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.
Lifetime Sex Offenders [24 CFR 5.856, 960.204(a)(4) and 982.553(a)(2)] © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 12-6 HUD prohibits admission after June 25, 2001, if any member of a household is subject to a State lifetime sex offender registration requirement. This regulation reflects a statutory prohibition. A household receiving assistance with such a member is receiving assistance in violation of federal law.
If an owner or the PHA discovers that a household member was erroneously admitted (the household member was subject to a lifetime registration requirement at admission and was admitted after June 25, 2001), the owner or PHA must immediately pursue eviction or termination of assistance for the household member. Regulations for hearings for Housing Choice Voucher (HCV) programs, at 24 CFR § 966 Subpart B and § 982.555, respectively, continue to apply.
If the PHA erroneously admitted a lifetime sex offender, 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.
© Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 12-7 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:
x 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
x 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 x Any household member has violated the family’s obligation not to engage in violent criminal activity
Use of Illegal Drugs and Alcohol Abuse
PHA 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 three 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 or records of arrest will not be used as the sole 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.
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).
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Unlimited copies may be made for internal use. Page 12-8 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.
PHA 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 (including gang-related criminal activity) during participation in the 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 or records of arrest will not be used as the sole 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), 24 CFR 984.101(d)] 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 explicitly prohibits PHAs from considering incidents of, or criminal activity directly related to, domestic violence, dating violence, sexual assault, stalking, or human trafficking, as reasons for terminating the assistance of a victim of such abuse.
Additionally, per 24 CFR 984.101(d), 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.
PHA Policy
The PHA will terminate a family’s assistance if:
The family has failed to comply with any family obligations under the program and they cannot provide sufficient evidence that violation was caused by mitigating circumstances, will not likely to be repeated again, nor that they have taken verifiable actions to maintain compliance with the family obligations. and/or has taken verifiable actions to maintain compliance with the family © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 12-9 obligations. See Exhibit 12-1 for a listing of family obligations and related PHA policies.
Program Violation Warnings: If the PHA receives a copy of a lease violation notice from a property owner, or otherwise becomes aware of a potential program violation, the PHA will carry out a reasonable investigation to determine whether a violation occurred. As part of its investigation, the PHA may send the participant a notice stating that a violation has been alleged and providing the participant an opportunity to respond. Where appropriate, the PHA may wait for the judgment of a court and consider the court’s judgment before making any determination. If, after appropriate investigation, the PHA determines that a violation of a family obligation has occurred, the PHA will determine whether or not the participant will be allowed to remain in the program based on the following factors: whether this is the first occurrence of a violation of family obligations; whether the violation was believed by the PHA to be unintentional; and the severity of the circumstances. If the participant is allowed to remain on the program, the participant will be required to sign a Program Violation Warning and a Repayment Agreement if appropriate. If, after a reasonable investigation, the participant is determined to have violated the same obligation on at least two different occasions, termination will proceed. In no case shall a participant be offered more than a total of two Program Violation Warnings during their participation. The supervisor and/or administrator will determine when a Program Violation Warning is merited. Participants must sign Program Violation Warnings when issued to avoid further violations of Family Obligations.
Any family member has been evicted from federally assisted housing in the last five years.
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 in connection with Section 8 or public assistance under the 1937 Act.
The family has not reimbursed any PHA for amounts the PHA paid to an owner under a 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.
Abusive or violent behavior towards PHA personnel includes verbal as well as physical abuse or violence. Use of racial epithets, or other language, © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 12-10 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 to termination and any verifiable evidence that the family will maintain compliance with the family obligations. The PHA will also consider alternative 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 will choose whether to terminate assistance on a case-by-case basis.
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 family may not be absent from the unit for a period of more than 90 consecutive calendar days for any reason.
Absence in this context means that no member of the family is residing in the unit.
PHA Policy
If the family is absent from the unit for more than 90 consecutive calendar days, the family’s assistance will be terminated. Notice of termination will be sent in accordance with Section 12-II.F.
