bound by and comply with the HAP contract. The agreement between the new owner and the former owner must be in writing and in a form that the PHA finds acceptable. The new owner must provide the PHA with a copy of the executed agreement.
HACSB Policy
Assignment of the HAP contract will be approved only if the new owner is qualified to become an owner under the HCV program according to the policies in Section 13‐I.D. of this chapter.
The PHA must receive a signed, written request from the existing owner stating the name and address of the new HAP payee and the effective date of the assignment in order to change the HAP payee under an outstanding HAP contract.
Within 10 business days of receiving the owner’s request, the PHA will inform the current owner in writing whether the assignment may take place.
The new owner must provide a written certification to the PHA that includes:
A copy of the escrow statement or other document showing the transfer of title and recorded deed;
A copy of the owner’s IRS Form W‐9, Request for Taxpayer Identification Number and Certification, or the social security number of the new owner; The effective date of the HAP contract assignment;
A written agreement to comply with the terms of the HAP contract; and A certification that the new owner is not a prohibited relative.
If the new owner does not agree to an assignment of the HAP contract, or fails to provide the necessary documents, the PHA will terminate the HAP contract with the old owner. If the new owner wants to offer the family a new lease, and the family elects to stay with continued assistance, the PHA will process the leasing in accordance with the policies in Chapter 9.
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 14‐1 Chapter 14
PROGRAM INTEGRITY
INTRODUCTION
The PHA is committed to ensuring that subsidy funds made available to the PHA are spent in accordance with HUD requirements.
This chapter covers HUD and PHA policies designed to prevent, detect, investigate, and resolve instances of program abuse or fraud. It also describes the actions that will be taken in the case of unintentional errors and omissions.
Part I: Preventing, Detecting, and Investigating Errors and Program Abuse. This part presents PHA policies related to preventing, detecting, and investigating errors and program abuse.
Part II: Corrective Measures and Penalties. This part describes the corrective measures the PHA must and may take when errors or program abuses are found. 446
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INVESTIGATING ERRORS AND PROGRAM ABUSE
14‐I.A. PREVENTING ERRORS AND PROGRAM ABUSE
HUD created the Enterprise Income Verification (EIV) system to provide PHAs with a powerful tool for preventing errors and detecting program abuse. PHAs are required to use the EIV system in its entirety in accordance with HUD administrative guidance [24 CFR 5.233]. PHAs are further required to:
Provide applicants and participants with form HUD‐52675, “Debts Owed to PHAs and Terminations”
Require all adult members of an applicant or participant family to acknowledge receipt of form HUD‐52675 by signing a copy of the form for retention in the family file HACSB Policy
To ensure that the PHA’s HCV program is administered according to the highest ethical and legal standards, the PHA will employ a variety of techniques to ensure that both errors and intentional program abuse are rare.
The PHA will discuss program compliance and integrity issues during the voucher briefing sessions described in Chapter 5.
The PHA will provide each applicant and participant with a copy of “Is Fraud Worth It?” (Form HUD‐1141‐OIG), which explains the types of actions a family must avoid and the penalties for program abuse.
The PHA will provide each applicant and participant with a copy of “What You Should Know about EIV,” a guide to the Enterprise Income Verification (EIV) system published by HUD as an attachment to Notice PIH 20102017‐1912.
The PHA will place a warning statement about the penalties for fraud (as described in 18 U.S.C. 1001 and 1010) on key PHA forms and form letters that request information from a family or owner.
PHA staff will be required to review and explain the contents of all HUD‐ and PHA‐required forms prior to requesting family member signatures.
At every regular reexamination, PHA staff will explain any changes in HUD regulations or PHA policy that affect program participants.
The PHA will provide owners with ongoing information about the program, with an emphasis on actions and situations to avoid.
The PHA will provide each PHA employee with the necessary training on program rules and the organization’s standards of conduct and ethics.
For purposes of this chapter the term error refers to an unintentional error or omission.
Program abuse or fraud refers to a single act or pattern of actions that constitute a false 448
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14‐I.B. DETECTING ERRORS AND PROGRAM ABUSE
In addition to taking steps to prevent errors and program abuse, the PHA will use a variety of activities to detect errors and program abuse.
Quality Control and Analysis of Data
Under the Section 8 Management Assessment Program (SEMAP), HUD requires the PHA to review a random sample of tenant records annually to determine if the records conform to program requirements and to conduct quality control inspections of a sample of units to ensure HQS compliance [24 CFR, Part 985]. (See Chapter 16 for additional information about SEMAP requirements).
HACSB Policy
In addition to the SEMAP quality control requirements, the PHA will employ a variety of methods to detect errors and program abuse.
The PHA routinely will use HUD and other non‐HUD sources of up‐front income verification. This includes The Work Number and any other private or public databases available to the PHA.
At each annual reexamination, current information provided by the family will be compared to information provided at the last annual reexamination to identify inconsistencies and incomplete information.
The PHA will compare family‐reported income and expenditures to detect possible unreported income.
Independent Audits and HUD Monitoring
OMB Circular A‐133 requires all PHAs that expend $500,000 or more in federal awards annually to have an independent audit (IPA). In addition, HUD conducts periodic on‐site and automated monitoring of PHA activities and notifies the PHA of errors and potential cases of program abuse.
HACSB Policy
The PHA will use the results reported in any IPA or HUD monitoring reports to identify potential program abuses as well as to assess the effectiveness of the PHA’s error detection and abuse prevention efforts.
Individual Reporting of Possible Errors and Program Abuse HACSB Policy
The PHA will encourage staff, program participants, and the public to report possible program abuse.
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When the PHA Will Investigate
HACSB Policy
The PHA will review all referrals, specific allegations, complaints, and tips from any source including other agencies, companies, and individuals, to determine if they warrant investigation. In order for the PHA to investigate, the allegation must contain at least one independently verifiable item of information, such as the name of an employer or the name of an unauthorized household member.
The PHA will investigate when inconsistent or contradictory information is detected through file reviews and the verification process.
Consent to Release of Information [24 CFR 982.516]
The PHA may investigate possible instances of error or abuse using all available PHA and public records. If necessary, the PHA will require HCV families to sign consent forms for the release of additional information.
Analysis and Findings
HACSB Policy
The PHA will base its evaluation on a preponderance of the evidence collected during its investigation.
Preponderance of the evidence is defined as evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence that as a whole shows that the fact sought to be proved is more probable than not.
Preponderance of evidence may not be determined by the number of witnesses, but by the greater weight of all evidence.
For each investigation the PHA will determine (1) whether an error or program abuse has occurred, (2) whether any amount of money is owed the PHA, and (3) what corrective measures or penalties will be assessed.
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 14‐6 Consideration of Remedies
All errors and instances of program abuse must be corrected prospectively. Whether the PHA will enforce other corrective actions and penalties depends upon the nature of the error or program abuse.
HACSB Policy
In the case of family‐caused errors or program abuse, the PHA will take into consideration (1) the seriousness of the offense and the extent of participation or culpability of individual family members, (2) any special circumstances surrounding the case, (3) any mitigating circumstances related to the disability of a family member, (4) the effects of a particular remedy on family members who were not involved in the offense.
In the case of owner‐caused errors or program abuse, the PHA will take into consideration (1) the seriousness of the offense, (2) the length of time since the violation has occurred, and (3) the effects of a particular remedy on family members who were not involved in the offense.
Notice and Appeals
HACSB Policy
The PHA will inform the relevant party in writing of its findings and remedies within 10 business days of the conclusion of the investigation. The notice will include (1) a description of the error or program abuse, (2) the basis on which the PHA determined the error or program abuses, (3) the remedies to be employed, and (4) the family’s right to appeal the results through the informal review or hearing process, if applicable (see Chapter 16).
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14‐II.A. SUBSIDY UNDER‐ OR OVERPAYMENTS
A subsidy under‐ or overpayment includes (1) an incorrect housing assistance payment to the owner, (2) an incorrect family share established for the family, and (3) an incorrect utility reimbursement to a family.
Corrections
Whether the incorrect subsidy determination is an overpayment or underpayment of subsidy, the PHA must promptly correct the HAP, family share, and any utility reimbursement prospectively.
HACSB Policy
Increases in the family share will be implemented on the first of the month following a written 30‐day notice.
Any decreases in family share will become effective the first of the month following the discovery of the error.
Reimbursement
Whether the family or owner is required to reimburse the PHA or the PHA is required to make retroactive subsidy payments to the owner or family depends upon which party is responsible for the incorrect subsidy payment and whether the action taken was an error or program abuse. Policies regarding reimbursement are discussed in the three sections that follow. 452
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Family obligations and general administrative requirements for participating in the program are discussed throughout this plan. This section deals specifically with errors and program abuse by family members.
An incorrect subsidy determination caused by a family generally would be the result of incorrect reporting of family composition, income, assets, or expenses, but also would include instances in which the family knowingly allows the PHA to use incorrect information provided by a third party.
Family Reimbursement to PHA [HCV GB pp. 22‐12 to 22‐13] HACSB Policy
In the case of family‐caused errors or program abuse, the family will be required to repay any excess subsidy received. The PHA may, but is not required to, offer the family a repayment agreement in accordance with Chapter 16. If the family fails to repay the excess subsidy, the PHA will terminate the family’s assistance in accordance with the policies in Chapter 12.
PHA Reimbursement to Family [HCV GB p. 22‐12]
HACSB Policy
The PHA will not reimburse the family for any underpayment of assistance when the underpayment clearly is caused by the family.
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 14‐9 Prohibited Actions
An applicant or participant in the HCV program must not knowingly:
Make a false statement to the PHA [Title 18 U.S.C. Section 1001]. Commit fraud, bribery, or any other corrupt or criminal act in connection with any federal housing program [24 CFR 982.552(c)(iv)].
HACSB Policy
Any of the following will be considered evidence of family program abuse:
Payment to the owner in excess of amounts authorized by the PHA for rent, security deposit, and additional services
Offering bribes or illegal gratuities to the PHA Board of Commissioners, employees, contractors, or other PHA representatives
Offering payments or other incentives to the owner or a third party as an inducement for the third party to make false or misleading statements to the PHA on the family’s behalf
Use of a false name or the use of falsified, forged, or altered documents Intentional misreporting of family information or circumstances (e.g. income, family composition)
Omitted facts that were obviously known by a family member (e.g., not reporting employment income)
Admission of program abuse by an adult family member
The PHA may determine other actions to be program abuse based upon a preponderance of the evidence, as defined earlier in this chapter.
Penalties for Program Abuse
In the case of program abuse caused by a family the PHA may, at its discretion, impose any of the following remedies.
The PHA may require the family to repay excess subsidy amounts paid by the PHA, as described earlier in this section.
The PHA may require, as a condition of receiving or continuing assistance, that a culpable family member not reside in the unit. See policies in Chapter 3 (for applicants) and Chapter 12 (for participants).
The PHA may deny or terminate the family’s assistance following the policies set forth in Chapter 3 and Chapter 12 respectively.
The PHA may refer the family for state or federal criminal prosecution as described in section 14‐II.E.
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Owner requirements that are part of the regular process of offering, leasing, and maintaining a unit (e.g., HQS compliance, fair housing) are addressed in the appropriate chapters of this plan.
This section focuses on errors and program abuse by owners.
An incorrect subsidy determination caused by an owner generally would be the result of an incorrect owner statement about the characteristics of the assisted unit (e.g., the number of bedrooms, which utilities are paid by the family). It also includes accepting duplicate housing assistance payments for the same unit in the same month, or after a family no longer resides in the unit.
Owner Reimbursement to the PHA
In all cases of overpayment of subsidy caused by the owner, the owner must repay to the PHA any excess subsidy received. The PHA may recover overpaid amounts by withholding housing assistance payments due for subsequent months, or if the debt is large, the PHA may allow the owner to pay in installments over a period of time [HCV GB p. 22‐13].
HACSB Policy
In cases where the owner has received excess subsidy, the PHA will require the owner to repay the amount owed in accordance with the policies in Section 16‐IV.B.
Prohibited Owner Actions
An owner participating in the HCV program must not:
Make any false statement to the PHA [Title 18 U.S.C. Section 1001]. Commit fraud, bribery, or any other corrupt or criminal act in connection with any federal housing program [24 CFR 982.453(a)(3)] including:
HACSB Policy
Any of the following will be considered evidence of owner program abuse:
Charging the family rent above or below the amount specified by the PHA Charging a security deposit other than that specified in the family’s lease Charging the family for services that are provided to unassisted tenants at no extra charge
Knowingly accepting housing assistance payments for any month(s) after the family has vacated the unit
Knowingly accepting incorrect or excess housing assistance payments Offering bribes or illegal gratuities to the PHA Board of Commissioners, employees, contractors, or other PHA representatives
Offering payments or other incentives to an HCV family as an inducement for the family to make false or misleading statements to the PHA Residing in the unit with an assisted family
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When the PHA determines that the owner has committed program abuse, the PHA may take any of the following actions:
Require the owner to repay excess housing assistance payments, as discussed earlier in this section and in accordance with the policies in Chapter 16. Terminate the HAP contract (See Chapter 13).
Bar the owner from future participation in any PHA programs. Refer the case to state or federal officials for criminal prosecution as described in section 14‐II.E.
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The responsibilities and expectations of PHA staff with respect to normal program administration are discussed throughout this plan. This section specifically addresses actions of a PHA staff member that are considered errors or program abuse related to the HCV program.
Additional standards of conduct may be provided in the PHA personnel policy.
PHA‐caused incorrect subsidy determinations include (1) failing to correctly apply HCV rules regarding family composition, income, assets, and expenses, (2) assigning the incorrect voucher size to a family, and (3) errors in calculation.
Repayment to the PHA
Neither a family nor an owner is required to repay an overpayment of subsidy if the error or program abuse is caused by PHA staff [HCV GB. 22‐12].
PHA Reimbursement to Family or Owner
The PHA must reimburse a family for any underpayment of subsidy, regardless of whether the underpayment was the result of staff‐caused error or staff or owner program abuse. Funds for this reimbursement must come from the PHA’s administrative fee reserves [HCV GB p. 22‐12].
Prohibited Activities
HACSB Policy
Any of the following will be considered evidence of program abuse by PHA staff:
Failing to comply with any HCV program requirements for personal gain Failing to comply with any HCV program requirements as a result of a conflict of interest relationship with any applicant, participant, or owner Seeking or accepting anything of material value from applicants, participating families, vendors, owners, contractors, or other persons who provide services or materials to the PHA
Disclosing confidential or proprietary information to outside parties Gaining profit as a result of insider knowledge of PHA activities, policies, or practices
Misappropriating or misusing HCV funds
Destroying, concealing, removing, or inappropriately using any records related to the HCV program
Committing any other corrupt or criminal act in connection with any federal housing program
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HACSB Policy
When the PHA determines that program abuse by an owner, family, or PHA staff member has occurred and the amount of overpaid subsidy meets or exceeds the threshold for prosecution under local or state law, the PHA will refer the matter to the appropriate entity for prosecution. When the amount of overpaid assistance meets or exceeds the federal threshold, the case will also be referred to the HUD Office of Inspector General (OIG).
Other criminal violations related to the HCV program will be referred to the appropriate local, state, or federal entity.
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© Copyright 2016 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 14‐14 14‐II.F . FRAUD AND PROGRAM ABUSE RECOVERIES
The PHA may retain a portion of program fraud losses that the PHA recovers from a family or owner through litigation, court order, or a repayment agreement [24 CFR 982.163].
The PHA must be the principal party initiating or sustaining the action to recover amounts due from tenants that are due as a result of fraud and abuse. 24 CFR 792.202 permits the PHA to retain the greater of:
50 percent of the amount it actually collects from a judgment, litigation (including settlement of a lawsuit) or an administrative repayment agreement, or Reasonable and necessary costs that the PHA incurs related to the collection including costs of investigation, legal fees, and agency collection fees.
The family must be afforded the opportunity for an informal hearing in accordance with requirements in 24 CFR 982.555.
If HUD incurs costs on behalf of the PHA related to the collection, these costs must be deducted from the amount retained by the PHA.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 15‐1 Chapter 15
SPECIAL HOUSING TYPES
[24 CFR 982 Subpart M]
INTRODUCTION
The PHA may permit a family to use any of the special housing types discussed in this chapter.
However, the PHA is not required to permit families receiving assistance in its jurisdiction to use these housing types, except that PHAs must permit use of any special housing type if needed as a reasonable accommodation for a person with a disability. The PHA also may limit the number of families who receive HCV assistance in these housing types and cannot require families to use a particular housing type. No special funding is provided for special housing types.
HACSB Policy
The PHA will enter into a HAP Contract for Single Room Occupancy (SRO), Shared Housing, and Manufactured Homes.
Special housing types include single room occupancy (SRO), congregate housing, group homes, shared housing, cooperative housing, manufactured homes where the family owns the home and leases the space, and homeownership [24 CFR 982.601].
This chapter consists of the following seven parts. Each part contains a description of the housing type and any special requirements associated with it. Except as modified by this chapter, the general requirements of the HCV program apply to special housing types.
Part I: Single Room Occupancy
Part II: Congregate Housing
Part III: Group Homes
Part IV: Shared Housing
Part V: Cooperative Housing
Part VI: Manufactured Homes (including manufactured home space rental) 460
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[24 CFR 982.602 through 982.605]
15‐I.A. OVERVIEW
A single room occupancy (SRO) unit provides living and sleeping space for the exclusive use of the occupant but requires the occupant to share sanitary and/or food preparation facilities with others. More than one person may not occupy an SRO unit. HCV regulations do not limit the number of units in an SRO facility, but the size of a facility may be limited by local ordinances.
When providing HCV assistance in an SRO unit, a separate lease and HAP contract are executed for each assisted person, and the standard form of the HAP contract is used. 15‐I.B. PAYMENT STANDARD, UTILITY ALLOWANCE, AND HAP CALCULATION The payment standard for SRO housing is 75 percent of the zero‐bedroom payment standard amount on the PHA’s payment standard schedule.
The utility allowance for an assisted person residing in SRO housing is 75 percent of the zero‐ bedroom utility allowance.
The HAP for an assisted occupant in an SRO facility is the lower of the SRO payment standard amount minus the TTP or the gross rent for the unit minus the TTP. 15‐I.C. HOUSING QUALITY STANDARDS (HQS)
HQS requirements described in Chapter 8 apply to SRO housing except as modified below. Access: Access doors to the SRO unit must have working locks for privacy. The occupant must be able to access the unit without going through any other unit. Each unit must have immediate access to two or more approved means of exit from the building, appropriately marked and leading to safe and open space at ground level. The SRO unit must also have any other means of exit required by State or local law. Fire Safety: All SRO facilities must have a sprinkler system that protects major spaces. “Major spaces” are defined as hallways, common areas, and any other areas specified in local fire, building, or safety codes. SROs must also have hard‐wired smoke detectors, and any other fire and safety equipment required by state or local law.
Sanitary facilities and space and security standards must meet local code requirements for SRO housing. In the absence of local code standards the requirements discussed below apply [24 CFR 982.605].
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 15‐3 Sanitary Facilities: At least one flush toilet that can be used in privacy, a lavatory basin, and a bathtub or shower in proper operating condition must be provided for each six persons (or fewer) residing in the SRO facility. If the SRO units are leased only to men, flush urinals may be substituted for up to one half of the required number of toilets. Sanitary facilities must be reasonably accessible from a common hall or passageway, and may not be located more than one floor above or below the SRO unit. They may not be located below grade unless the SRO units are located on that level.
Space and Security: An SRO unit must contain at least 110 square feet of floor space, and at least four square feet of closet space with an unobstructed height of at least five feet, for use by the occupant. If the closet space is less than four square feet, the habitable floor space in the SRO unit must be increased by the amount of the deficiency. Exterior doors and windows accessible from outside the SRO unit must be lockable.
Because no children live in SRO housing, the housing quality standards applicable to lead‐ based paint do not apply.
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[24 CFR 982.606 through 982.609]
15‐II.A. OVERVIEW
Congregate housing is intended for use by elderly persons or persons with disabilities. A congregate housing facility contains a shared central kitchen and dining area and a private living area for the individual household that includes at least a living room, bedroom and bathroom.
Food service for residents must be provided.
If approved by the PHA, a family member or live‐in aide may reside with the elderly person or person with disabilities. The PHA must approve a live‐in aide if needed as a reasonable accommodation so that the program is readily accessible to and usable by persons with disabilities.
When providing HCV assistance in congregate housing, a separate lease and HAP contract are executed for each assisted family, and the standard form of the HAP contract is used. 463
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 15‐5 15‐II.B. PAYMENT STANDARD, UTILITY ALLOWANCE, AND HAP CALCULATION The payment standard for an individual unit in a congregate housing facility is based on the number of rooms in the private living area. If there is only one room in the unit (not including the bathroom or the kitchen, if a kitchen is provided), the PHA must use the payment standard for a zero‐bedroom unit. If the unit has two or more rooms (other than the bathroom and the kitchen), the PHA must use the one‐bedroom payment standard.
The HAP for an assisted occupant in a congregate housing facility is the lower of the applicable payment standard minus the TTP or the gross rent for the unit minus the TTP.
The gross rent for the unit for the purpose of calculating HCV assistance is the shelter portion (including utilities) of the resident’s monthly housing expense only. The residents’ costs for food service should not be included in the rent for a congregate housing unit. 15‐II.C. HOUSING QUALITY STANDARDS
HQS requirements as described in Chapter 8 apply to congregate housing except for the requirements stated below.
Congregate housing must have (1) a refrigerator of appropriate size in the private living area of each resident; (2) a central kitchen and dining facilities located within the premises and accessible to the residents, and (3) food service for the residents, that is not provided by the residents themselves.
The housing quality standards applicable to lead‐based paint do not apply. 464
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[24 CFR 982.610 through 982.614 and HCV GB p. 7‐4]
15‐III.A. OVERVIEW
A group home is a state‐licensed facility intended for occupancy by elderly persons and/or persons with disabilities. Except for live‐in aides, all persons living in a group home, whether assisted or not, must be elderly persons or persons with disabilities. Persons living in a group home must not require continuous medical or nursing care.
A group home consists of bedrooms for residents, which can be shared by no more than two people, and a living room, kitchen, dining area, bathroom, and other appropriate social, recreational, or community space that may be shared with other residents.
No more than 12 persons may reside in a group home including assisted and unassisted residents and any live‐in aides.
If approved by the PHA, a live‐in aide may live in the group home with a person with disabilities.
The PHA must approve a live‐in aide if needed as a reasonable accommodation so that the program is readily accessible to and usable by persons with disabilities.
When providing HCV assistance in a group home, a separate lease and HAP contract is executed for each assisted family, and the standard form of the HAP contract is used. 15‐III.B. PAYMENT STANDARD, UTILITY ALLOWANCE, AND HAP CALCULATION Unless there is a live‐in aide, the family unit size for an assisted occupant of a group home must be zero‐ or one‐bedroom, depending on the PHA’s subsidy standard. If there is a live‐in aide, the aide must be counted in determining the household’s unit size.
The payment standard used to calculate the HAP is the lower of the payment standard for the family unit size or the prorata share of the payment standard for the group home size. The prorata share is calculated by dividing the number of persons in the assisted household by the number of persons (assisted and unassisted) living in the group home.
The HAP for an assisted occupant in a group home is the lower of the payment standard minus the TTP or the gross rent minus the TTP.
The utility allowance for an assisted occupant in a group home is the pro‐rata share of the utility allowance for the group home.
The rents paid for participants residing in group homes are subject to generally applicable standards for rent reasonableness. The rent for an assisted person must not exceed the pro‐ rata portion of the reasonable rent for the group home. In determining reasonable rent, the PHA should consider whether sanitary facilities and facilities for food preparation and service are common facilities or private facilities.
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HQS requirements described in Chapter 8 apply to group homes except for the requirements stated below.
Sanitary Facilities: A group home must have at least one bathroom in the facility, with a flush toilet that can be used in privacy, a fixed basin with hot and cold running water, and a shower or bathtub with hot and cold running water. A group home may contain private or common bathrooms. However, no more than four residents can be required to share a bathroom.
Food Preparation and Service: Group home units must contain a kitchen and dining area with adequate space to store, prepare, and serve food. The facilities for food preparation and service may be private or may be shared by the residents. The kitchen must contain a range, an oven, a refrigerator, and a sink with hot and cold running water. The sink must drain into an approvable public or private disposal system. Space and Security: Group homes must contain at least one bedroom of appropriate size for every two people, and a living room, kitchen, dining area, bathroom, and other appropriate social, recreational, or community space that may be shared with other residents. Structure and Material: To avoid any threat to the health and safety of the residents, group homes must be structurally sound. Elevators must be in good condition. Group homes must be accessible to and usable by residents with disabilities. Site and Neighborhood: Group homes must be located in a residential setting. The site and neighborhood should be reasonably free from hazards to the health, safety, and general welfare of the residents, and should not be subject to serious adverse conditions, such as:
- Dangerous walks or steps
- Instability
- Flooding, poor drainage
- Septic tank back‐ups
- Sewage hazards
- Mud slides
- Abnormal air pollution
- Smoke or dust
- Excessive noise
- Vibrations or vehicular traffic
- Excessive accumulations of trash
- Vermin or rodent infestation, and
- Fire hazards.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 15‐9 PART IV: SHARED HOUSING
[24 CFR 982.615 through 982.618]
15‐IV.A. OVERVIEW
Shared housing is a single housing unit occupied by an assisted family and another resident or residents. The shared unit consists of both common space for use by the occupants of the unit and separate private space for each assisted family.
An assisted family may share a unit with other persons assisted under the HCV program or with other unassisted persons. The owner of a shared housing unit may reside in the unit, but housing assistance may not be paid on behalf of the owner. The resident owner may not be related by blood or marriage to the assisted family.
If approved by the PHA, a live‐in aide may reside with the family to care for a person with disabilities. The PHA must approve a live‐in aide if needed as a reasonable accommodation so that the program is readily accessible to and usable by persons with disabilities.
When providing HCV assistance in shared housing, a separate lease and HAP contract are executed for each assisted family, and the standard form of the HAP contract is used. 15‐IV.B. PAYMENT STANDARD, UTILITY ALLOWANCE AND HAP CALCULATION The payment standard for a family in shared housing is the lower of the payment standard for the family unit size or the pro‐rata share of the payment standard for the shared housing unit size.
The pro‐rata share is calculated by dividing the number of bedrooms available for occupancy by the assisted family in the private space by the total number of bedrooms in the unit.
The HAP for a family in shared housing is the lower of the payment standard minus the TTP or the gross rent minus the TTP. The utility allowance for an assisted family living in shared housing is the lower of the utility allowance for the family unit size (voucher size) or the pro‐ rata share of the utility allowance for the shared housing unit.
Example: A family holds a 2-bedroom voucher. The family decides to occupy 3 out of 4 bedrooms available in the unit.
The utility allowance for a 4-bedroom unit equals $200
The utility allowance for a 2-bedroom unit equals $100
The pro-rata share of the utility allowance is $150 (3/4 of $200) The PHA will use the 2-bedroom utility allowance of $100.
The rents paid for families living in shared housing are subject to generally applicable standards for rent reasonableness. The rent paid to the owner for the assisted family must not exceed the pro‐rata portion of the reasonable rent for the shared unit. In determining reasonable rent, the PHA should consider whether sanitary and food preparation areas are private or shared. 468
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The PHA may not give approval to reside in shared housing unless the entire unit, including the portion of the unit available for use by the assisted family under its lease, meets the housing quality standards.
HQS requirements described in Chapter 8 apply to shared housing except for the requirements stated below.
Facilities Available for the Family: Facilities available to the assisted family, whether shared or private, must include a living room, a bathroom, and food preparation and refuse disposal facilities.
Space and Security: The entire unit must provide adequate space and security for all assisted and unassisted residents. The private space for each assisted family must contain at least one bedroom for each two persons in the family. The number of bedrooms in the private space of an assisted family must not be less than the family unit size. A zero‐ bedroom or one‐bedroom unit may not be used for shared housing. 469
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 15‐11 PART V: COOPERATIVE HOUSING
[24 CFR 982.619]
15‐V.A. OVERVIEW
This part applies to rental assistance for a cooperative member residing in cooperative housing.
It does not apply to assistance for a cooperative member who has purchased membership under the HCV homeownership option, or to rental assistance for a family that leases a cooperative housing unit from a cooperative member.
A cooperative is a form of ownership (nonprofit corporation or association) in which the residents purchase memberships in the ownership entity. Rather than being charged “rent” a cooperative member is charged a “carrying charge.”
When providing HCV assistance in cooperative housing, the standard form of the HAP contract is used.
15‐V.B. PAYMENT STANDARD, UTILITY ALLOWANCE AND HAP CALCULATION The payment standard and utility allowance are determined according to regular HCV program requirements.
The HAP for a cooperative housing unit is the lower of the payment standard minus the TTP or the monthly carrying charge for the unit, plus any utility allowance, minus the TTP. The monthly carrying charge includes the member’s share of the cooperative debt service, operating expenses, and necessary payments to cooperative reserve funds. The carrying charge does not include down payments or other payments to purchase the cooperative unit or to amortize a loan made to the family for this purpose.
15‐V.C. HOUSING QUALITY STANDARDS
All standard HQS requirements apply to cooperative housing units. There are no additional HQS requirements.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 15‐13 PART VI: MANUFACTURED HOMES
[24 CFR 982.620 through 982.624]
15‐VI.A. OVERVIEW
A manufactured home is a manufactured structure, transportable in one or more parts, that is built on a permanent chassis, and designed for use as a principal place of residence. HCV‐ assisted families may occupy manufactured homes in two different ways. (1) A family can choose to rent a manufactured home already installed on a space and the PHA must permit it. In this instance program rules are the same as when a family rents any other residential housing, except that there are special HQS requirements as provided in 15‐VI.D below.
(2) HUD also permits an otherwise eligible family that owns a manufactured home to rent a space for the manufactured home and receive HCV assistance with the rent for the space as well as certain other housing expenses. PHAs may, but are not required to, provide assistance for such families.
15‐VI.B. SPECIAL POLICIES FOR MANUFACTURED HOME OWNERS WHO LEASE A SPACE Family Income
In determining the annual income of families leasing manufactured home spaces, the value of the family’s equity in the manufactured home in which the family resides is not counted as a family asset.
Lease and HAP Contract
There is a separate Tenancy Addendum (Form 52642‐a) and separate HAP Contract (Form 52642) for this special housing type.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 15‐14 15‐VI.C. PAYMENT STANDARD, UTILITY ALLOWANCE AND HAP CALCULATION [FR Notice 1/18/17]
Payment Standards
The PHA payment standard for manufactured homes is determined in accordance with 24 CFR 982.505 and is the payment standard used for the PHA’s HCV program. It is based on the applicable FMR for the area in which the manufactured home space is located.
The payment standard for the family is the lower of the family unit size (voucher size) or the payment standard for the number of bedrooms in the manufactured home.
Utility Allowance
The PHA must establish utility allowances for manufactured home space rental. For the first 12 months of the initial lease term only, the allowance must include an amount for a utility hook‐ up charge if the family actually incurred a hook‐up charge because of a move. This allowance will not be given to a family that leases in place. Utility allowances for manufactured home space must not include the costs of digging a well or installing a septic system.
If the amount of the monthly assistance payment for a family exceeds the monthly rent for the manufactured home space (including the owner’s monthly management and maintenance charges), the PHA may pay the remainder to the family, lender, or utility company.
Space Rent
The rent for the manufactured home space (including other eligible housing expenses) is the total of:
The rent charged for the manufactured home space;
Owner maintenance and management charges for the space; The monthly payments made by the family to amortize the cost of purchasing the manufactured home, including any required insurance and property taxes; and The applicable allowance for tenant‐paid unities.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 10/01/2017 Unlimited copies may be made for internal use. Page 15‐15 Amortization Costs
The monthly payment made by the family to amortize the cost of purchasing the manufactured home is the debt service established at the time of application to a lender for financing the purchase of the manufactured home if monthly payments are still being made. Any increase in debt service due to refinancing after purchase of the home may not be included in the amortization cost. Debt service for set‐up charges incurred by a family may be included in the monthly amortization payments made by the family. In addition, set‐up charges incurred before the family became an assisted family may be included in the amortization cost if monthly payments are still being made to amortize the charges.
Housing Assistance Payment
The HAP for a manufactured home space under the housing choice voucher program is the lower of the payment standard minus the TTP or the manufactured home space rent (including other eligible housing expenses) minus the TTP.
Rent Reasonableness
Initially, and annually thereafter the PHA must determine that the rent for the manufactured home space is reasonable based on rents for comparable manufactured home spaces. The PHA must consider the location and size of the space, and any services and maintenance to be provided by the owner. By accepting the monthly HAP check, the owner certifies that the rent does not exceed rents charged by the owner for comparable unassisted spaces in the manufactured home park or elsewhere.
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Under either type of occupancy described in 15‐VI.A above, the manufactured home must meet all HQS performance requirements and acceptability criteria discussed in Chapter 8 of this plan.
In addition, the following requirement applies:
Manufactured Home Tie‐Down
A manufactured home must be placed on the site in a stable manner, and must be free from hazards such as sliding or wind damage. The home must be securely anchored by a tie‐down device that distributes and transfers the loads imposed by the unit to appropriate ground anchors to resist overturning and sliding.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐1 Chapter 16
PROGRAM ADMINISTRATION
INTRODUCTION
This chapter discusses administrative policies and practices that are relevant to the activities covered in this plan. The policies are discussed in seven parts as described below:
Part I: Administrative Fee Reserve. This part describes the PHA’s policies with regard to oversight of expenditures from its administrative fee reserve.
Part II: Setting Program Standards and Schedules. This part describes what payment standards are, and how they are updated, as well as how utility allowances are established and revised.
Part III: Informal Reviews and Hearings. This part outlines the requirements and procedures for informal reviews and hearings, and for informal hearings regarding citizenship status.
Part IV: Owner or Family Debts to the PHA. This part describes policies for recovery of monies that the PHA has overpaid on behalf of families, or to owners, and describes the circumstances under which the PHA will offer repayment agreements to owners and families. Also discussed are the consequences for failure to make payments in accordance with a repayment agreement.
Part V: Section 8 Management Assessment Program (SEMAP). This part describes what the SEMAP scores represent, how they are established, and how those scores affect a PHA.
Part VI: Record‐Keeping. All aspects of the program involve certain types of record‐ keeping. This part outlines the privacy rights of applicants and participants and record retention policies the PHA will follow.
Part VII: Reporting and Record Keeping for Children with Elevated Blood Lead Level. This part describes the PHA’s responsibilities for reporting, data collection, and record keeping relative to children with elevated blood lead levels that are less than six years of age, and are receiving HCV assistance.
Part VIII: Determination of Insufficient Funding. This part describes the PHA’s policies for determining if there is sufficient funding to issue vouchers, to approve moves to higher cost units or areas, and to continue assistance for all participant families.
Part IX: Violence against Women Act (VAWA): Notification, Documentation, and Confidentiality. This part contains key terms used in VAWA and describes requirements related to notifying families and owners about their rights and responsibilities under VAWA; requesting documentation from victims of domestic violence, dating violence, sexual assault and stalking; and maintaining the confidentiality of information obtained from victims.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐3 PART I: ADMINISTRATIVE FEE RESERVE [24 CFR 982.155]
The PHA will maintain administrative fee reserves, or unrestricted net positions (UNP) for the program to pay program administrative expenses in excess of administrative fees paid by HUD for a PHA fiscal year. HUD appropriations acts beginning with FFY 2004 have specified that administrative fee funding may be used only for activities related to the provision of HCV assistance, including related development activities. Notice PIH 2012‐9 cites two examples of related development activities: unit modification for accessibility purposes and development of project‐based voucher units. The notice makes clear that other activities may also qualify as related development activities. Administrative fees that remain in the UNP account from funding provided prior to 2004 may be used for “other housing purposes permitted by state and local law,” in accordance with 24 CFR 982.155(b)(1).
If a PHA has not adequately administered its HCV program, HUD may prohibit use of funds in the UNA Account and may direct the PHA to use funds in that account to improve administration of the program, for HCV HAP expenses, or to reimburse ineligible expenses in accordance with the regulation at 24 CFR 982.155(b)(3).
HUD requires the PHA Board of Commissioners or other authorized officials to establish the maximum amount that may be charged against the UNP account without specific approval.
HACSB Policy
Expenditures from the UNP account will be made in accordance with all applicable federal requirements. Expenditures will not exceed $50,000 per occurrence without the prior approval of the PHA’s Board of Commissioners.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐5 PART II: SETTING PROGRAM STANDARDS AND SCHEDULES
16‐II.A. OVERVIEW
Although many of the program’s requirements are established centrally by HUD, the HCV program’s regulations recognize that some flexibility is required to allow the PHA to adapt the program to local conditions. This part discusses how the PHA establishes and updates certain schedules and standards that are used to administer the program locally. Details about how these schedules are applied to individual families are provided in other chapters. The schedules and standards discussed here include:
Payment Standards, which dictate the maximum subsidy a family can receive (application of the payment standards is discussed in Chapter 6); and
Utility Allowances, which specify how a family’s payment should be adjusted to account for tenant‐paid utilities (application of utility allowances is discussed in Chapter 6).
HACSB Policy
Copies of the payment standard and utility allowance schedules are available for review on the PHA’s website and in the PHA’s offices during normal business hours.
Families, owners, and members of the public may submit written comments on the schedules discussed in this part, at any time, for consideration during the next revision cycle.
The PHA will maintain documentation to support its annual review of payment standards and utility allowance schedules. This documentation will be retained for at least 3 years.
Establishing and updating the PHA passbook rate, which is used to calculate imputed income from assets, is covered in Chapter 6 (see Section 6‐I.G.). 16‐II.B. PAYMENT STANDARDS [24 CFR 982.503; HCV GB, Chapter 7] The payment standard sets the maximum subsidy payment a family can receive from the PHA each month [24 CFR 982.505(a)]. Payment standards are based on fair market rents (FMRs) published annually by HUD. FMRs are set at a percentile within the rent distribution of standard quality rental housing units in each FMR area. For most jurisdictions FMRs are set at the 40th percentile of rents in the market area.
The PHA must establish a payment standard schedule that establishes payment standard amounts for each FMR area within the PHA’s jurisdiction, and for each unit size within each of the FMR areas. For each unit size, the PHA may establish a single payment standard amount for the whole FMR area, or may set different payment standards for different parts of the FMR area. Unless HUD grants an exception, the PHA is required to establish a payment standard within a “basic range” established by HUD – between 90 and 110 percent of the published FMR for each unit size.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐6 Updating Payment Standards
When HUD updates its FMRs, the PHA must update its payment standards if the standards are no longer within the basic range [24 CFR 982.503(b)]. HUD may require the PHA to make further adjustments if it determines that rent burdens for assisted families in the PHA’s jurisdiction are unacceptably high 24 CFR 982.503(g)].
HACSB Policy
The PHA will review the appropriateness of the payment standards on an annual basis when the new FMR is published, and at other times as determined necessary. In addition to ensuring the payment standards are always within the “basic range” the PHA will consider the following factors when determining whether an adjustment should be made to the payment standard schedule:
Funding Availability: The PHA will review the budget to determine the impact projected subsidy adjustments will have on funding available for the program and the number of families served. The PHA will compare the number of families who could be served under revised payment standard amounts with the number assisted under current payment standard amounts.
Rent Burden of Participating Families: Rent burden will be determined by identifying the percentage of families, for each unit size, that are paying more than 30 percent of their monthly adjusted income as the family share. When 40 percent or more of families, for any given unit size, are paying more than 30 percent of adjusted monthly income as the family share, the PHA will consider increasing the payment standard. In evaluating rent burdens, the PHA will not include families renting a larger unit than their family unit size.
Quality of Units Selected: The PHA will review the quality of units selected by participant families when making the determination of the percent of income families are paying for housing, to ensure that payment standard increases are only made when needed to reach the mid‐range of the market.
Changes in Rent to Owner: The PHA may review a sample of the units to determine how often owners are increasing or decreasing rents and the average percent of increases/decreases by bedroom size.
Unit Availability: The PHA will review the availability of units for each unit size, particularly in areas with low concentrations of poor and minority families.
Lease‐up Time and Success Rate: The PHA will consider the percentage of families that are unable to locate suitable housing before the voucher expires and whether families are leaving the jurisdiction to find affordable housing. 482
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Exception Payment Standards [982.503(c)]
The PHA must request HUD approval to establish payment standards that are higher than the basic range. At HUD’s sole discretion, HUD may approve a payment standard amount that is higher than the basic range for a designated part of the FMR area. HUD may approve an exception payment standard amount (in accordance with program requirements) for all units, or for all units of a given size, leased by program families in the exception area. Any PHA with jurisdiction in the exception area may use the HUD‐approved exception payment standard amount. The total population of all HUD‐approved exception areas in an FMR area may not include more than 50 percent of the population of the FMR area.
Unit‐by‐Unit Exceptions [24 CFR 982.503(b) 24 CFR 982.505(d), Notice PIH 2010‐26] Unit‐by‐unit exceptions to the PHA’s payment standards generally are not permitted. However, an exception may be made as a reasonable accommodation for a family that includes a person with disabilities. (See Chapter 2 for a discussion of reasonable accommodations.) This type of exception does not affect the PHA’s payment standard schedule.
When needed as a reasonable accommodation, the PHA may make an exception to the payment standard without HUD approval if the exception amount does not exceed 120 percent of the applicable FMR for the unit size [24 CFR 982.503(b)]. The PHA may request HUD approval for an exception to the payment standard for a particular family if the required amount exceeds 120 percent of the FMR.
HACSB Policy
A family that requires a reasonable accommodation may request a higher payment standard at the time the Request for Tenancy Approval (RFTA) is submitted. The family must document the need for the exception. In order to approve an exception, or request an exception from HUD, the PHA must determine that:
There is a shortage of affordable units that would be appropriate for the family; The family's TTP would otherwise exceed 40 percent of adjusted monthly income; and
The rent for the unit is reasonable.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐8 "Success Rate" Payment Standard Amounts [24 CFR 982.503(e)] If a substantial percentage of families have difficulty finding a suitable unit, the PHA may request a “success rate payment standard” that applies to the entire jurisdiction. If approved by HUD, a success rate payment standard allows the PHA to set its payment standards at 90‐110 percent of a higher FMR (the 50th, rather than the 40th percentile FMR). To support the request, the PHA must demonstrate that during the most recent 6‐month period for which information is available:
Fewer than 75 percent of families who were issued vouchers became participants; The PHA had established payment standards for all unit sizes, and for the entire jurisdiction, at 110 percent of the published FMR; and
The PHA had a policy of allowing voucher holders who made sustained efforts to locate units at least 90 days to search for a unit.
Although HUD approves the success rate payment standard for all unit sizes in the FMR area, the PHA may choose to adjust the payment standard for only some unit sizes in all, or a designated part, of the PHA’s jurisdiction within the FMR area.
Decreases in the Payment Standard below the Basic Range [24 CFR 982.503(d)] The PHA must request HUD approval to establish a payment standard amount that is lower than the basic range. At HUD’s sole discretion, HUD may approve establishment of a payment standard lower than the basic range. HUD will not approve a lower payment standard if the family share for more than 40 percent of program participants exceeds 30 percent of adjusted monthly income.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐9 16‐II.C. UTILITY ALLOWANCES [24 CFR 982.517]
A PHA‐established utility allowance schedule is used in determining family share and PHA subsidy. The PHA must maintain a utility allowance schedule for (1) all tenant‐paid utilities, (2) the cost of tenant‐supplied refrigerators and ranges, and (3) other tenant‐paid housing services such as trash collection.
The utility allowance schedule must be determined based on the typical cost of utilities and services paid by energy‐conservative households that occupy housing of similar size and type in the same locality. In developing the schedule, the PHA must use normal patterns of consumption for the community as a whole, and current utility rates.
The utility allowance must include the utilities and services that are necessary in the locality to provide housing that complies with housing quality standards. Costs for telephone, cable/satellite television, and internet services are not included in the utility allowance schedule.
In the utility allowance schedule, the PHA must classify utilities and other housing services according to the following general categories: space heating; air conditioning; cooking; water heating; water; sewer; trash collection; other electric; cost of tenant‐supplied refrigerator; cost of tenant‐supplied range; and other specified housing services.
The cost of each utility and housing service must be stated separately by unit size and type.
Chapter 18 of the HCV Guidebook provides detailed guidance to the PHA about establishing utility allowance schedules.
Air Conditioning
An allowance for air‐conditioning must be provided when the majority of housing units in the market have central air‐conditioning or are wired for tenant‐installed air conditioners.
HACSB Policy
The PHA has not included an allowance for air‐conditioning in its schedule.
Reasonable Accommodation
HCV program regulations require a PHA to approve a utility allowance amount higher than shown on the PHA’s schedule if a higher allowance is needed as a reasonable accommodation for a family member with a disability. For example, if a family member with a disability requires such an accommodation, the PHA will approve an allowance for air‐conditioning, even if the PHA has determined that an allowance for air‐conditioning generally is not needed (See Chapter 2 for policies regarding the request and approval of reasonable accommodations).
Utility Allowance Revisions
The PHA must review its schedule of utility allowances each year, and must revise the schedule if there has been a change of 10 percent or more in any utility rate since the last time the allowance for that utility was revised.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐10 The PHA must maintain information supporting its annual review of utility allowance and any revisions made in its utility allowance schedule.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐12 PART III: INFORMAL REVIEWS AND HEARINGS
16‐III.A. OVERVIEW
Both applicants and participants have the right to disagree with, and appeal, certain decisions of the PHA that may adversely affect them. PHA decisions that may be appealed by applicants and participants are discussed in this section.
The process for applicant appeals of PHA decisions is called the “informal review.” For participants (or applicants denied admission because of citizenship issues), the appeal process is called an “informal hearing.” PHAs are required to include informal review procedures for applicants and informal hearing procedures for participants in their administrative plans [24 CFR 982.54(d)(12) and (13)].
16‐III.B. INFORMAL REVIEWS
Informal reviews are provided for program applicants. An applicant is someone who has applied for admission to the program, but is not yet a participant in the program. Informal reviews are intended to provide a “minimum hearing requirement” [24 CFR 982.554], and need not be as elaborate as the informal hearing requirements [Federal Register 60, no. 127 (3 July 1995):
34690].
Decisions Subject to Informal Review
The PHA must give an applicant the opportunity for an informal review of a decision denying assistance [24 CFR 982.554(a)]. Denial of assistance may include any or all of the following [24 CFR 982.552(a)(2)]:
Denying listing on the PHA waiting list
Denying or withdrawing a voucher
Refusing to enter into a HAP contract or approve a lease Refusing to process or provide assistance under portability procedures Informal reviews are not required for the following reasons [24 CFR 982.554(c)]:
Discretionary administrative determinations by the PHA General policy issues or class grievances
A determination of the family unit size under the PHA subsidy standards A PHA determination not to approve an extension or suspension of a voucher term A PHA determination not to grant approval of the tenancy A PHA determination that the unit is not in compliance with the HQS A PHA determination that the unit is not in accordance with the HQS due to family size or composition
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The PHA will only offer an informal review to applicants for whom assistance is being denied. Denial of assistance includes: denying listing on the PHA waiting list; denying or withdrawing a voucher; refusing to enter into a HAP contract or approve a lease; refusing to process or provide assistance under portability procedures.
Notice to the Applicant [24 CFR 982.554(a)]
The PHA must give an applicant prompt notice of a decision denying assistance. The notice must contain a brief statement of the reasons for the PHA decision, and must also state that the applicant may request an informal review of the decision. The notice must describe how to obtain the informal review.
Scheduling an Informal Review
HACSB Policy
A request for an informal review must be made in writing and delivered to the PHA either in person, by email, by fax or by first class mail, by the close of the business day, no later than 10 business days from the date of the PHA’s denial of assistance.
The PHA must schedule and send written notice of the informal review within 10 business days of the family’s request.
Informal Review Procedures [24 CFR 982.554(b)]
The informal review must be conducted by a person other than the one who made or approved the decision under review, or a subordinate of this person.
The applicant must be provided an opportunity to present written or oral objections to the decision of the PHA.
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The PHA must notify the applicant of the PHA’s final decision, including a brief statement of the reasons for the final decision.
HACSB Policy
In rendering a decision, the PHA will evaluate the following matters:
Whether or not the grounds for denial were stated factually in the notice to the family.
The validity of the grounds for denial of assistance. If the grounds for denial are not specified in the regulations, then the decision to deny assistance will be overturned.
The validity of the evidence. The PHA will evaluate whether the facts presented prove the grounds for denial of assistance. If the facts prove that there are grounds for denial, and the denial is required by HUD, the PHA will uphold the decision to deny assistance.
If the facts prove the grounds for denial, and the denial is discretionary, the PHA will consider the recommendation of the person conducting the informal review in making the final decision whether to deny assistance.
The PHA will notify the applicant of the final decision, including a statement explaining the reason(s) for the decision. The notice will be mailed within 10 business days of the informal review, to the applicant and his or her representative.
If the decision to deny is overturned as a result of the informal review, processing for admission will resume.
If the family fails to appear for their informal review, the denial of admission will stand and the family will be so notified.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐15 16‐III.C. INFORMAL HEARINGS FOR PARTICIPANTS [24 CFR 982.555] PHAs must offer an informal hearing for certain PHA determinations relating to the individual circumstances of a participant family. A participant is defined as a family that has been admitted to the PHA’s HCV program and is currently assisted in the program. The purpose of the informal hearing is to consider whether the PHA’s decisions related to the family’s circumstances are in accordance with the law, HUD regulations and PHA policies.
The PHA is not permitted to terminate a family’s assistance until the time allowed for the family to request an informal hearing has elapsed, and any requested hearing has been completed.
Termination of assistance for a participant may include any or all of the following:
Refusing to enter into a HAP contract or approve a lease Terminating housing assistance payments under an outstanding HAP contract Refusing to process or provide assistance under portability procedures Decisions Subject to Informal Hearing
Circumstances for which the PHA must give a participant family an opportunity for an informal hearing are as follows:
A determination of the family’s annual or adjusted income, and the use of such income to compute the housing assistance payment
A determination of the appropriate utility allowance (if any) for tenant‐paid utilities from the PHA utility allowance schedule
A determination of the family unit size under the PHA’s subsidy standards A determination that a certificate program family is residing in a unit with a larger number of bedrooms than appropriate for the family unit size under the PHA’s subsidy standards, or the PHA determination to deny the family’s request for exception from the standards A determination to terminate assistance for a participant family because of the family’s actions or failure to act
A determination to terminate assistance because the participant has been absent from the assisted unit for longer than the maximum period permitted under PHA policy and HUD rules
A determination to terminate a family’s Family Self Sufficiency contract, withhold supportive services, or propose forfeiture of the family’s escrow account [24 CFR 984.303(i)] 491
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐16 Circumstances for which an informal hearing is not required are as follows:
Discretionary administrative determinations by the PHA General policy issues or class grievances
Establishment of the PHA schedule of utility allowances for families in the program A PHA determination not to approve an extension or suspension of a voucher term A PHA determination not to approve a unit or tenancy
A PHA determination that a unit selected by the applicant is not in compliance with the HQS A PHA determination that the unit is not in accordance with HQS because of family size A determination by the PHA to exercise or not to exercise any right or remedy against an owner under a HAP contract
HACSB Policy
The PHA will only offer participants the opportunity for an informal hearing when required to by the regulations.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐17 Informal Hearing Procedures
Notice to the Family [24 CFR 982.555(c)]
When the PHA makes a decision that is subject to informal hearing procedures, the PHA must inform the family of its right to an informal hearing at the same time that it informs the family of the decision.
For decisions related to the family’s annual or adjusted income, the determination of the appropriate utility allowance, and the determination of the family unit size, the PHA must notify the family that they may ask for an explanation of the basis of the determination, and that if they do not agree with the decision, they may request an informal hearing on the decision.
For decisions related to the termination of the family’s assistance, or the denial of a family’s request for an exception to the PHA’s subsidy standards, the notice must contain a brief statement of the reasons for the decision, a statement that if the family does not agree with the decision, the family may request an informal hearing on the decision, and a statement of the deadline for the family to request an informal hearing.
HACSB Policy
In cases where the PHA makes a decision for which an informal hearing must be offered, the notice to the family will include all of the following:
The proposed action or decision of the PHA.
A brief statement of the reasons for the decision, including the regulatory reference.
The date the proposed action will take place.
A statement of the family’s right to an explanation of the basis for the PHA’s decision.
A statement that if the family does not agree with the decision the family may request an informal hearing of the decision.
A deadline for the family to request the informal hearing.
To whom the hearing request should be addressed.
A copy of the PHA’s hearing procedures.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐18 Scheduling an Informal Hearing [24 CFR 982.555(d)]
When an informal hearing is required, the PHA must proceed with the hearing in a reasonably expeditious manner upon the request of the family.
HACSB Policy
A request for an informal hearing must be made in writing and delivered to the PHA either in person, by fax, by email or by first class mail, by the close of the business day, no later than 10 business days from the date of the PHA’s decision or notice to terminate assistance.
The PHA must schedule and send written notice of the informal hearing to the family within 10 business days of the family’s request.
If the family does not appear at the scheduled time of the hearing, the hearing officer will wait up to 30 minutes. If the family appears within 30 minutes of the scheduled time, the hearing will be held. If the family does not arrive within 30 minutes of the scheduled time, they will be considered to have failed to appear.
The family may request to reschedule a hearing for good cause, or if it is needed as a reasonable accommodation for a person with disabilities. Good cause is defined as an unavoidable conflict which seriously affects the health, safety or welfare of the family.
Requests to reschedule a hearing must be made orally or in writing prior to the hearing date. At its discretion, the PHA may request documentation of the “good cause” prior to rescheduling the hearing.
If the family fails to appear and was unable to reschedule the hearing in advance, the family must contact the PHA within 24 hours of the scheduled hearing date, excluding weekends and holidays. The hearing officer will reschedule the hearing only if the family can show good cause for the failure to appear, or it is needed as a reasonable accommodation for a person with disabilities.
A hearing will only be rescheduled for good cause twice. Should the family fail to appear at the scheduled time for the second rescheduled hearing, the PHA’s action will stand. 494
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐19 Pre‐Hearing Right to Discovery [24 CFR 982.555(e)]
Participants and the PHA are permitted pre‐hearing discovery rights. The family must be given the opportunity to examine before the hearing any PHA documents that are directly relevant to the hearing. The family must be allowed to copy any such documents at their own expense. If the PHA does not make the document available for examination on request of the family, the PHA may not rely on the document at the hearing.
The PHA hearing procedures may provide that the PHA must be given the opportunity to examine at the PHA offices before the hearing, any family documents that are directly relevant to the hearing. The PHA must be allowed to copy any such document at the PHA’s expense. If the family does not make the document available for examination on request of the PHA, the family may not rely on the document at the hearing.
For the purpose of informal hearings, documents include records and regulations.
HACSB Policy
The family will be allowed to copy any documents related to the hearing at a cost of $.25 per page. The family must request discovery of PHA documents no later than 12:00 p.m. on the business day prior to the scheduled hearing date The PHA must be given an opportunity to examine at the PHA offices before the hearing any family documents that are directly relevant to the hearing. Whenever a participant requests an informal hearing, the PHA will automatically mail a letter to the participant requesting a copy of all documents that the participant intends to present or utilize at the hearing. The participant must make the documents available no later than 12:00 pm on the business day prior to the scheduled hearing date.
Participant’s Right to Bring Counsel [24 CFR 982.555(e)(3)] At its own expense, the family may be represented by a lawyer or other representative at the informal hearing.
Informal Hearing Officer [24 CFR 982.555(e)(4)]
Informal hearings will be conducted by a person or persons approved by the PHA, other than the person who made or approved the decision or a subordinate of the person who made or approved the decision.
HACSB Policy
The PHA will designate knowledgeable, professionals that may be PHA employees (other than the person who made or approved the decision or a subordinate of the person who made or approved the decision), or other qualified private individuals. 495
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐20 Attendance at the Informal Hearing
HACSB Policy
Hearings may be attended by a hearing officer and the following applicable persons:
A PHA representative(s) and any witnesses for the PHA
The participant and any witnesses for the participant
The participant’s counsel or other representative
Any other person approved by the PHA as a reasonable accommodation for a person with a disability
If the family does not appear at the scheduled time of the hearing, the hearing officer will wait up to 30 minutes. If the family appears within 30 minutes of the scheduled time, the hearing will be held. If the family does not arrive within 30 minutes of the scheduled time, they will be considered to have failed to appear, and the hearing will be presented to the hearing officer in the absence of the family.
If the family fails to appear and was unable to reschedule the hearing in advance, the family must contact the PHA within 24 hours of the scheduled hearing date, excluding weekends and holidays. The hearing officer will reschedule the hearing only if the family can show good cause for the failure to appear, or it is needed as a reasonable accommodation for a person with disabilities.
“Good cause” is defined as an unavoidable conflict which seriously affects the health, safety, or welfare of the family.
Conduct at Hearings
The person who conducts the hearing may regulate the conduct of the hearing in accordance with the PHA’s hearing procedures [24 CFR 982.555(4)(ii)].
HACSB Policy
The hearing officer is responsible to manage the order of business and to ensure that hearings are conducted in a professional and businesslike manner. Attendees are expected to comply with all hearing procedures established by the hearing officer and guidelines for conduct. Any person demonstrating disruptive, abusive or otherwise inappropriate behavior will be excused from the hearing at the discretion of the hearing officer.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐21 Evidence [24 CFR 982.555(e)(5)]
The PHA and the family must be given the opportunity to present evidence and question any witnesses. In general, all evidence is admissible at an informal hearing. Evidence may be considered without regard to admissibility under the rules of evidence applicable to judicial proceedings.
HACSB Policy
Any evidence to be considered by the hearing officer must be presented at the time of the hearing. There are four categories of evidence.
Oral evidence: the testimony of witnesses
Documentary evidence: a writing which is relevant to the case, for example, a letter written to the PHA. Writings include all forms of recorded communication or representation, including letters, words, pictures, sounds, videotapes or symbols or combinations thereof.
Demonstrative evidence: Evidence created specifically for the hearing and presented as an illustrative aid to assist the hearing officer, such as a model, a chart or other diagram.
Real evidence: A tangible item relating directly to the case.
Hearsay Evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter. Even though evidence, including hearsay, is generally admissible, hearsay evidence alone cannot be used as the sole basis for the hearing officer’s decision.
If either the PHA or the family fail to comply with the discovery requirements described above, the hearing officer will refuse to admit such evidence.
Other than the failure of a party to comply with discovery, the hearing officer has the authority to overrule any objections to evidence.
Procedures for Rehearing or Further Hearing
HACSB Policy
The hearing officer, at his or her discretion may ask the family for additional information and/or might adjourn the hearing in order to reconvene at a later date, before reaching a decision. If the family misses an appointment or deadline ordered by the hearing officer, the action of the PHA will take effect and another hearing will not be granted. 497
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐22 Hearing Officer’s Decision [24 CFR 982.555(e)(6)]
The person who conducts the hearing must issue a written decision, stating briefly the reasons for the decision. Factual determinations relating to the individual circumstances of the family must be based on a preponderance of evidence presented at the hearing.
HACSB Policy
In rendering a decision, the hearing officer will consider the following matters:
PHA Notice to the Family: The hearing officer will determine if the reasons for the PHA’s decision are factually stated in the Notice.
Discovery: The hearing officer will determine if the PHA and the family were given the opportunity to examine any relevant documents in accordance with PHA policy.
PHA Evidence to Support the PHA Decision: The evidence consists of the facts presented. Evidence is not conclusion and it is not argument. The hearing officer will evaluate the facts to determine if they support the PHA’s conclusion.