Upon the PHA’s HOTMA 102/104 compliance date, the below section on the asset limitation is added:
Asset Limitation [24 CFR 5.618; Notice PIH 2023-27]
The PHA has discretion with respect to the application of the asset limitation at annual and interim reexamination. The PHA may adopt a written policy of total nonenforcement, enforcement, or limited enforcement as well as adopting exception policies.
PHA Policy
The PHA has adopted a policy of total nonenforcement of the asset limitation for all program participants. The asset limitation only applies to initial eligibility determinations for new admissions to the PHA’s HCV program.
Insufficient Funding [24 CFR 982.454]
The PHA may terminate 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. The PHA must identify in the administrative plan, in the event of insufficient funding, taking into account any cost saving measures taken by the PHA, a description of the factors the PHA will consider when determining which HAP contracts to terminate first [24 CFR 982.54(d)(26)].
© Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 12-11 PHA 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 contracts, the PHA will determine if any other actions can be taken to reduce program costs. The PHA will notify the local Legal Aid Office of any substantial cuts in voucher funding.
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 contracts as a last resort.
Prior to terminating any 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 contracts due to insufficient funding, the PHA will do so in accordance with the following criteria and instructions:
Families who have been assisted in the HCV program the longest will be the first to be terminated, excluding families that include elderly or disabled family members.
Families comprising the required number of special purpose vouchers, including nonelderly disabled (NED), HUD-Veteran’s Affairs Supportive Housing (HUDVASH), and family unification program (FUP) will be the last to be terminated. © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 12-12 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:
x Terminating housing assistance payments under a current contract, x Refusing to enter into a new contract or approve a lease, or x 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 reside in the unit [24 CFR 982.552(c)(2)(ii)].
PHA 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
PHA 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.
© Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 12-13 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)].
PHA 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.
Use of Criminal Conviction Records after Admission [24 CFR 5.903] The regulation at 24 CFR 5.903 governs a PHA’s access to and use of criminal conviction records obtained from a “law enforcement agency” such as the National Crime Information Center (NCIC), police departments, and other law enforcement agencies that hold criminal conviction records. While the regulatory listing of permitted uses for these records includes PHA screening of applicants for admission to the HCV program, it specifically excludes the use of records for lease enforcement and eviction of HCV participants and excludes by omission a PHA’s use of records to terminate assistance for participants. While a PHA has regulatory authority to use criminal conviction records for the purpose of applicant screening for admission, there is no corresponding authority to use these records to check for criminal and illegal drug activity by participants, and therefore, PHAs may not use records for this purpose. The limitations, however, do not apply to criminal conviction information searches from non-federal sources (i.e., sources other than the “law enforcement agencies” defined in 24 CFR 5.902(b)). There is no prohibition that bars a PHA from using non-federal sources to conduct criminal background checks of program participants.
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.
PHA 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 © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 12-14 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, stalking, or human trafficking.
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 or records of arrest will not be used as the sole 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
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 indicated 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.
PHA Policy
© Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 12-15 If a family indicates that the behavior of a family member with a disability is related to the reason for a proposed termination of assistance, the PHA will determine whether there is a nexus between the disability and the behavior. 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.
Limited English Proficiency
The PHA will not terminate an LEP family’s assistance if the family was not provided properly translated notices and therefore not provided an opportunity to correct a violation that could otherwise have been remedied.
12-II.E. TERMINATIONS RELATED TO DOMESTIC VIOLENCE, DATING VIOLENCE, SEXUAL
ASSAULT, STALKING, OR HUMAN TRAFFICKING
This section describes the protections against termination of assistance that the Violence Against Women Act (VAWA) provides for victims of domestic violence, dating violence, sexual assault, stalking, and human trafficking. 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 programs, as do the limitations discussed under the next heading.) x Although the VAWA 2022 statute does not specifically include human trafficking in the list of victims protected under VAWA, in 2022 HUD began including human trafficking as part of the list of victims protected under VAWA (as seen in Notices PIH 2022-06, PIH 2022-22, and PIH 2022-24). In the absence of a final rule implementing VAWA 2022 and to mirror HUD’s recent usage, this policy includes human trafficking in addition to domestic violence, dating violence, sexual assault, and stalking anywhere such a list appears.