Validity of Grounds for Termination of Assistance (when applicable): The hearing officer will determine if the termination of assistance is for one of the grounds specified in the HUD regulations and PHA policies. If the grounds for termination are not specified in the regulations or in compliance with PHA policies, then the decision of the PHA will be overturned.
The hearing officer will issue a written decision to the family and the PHA no later than 10 business days after the hearing. The report will contain the following information:
Hearing information:
Name of the participant;
Date, time and place of the hearing;
Name of the hearing officer;
Name of the PHA representative; and
Name of family representative (if any).
Background: A brief, impartial statement of the reason for the hearing.
Summary of the Evidence: The hearing officer will summarize the testimony of each witness and identify any documents that a witness produced in support of his/her testimony and that are admitted into evidence.
Findings of Fact: The hearing officer will include all findings of fact, based on a preponderance of the evidence. Preponderance of the evidence is defined as evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not. Preponderance of the 498
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐23 evidence may not be determined by the number of witnesses, but by the greater weight of all evidence.
Conclusions: The hearing officer will render a conclusion derived from the facts that were found to be true by a preponderance of the evidence. The conclusion will result in a determination of whether these facts uphold the PHA’s decision.
Order: The hearing report will include a statement of whether the PHA’s decision is upheld or overturned. If it is overturned, the hearing officer will instruct the PHA to change the decision in accordance with the hearing officer’s determination. In the case of termination of assistance, the hearing officer will instruct the PHA to restore the participant’s program status.
Issuance of Decision [24 CFR 982.555(e)(6)]
A copy of the hearing must be furnished promptly to the family.
HACSB Policy
The hearing officer will provide two copies of a “Notice of Hearing Decision” to the PHA.
The PHA will mail a copy of the notice to the participant by first‐class mail. A copy will be maintained in the PHA’s file.
Effect of Final Decision [24 CFR 982.555(f)]
The PHA is not bound by the decision of the hearing officer for matters in which the PHA is not required to provide an opportunity for a hearing, decisions that exceed the authority of the hearing officer, decisions that conflict with or contradict HUD regulations, requirements, or are otherwise contrary to federal, state, or local laws.
If the PHA determines it is not bound by the hearing officer’s decision in accordance with HUD regulations, the PHA must promptly notify the family of the determination and the reason for the determination.
HACSB Policy
The PHA has the authority to determine that it is not bound by the decision of the hearing officer because the PHA was not required to provide a hearing, the decision exceeded the authority of the hearing officer, the decision conflicted with or contradicted HUD regulations, requirements, or the decision was otherwise contrary to federal, state, or local laws.
In such a case, the PHA will mail a “Notice of Final Decision” including the hearing officer’s report to the participant via first‐class mail. A copy of the “Notice of Final Decision” will be maintained in the PHA’s file.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐24 16‐III.D. HEARING AND APPEAL PROVISIONS FOR NONCITIZENS [24 CFR 5.514] Denial or termination of assistance based on immigration status is subject to special hearing and notice rules. Applicants who are denied assistance due to immigration status are entitled to an informal hearing, not an informal review.
Assistance to a family may not be delayed, denied, or terminated on the basis of immigration status at any time prior to a decision under the United States Citizenship and Immigration Services (USCIS) appeal process. Assistance to a family may not be terminated or denied while the PHA hearing is pending, but assistance to an applicant may be delayed pending the completion of the informal hearing.
A decision against a family member, issued in accordance with the USCIS appeal process or the PHA informal hearing process, does not preclude the family from exercising the right, that may otherwise be available, to seek redress directly through judicial procedures.
Notice of Denial or Termination of Assistance [24 CFR 5.514(d)] The notice of denial or termination of assistance for noncitizens must advise the family:
That financial assistance will be denied or terminated, and provide a brief explanation of the reasons for the proposed denial or termination of assistance. The family may be eligible for proration of assistance. In the case of a participant, the criteria and procedures for obtaining relief under the provisions for preservation of families [24 CFR 5.514 and 5.518]. That the family has a right to request an appeal to the USCIS of the results of secondary verification of immigration status and to submit additional documentation or explanation in support of the appeal.
That the family has a right to request an informal hearing with the PHA either upon completion of the USCIS appeal or in lieu of the USCIS appeal. For applicants, assistance may not be delayed until the conclusion of the USCIS appeal process, but assistance may be delayed during the period of the informal hearing process. 500
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐25 USCIS Appeal Process [24 CFR 5.514(e)]
When the PHA receives notification that the USCIS secondary verification failed to confirm eligible immigration status, the PHA must notify the family of the results of the USCIS verification. The family will have 30 days from the date of the notification to request an appeal of the USCIS results. The request for appeal must be made by the family in writing directly to the USCIS. The family must provide the PHA with a copy of the written request for appeal and the proof of mailing.
HACSB Policy
The PHA will notify the family in writing of the results of the USCIS secondary verification within 10 business days of receiving the results.
The family must provide the PHA with a copy of the written request for appeal and proof of mailing within 10 business days of sending the request to the USCIS.
The family must forward to the designated USCIS office any additional documentation or written explanation in support of the appeal. This material must include a copy of the USCIS document verification request (used to process the secondary request) or such other form specified by the USCIS, and a letter indicating that the family is requesting an appeal of the USCIS immigration status verification results.
The USCIS will notify the family, with a copy to the PHA, of its decision. When the USCIS notifies the PHA of the decision, the PHA must notify the family of its right to request an informal hearing.
HACSB Policy
The PHA will send written notice to the family of its right to request an informal hearing within 10 business days of receiving notice of the USCIS decision regarding the family’s immigration status.
Informal Hearing Procedures for Applicants [24 CFR 5.514(f)] After notification of the USCIS decision on appeal, or in lieu of an appeal to the USCIS, the family may request that the PHA provide a hearing. The request for a hearing must be made either within 30 days of receipt of the PHA notice of denial, or within 30 days of receipt of the USCIS appeal decision.
The informal hearing procedures for applicant families are described below.
Informal Hearing Officer
The PHA must provide an informal hearing before an impartial individual, other than a person who made or approved the decision under review, and other than a person who is a subordinate of the person who made or approved the decision. See Section 16‐III.C. for a listing of positions that serve as informal hearing officers.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐26 Evidence
The family must be provided the opportunity to examine and copy at the family’s expense, at a reasonable time in advance of the hearing, any documents in the possession of the PHA pertaining to the family’s eligibility status, or in the possession of the USCIS (as permitted by USCIS requirements), including any records and regulations that may be relevant to the hearing.
HACSB Policy
The family will be allowed to copy any documents related to the hearing at a cost of $.25 per page. The family must request discovery of PHA documents no later than 12:00 p.m. on the business day prior to the hearing.
The family must be provided the opportunity to present evidence and arguments in support of eligible status. Evidence may be considered without regard to admissibility under the rules of evidence applicable to judicial proceedings.
The family must also be provided the opportunity to refute evidence relied upon by the PHA, and to confront and cross‐examine all witnesses on whose testimony or information the PHA relies.
Representation and Interpretive Services
The family is entitled to be represented by an attorney or other designee, at the family’s expense, and to have such person make statements on the family’s behalf.
The family is entitled to arrange for an interpreter to attend the hearing, at the expense of the family, or the PHA, as may be agreed upon by the two parties.
Recording of the Hearing
The family is entitled to have the hearing recorded by audiotape. The PHA may, but is not required to provide a transcript of the hearing.
HACSB Policy
The PHA will not provide a transcript of an audio taped hearing.
Hearing Decision
The PHA must provide the family with a written final decision, based solely on the facts presented at the hearing, within 14 calendar days of the date of the informal hearing. The decision must state the basis for the decision.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐27 Informal Hearing Procedures for Residents [24 CFR 5.514(f)] After notification of the USCIS decision on appeal, or in lieu of an appeal to the USCIS, the family may request that the PHA provide a hearing. The request for a hearing must be made either within 30 days of receipt of the PHA notice of termination, or within 30 days of receipt of the USCIS appeal decision.
For the informal hearing procedures that apply to participant families whose assistance is being terminated based on immigration status, see Section 16‐III.C.
Retention of Documents [24 CFR 5.514(h)]
The PHA must retain for a minimum of 5 years the following documents that may have been submitted to the PHA by the family, or provided to the PHA as part of the USCIS appeal or the PHA informal hearing process:
The application for assistance
The form completed by the family for income reexamination Photocopies of any original documents, including original USCIS documents The signed verification consent form
The USCIS verification results
The request for a USCIS appeal
The final USCIS determination
The request for an informal hearing
The final informal hearing decision
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐28 PART IV: OWNER OR FAMILY DEBTS TO THE PHA
16‐IV.A. OVERVIEW
PHAs are required to include in the administrative plan, policies concerning repayment by a family of amounts owed to the PHA [24 CFR 982.54]. This part describes the PHA’s policies for recovery of monies owed to the PHA by families or owners.
HACSB Policy
When an action or inaction of an owner or participant results in the overpayment of housing assistance, the PHA holds the owner or participant liable to return any overpayments to the PHA.
The PHA will enter into repayment agreements in accordance with the policies contained in this part as a means to recover overpayments.
When an owner or participant refuses to repay monies owed to the PHA, the PHA will utilize other available collection alternatives including, but not limited to, the following:
Collection agencies
Small claims court
Civil law suit
State income tax set‐off program
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐29 16‐IV.B. REPAYMENT POLICY
Owner Debts to the PHA
HACSB Policy
Any amount due to the PHA by an owner must be repaid by the owner within 30 days of the PHA determination of the debt.
If the owner fails to repay the debt within the required time frame and is entitled to future HAP payments, the PHA will reduce the future HAP payments by the amount owed until the debt is paid in full.
If the owner is not entitled to future HAP payments the PHA may, in its sole discretion, offer to enter into a repayment agreement on terms prescribed by the PHA.
If the owner refuses to repay the debt, does not enter into a repayment agreement, or breaches a repayment agreement, the PHA will ban the owner from future participation in the program and pursue other modes of collection.
Family Debts to the PHA
HACSB Policy
Any amount owed to the PHA by an HCV family must be repaid by the family. If the family is unable to repay the debt within 30 days, the PHA will offer to enter into a repayment agreement in accordance with the policies below.
If the family refuses to repay the debt, does not enter into a repayment agreement, or breaches a repayment agreement, the PHA will terminate assistance in accordance with the policies in Chapter 12 and pursue other modes of collection.
Repayment Agreement [24 CFR 792.103]
The term repayment agreement refers to a formal written document signed by a tenant or owner and provided to the PHA in which a tenant or owner acknowledges a debt in a specific amount and agrees to repay the amount due at specific time periods.
General Repayment Agreement Guidelines for Families
Down Payment Requirement
HACSB Policy
Before executing a repayment agreement with a family, the PHA will generally require a down payment of 30 percent of the total amount owed. If the family can provide evidence satisfactory to the PHA that a down payment of 30 percent would impose an undue hardship, the PHA may, in its sole discretion, require a lesser percentage or waive the requirement.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐30 Payment Thresholds
Notice PIH 2017‐12 recommends that the total amount that a family must pay each month— the family’s monthly share of rent plus the monthly debt repayment amount—should not exceed 40 percent of the family’s monthly adjusted income. However, a family may already be paying 40 per cent or more of its monthly adjusted income in rent. Moreover, Notice PIH 2017‐ 12 acknowledges that PHAs have the discretion to establish “thresholds and policies” for repayment agreements with families [24 CFR 982.552(c)(1)(vii)].
HACSB Policy
The PHA has established the following thresholds for repayment of debts:
Maximum amount for which HACSB will enter into a repayment agreement is $5,000, unless approved by management.
Amounts between $3,000 and $5,000 must be repaid within 36 months.
Amounts between $2,000 and $2,999 must be repaid within 30 months.
Amounts between $1,000 and $1,999 must be repaid within 24 months.
Amounts under $1,000 must be repaid within 12 months.
. Minimum monthly payment is $25.
If a family can provide evidence satisfactory to the PHA that the threshold applicable to the family’s debt would impose an undue hardship, the PHA may, in its sole discretion, determine that a lower monthly payment amount is reasonable. In making its determination, the PHA will consider all relevant information, including the following:
The amount owed by the family to the PHA
The reason for the debt, including whether the debt was the result of family action/inaction or circumstances beyond the family’s control The family’s current and potential income and expenses
The family’s current family share, as calculated under 24 CFR 982.515 The family’s history of meeting its financial responsibilities Execution of the Agreement
HACSB Policy
Any repayment agreement between the PHA and a family must be signed and dated by the PHA and by all adults in the family.
Due Dates
HACSB Policy
All payments are due by the close of business on the 1st day of the month. If the 1st does not fall on a business day, the due date is the close of business on the first business 506
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐31 day after the 1st. Alternative payment due dates may be negotiated between the PHA and the family.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐32 Late or Missed Payments
HACSB Policy
If a payment is not received by the end of the business day on the date due, and prior approval for the missed payment has not been given by the PHA, the PHA will send the family a delinquency notice giving the family 10 business days to make the late payment. If the payment is not received by the due date of the delinquency notice, it will be considered a breach of the agreement and the PHA will terminate assistance in accordance with the policies in Chapter 12.
If a family receives three delinquency notices for unexcused late payments in a 12‐ month period, the repayment agreement will be considered in default, and the PHA will terminate assistance in accordance with the policies in Chapter 12.
No Offer of Repayment Agreement
HACSB Policy
The PHA generally will not enter into a repayment agreement with a family if there is already a repayment agreement in place with the family or if the amount owed by the family exceeds the federal or state threshold for criminal prosecution.
Repayment Agreements Involving Improper Payments
Notice PIH 2017‐12 requires certain provisions to be included in any repayment agreement involving amounts owed by a family because it underreported or failed to report income:
A reference to the items in the family briefing packet that state the family’s obligation to provide true and complete information at every reexamination and the grounds on which the PHA may terminate assistance because of a family’s action or failure to act A statement clarifying that each month the family not only must pay to the PHA the monthly payment amount specified in the agreement but must also pay to the owner the family’s monthly share of the rent to owner
A statement that the terms of the repayment agreement may be renegotiated if the family’s income decreases or increases
A statement that late or missed payments constitute default of the repayment agreement and may result in termination of assistance
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐33 PART V: SECTION 8 MANAGEMENT ASSESSMENT PROGRAM (SEMAP) 16‐V.A. OVERVIEW
The Section 8 Management Assessment Program (SEMAP) is a tool that allows HUD to measure PHA performance in key areas to ensure program integrity and accountability. SEMAP scores translate into a rating for each PHA as high performing, standard, or troubled. Scores on individual SEMAP indicators, as well as overall SEMAP ratings, can affect the PHA in several ways.
High‐performing PHAs can be given a competitive advantage under notices of funding availability [24 CFR 985.103].
PHAs with deficiencies on one or more indicators are required to correct the deficiencies and report to HUD [24 CFR 985.106].
PHAs with an overall rating of “troubled” are subject to additional HUD oversight, including on‐site reviews by HUD staff, a requirement to develop a corrective action plan, and monitoring to ensure the successful implementation of the corrective action plan. In addition, PHAs that are designated “troubled” may not use any part of the administrative fee reserve for other housing purposes [24 CFR 985.107]. HUD may determine that a PHA's failure to correct identified SEMAP deficiencies or to prepare and implement a corrective action plan required by HUD constitutes a default under the ACC [24 CFR 985.109].
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐34 16‐V.B. SEMAP CERTIFICATION [24 CFR 985.101]
PHAs must submit the HUD‐required SEMAP certification form within 60 calendar days after the end of its fiscal year. The certification must be approved by PHA board resolution and signed by the PHA executive director. If the PHA is a unit of local government or a state, a resolution approving the certification is not required, and the certification must be executed by the Section 8 program director.
PHAs with less than 250 voucher units are only required to be assessed every other PHA fiscal year. HUD will assess such PHAs annually if the PHA elects to have its performance assessed on an annual basis; or is designated as “troubled” [24 CFR 985.105].
Failure of a PHA to submit its SEMAP certification within the required time frame will result in an overall performance rating of “troubled.”
A PHA’s SEMAP certification is subject to HUD verification by an on‐site confirmatory review at any time.
Upon receipt of the PHA’s SEMAP certification, HUD will rate the PHA’s performance under each SEMAP indicator in accordance with program requirements.
HUD Verification Method
Several of the SEMAP indicators are scored based on a review of a quality control sample selected for this purpose. The PHA or the Independent Auditor must select an unbiased sample that provides an adequate representation of the types of information to be assessed, in accordance with SEMAP requirements [24 CFR 985.2].
If the HUD verification method for the indicator relies on data in the Form‐50058 module (formerly known as MTCS) in the PIH Information Center (PIC), and HUD determines that those data are insufficient to verify the PHA's certification on the indicator due to the PHA's failure to adequately report family data, HUD will assign a zero rating for the indicator [24 CFR 985.3]. 510
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐35 16‐V.C. SEMAP INDICATORS [24 CFR 985.3 and form HUD‐52648] The table below lists each of the SEMAP indicators, contains a description of each indicator, and explains the basis for points awarded under each indicator.
A PHA that expends less than $300,000 in Federal awards and whose Section 8 programs are not audited by an independent auditor, is not be rated under SEMAP indicators 1‐7.
SEMAP Indicators
Indicator 1: Selection from the waiting list
Maximum Score: 15
This indicator shows whether the PHA has written policies in its administrative plan for selecting applicants from the waiting list and whether the PHA follows these policies when selecting applicants for admission from the waiting list. Points are based on the percent of families that are selected from the waiting list in accordance with the PHA’s written policies, according to the PHA’s quality control sample.
Indicator 2: Rent reasonableness
Maximum Score: 20
This indicator shows whether the PHA has and implements a reasonable written method to determine and document for each unit leased that the rent to owner is reasonable based on current rents for comparable unassisted units Points are based on the percent of units for which the PHA follows its written method to determine reasonable rent and has documented its determination that the rent to owner is reasonable, according to the PHA’s quality control sample.
Indicator 3: Determination of adjusted income
Maximum Score: 20
This indicator measures whether the PHA verifies and correctly determines adjusted income for each assisted family, and where applicable, uses the appropriate utility allowances for the unit leased in determining the gross rent. Points are based on the percent of files that are calculated and verified correctly, according to the PHA’s quality control sample.
Indicator 4: Utility allowance schedule
Maximum Score: 5
This indicator shows whether the PHA maintains an up‐to‐date utility allowance schedule.
Points are based on whether the PHA has reviewed the utility allowance schedule and adjusted it when required, according to the PHA’s certification. 511
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐36 Indicator 5: HQS quality control inspections
Maximum Score: 5
This indicator shows whether a PHA supervisor reinspects a sample of units under contract during the PHA fiscal year, which meets the minimum sample size requirements for quality control of HQS inspections.
Points are based on whether the required quality control reinspections were completed, according to the PHA’s certification.
Indicator 6: HQS enforcement
Maximum Score: 10
This indicator shows whether, following each HQS inspection of a unit under contract where the unit fails to meet HQS, any cited life‐threatening deficiencies are corrected within 24 hours from the inspection and all other deficiencies are corrected within no more than 30 calendar days from the inspection or any PHA‐approved extension. Points are based on whether the PHA corrects all HQS deficiencies in accordance with required time frames, according to the PHA’s certification.
Indicator 7: Expanding housing opportunities
Maximum Points: 5
Only applies to PHAs with jurisdiction in metropolitan FMR areas. This indicator shows whether the PHA has adopted and implemented a written policy to encourage participation by owners of units located outside areas of poverty or minority concentration; informs voucher holders of the full range of areas where they may lease units both inside and outside the PHA’s jurisdiction; and supplies a list of landlords or other parties who are willing to lease units or help families find units, including units outside areas of poverty or minority concentration. Points are based on whether the PHA has adopted and implemented written policies in accordance with SEMAP requirements, according to the PHA’s certification.
Indicator 8: FMR limit and payment standards
Maximum Points: 5 points
This indicator shows whether the PHA has adopted a payment standard schedule that establishes payment standard amounts by unit size for each FMR area in the PHA’s jurisdiction, that are within the basic range of 90 to 110 percent of the published FMR. Points are based on whether the PHA has appropriately adopted a payment standard schedule(s), according to the PHA’s certification.
Indicator 9: Annual reexaminations
Maximum Points: 10
This indicator shows whether the PHA completes a reexamination for each participating family at least every 12 months.
Points are based on the percent of reexaminations that are more than 2 months overdue, according to data from PIC.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐37 Indicator 10: Correct tenant rent calculations
Maximum Points: 5
This indicator shows whether the PHA correctly calculates the family’s share of the rent to owner.
Points are based on the percent of correct calculations of family share of the rent, according to data from PIC.
Indicator 11: Pre‐contract HQS inspections
Maximum Points: 5
This indicator shows whether newly leased units pass HQS inspection on or before the effective date of the assisted lease and HAP contract.
Points are based on the percent of newly leased units that passed HQS inspection prior to the effective date of the lease and HAP contract, according to data from PIC.
Indicator 12: Annual HQS inspections
Maximum Points: 10
This indicator shows whether the PHA inspects each unit under contract at least annually.
Points are based on the percent of annual HQS inspections of units under contract that are more than 2 months overdue, according to data from PIC.
Indicator 13: Lease‐up
Maximum Points: 20 points
This indicator shows whether the PHA enters HAP contracts for at least 98 percent of the number of the PHA’s baseline voucher units in the ACC for the calendar year ending on or before the PHA’s fiscal year, or whether the PHA has expended at least 98 percent of its allocated budget authority for the same calendar year. The PHA can receive 15 points if 95 to 97 percent of vouchers are leased or budget authority is utilized.Points are based on utilization of vouchers and HAP expenditures as reported in the voucher management system (VMS) for the most recently completed calendar year.
Indicator 14: Family self‐sufficiency (FSS) enrollment and escrow account balances Maximum Points: 10
Only applies to PHAs with mandatory FSS programs.
This indicator shows whether the PHA has enrolled families in the FSS program as required, and measures the percent of current FSS participants that have had increases in earned income which resulted in escrow account balances. Points are based on the percent of mandatory FSS slots that are filled and the percent of families with escrow account balances, according to data from PIC. 513
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐38 Success Rate of Voucher Holders
Maximum Points: 5
Only applies to PHAs that have received approval to establish success rate payment standard amounts, and isn’t effective until the second full PHA fiscal year following the date of HUD approval of success rate payment standard amounts. This indicator shows whether voucher holders were successful in leasing units with voucher assistance.
Points are based on the percent of families that were issued vouchers, and that became participants in the voucher program.
De‐concentration Bonus Indicator
Maximum Points: 5
Submission of data for this indicator is mandatory for a PHA using one or more payment standard amount(s) that exceed(s) 100 percent of the published FMR set at the 50 percentile rent, starting with the second full PHA fiscal year following initial use of payment standard amounts based on the FMRs set at the 50th percentile. Additional points are available to PHAs that have jurisdiction in metropolitan FMR areas and that choose to submit the required data.
Points are based on whether the data that is submitted meets the requirements for bonus points.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐39 PART VI: RECORD KEEPING
16‐VI.A. OVERVIEW
The PHA must maintain complete and accurate accounts and other records for the program in accordance with HUD requirements, in a manner that permits a speedy and effective audit. All such records must be made available to HUD or the Comptroller General of the United States upon request.
In addition, the PHA must ensure that all applicant and participant files are maintained in a way that protects an individual’s privacy rights.
16‐VI.B. RECORD RETENTION [24 CFR 982.158]
During the term of each assisted lease, and for at least three years thereafter, the PHA must keep:
A copy of the executed lease;
The HAP contract; and
The application from the family.
In addition, the PHA must keep the following records for at least three years:
Records that provide income, racial, ethnic, gender, and disability status data on program applicants and participants;
An application from each ineligible family and notice that the applicant is not eligible; HUD‐required reports;
Unit inspection reports;
Lead‐based paint records as required by 24 CFR 35, Subpart B. Accounts and other records supporting PHA budget and financial statements for the program;
Records to document the basis for PHA determination that rent to owner is a reasonable rent (initially and during the term of a HAP contract); and Other records specified by HUD.
Notice PIH 2014‐20 requires PHAs to keep records of all complaints, investigations, notices, and corrective actions related to violations of the Fair Housing Act or the equal access final rule.
The PHA must keep confidential records of all emergency transfers requested by victims of domestic violence, dating violence, sexual assault, and stalking under the PHA’s Emergency Transfer Plan, as well as the outcomes of such requests, and retain the records for a period of three years [24 CFR 5.2002(e)(12)].
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐40 If an informal hearing to establish a family’s citizenship status is held, longer retention requirements apply for some types of documents. For specific requirements, see Section 16‐ III.D., Retention of Documents.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐41 16‐VI.C. RECORDS MANAGEMENT
PHAs must maintain applicant and participant files and information in accordance with the regulatory requirements described below.
HACSB Policy
All applicant and participant information will be kept in a secure location and access will be limited to authorized PHA staff.
PHA staff will not discuss personal family information unless there is a business reason to do so. Inappropriate discussion of family information or improper disclosure of family information by staff will result in disciplinary action.
Privacy Act Requirements [24 CFR 5.212 and Form‐9886]
The collection, maintenance, use, and dissemination of social security numbers (SSN), employer identification numbers (EIN), any information derived from these numbers, and income information of applicants and participants must be conducted, to the extent applicable, in compliance with the Privacy Act of 1974, and all other provisions of Federal, State, and local law.
Applicants and participants, including all adults in the household, are required to sign a consent form, HUD‐9886, Authorization for Release of Information. This form incorporates the Federal Privacy Act Statement and describes how the information collected using the form may be used, and under what conditions HUD or the PHA may release the information collected.
Upfront Income Verification (UIV) Records
PHAs that access UIV data through HUD’s Enterprise Income Verification (EIV) system are required to adopt and follow specific security procedures to ensure that all EIV data is protected in accordance with fFederal laws, regardless of the media on which the data is recorded (e.g. electronic, paper). These requirements are contained in the HUD issued document, Enterprise Income Verification (EIV) System, Security Procedures for Upfront Income Verification data.
HACSB Policy
Prior to utilizing HUD’s EIV system, the PHA will adopt and implement EIV security procedures required by HUD.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐42 Criminal Records
The PHA may only disclose the criminal conviction records which the PHA receives from a law enforcement agency to officers or employees of the PHA, or to authorized representatives of the PHA who have a job‐related need to have access to the information [24 CFR 5.903(e)].
The PHA must establish and implement a system of records management that ensures that any criminal record received by the PHA from a law enforcement agency is maintained confidentially, not misused or improperly disseminated, and destroyed, once the purpose for which the record was requested has been accomplished, including expiration of the period for filing a challenge to the PHA action without institution of a challenge or final disposition of any such litigation [24 CFR 5.903(g)].
The PHA must establish and implement a system of records management that ensures that any sex offender registration information received by the PHA from a State or local agency is maintained confidentially, not misused or improperly disseminated, and destroyed, once the purpose for which the record was requested has been accomplished, including expiration of the period for filing a challenge to the PHA action without institution of a challenge or final disposition of any such litigation. However, a record of the screening, including the type of screening and the date performed must be retained [Notice PIH 2012‐28]. This requirement does not apply to information that is public information, or is obtained by a PHA other than under 24 CFR 5.905.
Medical/Disability Records
PHAs are not permitted to inquire about the nature or extent of a person’s disability. The PHA may not inquire about a person’s diagnosis or details of treatment for a disability or medical condition. If the PHA receives a verification document that provides such information, the PHA should not place this information in the tenant file. The PHA should destroy the document.
Documentation of Domestic Violence, Dating Violence, Sexual Assault or Stalking For requirements and PHA policies related to management of documentation obtained from victims of domestic violence, dating violence, sexual assault or stalking, see section 16‐IX.E. 518
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐43 519 Item 6.
© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐44 PART VII: REPORTING AND RECORD KEEPING FOR CHILDREN WITH ELEVATED BLOOD LEAD LEVEL
16‐VII.A. OVERVIEW
The PHA has certain responsibilities relative to children with elevated blood lead levels that are receiving HCV assistance. The notification, verification, and hazard reduction requirements are discussed in Chapter 8. This part deals with the reporting requirements, and data collection and record keeping responsibilities that the PHA is subject to. 16‐VII.B. REPORTING REQUIREMENT [24 CFR 35.1225(e); Notice PIH 2017‐12] The owner must report the name and address of a child identified as having an elevated blood lead level to the public health department within five business days of being so notified by any other medical health care professional. The owner must also notify the HUD field office and the HUD Office of Lead Hazard Control and Healthy Homes (OLHCHH) of the child’s address within five business days. The PHA may collaborate with the owner on the notification process, such as by agreeing with the owner to provide the required notifications on the owner’s behalf.
HACSB Policy
The PHA will provide the public health department written notice of the name and address of any child identified as having an elevated blood lead level. 16‐VII.C. DATA COLLECTION AND RECORD KEEPING [24 CFR 35.1225(f)] At least quarterly, the PHA must attempt to obtain from the public health department(s) with a similar area of jurisdiction, the names and/or addresses of children less than 6 years old with an elevated blood lead level.
If the PHA obtains names and addresses of elevated blood lead level children from the public health department(s), the PHA must match this information with the names and addresses of families receiving HCV assistance, unless the public health department performs such a procedure. If a match occurs, the PHA must carry out the notification, verification, and hazard reduction requirements discussed in Chapter 8, and the reporting requirement discussed above.
At least quarterly, the PHA must also report an updated list of the addresses of units receiving assistance under the HCV program to the same public health department(s), unless the public health department(s) states that it does not wish to receive such a report.
HACSB Policy
The public health department(s) has stated they do not wish to receive a report of an updated list of the addresses of units receiving assistance under the HCV program, on a quarterly basis. Therefore, the PHA is not providing such a report. 520
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐45 521 Item 6.
© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐46 PART VIII: DETERMINATION OF INSUFFICIENT FUNDING
16‐VIII.A. OVERVIEW
The HCV regulations allow PHAs to deny families permission to move and to terminate Housing Assistance Payments (HAP) contracts if funding under the consolidated ACC is insufficient to support continued assistance [24 CFR 982.314(e)(1) and 982.454]. Insufficient funding may also impact the PHA’s ability to issue vouchers to families on the waiting list. This part discusses the methodology the PHA will use to determine whether or not the PHA has sufficient funding to issue vouchers, approve moves, and to continue subsidizing all families currently under a HAP contract.
16‐VIII.B. METHODOLOGY
HACSB Policy
The PHA will determine whether there is adequate funding to issue vouchers, approve moves to higher cost units and areas, and continue subsidizing all current participants by comparing the PHA’s annual budget authority to the annual total HAP needs on a monthly basis. The total HAP needs for the calendar year will be projected by establishing the actual HAP costs year to date. To that figure, the PHA will add anticipated HAP expenditures for the remainder of the calendar year. Projected HAP expenditures will be calculated by multiplying the projected number of units leased per remaining months by the most current month’s average HAP. The projected number of units leased per month will take into account the average monthly turnover of participant families. If the total annual HAP needs equal or exceed the annual budget authority, or if the PHA cannot support the cost of the proposed subsidy commitment (voucher issuance or move) based on the funding analysis, the PHA will be considered to have insufficient funding.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐47 523 Item 6.
© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐48 PART IX: VIOLENCE AGAINST WOMEN ACT (VAWA): NOTIFICATION, DOCUMENTATION,
CONFIDENTIALITY
16‐IX.A. OVERVIEW
The Violence against Women Act of 2013 (VAWA) provides special protections for victims of domestic violence, dating violence, sexual assault and stalking who are applying for or receiving assistance under the housing choice voucher (HCV) program. If your state or local laws provide greater protection for such victims, those laws take precedence over VAWA.
In addition to definitions of key terms used in VAWA, this part contains general VAWA requirements and PHA policies in three areas: notification, documentation, and confidentiality.
Specific VAWA requirements and PHA policies are located primarily in the following sections: 3‐ I.C, “Family Breakup and Remaining Member of Tenant Family”; 3‐III.G, “Prohibition against Denial of Assistance to Victims of Domestic Violence, Dating Violence, and Stalking”; 10‐I.A, “Allowable Moves”; 10‐I.B, “Restrictions on Moves”; 12‐II.E, “Terminations Related to Domestic Violence, Dating Violence, or Stalking”; and 12‐II.F, “Termination Notice.” 16‐IX.B. DEFINITIONS [24 CFR 5.2003]
As used in VAWA:
The term bifurcate means, with respect to a public housing or Section 8 lease, to divide a lease as a matter of law such that certain tenants can be evicted or removed while the remaining family members’ lease and occupancy rights are allowed to remain intact. The term dating violence means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim; and where the existence of such a relationship shall be determined based on a consideration of the following factors:
- The length of the relationship
- The type of relationship
- The frequency of interaction between the persons involved in the relationship The term domestic violence includes felony or misdemeanor crimes of violence committed by a current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐49 The term affiliated individual means, with respect to a person:
- A spouse, parent, brother or sister, or child of that individual, or an individual to whom that individual stands in the position or place of a parent; or - Any other individual, tenant or lawful occupant living in the household of that individual. The term sexual assault means:
- Any nonconsensual sexual act proscribed by federal, tribal, or state law, including when the victim lacks the capacity to consent
The term stalking means:
- To follow, pursue, or repeatedly commit acts with the intent to kill, injure, harass, or intimidate; or
- To place under surveillance with the intent to kill, injure, harass, or intimidate another person; and
- In the course of, or as a result of, such following, pursuit, surveillance, or repeatedly committed acts, to place a person in reasonable fear of the death of, or serious bodily injury to, or to cause substantial emotional harm to (1) that person, (2) a member of the immediate family of that person, or (3) the spouse or intimate partner of that person. 525
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐50 16‐IX.C. NOTIFICATION [24 CFR 5.2005(a)]
Notification to Public
The PHA adopts the following policy to help ensure that all actual and potential beneficiaries of its HCV program are aware of their rights under VAWA.
HACSB Policy
The PHA will post the following information regarding VAWA in its offices and on its Web site. It will also make the information readily available to anyone who requests it.
A summary of the rights and protections provided by VAWA to housing choice voucher program applicants and participants who are or have been victims of domestic violence, dating violence, sexual assault or stalking (see sample notices in Exhibits 16‐1 and 16‐2)
The definitions of domestic violence, dating violence, sexual assault and stalking provided in VAWA (included in Exhibits 16‐1 and 16‐2)
An explanation of the documentation that the PHA may require from an individual who claims the protections provided by VAWA (included in Exhibits 16‐1 and 16‐2)
A copy of form HUD‐50066, Certification of Domestic Violence, Dating Violence, or Stalking
A statement of the PHA’s obligation to keep confidential any information that it receives from a victim unless (a) the PHA has the victim’s written permission to release the information, (b) it needs to use the information in an eviction proceeding, or (c) it is compelled by law to release the information (included in Exhibits 16‐1 and 16‐2)
The National Domestic Violence Hot Line: 1‐800‐799‐SAFE (7233) or 1‐800‐787‐3224 (TTY) (included in Exhibits 16‐1 and 16‐2) Contact information for local victim advocacy groups or service providers 526
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐51 Notification to Program Applicants and Participants [24 CFR 5.2005(a)(1)] PHAs are required to inform program applicants and participants of their rights under VAWA, including their right to confidentiality and the limits thereof, when they are denied assistance, when they are admitted to the program, and when they are notified of an eviction or termination of housing benefits.
HACSB Policy
The PHA will provide all applicants with information outlining their rights under VAWA at the time they attend an eligibility interview for housing assistance and as part of the briefing packet. The PHA will also include information about VAWA in all notices of denial of assistance (see section 3‐III.G).
The PHA will provide all participants with information outlining their rights under VAWA at the time of admission (see section 5‐I.B). The PHA will also include information about VAWA in all notices of termination of assistance, as provided in section 12‐II.F.
The PHA will further provide information about VAWA to any applicant or participant who has possible domestic violence activity, police activity involving a domestic disturbance, other domestic disturbances, restraining orders, or related activity, prior to interviewing or questioning an applicant or participant about the related activity. If in the normal course of interviewing or questioning of police activity, disturbances or criminal activity it is revealed that there is a possible incident or activity related to a domestic disturbance, interviewing or questioning will temporarily stop, and the applicant or participant will be informed of their rights under VAWA before the interviewing or questioning resumes. Nothing in this section shall prohibit the PHA from questioning an applicant or participant regarding possible domestic violence activity, police activity involving a domestic disturbance, other domestic disturbances, restraining orders, or any other related or criminal activity.
The PHA is not limited to providing VAWA information at the times specified in the above policy. If the PHA decides to provide VAWA information to a participant following an incident of domestic violence, Notice PIH 2017‐08 cautions against sending the information by mail, since the abuser may be monitoring the mail. The notice recommends that in such cases the PHA make alternative delivery arrangements that will not put the victim at risk.
HACSB Policy
Whenever the PHA has reason to suspect that providing information about VAWA to a participant might place a victim of domestic violence at risk, it will attempt to deliver the information by hand directly to the victim or by having the victim come to an office or other space that may be safer for the individual, making reasonable accommodations as necessary. For example, the PHA may decide not to send mail regarding VAWA protections to the victim’s unit if the PHA believes the perpetrator may have access to the victim’s mail, unless requested by the victim.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐52 When discussing VAWA with the victim, the PHA will take reasonable precautions to ensure that no one can overhear the conversation, such as having conversations in a private room.
The victim may, but is not required to, designate an attorney, advocate, or other secure contact for communications regarding VAWA protections.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐53 Notification to Owners and Managers [24 CFR 5.2005(a)(2)] PHAs are required to notify owners and managers participating in the HCV program of their rights and obligations under VAWA.
HACSB Policy
The PHA will provide owners and managers with information about their rights and obligations under VAWA when they begin their participation in the HCV program.
The VAWA information provided to owners will consist of the notice in Exhibit 16‐2 and a copy of form HUD‐50066, Certification of Domestic Violence, Dating Violence, and Stalking.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐54 16‐IX.D. DOCUMENTATION [24 CFR 5.2007]
A PHA presented with a claim for initial or continued assistance based on status as a victim of domestic violence, dating violence, sexual assault, stalking, or criminal activity related to any of these forms of abuse may—but is not required to—request that the individual making the claim document the abuse. Any request for documentation must be in writing, and the individual must be allowed at least 14 business days after receipt of the request to submit the documentation. The PHA may extend this time period at its discretion. [24 CFR 5.2007(a)] The individual may satisfy the PHA’s request by providing any one of the following three forms of documentation [24 CFR 5.2007(b)]:
(1) A completed and signed HUD‐approved certification form (HUD‐50066, Certification of Domestic Violence, Dating Violence, or Stalking), which must include the name of the perpetrator only if the name of the perpetrator is safe to provide and is known to the victim. The form may be filled out and submitted on behalf of the victim. (2) A federal, state, tribal, territorial, or local police report or court record (3) Documentation signed by a person who has assisted the victim in addressing domestic violence, dating violence, sexual assault or stalking, or the effects of such abuse. This person may be an employee, agent, or volunteer of a victim service provider; an attorney; or a medical professional. Acceptable documentation also includes a record of an administrative agency, and documentation from a mental health professional. The person signing the documentation must attest under penalty of perjury to the person’s belief that the incidents in question are bona fide incidents of abuse. The victim must also sign the documentation.
The PHA may not require third‐party documentation (forms 2 and 3) in addition to certification (form 1), except as specified below under “Conflicting Documentation,” nor may it require certification in addition to third‐party documentation [VAWA final rule].
HACSB Policy
Any request for documentation of domestic violence, dating violence, sexual assault or stalking will specify a deadline of 14 business days following receipt of the request, will describe the three forms of acceptable documentation, will provide explicit instructions on where and to whom the documentation must be submitted, and will state the consequences for failure to submit the documentation or request an extension in writing by the deadline.
The PHA may, in its discretion, extend the deadline for 10 business days.
In determining whether to extend the deadline, the PHA will consider factors that may contribute to the victim’s inability to provide documentation in a timely manner, including cognitive limitations, disabilities, limited English proficiency, absence from the unit, administrative delays, the danger of further violence, and the victim’s need to address health or safety issues. Any extension granted by the PHA will be in writing. 530
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐55 Once the victim provides documentation, the PHA will acknowledge receipt of the documentation within 10 business days.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐56 532 Item 6.
© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐57 Conflicting Documentation [24 CFR 5.2007(e)]
In cases where the PHA receives conflicting certification documents from two or more members of a household, each claiming to be a victim and naming one or more of the other petitioning household members as the perpetrator, the PHA may determine which is the true victim by requiring each to provide acceptable third‐party documentation, as described above (forms 2 and 3). The PHA may also request third‐party documentation when submitted documentation contains information that conflicts with existing information already available to the PHA. Individuals have 30 calendar days to return third‐party verification to the PHA. If the PHA does not receive third‐party documentation, and the PHA will deny or terminate assistance as a result, the PHA must hold separate hearings for the tenants [Notice PIH 2017‐ 08].
HACSB Policy
If presented with conflicting certification documents from members of the same household, the PHA will attempt to determine which is the true victim by requiring each of them to provide third‐party documentation in accordance with 24 CFR 5.2007(e) and by following any HUD guidance on how such determinations should be made.
If the PHA does not receive third‐party documentation within the required timeframe (and any extensions) the PHA will deny VAWA protections and will notify the applicant or tenant in writing of the denial. If, as a result, the applicant or tenant is denied or terminated from the program, the PHA will hold separate hearings for the applicants or tenants.
Discretion to Require No Formal Documentation [24 CFR 5.2007(d)] The PHA has the discretion to provide benefits to an individual based solely on the individual’s statement or other corroborating evidence—i.e., without requiring formal documentation of abuse in accordance with 24 CFR 5.2007(b). HUD recommends documentation in a confidential manner when a verbal statement or other evidence is accepted.
HACSB Policy
If the PHA accepts an individual’s statement or other corroborating evidence of domestic violence, dating violence, sexual assault or stalking, the PHA will document acceptance of the statement or evidence in the individual’s file.
Failure to Provide Documentation [24 CFR 5.2007(c)]
In order to deny relief for protection under VAWA, a PHA must provide the individual requesting relief with a written request for documentation of abuse. If the individual fails to provide the documentation within 14 business days from the date of receipt, or such longer time as the PHA may allow, the PHA may deny relief for protection under VAWA. 16‐IX.E. CONFIDENTIALITY [24 CFR 5.2007(b)(4)]
533
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐58 All information provided to the PHA regarding domestic violence, dating violence, sexual assault or stalking, including the fact that an individual is a victim of such violence or stalking, must be retained in confidence. This means that the PHA (1) may not enter the information into any shared database, (2) may not allow employees or others to access the information unless they are explicitly authorized to do so and have a need to know the information for purposes of their work, and (3) may not provide the information to any other entity or individual, except to the extent that the disclosure is (a) requested or consented to by the individual in writing, (b) required for use in an eviction proceeding, or (c) otherwise required by applicable law.
HACSB Policy
If disclosure is required for use in an eviction proceeding or is otherwise required by applicable law, the PHA will inform the victim before disclosure occurs so that safety risks can be identified and addressed.
534
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐59 535 Item 6.
© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐60 EXHIBIT 16‐1: SAMPLE NOTICE OF OCCUPANCY RIGHTS UNDER THE VIOLENCE AGAINST WOMEN ACT, FORM HUD‐5380
[Insert Name of Housing Provider1]
Notice of Occupancy Rights under the Violence Against Women Act2 To all Tenants and Applicants
The Violence Against Women Act (VAWA) provides protections for victims of domestic violence, dating violence, sexual assault, or stalking. VAWA protections are not only available to women, but are available equally to all individuals regardless of sex, gender identity, or sexual orientation.3 The U.S. Department of Housing and Urban Development (HUD) is the Federal agency that oversees that the housing choice voucher program is in compliance with VAWA.
This notice explains your rights under VAWA. A HUD‐approved certification form is attached to this notice. You can fill out this form to show that you are or have been a victim of domestic violence, dating violence, sexual assault, or stalking, and that you wish to use your rights under VAWA.”
Protections for Applicants
If you otherwise qualify for assistance under the housing choice voucher program, you cannot be denied admission or denied assistance because you are or have been a victim of domestic violence, dating violence, sexual assault, or stalking.
2 Despite the name of this law, VAWA protection is available regardless of sex, gender identity, or sexual orientation.
3 Housing providers cannot discriminate on the basis of any protected characteristic, including race, color, national origin, religion, sex, familial status, disability, or age. HUD‐assisted and HUD‐insured housing must be made available to all otherwise eligible individuals regardless of actual or perceived sexual orientation, gender identity, or marital status.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐61 Protections for Tenants
If you are receiving assistance under the housing choice voucher program, you may not be denied assistance, terminated from participation, or be evicted from your rental housing because you are or have been a victim of domestic violence, dating violence, sexual assault, or stalking.
Also, if you or an affiliated individual of yours is or has been the victim of domestic violence, dating violence, sexual assault, or stalking by a member of your household or any guest, you may not be denied rental assistance or occupancy rights under the housing choice voucher program solely on the basis of criminal activity directly relating to that domestic violence, dating violence, sexual assault, or stalking.
Affiliated individual means your spouse, parent, brother, sister, or child, or a person to whom you stand in the place of a parent or guardian (for example, the affiliated individual is in your care, custody, or control); or any individual, tenant, or lawful occupant living in your household.
Removing the Abuser or Perpetrator from the Household
The PHA may divide (bifurcate) your lease in order to evict the individual or terminate the assistance of the individual who has engaged in criminal activity (the abuser or perpetrator) directly relating to domestic violence, dating violence, sexual assault, or stalking.
If the PHA chooses to remove the abuser or perpetrator, the PHA may not take away the rights of eligible tenants to the unit or otherwise punish the remaining tenants. If the evicted abuser or perpetrator was the sole tenant to have established eligibility for assistance under the program, the PHA must allow the tenant who is or has been a victim and other household members to remain in the unit for a period of time, in order to establish eligibility under the program or under another HUD housing program covered by VAWA, or, find alternative housing.
In removing the abuser or perpetrator from the household, the PHA must follow Federal, State, and local eviction procedures. In order to divide a lease, the PHA may, but is not required to, ask you for documentation or certification of the incidences of domestic violence, dating violence, sexual assault, or stalking.
537
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐62 Moving to Another Unit
Upon your request, the PHA may permit you to move to another unit, subject to the availability of other units, and still keep your assistance. In order to approve a request, the PHA may ask you to provide documentation that you are requesting to move because of an incidence of domestic violence, dating violence, sexual assault, or stalking. If the request is a request for emergency transfer, the housing provider may ask you to submit a written request or fill out a form where you certify that you meet the criteria for an emergency transfer under VAWA. The criteria are:
1. You are a victim of domestic violence, dating violence, sexual assault, or stalking.
If your housing provider does not already have documentation that you are a victim of domestic violence, dating violence, sexual assault, or stalking, your housing provider may ask you for such documentation, as described in the documentation section below.
2. You expressly request the emergency transfer. Your housing provider may choose to require that you submit a form, or may accept another written or oral request.
3. You reasonably believe you are threatened with imminent harm from further violence if you remain in your current unit. This means you have a reason to fear that if you do not receive a transfer you would suffer violence in the very near future.
OR
You are a victim of sexual assault and the assault occurred on the premises during the 90‐calendar‐day period before you request a transfer. If you are a victim of sexual assault, then in addition to qualifying for an emergency transfer because you reasonably believe you are threatened with imminent harm from further violence if you remain in your unit, you may qualify for an emergency transfer if the sexual assault occurred on the premises of the property from which you are seeking your transfer, and that assault happened within the 90‐ calendar‐day period before you expressly request the transfer. 538
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐63 The PHA will keep confidential requests for emergency transfers by victims of domestic violence, dating violence, sexual assault, or stalking, and the location of any move by such victims and their families.
The PHA’s emergency transfer plan provides further information on emergency transfers, and HP must make a copy of its emergency transfer plan available to you if you ask to see it.
Documenting You Are or Have Been a Victim of Domestic Violence, Dating Violence, Sexual Assault or Stalking
The PHA can, but is not required to, ask you to provide documentation to “certify” that you are or have been a victim of domestic violence, dating violence, sexual assault, or stalking. Such request from the PHA must be in writing, and the PHA must give you at least 14 business days (Saturdays, Sundays, and Federal holidays do not count) from the day you receive the request to provide the documentation. The PHA may, but does not have to, extend the deadline for the submission of documentation upon your request.
You can provide one of the following to the PHA as documentation. It is your choice which of the following to submit if the PHA asks you to provide documentation that you are or have been a victim of domestic violence, dating violence, sexual assault, or stalking. A complete HUD‐approved certification form given to you by the PHA with this notice, that documents an incident of domestic violence, dating violence, sexual assault, or stalking.
The form will ask for your name, the date, time, and location of the incident of domestic violence, dating violence, sexual assault, or stalking, and a description of the incident. The certification form provides for including the name of the abuser or perpetrator if the name of the abuser or perpetrator is known and is safe to provide. A record of a Federal, State, tribal, territorial, or local law enforcement agency, court, or administrative agency that documents the incident of domestic violence, dating violence, sexual assault, or stalking. Examples of such records include police reports, protective orders, and restraining orders, among others.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐64 A statement, which you must sign, along with the signature of an employee, agent, or volunteer of a victim service provider, an attorney, a medical professional or a mental health professional (collectively, “professional”) from whom you sought assistance in addressing domestic violence, dating violence, sexual assault, or stalking, or the effects of abuse, and with the professional selected by you attesting under penalty of perjury that he or she believes that the incident or incidents of domestic violence, dating violence, sexual assault, or stalking are grounds for protection. Any other statement or evidence that the PHA has agreed to accept.
If you fail or refuse to provide one of these documents within the 14 business days, the PHA does not have to provide you with the protections contained in this notice.
If the PHA receives conflicting evidence that an incident of domestic violence, dating violence, sexual assault, or stalking has been committed (such as certification forms from two or more members of a household each claiming to be a victim and naming one or more of the other petitioning household members as the abuser or perpetrator), the PHA has the right to request that you provide third‐party documentation within thirty 30 calendar days in order to resolve the conflict. If you fail or refuse to provide third‐party documentation where there is conflicting evidence, he PHA does not have to provide you with the protections contained in this notice.
Confidentiality
The PHA must keep confidential any information you provide related to the exercise of your rights under VAWA, including the fact that you are exercising your rights under VAWA.
The PHA must not allow any individual administering assistance or other services on behalf of the PHA (for example, employees and contractors) to have access to confidential information unless for reasons that specifically call for these individuals to have access to this information under applicable Federal, State, or local law.
540
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐65 The PHA must not enter your information into any shared database or disclose your information to any other entity or individual. The PHA, however, may disclose the information provided if:
You give written permission to HP to release the information on a time limited basis. The PHA needs to use the information in an eviction or termination proceeding, such as to evict your abuser or perpetrator or terminate your abuser or perpetrator from assistance under this program.
A law requires the PHA or your landlord to release the information.
VAWA does not limit the PHA’s duty to honor court orders about access to or control of the property. This includes orders issued to protect a victim and orders dividing property among household members in cases where a family breaks up.
Reasons a Tenant Eligible for Occupancy Rights under VAWA May Be Evicted or Assistance May Be Terminated
You can be evicted and your assistance can be terminated for serious or repeated lease violations that are not related to domestic violence, dating violence, sexual assault, or stalking committed against you. However, the PHA cannot hold tenants who have been victims of domestic violence, dating violence, sexual assault, or stalking to a more demanding set of rules than it applies to tenants who have not been victims of domestic violence, dating violence, sexual assault, or stalking.
The protections described in this notice might not apply, and you could be evicted and your assistance terminated, if the PHA can demonstrate that not evicting you or terminating your assistance would present a real physical danger that:
1. Would occur within an immediate time frame, and
2. Could result in death or serious bodily harm to other tenants or those who work on the property.
If the PHA can demonstrate the above, the PHA should only terminate your assistance or evict you if there are no other actions that could be taken to reduce or eliminate the threat. 541
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐66 Other Laws
VAWA does not replace any Federal, State, or local law that provides greater protection for victims of domestic violence, dating violence, sexual assault, or stalking. You may be entitled to additional housing protections for victims of domestic violence, dating violence, sexual assault, or stalking under other Federal laws, as well as under State and local laws.
Non‐Compliance with the Requirements of This Notice
You may report a covered housing provider’s violations of these rights and seek additional assistance, if needed, by contacting or filing a complaint with [insert contact information for any intermediary, if applicable] or [insert HUD field office].
For Additional Information
You may view a copy of HUD’s final VAWA rule at https://www.gpo.gov/fdsys/pkg/FR‐2016‐11‐ 16/pdf/2016‐25888.pdf.
Additionally, the PHA must make a copy of HUD’s VAWA regulations available to you if you ask to see them.
For questions regarding VAWA, please contact [insert name of program or rental assistance contact information able to answer questions on VAWA].
For help regarding an abusive relationship, you may call the National Domestic Violence Hotline at 1‐800‐799‐7233 or, for persons with hearing impairments, 1‐800‐787‐3224 (TTY). You may also contact [Insert contact information for relevant local organizations].
For tenants who are or have been victims of stalking seeking help may visit the National Center for Victims of Crime’s Stalking Resource Center at https://www.victimsofcrime.org/our‐ programs/stalking‐resource‐center.
For help regarding sexual assault, you may contact [Insert contact information for relevant organizations]
Victims of stalking seeking help may contact [Insert contact information for relevant organizations].
Attachment: Certification form HUD‐5382 [form approved for this program to be included] 542
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐67 543 Item 6.
© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐68 EXHIBIT 16‐2: CERTIFICATION OF DOMESTIC VIOLENCE, DATING VIOLENCE, SEXUAL ASSAULT,
OR STALKING AND ALTERNATE DOCUMENTATION,
FORM HUD‐5382
CERTIFICATION OF U.S. Department of Housing OMB Approval No. 2577‐0286 DOMESTIC VIOLENCE, and Urban Development Exp. 06/30/2017
DATING VIOLENCE,
SEXUAL ASSAULT, OR STALKING,
AND ALTERNATE DOCUMENTATION
Purpose of Form: The Violence Against Women Act (“VAWA”) protects applicants, tenants, and program participants in certain HUD programs from being evicted, denied housing assistance, or terminated from housing assistance based on acts of domestic violence, dating violence, sexual assault, or stalking against them. Despite the name of this law, VAWA protection is available to victims of domestic violence, dating violence, sexual assault, and stalking, regardless of sex, gender identity, or sexual orientation.
Use of This Optional Form: If you are seeking VAWA protections from your housing provider, your housing provider may give you a written request that asks you to submit documentation about the incident or incidents of domestic violence, dating violence, sexual assault, or stalking.
In response to this request, you or someone on your behalf may complete this optional form and submit it to your housing provider, or you may submit one of the following types of third‐ party documentation:
(1) A document signed by you and an employee, agent, or volunteer of a victim service provider, an attorney, or medical professional, or a mental health professional (collectively, “professional”) from whom you have sought assistance relating to domestic violence, dating violence, sexual assault, or stalking, or the effects of abuse. The document must specify, under penalty of perjury, that the professional believes the incident or incidents of domestic violence, dating violence, sexual assault, or stalking occurred and meet the definition of “domestic violence,” “dating violence,” “sexual assault,” or “stalking” in HUD’s regulations at 24 CFR 5.2003.
(2) A record of a Federal, State, tribal, territorial or local law enforcement agency, court, or administrative agency; or
(3) At the discretion of the housing provider, a statement or other evidence provided by the applicant or tenant.
Submission of Documentation: The time period to submit documentation is 14 business days from the date that you receive a written request from your housing provider asking that you provide documentation of the occurrence of domestic violence, dating violence, sexual assault, or stalking. Your housing provider may, but is not required to, extend the time period to submit the documentation, if you request an extension of the time period. If the requested information is not received within 14 business days of when you received the request for the documentation, or any extension of the date provided by your housing provider, your housing 544
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐69 provider does not need to grant you any of the VAWA protections. Distribution or issuance of this form does not serve as a written request for certification.
Confidentiality: All information provided to your housing provider concerning the incident(s) of domestic violence, dating violence, sexual assault, or stalking shall be kept confidential and such details shall not be entered into any shared database. Employees of your housing provider are not to have access to these details unless to grant or deny VAWA protections to you, and such employees may not disclose this information to any other entity or individual, except to the extent that disclosure is: (i) consented to by you in writing in a time‐limited release; (ii) required for use in an eviction proceeding or hearing regarding termination of assistance; or (iii) otherwise required by applicable law.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐70
TO BE COMPLETED BY OR ON BEHALF OF THE VICTIM OF DOMESTIC VIOLENCE, DATING
VIOLENCE, SEXUAL ASSAULT, OR STALKING
1. Date the written request is received by victim: ___________________________________
2. Name of victim: _____________________________________________________________
3. Your name (if different from victim’s): _______________________________________
4. Name(s) of other family member(s) listed on the lease: __________________ ____________________________________________________________________
5. Residence of victim:
________________________________________________________________
6. Name of the accused perpetrator (if known and can be safely disclosed):_______ ________________________________________________
7. Relationship of the accused perpetrator to the victim:_____________________________
8. Date(s) and times(s) of incident(s) (if known):___________________________________
10. Location of incident(s):_____________________________ _________________________ This is to certify that the information provided on this form is true and correct to the best of my knowledge and recollection, and that the individual named above in Item 2 is or has been a victim of domestic violence, dating violence, sexual assault, or stalking. I acknowledge that submission of false information could jeopardize program eligibility and could be the basis for denial of admission, termination of assistance, or eviction.
Signature __________________________________Signed on (Date) ___________________________
In your own words, briefly describe the incident(s):
______________________________________________________________________________________ ______________________________________________________________________________________ ______________________________________________________________________________________ 546
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐71 Public Reporting Burden: The public reporting burden for this collection of information is estimated to average 1 hour per response. This includes the time for collecting, reviewing, and reporting the data. The information provided is to be used by the housing provider to request certification that the applicant or tenant is a victim of domestic violence, dating violence, sexual assault, or stalking. The information is subject to the confidentiality requirements of VAWA.
This agency may not collect this information, and you are not required to complete this form, unless it displays a currently valid Office of Management and Budget control number. 547
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐72 EXHIBIT 16‐3: EMERGENCY TRANSFER PLAN FOR VICTIMS OF DOMESTIC VIOLENCE, DATING
VIOLENCE, SEXUAL ASSAULT, OR STALKING
Attachment: Certification form HUD‐5382
HOUSING AUTHORITY OF THE CITY OF SANTA BARBARA
Emergency Transfer Plan for Victims of Domestic Violence, Dating Violence, Sexual Assault, or Stalking
Housing Choice Voucher Program
Emergency Transfers
The PHA is concerned about the safety of its tenants, and such concern extends to tenants who are victims of domestic violence, dating violence, sexual assault, or stalking. In accordance with the Violence Against Women Act (VAWA),4 the PHA allows tenants who are victims of domestic violence, dating violence, sexual assault, or stalking to request an emergency transfer from the tenant’s current unit to another unit. The ability to request a transfer is available regardless of sex, gender identity, or sexual orientation.5 The ability of the PHA to honor such request for tenants currently receiving assistance, however, may depend upon a preliminary determination that the tenant is or has been a victim of domestic violence, dating violence, sexual assault, or stalking, and on whether the PHA has another dwelling unit that is available and is safe to offer the tenant for temporary or more permanent occupancy.
4 Despite the name of this law, VAWA protection is available to all victims of domestic violence, dating violence, sexual assault, and stalking, regardless of sex, gender identity, or sexual orientation. 5 Housing providers cannot discriminate on the basis of any protected characteristic, including race, color, national origin, religion, sex, familial status, disability, or age. HUD-assisted and HUD-insured housing must be made available to all otherwise eligible individuals regardless of actual or perceived sexual orientation, gender identity, or marital status.
548
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐73 This plan identifies tenants who are eligible for an emergency transfer, the documentation needed to request an emergency transfer, confidentiality protections, how an emergency transfer may occur, and guidance to tenants on safety and security. This plan is based on a model emergency transfer plan published by the U.S. Department of Housing and Urban Development (HUD), the federal agency that oversees that the Public Housing and Housing Choice Voucher (HCV) programs are in compliance with VAWA.
Eligibility for Emergency Transfers
A tenant who is a victim of domestic violence, dating violence, sexual assault, or stalking, as provided in HUD’s regulations at 24 CFR part 5, subpart L, is eligible for an emergency transfer if the tenant reasonably believes that there is a threat of imminent harm from further violence if the tenant remains within the same unit. If the tenant is a victim of sexual assault, the tenant may also be eligible to transfer if the sexual assault occurred on the premises within the 90‐ calendar‐ day period preceding a request for an emergency transfer.
A tenant requesting an emergency transfer must expressly request the transfer in accordance with the procedures described in this plan.
Tenants who are not in good standing may still request an emergency transfer if they meet the eligibility requirements in this section.
Emergency Transfer Request Documentation
To request an emergency transfer, the tenant shall notify the PHA’s management office and submit a written request for a transfer to any PHA office. The PHA will provide reasonable accommodations to this policy for individuals with disabilities. The tenant’s written request for an emergency transfer should include either:
1. A statement expressing that the tenant reasonably believes that there is a threat of imminent harm from further violence if the tenant were to remain in the same dwelling unit assisted under the PHA’s program; OR
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐74
2. A statement that the tenant was a sexual assault victim and that the sexual assault occurred on the premises during the 90‐calendar‐day period preceding the tenant’s request for an emergency transfer.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐75 Confidentiality
The PHA will keep confidential any information that the tenant submits in requesting an emergency transfer, and information about the emergency transfer, unless the tenant gives the PHA written permission to release the information on a time‐limited basis, or disclosure of the information is required by law or required for use in an eviction proceeding or hearing regarding termination of assistance from the covered program. This includes keeping confidential the new location of the dwelling unit of the tenant, if one is provided, from the person or persons that committed an act of domestic violence, dating violence, sexual assault, or stalking against the tenant. See the Notice of Occupancy Rights under the Violence against Women Act for All Tenants for more information about the PHA’s responsibility to maintain the confidentiality of information related to incidents of domestic violence, dating violence, sexual assault, or stalking.
Emergency Transfer Timing and Availability
The PHA cannot guarantee that a transfer request will be approved or how long it will take to process a transfer request. The PHA will, however, act as quickly as possible to move a tenant who is a victim of domestic violence, dating violence, sexual assault, or stalking to another unit, subject to availability and safety of a unit. If a tenant reasonably believes a proposed transfer would not be safe, the tenant may request a transfer to a different unit. If a unit is available, the transferred tenant must agree to abide by the terms and conditions that govern occupancy in the unit to which the tenant has been transferred. The PHA may be unable to transfer a tenant to a particular unit if the tenant has not or cannot establish eligibility for that unit.
If the PHA has no safe and available units for which a tenant who needs an emergency transfer is eligible, the PHA will assist the tenant in identifying other housing providers who may have safe and available units to which the tenant could move. At the tenant’s request, the PHA will also assist tenants in contacting the local organizations offering assistance to victims of domestic violence, dating violence, sexual assault, or stalking that are attached to this plan. 551
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐76 Emergency Transfers: Housing Choice Voucher (HCV) Program Tenant‐based assistance: If you are a participant in the tenant‐based HCV program and request an emergency transfer as described in this plan, the PHA will assist you to move to a safe unit quickly using your existing voucher assistance. The PHA will make exceptions to program regulations restricting moves as required.
At your request, the PHA will refer you to organizations that may be able to further assist you.
Project‐based assistance: If you are assisted under the project‐based voucher (PBV) program, you may request an emergency transfer under the following programs for which you are not required to apply:
Tenant‐based voucher, if available
Project‐based assistance in the same project (if a vacant unit is available and you determine that the vacant unit is safe)
Project‐based assistance in another development owned by the PHA Emergency transfers under VAWA will take priority over waiting list admissions for these types of assistance.
You may also request an emergency transfer under the following programs for which you are required to apply:
Public housing program
PBV assistance in another development not owned by the PHA [Insert other programs the PHA provides, such as LIHTC or HOME] Emergency transfers will not take priority over waiting list admissions for these programs. At your request, the PHA will refer you to organizations that may be able to further assist you. 552
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐77 Safety and Security of Tenants
Pending processing of the transfer and the actual transfer, if it is approved and occurs, the tenant is urged to take all reasonable precautions to be safe.
Tenants who are or have been victims of domestic violence are encouraged to contact the National Domestic Violence Hotline at 1‐800‐799‐7233, or a local domestic violence shelter, for assistance in creating a safety plan. For persons with hearing impairments, that hotline can be accessed by calling 1‐800‐787‐3224 (TTY).
Tenants who have been victims of sexual assault may call the Rape, Abuse, and Incest National Network’s National Sexual Assault Hotline at 1‐800‐656‐HOPE, or visit the online hotline at https://ohl.rainn.org/online/.
Tenants who are or have been victims of stalking seeking help may visit the National Center for Victims of Crime’s Stalking Resource Center at https://www.victimsofcrime.org/our‐ programs/stalking‐resource‐center.
Attachment: Local organizations offering assistance to victims of domestic violence, dating violence, sexual assault, or stalking.
553
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐78 554 Item 6.
© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐79 EXHIBIT 16‐4: EMERGENCY TRANSFER REQUEST FOR CERTAIN VICTIMS OF DOMESTIC VIOLENCE, DATING VIOLENCE, SEXUAL ASSAULT, OR STALKING, FORM HUD‐5383 EMERGENCY TRANSFER U.S. Department of Housing OMB Approval No. 2577‐ 0286
REQUEST FOR CERTAIN and Urban Development Exp. 06/30/2017
VICTIMS OF DOMESTIC
VIOLENCE, DATING VIOLENCE,
SEXUAL ASSAULT, OR STALKING
Purpose of Form: If you are a victim of domestic violence, dating violence, sexual assault, or stalking, and you are seeking an emergency transfer, you may use this form to request an emergency transfer and certify that you meet the requirements of eligibility for an emergency transfer under the Violence Against Women Act (VAWA). Although the statutory name references women, VAWA rights and protections apply to all victims of domestic violence, dating violence, sexual assault or stalking. Using this form does not necessarily mean that you will receive an emergency transfer. See your housing provider’s emergency transfer plan for more information about the availability of emergency transfers.
The requirements you must meet are:
(1) You are a victim of domestic violence, dating violence, sexual assault, or stalking. If your housing provider does not already have documentation that you are a victim of domestic violence, dating violence, sexual assault, or stalking, your housing provider may ask you for such documentation. In response, you may submit Form HUD‐5382, or any one of the other types of documentation listed on that Form.
(2) You expressly request the emergency transfer. Submission of this form confirms that you have expressly requested a transfer. Your housing provider may choose to require that you submit this form, or may accept another written or oral request. Please see your housing provider’s emergency transfer plan for more details.
(3) You reasonably believe you are threatened with imminent harm from further violence if you remain in your current unit. This means you have a reason to fear that if you do not receive a transfer you would suffer violence in the very near future.
OR
You are a victim of sexual assault and the assault occurred on the premises during the 90‐calendar‐day period before you request a transfer. If you are a victim of sexual assault, then in addition to qualifying for an emergency transfer because you reasonably believe you are threatened with imminent harm from further violence if you remain in your unit, you may qualify for an emergency transfer if the sexual assault occurred on the premises of the property from 555
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐80 which you are seeking your transfer, and that assault happened within the 90‐ calendar‐day period before you submit this form or otherwise expressly request the transfer.
Submission of Documentation: If you have third‐party documentation that demonstrates why you are eligible for an emergency transfer, you should submit that documentation to your housing provider if it is safe for you to do so. Examples of third party documentation include, but are not limited to: a letter or other documentation from a victim service provider, social worker, legal assistance provider, pastoral counselor, mental health provider, or other professional from whom you have sought assistance; a current restraining order; a recent court order or other court records; a law enforcement report or records; communication records from the perpetrator of the violence or family members or friends of the perpetrator of the violence, including emails, voicemails, text messages, and social media posts. 556
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐81 Confidentiality: All information provided to your housing provider concerning the incident(s) of domestic violence, dating violence, sexual assault, or stalking, and concerning your request for an emergency transfer shall be kept confidential. Such details shall not be entered into any shared database. Employees of your housing provider are not to have access to these details unless to grant or deny VAWA protections or an emergency transfer to you. Such employees may not disclose this information to any other entity or individual, except to the extent that disclosure is: (i) consented to by you in writing in a time‐limited release; (ii) required for use in an eviction proceeding or hearing regarding termination of assistance; or (iii) otherwise required by applicable law.
TO BE COMPLETED BY OR ON BEHALF OF THE PERSON REQUESTING A TRANSFER
1. Name of victim requesting an emergency transfer:
______________________________________
2. Your name (if different from
victim’s)_________________________________________________
3. Name(s) of other family member(s) listed on the
lease:____________________________________
______________________________________________________________________________ _____
4. Name(s) of other family member(s) who would transfer with the victim:____________________
______________________________________________________________________________ ______
5. Address of location from which the victim seeks to transfer:
_______________________________________
6. Address or phone number for contacting the
victim:____________________________________
7. Name of the accused perpetrator (if known and can be safely disclosed):___________________
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8. Relationship of the accused perpetrator to the
victim:___________________________________
9. Date(s), Time(s) and location(s) of
incident(s):___________________________________________ ______________________________________________________________________________ _______
10. Is the person requesting the transfer a victim of a sexual assault that occurred in the past 90 days on the premises of the property from which the victim is seeking a transfer? If yes, skip question 11. If no, fill out question 11. ______________
11. Describe why the victim believes they are threatened with imminent harm from further violence if they remain in their current unit.
______________________________________________________________________________ _____
______________________________________________________________________________ _______
12. If voluntarily provided, list any third‐party documentation you are providing along with this notice: ___________________________________________________________________ This is to certify that the information provided on this form is true and correct to the best of my knowledge, and that the individual named above in Item 1 meets the requirement laid out on this form for an emergency transfer. I acknowledge that submission of false information could jeopardize program eligibility and could be the basis for denial of admission, termination of assistance, or eviction.
Signature __________________________________Signed on (Date) ___________________________
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐84 EXHIBIT 16‐5: SAMPLE NOTICE TO HOUSING CHOICE VOUCHER OWNERS AND MANAGERS
REGARDING THE VIOLENCE AGAINST WOMEN ACT (VAWA)
This sample notice was adapted from a notice prepared by the National Housing Law Project.
A federal law that went into effect in 2013 protects individuals who are victims of domestic violence, dating violence, sexual assault, and stalking. The name of the law is the Violence against Women Act, or “VAWA.” This notice explains your obligations under VAWA.
Protections for Victims
You cannot refuse to rent to an applicant solely because he or she is or has been a victim of domestic violence, dating violence, sexual assault, or stalking.
You cannot evict a tenant who is or has been the victim of domestic violence, dating violence, sexual assault, or stalking based on acts or threats of violence committed against the victim.
Also, criminal acts directly related to the domestic violence, dating violence, sexual assault, or stalking that are caused by a household member or guest cannot be cause for evicting the victim of the abuse.
Permissible Evictions
You can evict a victim of domestic violence, dating violence, sexual assault, or stalking if you can demonstrate that there is an actual and imminent (immediate) threat to other tenants or employees at the property if the victim is not evicted. Also, you may evict a victim for serious or repeated lease violations that are not related to the domestic violence, dating violence, sexual assault, or stalking. You cannot hold a victim of domestic violence, dating violence, sexual assault, or stalking to a more demanding standard than you hold tenants who are not victims.
Removing the Abuser from the Household
You may bifurcate (split) the lease to evict a tenant who has committed criminal acts of violence against family members or others, while allowing the victim and other household members to stay in the unit. If you choose to remove the abuser, you may not take away the remaining tenants’ rights to the unit or otherwise punish the remaining tenants. In removing the abuser from the household, you must follow federal, state, and local eviction procedures. 560
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐85 Certification of Domestic Violence, Dating Violence, Sexual Assault, or Stalking If a tenant asserts VAWA’s protections, you can ask the tenant to certify that he or she is a victim of domestic violence, dating violence, sexual assault, or stalking. You are not required to demand official documentation and may rely upon the victim’s statement alone. If you choose to request certification, you must do so in writing and give the tenant at least 14 business days to provide documentation. You are free to extend this deadline. A tenant can certify that he or she is a victim by providing any one of the following three documents:
A completed, signed HUD‐approved certification form. The most recent form is HUD‐5382.
This form is available at the housing authority or online at https://portal.hud.gov/hudportal/documents/huddoc?id=5382.docx. A statement from a victim service provider, attorney, mental health professional, or medical professional who has helped the victim address incidents of domestic violence, dating violence, sexual assault, or stalking. The professional must state that he or she believes that the incidents of abuse are real. Both the victim and the professional must sign the statement under penalty of perjury.
A police or court record, such as a protective order, or administrative record.
If the tenant fails to provide one of these documents within 14 business days, you may evict the tenant if authorized by otherwise applicable law and lease provisions.
Confidentiality
You must keep confidential any information a tenant provides to certify that he or she is a victim of domestic violence, dating violence, sexual assault, or stalking. You cannot enter the information into a shared database or reveal it to outside entities unless:
The tenant provides written permission releasing the information. The information is required for use in an eviction proceeding, such as to evict the abuser. Release of the information is otherwise required by law.
The victim should inform you if the release of the information would put his or her safety at risk.
VAWA and Other Laws
VAWA does not limit your obligation to honor court orders regarding access to or control of the property. This includes orders issued to protect the victim and orders dividing property among household members in cases where a family breaks up.
VAWA does not replace any federal, state, or local law that provides greater protection for victims of domestic violence, dating violence, sexual assault, or stalking.
Additional Information
If you have any questions regarding VAWA, please contact ________________. 561
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 16‐86 Definitions
For purposes of determining whether a tenant may be covered by VAWA, the following list of definitions applies:
VAWA defines domestic violence to include felony or misdemeanor crimes of violence committed by any of the following:
A current or former spouse or intimate partner of the victim A person with whom the victim shares a child in common A person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner
A person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies
Any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction VAWA defines dating violence as violence committed by a person (1) who is or has been in a social relationship of a romantic or intimate nature with the victim AND (2) where the existence of such a relationship shall be determined based on a consideration of the following factors:
The length of the relationship
The type of relationship
The frequency of interaction between the persons involved in the relationship VAWA defines sexual assault as “any nonconsensual sexual act proscribed by federal, tribal, or state law, including when the victim lacks capacity to consent” (42 U.S.C. 13925(a)).
VAWA defines stalking as engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others, or suffer substantial emotional distress.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐1 Chapter 17
PROJECT‐BASED VOUCHERS
INTRODUCTION
This chapter describes HUD regulations and PHA policies related to the project‐based voucher (PBV) program and the Rental Assistance Demonstration Program (RAD) in ten parts:
Part I: General Requirements. This part describes general provisions of the PBV program including maximum budget authority requirements, relocation requirements, and equal opportunity requirements.
Part II: PBV Owner Proposals. This part includes policies related to the submission and selection of owner proposals for PBV assistance. It describes the factors the PHA will consider when selecting proposals, the type of housing that is eligible to receive PBV assistance, the cap on assistance at projects receiving PBV assistance, subsidy layering requirements, site selection standards, and environmental review requirements.
Part III: Dwelling Units. This part describes requirements related to housing quality standards, the type and frequency of inspections, and housing accessibility for persons with disabilities.
Part IV: Rehabilitated and Newly Constructed Units. This part describes requirements and policies related to the development and completion of rehabilitated and newly constructed housing units that will be receiving PBV assistance.
Part V: Housing Assistance Payments Contract. This part discusses HAP contract requirements and policies including the execution, term, and termination of the HAP contract. In addition, it describes how the HAP contract may be amended and identifies provisions that may be added to the HAP contract at the PHA’s discretion.
Part VI: Selection of PBV Program Participants. This part describes the requirements and policies governing how the PHA and the owner will select a family to receive PBV assistance.
Part VII: Occupancy. This part discusses occupancy requirements related to the lease, and describes under what conditions families are allowed or required to move. In addition, exceptions to the occupancy cap (which limits PBV assistance to 25 percent of the units in any project) are also discussed.
Part VIII: Determining Rent to Owner. This part describes how the initial rent to owner is determined, and how rent will be re‐determined throughout the life of the HAP contract. Rent reasonableness requirements are also discussed.
Part IX: Payments to Owner. This part describes the types of payments owners may receive under this program.
Part X: Rental Assistance Demonstration Program (RAD). This part outlines the requirements of the RAD program and HACSB policy for administering project‐based 564
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐3 PART I: GENERAL REQUIREMENTS
17‐I.A. OVERVIEW [24 CFR 983.5; FR Notice 1/18/17; Notice PIH 2017‐21] The project‐based voucher (PBV) program allows PHAs that already administer a tenant‐based voucher program under an annual contributions contract (ACC) with HUD to take up to 20 percent of its authorized units and attach the funding to specific units rather than using it for tenant‐based assistance [24 CFR 983.6]. PHAs may only operate a PBV program if doing so is consistent with the PHA’s Annual Plan, and the goal of deconcentrating poverty and expanding housing and economic opportunities [42 U.S.C. 1437f(o)(13)].
HACSB Policy
The PHA will operate a project‐based voucher program using up to 20 percent of its authorized units for project‐based assistance.
PBV assistance may be attached to existing housing or newly constructed or rehabilitated housing [24 CFR 983.52]. If PBV units are already selected for project‐based assistance either under an agreement to enter into HAP Contract (Agreement) or a HAP contract, the PHA is not required to reduce the number of these units if the amount of authorized units is subsequently reduced. However, the PHA is responsible for determining the amount of budget authority that is available for project‐based vouchers and ensuring that the amount of assistance that is attached to units is within the amounts available under the ACC, regardless of whether the PHA has vouchers available for project‐basing [FR Notice 1/18/17].
Additional Project‐Based Units [FR Notice 1/18/17; Notice PIH 2017‐21] The PHA may project‐base an additional 10 percent of its units above the 20 percent program limit. The units may be distributed among one, all, or a combination of the categories as long as the total number of units does not exceed the 10 percent cap. Units qualify under this exception if the units:
Are specifically made available to house individuals and families that meet the definition of homeless under section 103 of the McKinney‐Vento Homeless Assistance Act (42 U.S.C. 11302) and contained in the Continuum of Care Interim Rule at 24 CFR 578.3. Are specifically made available to house families that are comprised of or include a veteran. Veteran means an individual who has served in the United States Armed Forces. Provide supportive housing to persons with disabilities or elderly persons as defined in 24 CFR 5.403.
Are located in a census tract with a poverty rate of 20 percent or less, as determined in the most recent American Community Survey Five‐Year Estimates.
HACSB Policy
The PHA will set aside units above the 20 percent program limit. 566
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐4 Units Not Subject to the PBV Program Limitation [FR Notice 1/18/17] PBV units under the RAD program and HUD‐VASH PBV set‐aside vouchers do not count toward the 20 percent limitation when PBV assistance is attached to them.
In addition, units that were previously subject to certain federal rent restrictions or were receiving another type of long‐term housing subsidy provided by HUD are not subject to the cap. The unit must be covered under a PBV HAP contract that first became effective on or after 4/18/17.
HACSB Policy
The PHA will not project‐base units not subject to the 20 percent cap. 17‐I.B. TENANT‐BASED VS. PROJECT‐BASED VOUCHER ASSISTANCE [24 CFR 983.2] Much of the tenant‐based voucher program regulations also apply to the PBV program.
Consequently, many of the PHA policies related to tenant‐based assistance also apply to PBV assistance. The provisions of the tenant‐based voucher regulations that do not apply to the PBV program are listed at 24 CFR 983.2.
HACSB Policy
Except as otherwise noted in this chapter, or unless specifically prohibited by PBV program regulations, the PHA policies for the tenant‐based voucher program contained in this administrative plan also apply to the PBV program and its participants. 17‐I.C. RELOCATION REQUIREMENTS [24 CFR 983.7]
Any persons displaced as a result of implementation of the PBV program must be provided relocation assistance in accordance with the requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA)[42 U.S.C. 4201‐4655] and implementing regulations at 49 CFR part 24.
The cost of required relocation assistance may be paid with funds provided by the owner, local public funds, or funds available from other sources. PHAs may not use voucher program funds to cover relocation costs, except that PHAs may use their administrative fee reserve to pay for relocation expenses after all other program administrative expenses are satisfied, and provided that payment of the relocation benefits is consistent with state and local law. Use of the administrative fee for these purposes must also be consistent with other legal and regulatory requirements, including the requirement in 24 CFR 982.155 and other official HUD issuances.
The acquisition of real property for a PBV project is subject to the URA and 49 CFR part 24, subpart B. It is the responsibility of the PHA to ensure the owner complies with these requirements.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐5 17‐I.D. EQUAL OPPORTUNITY REQUIREMENTS [24 CFR 983.8]
The PHA must comply with all equal opportunity requirements under federal law and regulations in its implementation of the PBV program. This includes the requirements and authorities cited at 24 CFR 5.105(a). In addition, the PHA must comply with the PHA Plan certification on civil rights and affirmatively furthering fair housing, submitted in accordance with 24 CFR 903.7(o).
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐6 PART II: PBV OWNER PROPOSALS
17‐II.A. OVERVIEW
With certain exceptions, the PHA must describe the procedures for owner submission of PBV proposals and for PHA selection of PBV proposals [24 CFR 983.51]. Before selecting a PBV proposal, the PHA must determine that the PBV proposal complies with HUD program regulations and requirements, including a determination that the property is eligible housing [24 CFR 983.53 and 983.54], complies with the cap on the number of PBV units per project [24 CFR 983.56, FR Notice 11/24/08], and meets the site selection standards [24 CFR 983.57]. The PHA may not commit PBVs until or unless it has followed the proposal selection requirements defined in 24 CFR 983.51 [Notice PIH 2011‐54].
17‐II.B. OWNER PROPOSAL SELECTION PROCEDURES [24 CFR 983.51(b)] The PHA must select PBV proposals in accordance with the selection procedures in the PHA administrative plan. The PHA must select PBV proposals by either of the following two methods.
PHA request for PBV Proposals. The PHA may solicit proposals by using a request for proposals to select proposals on a competitive basis in response to the PHA request. The PHA may not limit proposals to a single site or impose restrictions that explicitly or practically preclude owner submission of proposals for PBV housing on different sites. The PHA may select proposals that were previously selected based on a competition. This may include selection of a proposal for housing assisted under a federal, state, or local government housing assistance program that was subject to a competition in accordance with the requirements of the applicable program, community development program, or supportive services program that requires competitive selection of proposals (e.g., HOME, and units for which competitively awarded LIHTCs have been provided), where the proposal has been selected in accordance with such program's competitive selection requirements within three years of the PBV proposal selection date, and the earlier competitive selection proposal did not involve any consideration that the project would receive PBV assistance.
The PHA need not conduct another competition.
Units Selected Non‐Competitively [FR Notice 1/18/17; Notice PIH 2017‐21] For certain public housing projects where the PHA has an ownership interest or control and will spend a minimum amount per unit on rehabilitation or construction, the PHA may select a project without following one of the two processes above.
HACSB Policy
The PHA may attach PBVs to projects owned by the PHA as described above. 569
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐7 Solicitation and Selection of PBV Proposals [24 CFR 983.51(c)] PHA procedures for selecting PBV proposals must be designed and actually operated to provide broad public notice of the opportunity to offer PBV proposals for consideration by the PHA.
The public notice procedures may include publication of the public notice in a local newspaper of general circulation and other means designed and actually operated to provide broad public notice. The public notice of the PHA request for PBV proposals must specify the submission deadline. Detailed application and selection information must be provided at the request of interested parties.
HACSB Policy
PHA Request for Proposals for Rehabilitated and Newly Constructed Units The PHA will advertise its request for proposals (RFP) for rehabilitated and newly constructed housing in local newspapers of general circulation and trade journals.
In addition, the PHA will post the RFP and proposal submission and rating and ranking procedures on its website.
The PHA will publish its advertisement in the newspapers and trade journals mentioned above for at least one day per week for three consecutive weeks. The advertisement will specify the number of units the PHA estimates that it will be able to assist under the funding the PHA is making available. Proposals will be due in the PHA office by close of business 30 calendar days from the date of the last publication.
In order for the proposal to be considered, the owner must submit the proposal to the PHA by the published deadline date, and the proposal must respond to all requirements as outlined in the RFP. Incomplete proposals will not be reviewed.
The PHA will rate and rank proposals for rehabilitated and newly constructed housing using the following criteria:
Owner experience and capability to build or rehabilitate housing as identified in the RFP;
Extent to which the project furthers the PHA goal of de‐concentrating poverty and expanding housing and economic opportunities;
If applicable, the extent to which services for special populations are provided on site or in the immediate area for occupants of the property; and Projects with less than 25 percent of the units assisted will be rated higher than projects with 25 percent of the units assisted. In the case of projects for occupancy by the elderly, persons with disabilities or families needing other services, the PHA will rate partially assisted projects on the percent of units assisted. Projects with the lowest percent of assisted units will receive the highest score.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐8 PHA Requests for Proposals for Existing Housing Units
The PHA will advertise its request for proposals (RFP) for existing housing in local newspapers of general circulation and trade journals
In addition, the PHA will post the notice inviting such proposal submission and the rating and ranking procedures on its website.
The PHA will periodically publish its advertisement in the newspapers and trade journals mentioned above for at least one day per week for three consecutive weeks. The advertisement will specify the number of units the PHA estimates that it will be able to assist under the funding the PHA is making available. Owner proposals will be accepted on a first‐come first‐served basis and will be evaluated using the following criteria:
Experience as an owner in the tenant‐based voucher program and owner compliance with the owner’s obligations under the tenant‐based program; Extent to which the project furthers the PHA goal of de‐concentrating poverty and expanding housing and economic opportunities;
If applicable, extent to which services for special populations are provided on site or in the immediate area for occupants of the property; and Extent to which units are occupied by families that are eligible to participate in the PBV program.
PHA Selection of Proposals Subject to a Previous Competition under a Federal, State, or Local Housing Assistance Program
The PHA will accept proposals for PBV assistance from owners that were competitively selected under another federal, state or local housing assistance program, including projects that were competitively awarded Low‐Income Housing Tax Credits on an ongoing basis.
The PHA may advertise its request for proposals (RFP) for rehabilitated and newly constructed housing in local newspapers of general circulation and trade journals.
In addition to, or in place of advertising, the PHA may also directly contact specific owners that have already been selected for Federal, state, or local housing assistance based on a previously held competition, to inform them of available PBV assistance.
Proposals will be reviewed on a first‐come first‐served basis. The PHA will evaluate each proposal on its merits using the following factors:
Extent to which the project furthers the PHA goal of de‐concentrating poverty and expanding housing and economic opportunities; and
Extent to which the proposal complements other local activities such as the redevelopment of a public housing site under the HOPE VI program, the HOME program, CDBG activities, other development activities in a HUD‐designated Enterprise Zone, Economic Community, or Renewal Community. 571
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐9 PHA‐owned Units [24 CFR 983.51(e). 983.59, , and FR Notice 1/18/17 and Notice PIH 2017‐21] A PHA‐owned unit may be assisted under the PBV program only if the HUD field office or HUD‐ approved independent entity reviews the selection process and determines that the PHA‐ owned units were appropriately selected based on the selection procedures specified in the PHA administrative plan. If the PHA selects a proposal for housing that is owned or controlled by the PHA, the PHA must identify the entity that will review the PHA proposal selection process and perform specific functions with respect to rent determinations and inspections.
In the case of PHA‐owned units, the term of the HAP contract and any HAP contract renewal must be agreed upon by the PHA and a HUD‐approved independent entity. In addition, an independent entity must determine the rent to owner, the redetermined rent to owner, and reasonable rent. Housing quality standards inspections must also be conducted by an independent entity.
The independent entity that performs these program services may be the unit of general local government for the PHA jurisdiction (unless the PHA is itself the unit of general local government or an agency of such government) or another HUD‐approved public or private independent entity.
HACSB Policy
The PHA may submit a proposal for project‐based housing that is owned or controlled by the PHA. If the proposal for PHA‐owned housing is selected, the PHA will use HUD’s Los Angeles Field Office or the City of Santa Barbara Community Development Department to review the PHA selection of the entity that will administer the PBV program rent determinations and inspections.
The PHA may only compensate the independent entity and appraiser from PHA ongoing administrative fee income (including amounts credited to the administrative fee reserve). The PHA may not use other program receipts to compensate the independent entity and appraiser for their services. The PHA, independent entity, and appraiser may not charge the family any fee for the appraisal or the services provided by the independent entity. 572
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐10 PHA Notice of Owner Selection [24 CFR 983.51(d)]
The PHA must give prompt written notice to the party that submitted a selected proposal and must also give prompt public notice of such selection. Public notice procedures may include publication of public notice in a local newspaper of general circulation and other means designed and actually operated to provide broad public notice.
HACSB Policy
Within 10 business days of the PHA making the selection, the PHA will notify the selected owner in writing of the owner’s selection for the PBV program. The PHA will also notify in writing all owners that submitted proposals that were not selected and advise such owners of the name of the selected owner.
In addition, the PHA will publish its notice for selection of PBV proposals for two consecutive days in the same newspapers and trade journals the PHA used to solicit the proposals. The announcement will include the name of the owner that was selected for the PBV program. The PHA will also post the notice of owner selection on its website.
The PHA will make available to any interested party its rating and ranking sheets and documents that identify the PHA basis for selecting the proposal. These documents will be available for review by the public and other interested parties for one month after publication of the notice of owner selection. The PHA will not make available sensitive owner information that is privileged, such as financial statements and similar information about the owner.
The PHA will make these documents available for review at the PHA during normal business hours. The cost for reproduction of allowable documents will be $.25 per page. 17‐II.C. HOUSING TYPE [24 CFR 983.52]
The PHA may attach PBV assistance for units in existing housing or for newly constructed or rehabilitated housing developed under and in accordance with an agreement to enter into a housing assistance payments contract that was executed prior to the start of construction. A housing unit is considered an existing unit for purposes of the PBV program, if, at the time of notice of PHA selection, the units substantially comply with HQS. Units for which new construction or rehabilitation began after the owner's proposal submission but prior to the execution of the HAP do not subsequently qualify as existing housing. Units that were newly constructed or rehabilitated in violation of program requirements also do not qualify as existing housing.
The PHA must decide what housing type, new construction, rehabilitation, or existing housing, will be used to develop project‐based housing. The PHA choice of housing type must be reflected in its solicitation for proposals.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐11 17‐II.D. PROHIBITION OF ASSISTANCE FOR CERTAIN UNITS
Ineligible Housing Types [24 CFR 983.53]
The PHA may not attach or pay PBV assistance to shared housing units; units on the grounds of a penal reformatory, medical, mental, or similar public or private institution; nursing homes or facilities providing continuous psychiatric, medical, nursing services, board and care, or intermediate care (except that assistance may be provided in assisted living facilities); units that are owned or controlled by an educational institution or its affiliate and are designated for occupancy by students; manufactured homes; and transitional housing. In addition, the PHA may not attach or pay PBV assistance for a unit occupied by an owner and the PHA may not select or enter into an agreement to enter into a HAP contract or HAP contract for a unit occupied by a family ineligible for participation in the PBV program. A member of a cooperative who owns shares in the project assisted under the PBV program is not considered an owner for purposes of participation in the PBV program. Finally, PBV assistance may not be attached to units for which construction or rehabilitation has started after the proposal submission and prior to the execution of an AHAP.
Subsidized Housing [24 CFR 983.54]
A PHA may not attach or pay PBV assistance to units in any of the following types of subsidized housing:
A public housing unit;
A unit subsidized with any other form of Section 8 assistance; A unit subsidized with any governmental rent subsidy; A unit subsidized with any governmental subsidy that covers all or any part of the operating costs of the housing;
A unit subsidized with Section 236 rental assistance payments (except that a PHA may attach assistance to a unit subsidized with Section 236 interest reduction payments); A Section 202 project for non‐elderly with disabilities; Section 811 project‐based supportive housing for persons with disabilities; Section 202 supportive housing for the elderly;
A Section 101 rent supplement project;
A unit subsidized with any form of tenant‐based rental assistance; A unit with any other duplicative federal, state, or local housing subsidy, as determined by HUD or the PHA in accordance with HUD requirements.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐12 17‐II.E. SUBSIDY LAYERING REQUIREMENTS [24 CFR 983.55, FR Notice 11/24/08, and FR Notice 7/9/10]
The PHA may provide PBV assistance only in accordance with HUD subsidy layering regulations [24 CFR 4.13] and other requirements.
The subsidy layering review is intended to prevent excessive public assistance by combining (layering) housing assistance payment subsidy under the PBV program with other governmental housing assistance from federal, state, or local agencies, including assistance such as tax concessions or tax credits.
Subsidy layering requirements do not apply to existing housing. A further subsidy layering review is not required for new construction or rehabilitation if HUD's designee has conducted a review that included a review of PBV assistance in accordance with the PBV subsidy layering guidelines.
The PHA must submit the necessary documentation to HUD for a subsidy layering review.
Except in cases of HAP contracts for existing structures, or if such reviews have been conducted by the applicable state and local agencies (defined by HUD as qualified housing credit agencies, or HCAs), the PHA may not enter into an agreement to enter into a HAP contract or a HAP contract until HUD, or an independent entity approved by HUD, has conducted any required subsidy layering review and determined that the PBV assistance is in accordance with HUD subsidy layering requirements. However, in order to satisfy applicable requirements, HCAs must conduct subsidy layering reviews in compliance with the guidelines set forth in the Federal Register notice published July 9, 2010.
The HAP contract must contain the owner's certification that the project has not received and will not receive (before or during the term of the HAP contract) any public assistance for acquisition, development, or operation of the housing other than assistance disclosed in the subsidy layering review in accordance with HUD requirements. 17‐II.F. CAP ON NUMBER OF PBV UNITS IN EACH PROJECT
25 Percent per Project Cap [24 CFR 983.56, FR Notice 1/18/17, and Notice PIH 2017‐21] In general, the PHA may not select a proposal to provide PBV assistance for units in a project or enter into an agreement to enter into a HAP or a HAP contract to provide PBV assistance for units in a project, if the total number of dwelling units in the project that will receive PBV assistance during the term of the PBV HAP contract is more than the greater of 25 units or 25 percent of the number of dwelling units (assisted or unassisted) in the project. 575
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐13 Exceptions to 25 Percent per Project Cap [FR Notice 1/18/17); Notice PIH 2017‐21] As of April 18, 2017, units are not counted against the 25 percent per project cap if:
The units are exclusively for elderly families
The units are for households eligible for supportive services available to all families receiving PBV assistance in the project
If the project is located in a census tract with a poverty rate of 20 percent or less, as determined in the most recent American Community Survey Five‐Year estimates, the project cap is the greater of 25 units or 40 percent (instead of 25 percent) of the unis in the project [FR Notice 7/14/17].
The Housing Opportunity Through Modernization Act of 2016 (HOTMA) eliminated the project cap exemption for projects that serve disabled families and modified the exception for supportive services. Projects where these caps were implemented prior to HOTMA (HAP Contracts executed prior to 4/18/17) may continue to use the former exceptions and may renew their HAP contracts under the old requirements, unless the PHA and owner agree to change the conditions of the HAP contract. However, this change may not be made if it would jeopardize an assisted family’s eligibility for continued assistance in the project.
Supportive Services
PHAs must include in the PHA administrative plan the type of services offered to families for a project to qualify for the exception and the extent to which such services will be provided. As of 4/18/17, the project must make supportive services available to all families receiving PBV assistance in the project, but the family does not actually have to accept and receive supportive services for the exception to apply to the unit. It is not necessary that the services be provided at or by the project, but must be reasonably available to families receiving PBV assistance at the project and designed to help families in the project achieve self‐sufficiency or live in the community as independently as possible. A PHA may not require participation in the supportive service as a condition of living in the excepted unit, although such services may be offered. If a family at the time of initial tenancy is receiving, and while the resident of an excepted unit has received, FSS supportive services or any other supportive services as defined in the PHA administrative plan, and successfully completes the FSS contract of participation or the supportive services requirement, the unit continues to count as an excepted unit for as long as the family resides in the unit.
HACSB Policy
The PHA will not require families living in excepted units to receive supportive services.
Families will be offered the opportunity to enroll in either FSS or the Supportive Services programs offered through HACSB’s Department of Resident Services, as a condition of occupancy. The Supportive Services program will differ from the FSS program in that the contract of participation will be a 3 year contract with no ability to escrow rent. All other workshops and opportunities offered through FSS will be afforded to families opting for the Supportive Services Program.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐14 Projects not Subject to a Project Cap [FR Notice 1/18/17; Notice PIH 2017‐21] PBV units that were previously subject to certain federal rent restrictions or receiving another type of long‐term housing subsidy provided by HUD are exempt from the project cap. In other words, 100 percent of the units in these projects may receive PBV assistance.
HACSB Policy
The PHA does not have any PBV units that are subject to the per project cap exception.
Promoting Partially‐Assisted Projects [24 CFR 983.56(c)] A PHA may establish local requirements designed to promote PBV assistance in partially assisted buildings. A partially assisted building is a building in which there are fewer units covered by a HAP contract than residential units [24 CFR 983.3].
A PHA may establish a per‐building cap on the number of units that will receive PBV assistance or other project‐based assistance in a multifamily building containing excepted units or in a single‐family building. A PHA may also determine not to provide PBV assistance for excepted units, or the PHA may establish a per‐building cap of less than 25 percent.
HACSB Policy:
Excepted units will be limited to units in Rental Assistance Demonstration (RAD) converted buildings and those made available for elderly or disabled families. The PHA will not impose any further cap on the number of PBV units assisted per building. 577
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐15 17‐II.G. SITE SELECTION STANDARDS
Compliance with PBV Goals, Civil Rights Requirements, and HQS Site Standards [24 CFR 983.57(b)]
The PHA may not select a proposal for existing, newly constructed, or rehabilitated PBV housing on a site or enter into an agreement to enter into a HAP contract or HAP contract for units on the site, unless the PHA has determined that PBV assistance for housing at the selected site is consistent with the goal of de‐concentrating poverty and expanding housing and economic opportunities. The standard for de‐concentrating poverty and expanding housing and economic opportunities must be consistent with the PHA Plan under 24 CFR 903 and the PHA administrative plan.
In addition, prior to selecting a proposal, the PHA must determine that the site is suitable from the standpoint of facilitating and furthering full compliance with the applicable Civil Rights Laws, regulations, and Executive Orders, and that the site meets the HQS site and neighborhood standards at 24 CFR 982.401(l).
HACSB Policy
It is the PHA goal to select sites for PBV housing that provide for de‐concentrating poverty and expanding housing and economic opportunities. In complying with this goal the PHA will limit approval of sites for PBV housing in census tracts that have poverty concentrations of 20 percent or less.
However, the PHA will grant exceptions to the 20 percent standard where the PHA determines that the PBV assistance will complement other local redevelopment activities designed to deconcentrate poverty and expand housing and economic opportunities in census tracts with poverty concentrations greater than 20 percent, such as sites in:
A census tract in which the proposed PBV development will be located in a HUD‐ designated Enterprise Zone, Economic Community, or Renewal Community; A census tract where the concentration of assisted units will be or has decreased as a result of public housing demolition and HOPE VI redevelopment; A census tract in which the proposed PBV development will be located is undergoing significant revitalization as a result of state, local, or federal dollars invested in the area;
A census tract where new market rate units are being developed where such market rate units will positively impact the poverty rate in the area; A census tract where there has been an overall decline in the poverty rate within the past five years; or
A census tract where there are meaningful opportunities for educational and economic advancement.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐16 Existing and Rehabilitated Housing Site and Neighborhood Standards [24 CFR 983.57(d)] The PHA may not enter into an agreement to enter into a HAP contract nor enter into a HAP contract for existing or rehabilitated housing until it has determined that the site complies with the HUD required site and neighborhood standards. The site must:
Be adequate in size, exposure, and contour to accommodate the number and type of units proposed;
Have adequate utilities and streets available to service the site; Promote a greater choice of housing opportunities and avoid undue concentration of assisted persons in areas containing a high proportion of low‐income persons; Be accessible to social, recreational, educational, commercial, and health facilities and services and other municipal facilities and services equivalent to those found in neighborhoods consisting largely of unassisted similar units; and Be located so that travel time and cost via public transportation or private automobile from the neighborhood to places of employment is not excessive.
New Construction Site and Neighborhood Standards [24 CFR 983.57(e)] In order to be selected for PBV assistance, a site for newly constructed housing must meet the following HUD required site and neighborhood standards:
The site must be adequate in size, exposure, and contour to accommodate the number and type of units proposed;
The site must have adequate utilities and streets available to service the site; The site must not be located in an area of minority concentration unless the PHA determines that sufficient, comparable opportunities exist for housing for minority families in the income range to be served by the proposed project outside areas of minority concentration or that the project is necessary to meet overriding housing needs that cannot be met in that housing market area;
The site must not be located in a racially mixed area if the project will cause a significant increase in the proportion of minority to non‐minority residents in the area. The site must promote a greater choice of housing opportunities and avoid undue concentration of assisted persons in areas containing a high proportion of low‐income persons;
The neighborhood must not be one that is seriously detrimental to family life or in which substandard dwellings or other undesirable conditions predominate; The housing must be accessible to social, recreational, educational, commercial, and health facilities and services and other municipal facilities and services equivalent to those found in neighborhoods consisting largely of unassisted similar units; and 579
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐17 Except for housing designed for elderly persons, the housing must be located so that travel time and cost via public transportation or private automobile from the neighborhood to places of employment is not excessive.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐18 17‐II.H. ENVIRONMENTAL REVIEW [24 CFR 983.58]
The PHA activities under the PBV program are subject to HUD environmental regulations in 24 CFR parts 50 and 58. The responsible entity is responsible for performing the federal environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). The PHA may not enter into an agreement to enter into a HAP contract nor enter into a HAP contract until it has complied with the environmental review requirements.
In the case of existing housing, the responsible entity that is responsible for the environmental review under 24 CFR part 58 must determine whether or not PBV assistance is categorically excluded from review under the National Environmental Policy Act and whether or not the assistance is subject to review under the laws and authorities listed in 24 CFR 58.5.
The PHA may not enter into an agreement to enter into a HAP contract or a HAP contract with an owner, and the PHA, the owner, and its contractors may not acquire, rehabilitate, convert, lease, repair, dispose of, demolish, or construct real property or commit or expend program or local funds for PBV activities under this part, until the environmental review is completed.
The PHA must supply all available, relevant information necessary for the responsible entity to perform any required environmental review for any site. The PHA must require the owner to carry out mitigating measures required by the responsible entity (or HUD, if applicable) as a result of the environmental review.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐19 PART III: DWELLING UNITS
17‐III.A. OVERVIEW
This part identifies the special housing quality standards that apply to the PBV program, housing accessibility for persons with disabilities, and special procedures for conducting housing quality standards inspections.
17‐III.B. HOUSING QUALITY STANDARDS [24 CFR 983.101]
The housing quality standards (HQS) for the tenant‐based program, including those for special housing types, generally apply to the PBV program. HQS requirements for shared housing, manufactured home space rental, and the homeownership option do not apply because these housing types are not assisted under the PBV program.
The physical condition standards at 24 CFR 5.703 do not apply to the PBV program.
Lead‐based Paint [24 CFR 983.101(c)]
The lead‐based paint requirements for the tenant‐based voucher program do not apply to the PBV program. Instead, The Lead‐based Paint Poisoning Prevention Act (42 U.S.C. 4821‐4846), the Residential Lead‐based Paint Hazard Reduction Act of 1992 (42 U.S.C. 4851‐4856), and implementing regulations at 24 CFR part 35, subparts A, B, H, and R, apply to the PBV program. 17‐III.C. HOUSING ACCESSIBILITY FOR PERSONS WITH DISABILITIES The housing must comply with program accessibility requirements of section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing regulations at 24 CFR part 8. The PHA must ensure that the percentage of accessible dwelling units complies with the requirements of section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), as implemented by HUD's regulations at 24 CFR 8, subpart C.
Housing first occupied after March 13, 1991, must comply with design and construction requirements of the Fair Housing Amendments Act of 1988 and implementing regulations at 24 CFR 100.205, as applicable. (24 CFR 983.102)
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐20 17‐III.D. INSPECTING UNITS
Pre‐selection Inspection [24 CFR 983.103(a)]
The PHA must examine the proposed site before the proposal selection date. If the units to be assisted already exist, the PHA must inspect all the units before the proposal selection date, and must determine whether the units substantially comply with HQS on the proposal selection date. However, the PHA may not execute the HAP contract until the units fully comply with HQS.
Pre‐HAP Contract Inspections [24 CFR 983.103(b)]
The PHA must inspect each contract unit before execution of the HAP contract. The PHA may not enter into a HAP contract covering a unit until the unit fully complies with HQS.
Turnover Inspections [24 CFR 983.103(c), FR Notice 1/18/17, and Notice PIH 2017‐20] Before providing assistance to a new family in a contract unit, the PHA must inspect the unit.
The PHA may not provide assistance on behalf of the family until the unit fully complies with HQS, unless the PHA has adopted a policy to enter into a HAP contract for units that fail the initial HQS inspection as a result of only non‐life‐threatening conditions or if the unit passed an alternative inspection.
HACSB Policy
The PHA will not provide assistance in turnover units until the unit fully complies with HQS.
Annual/Biennial Inspections [24 CFR 983.103(d); FR Notice 6/25/14] At least once every 24 months during the term of the HAP contract, the PHA must inspect a random sample consisting of at least 20 percent of the contract units in each building to determine if the contract units and the premises are maintained in accordance with HQS.
Turnover inspections are not counted toward meeting this inspection requirement.
HACSB Policy
The PHA will inspect on a biennial basis 100 percent of the contract units in each building to determine if the contract units and the premises are maintained in accordance with HQS. Inspections will be completed in accordance with the policies for the tenant‐based program in Chapter 8.
If more than 20 percent of the annual sample of inspected contract units in a building fails the initial inspection, the PHA must re‐inspect 100 percent of the contract units in the building.
Other Inspections [24 CFR 983.103(e)]
The PHA must inspect contract units whenever needed to determine that the contract units comply with HQS and that the owner is providing maintenance, utilities, and other services in accordance with the HAP contract. The PHA must take into account complaints and any other information coming to its attention in scheduling inspections. 583
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐21 The PHA must conduct follow‐up inspections needed to determine if the owner (or, if applicable, the family) has corrected an HQS violation, and must conduct inspections to determine the basis for exercise of contractual and other remedies for owner or family violation of HQS.
In conducting PHA supervisory quality control HQS inspections, the PHA should include a representative sample of both tenant‐based and project‐based units.
Inspecting PHA‐owned Units [24 CFR 983.103(f)]
In the case of PHA‐owned units, the inspections must be performed by an independent agency designated by the PHA and approved by HUD. The independent entity must furnish a copy of each inspection report to the PHA and to the HUD field office where the project is located. The PHA must take all necessary actions in response to inspection reports from the independent agency, including exercise of contractual remedies for violation of the HAP contract by the PHA‐ owner.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐22 PART IV: REHABILITATED AND NEWLY CONSTRUCTED UNITS
17‐IV.A. OVERVIEW [24 CFR 983.151]
There are specific requirements that apply to PBV assistance for newly constructed or rehabilitated housing that do not apply to PBV assistance in existing housing. This part describes the requirements unique to this type of assistance.
Housing selected for this type of assistance may not at a later date be selected for PBV assistance as existing housing.
17‐IV.B. AGREEMENT TO ENTER INTO HAP CONTRACT
In order to offer PBV assistance in rehabilitated or newly constructed units, the PHA must enter into an agreement to enter into HAP contract (Agreement) with the owner of the property. The Agreement must be in the form required by HUD [24 CFR 983.152(b)]. The PHA may not enter into an Agreement if commencement of construction or rehabilitation has commenced after proposal submission [24 CFR 983.152(c)]. Construction begins when excavation or site preparation (including clearing of the land) begins for the housing. Rehabilitation begins with the physical commencement of rehabilitation activity on the housing.
In the Agreement the owner agrees to develop the PBV contract units to comply with HQS, and the PHA agrees that upon timely completion of such development in accordance with the terms of the Agreement, the PHA will enter into a HAP contract with the owner for the contract units [24 CFR 983.152(a)].
Content of the Agreement [24 CFR 983.152(c)]
At a minimum, the Agreement must describe the following features of the housing to be developed and assisted under the PBV program:
Site and the location of the contract units;
Number of contract units by area (size) and number of bedrooms and bathrooms; Services, maintenance, or equipment to be supplied by the owner without charges in addition to the rent;
Utilities available to the contract units, including a specification of utility services to be paid by the owner and utility services to be paid by the tenant; An indication of whether or not the design and construction requirements of the Fair Housing Act and section 504 of the Rehabilitation Act of 1973 apply to units under the Agreement. If applicable, any required work item resulting from these requirements must be included in the description of work to be performed under the Agreement; Estimated initial rents to owner for the contract units; Description of the work to be performed under the Agreement. For rehabilitated units, the description must include the rehabilitation work write up and, where determined necessary 585
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐23 by the PHA, specifications and plans. For new construction units, the description must include the working drawings and specifications.
Any additional requirements for quality, architecture, or design over and above HQS.
Execution of the Agreement [24 CFR 983.153]
The Agreement must be executed promptly after PHA notice of proposal selection to the selected owner. Generally, the PHA may not enter into the Agreement with the owner until the subsidy layering review is completed. Likewise, the PHA may not enter into the Agreement until the environmental review is completed and the PHA has received environmental approval.
However, the PHA does not need to conduct a subsidy layering review in the case of a HAP contract for an existing structure or if the applicable state or local agency has conducted such a review. Similarly, environmental reviews are not required for existing structures unless otherwise required by law or regulation.
HACSB Policy
The PHA will enter into the Agreement with the owner within 10 business days of receiving both environmental approval and notice that subsidy layering requirements have been met, and before construction or rehabilitation work is started. 17‐IV.C. CONDUCT OF DEVELOPMENT WORK
Labor Standards [24 CFR 983.154(b)]
If an Agreement covers the development of nine or more contract units (whether or not completed in stages), the owner and the owner’s contractors and subcontractors must pay Davis‐Bacon wages to laborers and mechanics employed in the development of housing. The HUD‐prescribed form of the Agreement will include the labor standards clauses required by HUD, such as those involving Davis‐Bacon wage rates.
The owner, contractors, and subcontractors must also comply with the Contract Work Hours and Safety Standards Act, Department of Labor regulations in 29 CFR part 5, and other applicable federal labor relations laws and regulations. The PHA must monitor compliance with labor standards.
Equal Opportunity [24 CFR 983.154(c)]
The owner must comply with Section 3 of the Housing and Urban Development Act of 1968 and the implementing regulations at 24 CFR part 135. The owner must also comply with federal equal employment opportunity requirements.
Owner Disclosure [24 CFR 983.154(d) and (e)]
The Agreement and HAP contract must include a certification by the owner that the owner and other project principals are not on the U.S. General Services Administration list of parties excluded from federal procurement and non‐procurement programs.
The owner must also disclose any possible conflict of interest that would be a violation of the Agreement, the HAP contract, or HUD regulations.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐24 17‐IV.D. COMPLETION OF HOUSING
The Agreement must specify the deadlines for completion of the housing, and the owner must develop and complete the housing in accordance with these deadlines. The Agreement must also specify the deadline for submission by the owner of the required evidence of completion.
Evidence of Completion [24 CFR 983.155(b)]
At a minimum, the owner must submit the following evidence of completion to the PHA in the form and manner required by the PHA:
Owner certification that the work has been completed in accordance with HQS and all requirements of the Agreement; and
Owner certification that the owner has complied with labor standards and equal opportunity requirements in development of the housing.
At the PHA’s discretion, the Agreement may specify additional documentation that must be submitted by the owner as evidence of housing completion.
HACSB Policy
The PHA will determine the need for the owner to submit additional documentation as evidence of housing completion on a case‐by‐case basis depending on the nature of the PBV project. The PHA will specify any additional documentation requirements in the Agreement to enter into HAP contract.
PHA Acceptance of Completed Units [24 CFR 983.156]
Upon notice from the owner that the housing is completed, the PHA must inspect to determine if the housing has been completed in accordance with the Agreement, including compliance with HQS and any additional requirements imposed under the Agreement. The PHA must also determine if the owner has submitted all required evidence of completion.
If the work has not been completed in accordance with the Agreement, the PHA must not enter into the HAP contract.
If the PHA determines the work has been completed in accordance with the Agreement and that the owner has submitted all required evidence of completion, the PHA must submit the HAP contract for execution by the owner and must then execute the HAP contract. 587
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐25 PART V: HOUSING ASSISTANCE PAYMENTS CONTRACT (HAP)
17‐V.A. OVERVIEW
The PHA must enter into a HAP contract with an owner for units that are receiving PBV assistance. The purpose of the HAP contract is to provide housing assistance payments for eligible families. Housing assistance is paid for contract units leased and occupied by eligible families during the HAP contract term. With the exception of single‐family scattered‐site projects, a HAP contract shall cover a single project. If multiple projects exist, each project is covered by a separate HAP contract. The HAP contract must be in the form required by HUD [24 CFR 983.202(a)].
17‐V.B. HAP CONTRACT REQUIREMENTS
Contract Information [24 CFR 983.203]
The HAP contract must specify the following information:
The total number of contract units by number of bedrooms; The project’s name, street address, city or county, state and zip code, block and lot number (if known), and any other information necessary to clearly identify the site and the building; The number of contract units in each building, the location of each contract unit, the area of each contract unit, and the number of bedrooms and bathrooms in each contract unit; Services, maintenance, and equipment to be supplied by the owner and included in the rent to owner;
Utilities available to the contract units, including a specification of utility services to be paid by the owner (included in rent) and utility services to be paid by the tenant; Features provided to comply with program accessibility requirements of Section 504 of the Rehabilitation Act of 1973 and implementing regulations at 24 CFR part 8; The HAP contract term;
The number of units in any project that will exceed the 25 percent per project cap, which will be set‐aside for occupancy by qualifying families; and The initial rent to owner for the first 12 months of the HAP contract term. 588
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐26 Execution of the HAP Contract [24 CFR 983.204]
The PHA may not enter into a HAP contract until each contract unit has been inspected and the PHA has determined that the unit complies with the Housing Quality Standards (HQS) ), unless the PHA has adopted a policy to enter into a HAP contract for units that fail the initial HQS inspection as a result of only non‐life‐threatening conditions. For existing housing, the HAP contract must be executed promptly after the PHA selects the owner proposal and inspects the housing units. For newly constructed or rehabilitated housing the HAP contract must be executed after the PHA has inspected the completed units and has determined that the units have been completed in accordance with the agreement to enter into HAP, and the owner furnishes all required evidence of completion.
HACSB Policy
For existing housing, the HAP contract will be executed within 10 business days of the PHA determining that all units pass HQS.
For rehabilitated or newly constructed housing, the HAP contract will be executed within 10 business days of the PHA determining that the units have been completed in accordance with the agreement to enter into HAP, all units meet HQS, and the owner has submitted all required evidence of completion.
Term of HAP Contract [24 CFR 983.205; FR Notice 1/18/17, and Notice PIH 2017‐21] The PHA may enter into a HAP contract with an owner for an initial term of no less than one year and no more than 20 years for each contract unit. The length of the term of the HAP contract for any contract unit may not be less than one year, nor more than 20 years. In the case of PHA‐owned units, the term of the HAP contract must be agreed upon by the PHA and the independent entity approved by HUD [24 CFR 983.59(b)(2)].
HACSB Policy
The term of all PBV HAP contracts will be negotiated with the owner on a case‐by‐case basis.
At the time of the initial HAP contract term or any time before expiration of the HAP contract, the PHA may extend the term of the contract for an additional term of up to 20 years if the PHA determines an extension is appropriate to continue providing affordable housing for low‐ income families. A HAP contract extension may not exceed 20 years. A PHA may provide for multiple extensions; however, in no circumstances may such extensions exceed 20 years, cumulatively. Extensions after the initial extension are allowed at the end of any extension term, provided that not more than 24 months prior to the expiration of the previous extension contract the PHA agrees to extend the term, and that such extension is appropriate to continue providing affordable housing for low‐income families or to expand housing opportunities.
Extensions after the initial extension term shall not begin prior to the expiration date of the previous extension term. Subsequent extensions are subject to the same limitations. All extensions must be on the form and subject to the conditions prescribed by HUD at the time of the extension. In the case of PHA‐owned units, any extension of the term of the HAP contract 589
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐27 must be agreed upon by the PHA and the independent entity approved by HUD [24 CFR 983.59(b)(2)].
HACSB Policy
When determining whether or not to extend an expiring PBV contract, the PHA will consider several factors including, but not limited to:
The cost of extending the contract and the amount of available budget authority; The condition of the contract units;
The owner’s record of compliance with obligations under the HAP contract and lease(s);
Whether the location of the units continues to support the goals of de‐ concentrating poverty and expanding housing opportunities; and Whether the funding could be used more appropriately for tenant‐based assistance or for other PBV contracts.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐28 Termination by PHA [24 CFR 983.205(c) and FR Notice 1/18/17] The HAP contract must provide that the term of the PHA’s contractual commitment is subject to the availability of sufficient appropriated funding as determined by HUD or by the PHA in accordance with HUD instructions. For these purposes, sufficient funding means the availability of appropriations, and of funding under the ACC from such appropriations, to make full payment of housing assistance payments payable to the owner for any contract year in accordance with the terms of the HAP contract.
In times of insufficient funding, HUD requires that PHAs first take all cost‐saving measures prior to failing to make payments under existing PBV HAP contracts.
If it is determined that there may not be sufficient funding to continue housing assistance payments for all contract units and for the full term of the HAP contract, the PHA may terminate the HAP contract by notice to the owner. The termination must be implemented in accordance with HUD instructions.
Termination by Owner [24 CFR 983.205(d)]
If in accordance with program requirements the amount of rent to an owner for any contract unit is reduced below the amount of the rent to owner at the beginning of the HAP contract term, the owner may terminate the HAP contract by giving notice to the PHA. In this case, families living in the contract units must be offered tenant‐based assistance.
Statutory Notice Requirements: Contract Termination or Expiration [24 CFR 983.206; FR Notice 1/18/17, and Notice PIH 2017‐21]
Not less than one year before the HAP contract terminates, or if the owner refuses to renew the HAP contract, the owner must notify the PHA and assisted tenants of the termination. The notice must be provided in the form prescribed by HUD. If the owner does not give timely notice, the owner must permit the tenants in assisted units to remain in their units for the required notice period with no increase in the tenant portion of their rent, and with no eviction as a result of the owner's inability to collect an increased tenant portion of rent. An owner may renew the terminating contract for a period of time sufficient to give tenants one‐year advance notice under such terms as HUD may require.
Upon termination or expiration of the contract, a family living at the property is entitled to receive a tenant‐based voucher. Tenant‐based assistance would not begin until the owner’s required notice period ends. The PHA must provide the family with a voucher and the family must also be given the option by the PHA and owner to remain in their unit with HCV tenant‐ based assistance as long as the unit complies with inspection and rent reasonableness requirements. The family must pay their total tenant payment (TTP) and any additional amount if the gross rent exceeds the applicable payment standard. The family has the right to remain in the project as long as the units are used for rental housing and are otherwise eligible for HCV assistance. The owner may not terminate the tenancy of a family that exercises its right to remain except for serious or repeated lease violations or other good cause. Families that receive a tenant‐based voucher at the expiration or termination of the PBV HAP contract are not new admissions to the PHA HCV tenant‐based program, and are not subject to income 591
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐29 eligibility requirements or any other admission requirements. If the family chooses to remain in their unit with tenant‐based assistance, the family may do so regardless of whether the family share would initially exceed 40 percent of the family’s adjusted monthly income.
Remedies for HQS Violations [24 CFR 983.208(b)]
The PHA may not make any HAP payment to the owner for a contract unit during any period in which the unit does not comply with HQS. If the PHA determines that a contract does not comply with HQS, the PHA may exercise any of its remedies under the HAP contract, for any or all of the contract units. Available remedies include termination of housing assistance payments, abatement or reduction of housing assistance payments, reduction of contract units, and termination of the HAP contract.
HACSB Policy
The PHA will abate and terminate PBV HAP contracts for non‐compliance with HQS in accordance with the policies used in the tenant‐based voucher program. These policies are contained in Section 8‐II.G., Enforcing Owner Compliance. 592
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐30 17‐V.C. AMENDMENTS TO THE HAP CONTRACT
Substitution of Contract Units [24 CFR 983.207(a)]
At the PHA’s discretion and subject to all PBV requirements, the HAP contract may be amended to substitute a different unit with the same number of bedrooms in the same building for a previously covered contract unit. Before any such substitution can take place, the PHA must inspect the proposed unit and determine the reasonable rent for the unit.
Addition of Contract Units [FR Notice 1/18/17 and Notice PIH 2017‐21] The PHA and owner may amend the HAP contract to add additional PBV contract units in projects that already have a HAP contract without having to fulfill the selection requirements found at 24 CFR 983.51(b) for those additional PBV units, regardless of when the HAP contract was signed. The additional PBV units, however, are still subject to the PBV program cap and individual project caps. Prior to attaching additional units without competition, the PHA must submit to the local field office information outlined in FR Notice 1/18/17. The PHA must also detail in the administrative plan their intent to add PBV units and the rationale for adding units to the specific PBV project.
HACSB Policy
The PHA will consider adding contract units to the HAP contract when the PHA determines that additional housing is needed to serve eligible low‐income families.
Circumstances may include, but are not limited to:
The local housing inventory is reduced due to a disaster (either due to loss of housing units, or an influx of displaced families); and Voucher holders are having difficulty finding units that meet program requirements.
17‐V.D. HAP CONTRACT YEAR, ANNIVERSARY AND EXPIRATION DATES [24 CFR 983.207(b) and 983.302(e)]
The HAP contract year is the period of 12 calendar months preceding each annual anniversary of the HAP contract during the HAP contract term. The initial contract year is calculated from the first day of the first calendar month of the HAP contract term.
The annual anniversary of the HAP contract is the first day of the first calendar month after the end of the preceding contract year.
There is a single annual anniversary and expiration date for all units under a particular HAP contract, even in cases where contract units are placed under the HAP contract in stages (on different dates) or units are added by amendment. The anniversary and expiration dates for all units coincide with the dates for the contract units that were originally placed under contract. 593
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐31 17‐V.E. OWNER RESPONSIBILITIES UNDER THE HAP [24 CFR 983.210] When the owner executes the HAP contract s/he certifies that at such execution and at all times during the term of the HAP contract:
All contract units are in good condition and the owner is maintaining the premises and contract units in accordance with HQS;
The owner is providing all services, maintenance, equipment and utilities as agreed to under the HAP contract and the leases;
Each contract unit for which the owner is receiving HAP, is leased to an eligible family referred by the PHA, and the lease is in accordance with the HAP contract and HUD requirements;
To the best of the owner’s knowledge the family resides in the contract unit for which the owner is receiving HAP, and the unit is the family’s only residence; The owner (including a principal or other interested party) is not the spouse, parent, child, grandparent, grandchild, sister, or brother of any member of a family residing in a contract unit;
The amount of the HAP the owner is receiving is correct under the HAP contract; The rent for contract units does not exceed rents charged by the owner for comparable unassisted units;
Except for HAP and tenant rent, the owner has not received and will not receive any other payment or consideration for rental of the contract unit; and The family does not own or have any interest in the contract unit (does not apply to family's membership in a cooperative); and
Repair work on the project selected as an existing project that is performed after HAP execution within such post‐execution period as specified by HUD may constitute development activity, and if determined to be development activity, the repair work undertaken shall be in compliance with Davis‐Bacon wage requirements. 594
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐32 17‐V.F. ADDITIONAL HAP REQUIREMENTS
Housing Quality and Design Requirements [24 CFR 983.101(e) and 983.208(a)] The owner is required to maintain and operate the contract units and premises in accordance with HQS, including performance of ordinary and extraordinary maintenance. The owner must provide all the services, maintenance, equipment, and utilities specified in the HAP contract with the PHA and in the lease with each assisted family. In addition, maintenance, replacement and redecoration must be in accordance with the standard practice for the building as established by the owner.
The PHA may elect to establish additional requirements for quality, architecture, or design of PBV housing. Any such additional requirements must be specified in the Agreement to enter into a HAP contract and the HAP contract. These requirements must be in addition to, not in place of, compliance with HQS.
HACSB Policy
The PHA will identify the need for any special features on a case‐by‐case basis depending on the intended occupancy of the PBV project. The PHA will specify any special design standards or additional requirements in the invitation for PBV proposals, the agreement to enter into HAP contract, and the HAP contract.
Vacancy Payments [24 CFR 983.352(b)]
At the discretion of the PHA, the HAP contract may provide for vacancy payments to the owner for a PHA‐determined period of vacancy extending from the beginning of the first calendar month after the move‐out month for a period not exceeding two full months following the move‐out month. The amount of the vacancy payment will be determined by the PHA and cannot exceed the monthly rent to owner under the assisted lease, minus any portion of the rental payment received by the owner (including amounts available from the tenant’s security deposit).
HACSB Policy
The PHA will not provide vacancy payments to the owner. 595
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐33 PART VI: SELECTION OF PBV PROGRAM PARTICIPANTS
17‐VI.A. OVERVIEW
Many of the provisions of the tenant‐based voucher regulations [24 CFR 982] also apply to the PBV program. This includes requirements related to determining eligibility and selecting applicants from the waiting list. Even with these similarities, there are requirements that are unique to the PBV program. This part describes the requirements and policies related to eligibility and admission to the PBV program.
17‐VI.B. ELIGIBILITY FOR PBV ASSISTANCE [24 CFR 983.251(a) and (b)] The PHA may select families for the PBV program from those who are participants in the PHA’s tenant‐based voucher program and from those who have applied for admission to the voucher program. For voucher participants, eligibility was determined at original admission to the voucher program and does not need to be re‐determined at the commencement of PBV assistance. For all others, eligibility for admission must be determined at the commencement of PBV assistance.
Applicants for PBV assistance must meet the same eligibility requirements as applicants for the tenant‐based voucher program. Applicants must qualify as a family as defined by HUD and the PHA, have income at or below HUD‐specified income limits, and qualify on the basis of citizenship or the eligible immigration status of family members [24 CFR 982.201(a) and 24 CFR 983.2(a)]. In addition, an applicant family must provide social security information for family members [24 CFR 5.216 and 5.218] and consent to the PHA’s collection and use of family information regarding income, expenses, and family composition [24 CFR 5.230]. The PHA may also not approve a tenancy if the owner (including a principal or other interested party) of the unit is the parent, child, grandparent, grandchild, sister, or brother of any member of the family, unless needed as a reasonable accommodation. An applicant family must also meet HUD requirements related to current or past criminal activity.
HACSB Policy
The PHA will determine an applicant family’s eligibility for the PBV program in accordance with the policies in Chapter 3.
In‐Place Families [24 CFR 983.251(b)]
An eligible family residing in a proposed PBV contract unit on the date the proposal is selected by the PHA is considered an “in‐place family.” These families are afforded protection from displacement under the PBV rule. If a unit to be placed under contract (either an existing unit or a unit requiring rehabilitation) is occupied by an eligible family on the date the proposal is selected, the in‐place family must be placed on the PHA’s waiting list. Once the family’s continued eligibility is determined (the PHA may deny assistance to an in‐place family for the grounds specified in 24 CFR 982.552 and 982.553), the family must be given an absolute selection preference and the PHA must refer these families to the project owner for an 596
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐34 appropriately sized PBV unit in the project. Admission of eligible in‐place families is not subject to income targeting requirements.
This regulatory protection from displacement does not apply to families that are not eligible to participate in the program on the proposal selection date. 597
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐35 17‐VI.C. ORGANIZATION OF THE WAITING LIST [24 CFR 983.251(c)] The PHA may establish a separate waiting list for PBV units or it may use the same waiting list for both tenant‐based and PBV assistance. The PHA may also merge the PBV waiting list with a waiting list for other assisted housing programs offered by the PHA. If the PHA chooses to offer a separate waiting list for PBV assistance, the PHA must offer to place applicants who are listed on the tenant‐based waiting list on the waiting list for PBV assistance.
If a PHA decides to establish a separate PBV waiting list, the PHA may use a single waiting list for the PHA’s whole PBV program, or it may establish separate waiting lists for PBV units in particular projects or buildings or for sets of such units.
HACSB Policy
The PHA will establish and manage a separate waiting list for its tenant‐based and PBV programs. The PHA will maintain one single PBV waiting list. 17‐VI.D. SELECTION FROM THE WAITING LIST [24 CFR 983.251(c)] Applicants who will occupy units with PBV assistance must be selected from the PHA’s waiting list. The PHA may establish selection criteria or preferences for occupancy of particular PBV units. The PHA may place families referred by the PBV owner on its PBV waiting list.
Income Targeting [24 CFR 983.251(c)(6)]
At least 75 percent of the families admitted to the PHA’s tenant‐based and project‐based voucher programs during the PHA fiscal year from the waiting list must be extremely‐low income families. The income targeting requirement applies to the total of admissions to both programs.
Units with Accessibility Features [24 CFR 983.251(c)(7)] When selecting families to occupy PBV units that have special accessibility features for persons with disabilities, the PHA must first refer families who require such features to the owner. 598
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐36 Preferences [24 CFR 983.251(d), FR Notice 11/24/08]
The PHA may use the same selection preferences that are used for the tenant‐based voucher program, establish selection criteria or preferences for the PBV program as a whole, or for occupancy of particular PBV developments or units. The PHA must provide an absolute selection preference for eligible in‐place families as described in Section 17‐VI.B. above.
The PHA may establish a selection preference for families who qualify for voluntary services, including disability‐specific services, offered in conjunction with assisted units, provided that preference is consistent with the PHA plan. The PHA may not, however, grant a preference to a person with a specific disability [FR Notice 1/18/17].
In advertising such a project, the owner may advertise the project as offering services for a particular type of disability; however, the project must be open to all otherwise eligible disabled persons who may benefit from services provided in the project. In these projects, disabled residents may not be required to accept the particular services offered as a condition of occupancy.
If the PHA has projects with “excepted units” for elderly families or supportive services, the PHA must give preference to such families when referring families to these units [24 CFR 983.261(b); FR Notice 1/18/17].
HACSB Policy
The PHA will provide a selection preference when required by the regulation (e.g., eligible in‐place families, qualifying families for “excepted units,” mobility impaired persons for accessible units). Other than the above, the PHA will offer preferences to its project‐based HCV developments as follows:
Category 1 ‐ Program Facilitation
Residents of HACSB owned/managed supportive housing developments are offered PBV assistance to facilitate the operation of the Housing Authority’s supportive housing programs. A formal case management assessment (i.e. SPDAT) will be conducted to substantiate that the resident no longer requires supportive housing.
Category 2 – Resident Families
(10 points) Owner Referral: Preference is given for a specific development that offers supportive services, to any family that has applied to that Project Based Voucher assisted development and has been referred to HACSB by the owner of that development, due to needing the services offered by the development. Supportive housing developments with PBV allocations will be required to utilize at least 25% of their PBV units to house chronically homeless households.
(4 points) Displaced Family Preference: Families that have been displaced from housing within the PHA’s jurisdiction due to governmental action or disaster 599
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐37 (2 points) Residency Preference: Families who live, work, or who have been hired to work within the South coast region of Santa Barbara County (2 points) Rent Burden Preference: Families not currently receiving any housing assistance (e.g. residing in state, local, or privately subsidized developments, receiving ongoing rental assistance) and families residing in a HACSB locally financed or HACSB managed property that have a rent burden exceeding 50% of household gross annual income
(1 point) Veteran Preference: Active members of the United States Armed Forces, Veterans of the United States Armed Forces, or spouses and surviving spouses of U.S. Veterans where the veteran was discharged other than dishonorably
(‐21 points) Single, Non‐Elderly, Non‐Disabled: Single household member applicants who do not meet HUD’s definition of disabled nor who are at minimum 62 years of age
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐38 17‐VI.E. OFFER OF PBV ASSISTANCE
Refusal of Offer [24 CFR 983.251(e)(3)]
The PHA is prohibited from taking any of the following actions against a family who has applied for, received, or refused an offer of PBV assistance:
Refuse to list the applicant on the waiting list for tenant‐based voucher assistance; Deny any admission preference for which the applicant qualifies; Change the applicant’s place on the tenant based waiting list based on preference, date and time of application, or other factors affecting selection under the PHA’s selection policy; Remove the applicant from the tenant‐based voucher waiting list.
Disapproval by Landlord [24 CFR 983.251(e)(2)]
If a PBV owner rejects a family for admission to the owner’s units, such rejection may not affect the family’s position on the tenant‐based voucher waiting list.
Acceptance of Offer [24 CFR 983.252]
Family Briefing
When a family accepts an offer for PBV assistance, the PHA must give the family an oral briefing. The briefing must include information on how the program works and the responsibilities of the family and owner. In addition to the oral briefing, the PHA must provide a briefing packet that explains how the PHA determines the total tenant payment for a family, the family obligations under the program, and applicable fair housing information.
Persons with Disabilities
If an applicant family’s head or spouse is disabled, the PHA must assure effective communication, in accordance with 24 CFR 8.6, in conducting the oral briefing and in providing the written information packet. This may include making alternative formats available (see Chapter 2). In addition, the PHA must have a mechanism for referring a family that includes a member with a mobility impairment to an appropriate accessible PBV unit.
Persons with Limited English Proficiency
The PHA should take reasonable steps to assure meaningful access by persons with limited English proficiency in accordance with Title VI of the Civil Rights Act of 1964 and Executive Order 13166 (see Chapter 2).
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐39 17‐VI.F. OWNER SELECTION OF TENANTS
The owner is responsible for developing written tenant selection procedures that are consistent with the purpose of improving housing opportunities for very low‐income families and reasonably related to program eligibility and an applicant’s ability to fulfill their obligations under the lease. An owner must promptly notify in writing any rejected applicant of the grounds for any rejection [24 CFR 983.253(a)(2) and (a)(3)].
Leasing [24 CFR 983.253(a)]
During the term of the HAP contract, the owner must lease contract units to eligible families that are selected and referred by the PHA from the PHA’s waiting list. The contract unit leased to the family must be the appropriate size unit for the size of the family, based on the PHA’s subsidy standards.
Filling Vacancies [24 CFR 983.254(a)]
The owner must promptly notify the PHA of any vacancy or expected vacancy in a contract unit.
After receiving such notice, the PHA must make every reasonable effort to promptly refer a sufficient number of families for the owner to fill such vacancies. The PHA and the owner must make reasonable efforts to minimize the likelihood and length of any vacancy.
HACSB Policy
The owner must notify the PHA in writing (mail, fax, or e‐mail) within five (5) business days of learning about any vacancy or expected vacancy.
The PHA will make every reasonable effort to refer families to the owner within 10 business days of receiving such notice from the owner.
Reduction in HAP Contract Units Due to Vacancies [24 CFR 983.254(b)] If any contract units have been vacant for 120 or more days since owner notice of the vacancy, the PHA may give notice to the owner amending the HAP contract to reduce the number of contract units by subtracting the number of contract units (according to the bedroom size) that have been vacant for this period.
HACSB Policy
If any contract units have been vacant for 120 days, the PHA will give notice to the owner that the HAP contract will be amended to reduce the number of contract units that have been vacant for this period. The PHA will provide the notice to the owner within 10 business days of the 120th day of the vacancy. The amendment to the HAP contract will be effective the 1st day of the month following the date of the PHA’s notice.
The PHA will consider waiving this requirement if the owner can demonstrate that the vacancy ws through no fault of the owners.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐40 17‐VI.G. TENANT SCREENING [24 CFR 983.255]
PHA Responsibility
The PHA is not responsible or liable to the owner or any other person for the family’s behavior or suitability for tenancy. However, the PHA may opt to screen applicants for family behavior or suitability for tenancy and may deny applicants based on such screening.
HACSB Policy
The PHA will conduct screening to determine a PBV applicant family’s suitability for tenancy only when the PBV applicant is being offered a unit that is owned or managed by HACSB. The PHA will not conduct screening to determine a PBV applicant family’s suitability for tenancy for units not owned or managed by HACSB.
The PHA must provide the owner with an applicant family’s current and prior address (as shown in PHA records) and the name and address (if known by the PHA) of the family’s current landlord and any prior landlords.
In addition, the PHA may offer the owner other information the PHA may have about a family, including information about the tenancy history of family members or about drug trafficking and criminal activity by family members. The PHA must provide applicant families a description of the PHA policy on providing information to owners, and the PHA must give the same types of information to all owners.
The PHA may not disclose to the owner any confidential information provided in response to a request for documentation of domestic violence, dating violence, or stalking except at the written request or with the written consent of the individual providing the documentation [24 CFR 5.2007(a)(4)].
HACSB Policy
The PHA will inform owners of their responsibility to screen prospective tenants, and will provide owners with the required known name and address information, at the time of the turnover HQS inspection or before. The PHA will provide information to the owner about known tenancy history, if requested.
Owner Responsibility
The owner is responsible for screening and selection of the family to occupy the owner’s unit.
When screening families the owner may consider a family’s background with respect to the following factors:
Payment of rent and utility bills;
Caring for a unit and premises;
Respecting the rights of other residents to the peaceful enjoyment of their housing; Drug‐related criminal activity or other criminal activity that is a threat to the health, safety, or property of others; and
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐41 Compliance with other essential conditions of tenancy. 604
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐42 PART VII: OCCUPANCY
17‐VII.A. OVERVIEW
After an applicant has been selected from the waiting list, determined eligible by the PHA, referred to an owner and determined suitable by the owner, the family will sign the lease and occupancy of the unit will begin.
17‐VII.B. LEASE [24 CFR 983.256]
The tenant must have legal capacity to enter a lease under state and local law. Legal capacity means that the tenant is bound by the terms of the lease and may enforce the terms of the lease against the owner.
Form of Lease [24 CFR 983.256(b)]
The tenant and the owner must enter into a written lease agreement that is signed by both parties. If an owner uses a standard lease form for rental units to unassisted tenants in the locality or premises, the same lease must be used for assisted tenants, except that the lease must include a HUD‐required tenancy addendum. The tenancy addendum must include, word‐ for‐word, all provisions required by HUD.
If the owner does not use a standard lease form for rental to unassisted tenants, the owner may use another form of lease, such as a PHA model lease.
The PHA may review the owner’s lease form to determine if the lease complies with state and local law. If the PHA determines that the lease does not comply with state or local law, the PHA may decline to approve the tenancy.
HACSB Policy
The PHA will not review the owner’s lease for compliance with state or local law.
Lease Requirements [24 CFR 983.256(c)]
The lease for a PBV unit must specify all of the following information:
The names of the owner and the tenant;
The unit rented (address, apartment number, if any, and any other information needed to identify the leased contract unit);
The term of the lease (initial term and any provision for renewal); The amount of the tenant rent to owner, which is subject to change during the term of the lease in accordance with HUD requirements;
A specification of the services, maintenance, equipment, and utilities that will be provide by the owner; and
The amount of any charges for food, furniture, or supportive services. 605
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐43 Tenancy Addendum [24 CFR 983.256(d)]
The tenancy addendum in the lease must state:
The program tenancy requirements;
The composition of the household as approved by the PHA (the names of family members and any PHA‐approved live‐in aide);
All provisions in the HUD‐required tenancy addendum must be included in the lease. The terms of the tenancy addendum prevail over other provisions of the lease.
Initial Term and Lease Renewal [24 CFR 983.256(f)]
The initial lease term must be for at least one year. The lease must provide for automatic renewal after the initial term of the lease in either successive definitive terms (e.g. month‐to‐ month or year‐to‐year) or an automatic indefinite extension of the lease term. For automatic indefinite extension of the lease term, the lease terminates if any of the following occur:
The owner terminates the lease for good cause
The tenant terminates the lease
The owner and tenant agree to terminate the lease
The PHA terminates the HAP contract
The PHA terminates assistance for the family
Changes in the Lease [24 CFR 983.256(e)]
If the tenant and owner agree to any change in the lease, the change must be in writing, and the owner must immediately give the PHA a copy of all changes.
The owner must notify the PHA in advance of any proposed change in the lease regarding the allocation of tenant and owner responsibilities for utilities. Such changes may only be made if approved by the PHA and in accordance with the terms of the lease relating to its amendment.
The PHA must re‐determine reasonable rent, in accordance with program requirements, based on any change in the allocation of the responsibility for utilities between the owner and the tenant. The re‐determined reasonable rent will be used in calculation of the rent to owner from the effective date of the change.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐44 Owner Termination of Tenancy [24 CFR 983.257]
With two exceptions, the owner of a PBV unit may terminate tenancy for the same reasons an owner may in the tenant‐based voucher program (see Section 12‐III.B. and 24 CFR 982.310). In the PBV program, terminating tenancy for “good cause” does not include doing so for a business or economic reason, or a desire to use the unit for personal or family use or other non‐ residential purpose.
Tenant Absence from the Unit [24 CFR 983.256(g) and 982.312(a)] The lease may specify a maximum period of family absence from the unit that may be shorter than the maximum period permitted by PHA policy. According to program requirements, the family’s assistance must be terminated if they are absent from the unit for more than 180 consecutive days. PHA termination of assistance actions due to family absence from the unit are subject to 24 CFR 981.312, except that the unit is not terminated from the HAP contract if the family is absent for longer than the maximum period permitted.
HACSB Policy
In addition to the above program requirements, the assisted unit must be the sole place of residence for tenants residing in HACSB owned or managed units. Resident may not live in the assisted unit on any part time basis under any circumstances.
Continuation of Housing Assistance Payments [24 CFR 982.258] Housing assistance payments shall continue until the tenant rent equals the rent to owner. The cessation of housing assistance payments at such point will not affect the family's other rights under its lease, nor will such cessation preclude the resumption of payments as a result of later changes in income, rents, or other relevant circumstances if such changes occur within 180 days following the date of the last housing assistance payment by the PHA. After the 180‐day period, the unit shall be removed from the HAP contract pursuant to 24 CFR 983.211.
HACSB Policy
If a participating family receiving zero assistance experiences a change in circumstances that would result in a HAP payment to the owner, the family must notify the PHA of the change and request an interim reexamination before the expiration of the 180‐day period.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐45 Security Deposits [24 CFR 983.259]
The owner may collect a security deposit from the tenant. The PHA may prohibit security deposits in excess of private market practice, or in excess of amounts charged by the owner to unassisted tenants.
HACSB Policy
The PHA will allow the owner to collect a security deposit amount the owner determines is appropriate.
When the tenant moves out of a contract unit, the owner, subject to state and local law, may use the security deposit, including any interest on the deposit, in accordance with the lease, as reimbursement for any unpaid tenant rent, damages to the unit, or other amounts owed by the tenant under the lease.
The owner must give the tenant a written list of all items charged against the security deposit and the amount of each item. After deducting the amount used to reimburse the owner, the owner must promptly refund the full amount of the balance to the tenant.
If the security deposit does not cover the amount owed by the tenant under the lease, the owner may seek to collect the balance from the tenant. The PHA has no liability or responsibility for payment of any amount owed by the family to the owner. 608
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐46 17‐VII.C. MOVES
Overcrowded, Under‐Occupied, and Accessible Units [24 CFR 983.260] If the PHA determines that a family is occupying a wrong size unit, based on the PHA’s subsidy standards, or a unit with accessibility features that the family does not require, and the unit is needed by a family that does require the features, the PHA must promptly notify the family and the owner of this determination, and the PHA must offer the family the opportunity to receive continued housing assistance in another unit.
HACSB Policy
The PHA will notify the family and the owner of the family’s need to move based on the occupancy of a wrong‐size or accessible unit within 10 business days of the PHA’s determination. The PHA will offer the family the following types of continued assistance in the following order, based on the availability of assistance:
PBV assistance in the same building or project;
PBV assistance in another project; and
Tenant‐based voucher assistance.
If the PHA offers the family a tenant‐based voucher, the PHA must terminate the housing assistance payments for a wrong‐sized or accessible unit at the earlier of the expiration of the term of the family’s voucher (including any extension granted by the PHA) or the date upon which the family vacates the unit. If the family does not move out of the wrong‐sized unit or accessible unit by the expiration of the term of the family's voucher, the PHA must remove the unit from the HAP contract.
If the PHA offers the family another form of assistance that is not a tenant‐based voucher, and the family does not accept the offer, does not move out of the PBV unit within a reasonable time as determined by the PHA, or both, the PHA must terminate the housing assistance payments for the unit at the expiration of a reasonable period as determined by the PHA and remove the unit from the HAP contract.
HACSB Policy
When the PHA offers a family another form of assistance that is not a tenant‐based voucher, the family will be given 30 days from the date of the offer to accept the offer and move out of the PBV unit. If the family does not move out within this 30‐day time frame, the PHA will terminate the housing assistance payments at the expiration of this 30‐day period.
The PHA may make exceptions to this 30‐day period if needed for reasons beyond the family’s control such as death, serious illness, or other medical emergency of a family member.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐47 Family Right to Move [24 CFR 983.261]
The family may terminate the lease at any time after the first year of occupancy. The family must give advance written notice to the owner in accordance with the lease and provide a copy of such notice to the PHA. If the family wishes to move with continued tenant‐based assistance, the family must contact the PHA to request the rental assistance prior to providing notice to terminate the lease.
If the family terminates the lease in accordance with these requirements, the PHA is required to offer the family the opportunity for continued tenant‐based assistance, in the form of a voucher or other comparable tenant‐based rental assistance. If voucher or other comparable tenant‐based assistance is not immediately available upon termination of the family’s lease in the PBV unit, the PHA must give the family priority to receive the next available opportunity for continued tenant‐based assistance.
If the family terminates the assisted lease before the end of the first year, the family relinquishes the opportunity for continued tenant‐based assistance.
HACSB Policy:
Prior to providing notice to the owner to terminate the lease, the family may submit a written request to the PHA for a choice mobility voucher at any time after completing the 12‐month occupancy requirement.
In order to receive a tenant based or choice mobility voucher the family must not owe any money to the PBV owner nor can the family be in the process of eviction. Process of eviction will be defined as having been served a notice to vacate for tenant breach of lease.
The family will remain eligible to request a choice mobility voucher as long as they continue living at the same covered project. If a family moves from one covered project to another covered project prior to completing their 12‐month occupancy requirement, their 12‐month clock will reset. The family must wait 12 months from the date of move at the new property before they may request another choice mobility voucher. If a family transfers to a different unit within the same covered project, the 12‐month clock does not reset. If the family vacates before receiving a choice mobility voucher they will relinquish the opportunity for continued tenant‐based assistance.
The PHA will maintain a combined, agency‐wide waiting list for all standard PBV and RAD PBV families wishing to exercise mobility after one year of tenancy. This list will be maintained separately from the tenant‐based HCV list. Families on the choice mobility waiting list will be given priority over families on the tenant‐based waiting list. The choice mobility waiting list will be organized by date and time of the family’s written request to exercise choice mobility.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐48 17‐VII.D. EXCEPTIONS TO THE OCCUPANCY CAP [24 CFR 983.261] As of April 17, 2018 the PHA may not pay housing assistance under a PBV HAP contract for more than the greater of 25 units or 25 percent of the number of dwelling units in a project unless the units are [24 CFR 983.56]:
The units are exclusively for elderly families
The units are for households eligible for supportive services available to all families receiving PBV assistance in the project
If the project is located in a census tract with a poverty rate of 20 percent or less, as determined in the most recent American Community Survey Five‐Year estimates, the project cap is the greater of 25 units or 40 percent (instead of 25 percent) of the units in the project [FR Notice 7/14/17].
If a family at the time of initial tenancy is receiving and while the resident of an excepted unit has received Family Self‐Sufficiency (FSS) supportive services or any other service as defined by the PHA and successfully completes the FSS contract of participation or the supportive services requirement, the unit continues to count as an excepted unit for as long as the family resides in the unit. However, if the FSS family fails to successfully complete the FSS contract of participation or supportive services objective and consequently is no longer eligible for the supportive services, the family must vacate the unit within a reasonable period of time established by the PHA, and the PHA shall cease paying HAP on behalf of the family.
Further, when a family (or remaining members of a family) residing in an excepted unit that no longer meets the criteria for a “qualifying family” because the family is no longer an elderly family due to a change in family composition, the PHA has the discretion to allow the family to remain in the excepted unit. If the PHA does not exercise this discretion, the family must vacate the unit within a reasonable period of time established by the PHA, and the PHA must cease paying housing assistance payments on behalf of the non‐qualifying family.
Individuals in units with supportive services who choose to no longer participate in a service or who no longer qualify for services they qualified for at the time of initial occupancy cannot subsequently be denied continued housing opportunity because of this changed circumstance.
A PHA or owner cannot determine that a participant’s needs exceed the level of care offered by qualifying services or require that individuals be transitioned to different projects based on service needs.
If the family fails to vacate the unit within the established time, the unit must be removed from the HAP contract unless the project is partially assisted, and it is possible for the HAP contract to be amended to substitute a different unit in the building in accordance with program requirements; or the owner terminates the lease and evicts the family. The housing assistance payments for a family residing in an excepted unit that is not in compliance with its family obligations to comply with supportive services requirements must be terminated by the PHA.
The PHA may allow a family that initially qualified for occupancy of an excepted unit based on elderly family status to continue to reside in a unit, where through circumstances beyond the 611
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐49 control of the family (e.g., death of the elderly family member or long‐term or permanent hospitalization or nursing care), the elderly family member no longer resides in the unit. In this case, the unit may continue to be counted as an excepted unit for as long as the family resides in that unit. Once the family vacates the unit, in order to continue as an excepted unit under the HAP contract, the unit must be made available to and occupied by a qualified family.
HACSB Policy
The PHA will allow families who initially qualified to live in an excepted unit to remain when circumstances change due to circumstances beyond the remaining family members’ control.
In all other cases, the PHA will provide written notice to the family and owner within 10 business days of making the determination. The family will be given 30 days from the date of the notice to move out of the PBV unit. If the family does not move out within this 30‐day time frame, the PHA will terminate the housing assistance payments at the expiration of this 30‐day period.
The PHA may make exceptions to this 30‐day period if needed for reasons beyond the family’s control such as death, serious illness, or other medical emergency of a family member.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐50 Emergency Transfers under VAWA [Notice PIH 2017‐08]
Except where special consideration is needed for the project‐based voucher program, the PHA will follow VAWA policies as outlined in Chapter 16 Part IX of this administrative plan, including using the Emergency Transfer Plan as the basis for PBV transfers under VAWA (Exhibit 16‐4).
HUD requires that the PHA include policies that address when a victim has been living in a unit for less than a year or when a victim seeks to move sooner than a tenant‐based voucher is available.
HACSB Policy
When the victim of domestic violence, dating violence, sexual assault, or stalking has lived in the unit for less than one year, the PHA will provide several options for continued assistance.
The PHA will first try to transfer the participant to another PBV unit in the same development or transfer to a different development where the PHA has PBV units. The PHA will expedite the administrative processes in this case in an effort to conduct the transfer as quickly as possible.
If no units are available for an internal transfer or if there is reasonable cause to believe that such a transfer would put the victim in jeopardy, the participant may receive continued assistance through an external transfer to tenant‐based rental assistance (HCV).
If a victim wishes to move after a year of occupancy in the unit, but no tenant‐based vouchers are available, the PHA will offer the participant an internal transfer to another PBV unit in the same development or a transfer to a different development where the PHA has PBV units. The PHA will expedite the administrative processes in this case in an effort to conduct the transfer as quickly as possible.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐51 PART VIII: DETERMINING RENT TO OWNER
17‐VIII.A. OVERVIEW
The amount of the initial rent to an owner of units receiving PBV assistance is established at the beginning of the HAP contract term. Although for rehabilitated or newly constructed housing, the agreement to enter into HAP Contract (Agreement) states the estimated amount of the initial rent to owner, the actual amount of the initial rent to owner is established at the beginning of the HAP contract term.
During the term of the HAP contract, the rent to owner is re‐determined at the owner’s request in accordance with program requirements, and at such time that there is a five percent or greater decrease in the published FMR.
17‐VIII.B. RENT LIMITS [24 CFR 983.301]
Except for certain tax credit units (discussed below), the rent to owner must not exceed the lowest of the following amounts:
An amount determined by the PHA, not to exceed 110 percent of the applicable fair market rent (or any HUD‐approved exception payment standard) for the unit bedroom size minus any utility allowance;
The reasonable rent; or
The rent requested by the owner.
Certain Tax Credit Units [24 CFR 983.301(c)]
For certain tax credit units, the rent limits are determined differently than for other PBV units.
Different limits apply to contract units that meet all of the following criteria:
The contract unit receives a low‐income housing tax credit under the Internal Revenue Code of 1986;
The contract unit is not located in a qualified census tract; There are comparable tax credit units of the same bedroom size as the contract unit in the same building, and the comparable tax credit units do not have any form of rental assistance other than the tax credit; and
The tax credit rent exceeds 110 percent of the fair market rent or any approved exception payment standard);
For contract units that meet all of these criteria, the rent to owner must not exceed the lowest of:
The tax credit rent minus any utility allowance;
The reasonable rent; or
The rent requested by the owner.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐52 Definitions
A qualified census tract is any census tract (or equivalent geographic area defined by the Bureau of the Census) in which at least 50 percent of households have an income of less than 60 percent of Area Median Gross Income (AMGI), or where the poverty rate is at least 25 percent and where the census tract is designated as a qualified census tract by HUD.
Tax credit rent is the rent charged for comparable units of the same bedroom size in the project that also receive the low‐income housing tax credit but do not have any additional rental assistance (e.g., tenant‐based voucher assistance).
Reasonable Rent [24 CFR 983.301(e) and 983.302(c)(2)]
The PHA must determine reasonable rent in accordable with 24 CFR 983.303. The rent to owner for each contract unit may at no time exceed the reasonable rent, except in cases where the PHA has elected within the HAP contract not to reduce rents below the initial rent to owner and, upon redetermination of the rent to owner, the reasonable rent would result in a rent below the initial rent. However, the rent to owner must be reduced in the following cases:
To correct errors in calculations in accordable with HUD requirements If additional housing assistance has been combined with PBV assistance after the execution of the initial HAP contract and a rent decrease is required pursuant to 24 CFR 983.55 If a decrease in rent to owner is required based on changes in the allocation of the responsibility for utilities between owner and tenant
If the PHA has not elected within the HAP contract to establish the initial rent to owner as the rent floor, the rent to owner shall not at any time exceed the reasonable rent.
HACSB Policy
The PHA will elect within the HAP contract not to reduce rents below the initial level, with the exception of circumstances listed in 24 CFR 983.302(c)(2). If, upon redetermination of the rent to owner, the reasonable rent would result in a rent below the initial rent, the PHA will use the higher initial rent to owner amount. 615
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐53 Use of FMRs, Exception Payment Standards, and Utility Allowances [24 CFR 983.301(f)] When determining the initial rent to owner, the PHA must use the most recently published FMR in effect and the utility allowance schedule in effect at execution of the HAP contract. When re‐ determining the rent to owner, the PHA must use the most recently published FMR and the utility allowance schedule in effect at the time of redetermination. At its discretion, the PHA may for initial rent, use the amounts in effect at any time during the 30‐day period immediately before the beginning date of the HAP contract, or for redeterminations of rent, the 30‐day period immediately before the redetermination date.
Any HUD‐approved exception payment standard amount under the tenant‐based voucher program also applies to the project‐based voucher program. HUD will not approve a different exception payment standard amount for use in the PBV program.
Likewise, the PHA may not establish or apply different utility allowance amounts for the PBV program. The same utility allowance schedule applies to both the tenant‐based and project‐ based voucher programs.
HACSB Policy
The PHA may decide to use the FMR or utility allowances in effect during the 30‐day period before the start date of the HAP, or redetermination of rent, if the PHA determines it is necessary due to PHA budgetary constraints.
Use of Small Area FMRs (SAFMRs) [24 CFR 888.113(h)]
While small area FMRs (SAFMRs) do not apply to PBV projects, PHAs that operate a tenant‐ based program under SAFMRs may apply SAFMRs to all future PBV HAP contracts. If the PHA adopts this policy, it must apply to all future PBV projects and the PHA’s entire jurisdiction. The PHA and owner may not subsequently choose to revert back to use of the FMRs once the SAFMRs have been adopted, even if the PHA subsequently changes its policy.
Further, the PHA may apply SAFMRs to current PBV projects where the notice of owner selection was made on or before the effective dates of PHA implementation, provided the owner is willing to mutually agree to doing so and the application is prospective. The PHA and owner may not subsequently choose to revert back to use of the FMRs once the SAFMRs have been adopted, even if the PHA subsequently changes its policy. If rents increase as a result of the use of SAFMRs, the rent increase may not be effective until the first anniversary of the HAP contract.
HACSB Policy
The PHA will not apply SAFMRs to the PHA’s PBV program. 616
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐54 Redetermination of Rent [24 CFR 983.302]
The PHA must re‐determine the rent to owner upon the owner’s request or when there is a ten percent or greater decrease in the published FMR.
Rent Increase
If an owner wishes to request an increase in the rent to owner from the PHA, it must be requested at the annual anniversary of the HAP contract (see Section 17‐V.D.). The request must be in writing and in the form and manner required by the PHA. The PHA may only make rent increases in accordance with the rent limits described previously. There are no provisions in the PBV program for special adjustments (e.g., adjustments that reflect increases in the actual and necessary expenses of owning and maintaining the units which have resulted from substantial general increases in real property taxes, utility rates, or similar costs).
HACSB Policy
An owner’s request for a rent increase must be submitted to the PHA 60 days prior to the anniversary date of the HAP contract, and must include the new rent amount the owner is proposing.
The PHA may not approve and the owner may not receive any increase of rent to owner until and unless the owner has complied with requirements of the HAP contract, including compliance with HQS. The owner may not receive any retroactive increase of rent for any period of noncompliance.
Rent Decrease
If there is a decrease in the rent to owner, as established in accordance with program requirements such as a change in the FMR or exception payment standard, or reasonable rent amount, the rent to owner must be decreased regardless of whether the owner requested a rent adjustment, except where the PHA has elected within the HAP contract to not reduce rents below the initial rent under the initial HAP contract.
Notice of Rent Change
The rent to owner is re‐determined by written notice by the PHA to the owner specifying the amount of the re‐determined rent. The PHA notice of rent adjustment constitutes an amendment of the rent to owner specified in the HAP contract. The adjusted amount of rent to owner applies for the period of 12 calendar months from the annual anniversary of the HAP contract.
HACSB Policy
The PHA will provide the owner with at least 30 days written notice of any change in the amount of rent to owner.
PHA‐owned Units [24 CFR 983.301(g)]
For PHA‐owned PBV units, the initial rent to owner and the annual redetermination of rent at the anniversary of the HAP contract are determined by the independent entity approved by HUD. The PHA must use the rent to owner established by the independent entity. 617
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐55 17‐VIII.C. REASONABLE RENT [24 CFR 983.303]
At the time the initial rent is established and all times during the term of the HAP contract, the rent to owner for a contract unit may not exceed the reasonable rent for the unit as determined by the PHA, except where the PHA has elected within the HAP contract to not reduce rents below the initial rent under the initial HAP contract.
When Rent Reasonable Determinations Are Required
The PHA must re‐determine the reasonable rent for a unit receiving PBV assistance whenever any of the following occur:
There is a five percent or greater decrease in the published FMR in effect 60 days before the contract anniversary (for the unit sizes specified in the HAP contract) as compared with the FMR that was in effect one year before the contract anniversary date; The PHA approves a change in the allocation of responsibility for utilities between the owner and the tenant;
The HAP contract is amended to substitute a different contract unit in the same building; or There is any other change that may substantially affect the reasonable rent.
How to Determine Reasonable Rent
The reasonable rent of a unit receiving PBV assistance must be determined by comparison to rent for other comparable unassisted units. When making this determination, the PHA must consider factors that affect market rent. Such factors include the location, quality, size, type and age of the unit, as well as the amenities, housing services maintenance, and utilities to be provided by the owner.
Comparability Analysis
For each unit, the comparability analysis must use at least three comparable units in the private unassisted market. This may include units in the premises or project that is receiving project‐ based assistance. The analysis must show how the reasonable rent was determined, including major differences between the contract units and comparable unassisted units, and must be retained by the PHA. The comparability analysis may be performed by PHA staff or by another qualified person or entity. Those who conduct these analyses or are involved in determining the housing assistance payment based on the analyses may not have any direct or indirect interest in the property.
PHA‐owned Units
For PHA‐owned units, the amount of the reasonable rent must be determined by an independent agency approved by HUD in accordance with PBV program requirements. The independent entity must provide a copy of the determination of reasonable rent for PHA‐ owned units to the PHA and to the HUD field office where the project is located. 618
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐56 Owner Certification of Reasonable Rent
By accepting each monthly housing assistance payment, the owner certifies that the rent to owner is not more than rent charged by the owner for other comparable unassisted units in the premises. At any time, the PHA may require the owner to submit information on rents charged by the owner for other units in the premises or elsewhere. 17‐VIII.D. EFFECT OF OTHER SUBSIDY AND RENT CONTROL
In addition to the rent limits discussed in Section 17‐VIII.B above, other restrictions may limit the amount of rent to owner in a PBV unit. In addition, certain types of subsidized housing are not even eligible to receive PBV assistance (see Section 17‐II.D).
Other Subsidy [24 CFR 983.304]
To comply with HUD subsidy layering requirements, at the discretion of HUD or its designee, a PHA shall reduce the rent to owner because of other governmental subsidies, including tax credits or tax exemptions, grants, or other subsidized funding.
For units receiving assistance under the HOME program, rents may not exceed rent limits as required by that program.
For units in any of the following types of federally subsidized projects, the rent to owner may not exceed the subsidized rent (basic rent) or tax credit rent as determined in accordance with requirements for the applicable federal program:
An insured or non‐insured Section 236 project;
A formerly insured or non‐insured Section 236 project that continues to receive Interest Reduction Payment following a decoupling action;
A Section 221(d)(3) below market interest rate (BMIR) project; A Section 515 project of the Rural Housing Service;
Any other type of federally subsidized project specified by HUD.
Rent to owner may not exceed any limitation required to comply with HUD subsidy layering requirements.
Rent Control [24 CFR 983.305]
In addition to the rent limits set by PBV program regulations, the amount of rent to owner may also be subject to rent control or other limits under local, state, or federal law. 619
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐58 PART IX: PAYMENTS TO OWNER
17‐IX.A. HOUSING ASSISTANCE PAYMENTS [24 CFR 983.351]
During the term of the HAP contract, the PHA must make housing assistance payments to the owner in accordance with the terms of the HAP contract. During the term of the HAP contract, payments must be made for each month that a contract unit complies with HQS and is leased to and occupied by an eligible family. The housing assistance payment must be paid to the owner on or about the first day of the month for which payment is due, unless the owner and the PHA agree on a later date.
Except for discretionary vacancy payments, the PHA may not make any housing assistance payment to the owner for any month after the month when the family moves out of the unit (even if household goods or property are left in the unit).
The amount of the housing assistance payment by the PHA is the rent to owner minus the tenant rent (total tenant payment minus the utility allowance).
In order to receive housing assistance payments, the owner must comply with all provisions of the HAP contract. Unless the owner complies with all provisions of the HAP contract, the owner does not have a right to receive housing assistance payments. 17‐IX.B. VACANCY PAYMENTS [24 CFR 983.352]
If an assisted family moves out of the unit, the owner may keep the housing assistance payment for the calendar month when the family moves out. However, the owner may not keep the payment if the PHA determines that the vacancy is the owner’s fault.
HACSB Policy
The PHA will not make vacancy payments to owners.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐59 At the discretion of the PHA, the HAP contract may provide for vacancy payments to the owner.
The PHA may only make vacancy payments if:
The owner gives the PHA prompt, written notice certifying that the family has vacated the unit and identifies the date when the family moved out (to the best of the owner’s knowledge);
The owner certifies that the vacancy is not the fault of the owner and that the unit was vacant during the period for which payment is claimed;
The owner certifies that it has taken every reasonable action to minimize the likelihood and length of vacancy; and
The owner provides any additional information required and requested by the PHA to verify that the owner is entitled to the vacancy payment.
The owner must submit a request for vacancy payments in the form and manner required by the PHA and must provide any information or substantiation required by the PHA to determine the amount of any vacancy payment.
HACSB Policy
The PHA will not make vacancy payments to owners.
17‐IX.C. TENANT RENT TO OWNER [24 CFR 983.353]
The tenant rent is the portion of the rent to owner paid by the family. The amount of tenant rent is determined by the PHA in accordance with HUD requirements. Any changes in the amount of tenant rent will be effective on the date stated in the PHA notice to the family and owner.
The family is responsible for paying the tenant rent (total tenant payment minus the utility allowance). The amount of the tenant rent determined by the PHA is the maximum amount the owner may charge the family for rental of a contract unit. The tenant rent covers all housing services, maintenance, equipment, and utilities to be provided by the owner. The owner may not demand or accept any rent payment from the tenant in excess of the tenant rent as determined by the PHA. The owner must immediately return any excess payment to the tenant.
Tenant and PHA Responsibilities
The family is not responsible for the portion of rent to owner that is covered by the housing assistance payment and the owner may not terminate the tenancy of an assisted family for nonpayment by the PHA.
Likewise, the PHA is responsible only for making the housing assistance payment to the owner in accordance with the HAP contract. The PHA is not responsible for paying tenant rent, or any other claim by the owner, including damage to the unit. The PHA may not use housing assistance payments or other program funds (including administrative fee reserves) to pay any part of the tenant rent or other claim by the owner.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin Plan 08/01/2018 Unlimited copies may be made for internal use. Page 17‐60 Utility Reimbursements
If the amount of the utility allowance exceeds the total tenant payment, the PHA must pay the amount of such excess to the tenant as a reimbursement for tenant‐paid utilities, and the tenant rent to the owner must be zero.
The PHA may pay the utility reimbursement directly to the family or to the utility supplier on behalf of the family. If the PHA chooses to pay the utility supplier directly, the PHA must notify the family of the amount paid to the utility supplier.
HACSB Policy
The PHA will make utility reimbursements to the family. 17‐IX.D. OTHER FEES AND CHARGES [24 CFR 983.354]
Meals and Supportive Services
With the exception of PBV assistance in assisted living developments, the owner may not require the tenant to pay charges for meals or supportive services. Non‐payment of such charges is not grounds for termination of tenancy.
In assisted living developments receiving PBV assistance, the owner may charge for meals or supportive services. These charges may not be included in the rent to owner, nor may the value of meals and supportive services be included in the calculation of the reasonable rent.
However, non‐payment of such charges is grounds for termination of the lease by the owner in an assisted living development.
Other Charges by Owner
The owner may not charge extra amounts for items customarily included in rent in the locality or provided at no additional cost to unsubsidized tenants in the premises. 623
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin plan 08/01/2018 Unlimited copies may be made for internal use. Page 18‐1 Chapter 18
PROJECT BASED VOUCHERS (PBV) UNDER THE RENTAL ASSISTANCE DEMONSTRATION (RAD)
PROGRAM
INTRODUCTION
This chapter describes HUD regulations and PHA policies related to the Project‐Based Voucher (PBV) program under the Rental Assistance Demonstration (RAD) program in eight parts:
Part I: General Requirements. This part describes general provisions of the PBV program, including maximum budget authority requirements, relocation requirements, and equal opportunity requirements.
Part II: PBV Project Selection. This part describes the cap on assistance at projects receiving PBV assistance, ownership and control, and site selection standards.
Part III: Dwelling Units. This part describes requirements related to housing quality standards, the type and frequency of inspections, and housing accessibility for persons with disabilities.
Part IV: Housing Assistance Payments Contract. This part discusses HAP contract requirements and policies including the execution and term of the HAP contract.
Part V: Selection of PBV Program Participants. This part describes the requirements and policies governing how the PHA and the owner will select a family to receive PBV assistance.
Part VI: Occupancy. This part discusses occupancy requirements related to the lease, and describes under what conditions families are allowed or required to move.
Part VII: Determining Contract Rent. This part describes how the initial rent to owner is determined, and how rent will be redetermined throughout the life of the HAP contract.
Part VIII: Payments to Owner. This part describes the types of payments owners may receive under this program.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin plan 08/01/2018 Unlimited copies may be made for internal use. Page 18‐3 PART I: GENERAL REQUIREMENTS
18‐I.A. OVERVIEW AND HISTORY OF THE RAD PROGRAM
The Rental Assistance Demonstration (RAD) program was authorized in 2012 in order to assess the effectiveness of converting public housing, moderate rehabilitation properties, and units under the rent supplement and rental assistance payments programs to long‐term, project‐ based Section 8 rental assistance. The program’s four primary objectives are to:
Preserve and improve public and other assisted housing. Standardize the administration of the plethora of federally subsidized housing programs and rules. The conversions are intended to promote operating efficiency by using a Section 8 project‐based assistance model that has proven successful and effective for over 30 years.
In other words, RAD aligns eligible properties more closely with other affordable housing programs.
Attract private market capital for property renovations. Through the use of this model, properties may be able to leverage private debt and equity to make capital repairs. Increase tenant mobility opportunities.
Under the first component, a PHA with public housing units may submit an application to HUD to convert some or all of their public housing units to long‐term, project‐based Section 8 HAP contracts under either:
Project‐based rental assistance (PBRA) under HUD’s Office of Multifamily Housing Programs.
Project‐based vouchers (PBVs) under HUD’s Office of Public and Indian Housing (PIH).
This chapter will focus on public housing conversions to the PBV program under RAD. In order to distinguish between requirements for public housing conversion under RAD and PBV units under the standard PBV program, we will refer to the standard PBV program and the RAD PBV program.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin plan 08/01/2018 Unlimited copies may be made for internal use. Page 18‐4 18‐I.B. APPLICABLE REGULATIONS
On the whole, the regulations for both the standard and RAD PBV programs generally follow the regulations for the tenant‐based HCV program found at 24 CFR Part 982. However, important parts of the tenant‐based regulations do not apply to the project‐based program. 24 CFR Part 983 outlines the sections of 24 CFR Part 982 that are not applicable to the project‐ based program.
For the RAD PBV program, Congress authorized HUD to waive certain statutory and regulatory provisions or establish alternative requirements from the standard PBV program. These provisions are identified in Notice PIH 2012‐32, REV‐2 (issued June 15, 2015) and Notice PIH 2012‐32, REV‐3 (issued January 12, 2017).
Otherwise, all regulatory and statutory requirements for the standard PBV program in 24 CFR Part 983 and Section 8(o)(13) of the Housing Act of 1937, and all applicable standing and subsequent Office of Public and Indian Housing (PIH) guidance, including related handbooks, apply to RAD PBV. This includes environmental review, Davis‐Bacon, and fair housing requirements.
RAD is authorized by the Consolidated and Further Continuing Appropriations Act of 2012 (Public Law 112‐55, approved November 18, 2011), as amended by the Consolidated Appropriations Act of 2014 (Public Law 113‐76, approved January 17, 2014), and the Consolidated and Further Continuing Appropriations Act of 2015 (Public Law 113‐235, approved December 6, 2014), and Division L, Title II, Section 237 of the Consolidated Appropriations Act (Public Law 114‐113, enacted December 18, 2015) collectively, the “RAD Statute.” Requirements specific to the RAD program may be found in the following:
Generally, public housing projects converting assistance under RAD are bound by the terms of the notice in effect at the time of closing. Notice PIH 2012‐32, REV‐3 is applicable to projects converting assistance through RAD, including those where a CHAP has already been issued, upon the expiration of the 30‐day comment period after publication of the notice. Notice PIH 2012‐32, REV‐3 was published January 12, 2017. Notice PIH 2012‐32, REV‐2, RAD – Final Implementation,REV‐2 is applicable to projects converting assistance through RAD upon the expiration of the 30‐day comment period after publication of the Notice. PIH Notice 2012‐32, REV‐2 was published June 15, 2015. 627
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin plan 08/01/2018 Unlimited copies may be made for internal use. Page 18‐5 RAD Quick Reference Guide for Public Housing Converting to PBV Assistance (10/14) RAD Welcome Guide for New Awardees: RAD 1st Component (3/15) Notice PIH 2016‐17, Rental Assistance Demonstration (RAD) Notice Regarding Fair Housing and Civil Rights Requirements and Relocation Requirements Applicable to RAD First Component – Public Housing Conversions.
- This Notice applies to all projects that have applied for RAD conversion but have not yet converted as of November 10, 2016.
Notice PIH 2014‐17, Relocation Requirements under the RAD Program, Public Housing in the First Component.
- This notice may apply to projects that have converted to RAD prior to November 10, 2016, AND who have requested and received approval from HUD to be governed by this notice. See PIH Notice 2016‐17, Section 1, Paragraph 1.3 for applicability. RAD FAQs (http://www.radresource.net/search.cfm)
In other words, the standard PBV program follows many of the same regulations as the tenant‐ based HCV program, but not all of them, and the RAD PBV program follows many of the same regulations as the standard PBV program, but not all of them.
MTW agencies are able to apply activities impacting the PBV program that are approved in the MTW Plan to properties converting under RAD, provided they do not conflict with RAD requirements.
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin plan 08/01/2018 Unlimited copies may be made for internal use. Page 18‐6 18‐I.C. TENANT‐BASED VS. PROJECT‐BASED VOUCHER ASSISTANCE [24 CFR 983.2]
Much of the tenant‐based voucher program regulations also apply to the PBV program.
Consequently, many of the PHA policies related to tenant‐based assistance also apply to RAD PBV assistance. The provisions of the tenant‐based voucher regulations that do not apply to the PBV program are listed at 24 CFR 983.2.
HACSB Policy
Except as otherwise noted in this chapter, or unless specifically prohibited by PBV program regulations, the PHA policies for the tenant‐based voucher program contained in this administrative plan also apply to the RAD PBV program and its participants. This chapter is intended to address requirements specific to the RAD PBV program only. 18‐I.D. RELOCATION REQUIREMENTS [Notice PIH 2014‐17]
In some developments, in‐place residents may need to be relocated as a result of properties undergoing repairs, being demolished and rebuilt, or when assistance is transferred from one site to another. RAD program rules prohibit the permanent, involuntary relocation of residents as a result of conversion. Residents that are temporarily relocated retain the right to return to the project once it has been completed.
Relocation assistance provided to residents will vary depending on the length of time relocation is required. Residents must be properly notified in advance of relocation requirements in accordance with RAD program rules and Uniform Relocation Act (URA) requirements. Sample informing notices are provided in Appendices 2–5 of Notice PIH 2014‐17. While the PHA is not required to have a written relocation plan, HUD strongly encourages PHAs to prepare one.
Appendix I of Notice PIH 2014‐17 contains recommended contents for a relocation plan.
In addition, PHAs must undertake a planning process that complies with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (URA), although not all relocations under RAD will trigger requirements under URA. URA statute and implementing regulations may be found at 49 CFR Part 24.
Any residents that may need to be temporarily relocated to facilitate rehabilitation or construction will have a right to return to an assisted unit at the development once rehabilitation or construction is completed. Where the transfer of assistance to a new site is warranted and approved, residents of the converting development will have the right to reside in an assisted unit at the new site once rehabilitation or construction is complete. Residents of a development undergoing conversion of assistance may voluntarily accept a PHA or owner’s offer to permanently relocate to another assisted unit, and thereby waive their right to return to the development after rehabilitation or construction is completed. 629
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin plan 08/01/2018 Unlimited copies may be made for internal use. Page 18‐7 630
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin plan 08/01/2018 Unlimited copies may be made for internal use. Page 18‐8 18‐I.E. EQUAL OPPORTUNITY REQUIREMENTS [24 CFR 983.8; Notice PIH 2012‐32, REV‐3] RAD conversions are governed by the same civil rights authorities that govern HUD‐assisted activities in general. PHAs must comply with all applicable fair housing and civil rights laws, including but not limited to the Fair Housing Act, Title VI of the Civil Rights Act of 1964, and Section 504 of the Rehabilitation Act of 1973, when conducting relocation planning and providing relocation assistance. For example, persons with disabilities returning to the RAD project may not be turned away or placed on a waiting list due to a lack of accessible units.
Their need for an accessible unit must be accommodated. 631
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin plan 08/01/2018 Unlimited copies may be made for internal use. Page 18‐9 PART II: PBV PROJECT SELECTION
18‐II.A. OVERVIEW
Unlike in the standard PBV program where the PHA typically selects the property through an owner proposal selection process, projects selected for assistance under RAD PBV are selected in accordance with the provisions in Notice PIH 2012‐32, REV‐3. Therefore, 24 CFR 983.51 does not apply since HUD selects RAD properties through a competitive selection process. 18‐II.B. OWNERSHIP AND CONTROL [Notice PIH 2012‐32, REV‐3] Except where permitted to facilitate the use of low‐income housing tax credits, during both the initial term and renewal terms of the HAP contract, ownership must be by a public or non‐profit entity. The requirement for a public or non‐profit entity is satisfied if a public or non‐profit entity (or entities), directly or through a wholly‐owned affiliate (1) holds a fee simple interest in the property; (2) is the lessor under a ground lease with the property owner; (3) has the direct or indirect legal authority to direct the financial and legal interest of the property owner with respect to the RAD units, (4) owns 51 percent or more of the general partner interests in a limited partnership or 51 percent or more of the managing member interests in a limited liability company with all powers of a general partner or managing member, as applicable; (5) owns a lesser percentage of the general partner or managing member interests and holds certain control rights as approved by HUD; (6) owns 51 percent or more of all ownership interests in a limited partnership or limited liability company and holds certain control rights as approved by HUD; or (7) other ownership and control arrangements approved by HUD.
If low‐income housing tax credits will be used, HUD may allow ownership of the property to be transferred to a tax credit entity controlled by a for‐profit entity if HUD determines that the PHA preserves its interest in the property. Preservation of PHA interest in the property includes but is not limited to the following:
The PHA, or an affiliate under its sole control, is the general partner or managing member; The PHA retains fee ownership and leases the real estate to the tax credit entity pursuant to a long‐term ground lease;
The PHA retains control over leasing the property and determining program eligibility; The PHA enters into a control agreement by which the PHA retains consent rights over certain acts of the project owner and retains certain rights over the project; Other means that HUD finds acceptable
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin plan 08/01/2018 Unlimited copies may be made for internal use. Page 18‐11 634
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© Copyright 2017 Nan McKay & Associates, Inc. HACSB Admin plan 08/01/2018 Unlimited copies may be made for internal use. Page 18‐12 18‐II.C. PHA‐OWNED UNITS [24 CFR 983.59; FR Notice 1/18/17, and Notice PIH 2017‐21] If the project is PHA‐owned, rent‐setting and inspection functions set out in 24 CFR 983.59 must be conducted by an independent entity approved by HUD.