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, stalking, or human trafficking, and who reasonably believed they were imminently threatened by harm from further violence if they remained in the unit [24 CFR 982.354(b)(4)].
Second, it provides that an incident or incidents of actual or threatened domestic violence, dating violence, sexual assault, stalking, or human trafficking, may not be construed as a serious © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 12-16 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, stalking, or human trafficking, 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, stalking, or human trafficking [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)].
PHAs and owners may not coerce, intimidate, threaten, interfere with, or retaliate against any person who exercises or assists or encourages a person to exercise any rights or protections under VAWA [FR Notice 1/4/23].
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, stalking, or human trafficking, 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, stalking, or human trafficking, 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)]. The Violence Against Women Reauthorization Act of 2013 © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 12-17 (VAWA) provides that an individual cannot be denied housing assistance, tenancy, or occupancy rights due to “criminal activity directly relating to domestic violence, dating violence, sexual assault, or stalking, that is engaged in by a member of the household of the tenant or any guest or other person under the control of the tenant, if the tenant or an affiliated individual of the tenant is the victim or threatened victim of such domestic violence, dating, violence, sexual assault, or stalking [42 U.S.C. § 14043e-11(b)(3)(A).
VAWA also gives PHAs the authority to “evict, remove or terminate assistance to any individual who is a tenant or lawful occupant of the housing and who engages in criminal activity directly related to domestic violence, dating violence, sexual assault, or stalking against an affiliated individual or other individual, without evicting, removing, terminating assistance to, or otherwise penalizing a victim of such criminal activity who is also a tenant or lawful occupant of the housing [42 U.S.C. § 14043e-11(b)(3)(B)(i).”
VAWA does not limit the authority of the PHA to terminate the assistance of any participant if the PHA “can demonstrate an actual and imminent threat to other tenants or those employed at or providing service to the property if that tenant is not evicted or terminated from assistance.” However, situations where this might be relevant are extremely rare.
PHA Policy
In determining whether a program participant who is a victim of domestic violence, dating violence, sexual assault, stalking, or human trafficking, 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 tenants other than the victim of domestic violence, dating violence, sexual assault, stalking, or human trafficking.
Whether the threat is a physical danger beyond a speculative threat Whether the threat is likely to happen within an 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.
If the participant wishes to contest the PHA’s determination that they are an actual and imminent threat to other tenants or employees, the participant may do so as part of the informal hearing.
Documentation of Abuse [24 CFR 5.2007]
PHA Policy
When an individual facing termination of assistance for reasons related to domestic violence, dating violence, sexual assault, stalking, or human trafficking, 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. © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 12-18 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 [FR Notice 3/16/07] 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.
PHA 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 submitted to the PHA by the victim in accordance with this section. 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. 12-II.F. TERMINATION NOTICE
© Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 12-19 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 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.
PHA 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 PHA will also send a form HUD-5382 and form HUD-5380 to the family with the termination notice. 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 their right to offer the family a separate, unassisted lease.
SMHA will provide translated copies of the termination notice to LEP participants, in accordance with SMHA’s LEP Plan.
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 requires PHAs to provide notice of VAWA rights and the HUD 5382 form when a PHA terminates a household’s housing benefits.
VAWA also requires that this notice of VAWA rights be translated in accordance with HUD’s LEP Guidance and Executive Order 13166.
PHA 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 in writing 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)]. • 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. © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 12-20 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 just cause.
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, sexual assault, stalking, or human trafficking, 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):
x 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)
x 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 x Any violent criminal activity on or near the premises © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 12-21 x 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, stalking, or human trafficking, 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).
The owner may terminate tenancy during the term of the lease if any member of the household is:
x 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 x 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, stalking, or human trafficking, and the tenant or an affiliated individual is the victim or threatened victim of the domestic violence, dating violence, sexual assault, stalking, or human trafficking.
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:
x Failure by the family to accept the offer of a new lease or revision x The owner’s desire to use the unit for personal or family use, or for a purpose other than as a residential rental unit
x 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) © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 12-22 After the initial lease term, the owner may give the family notice at any time, in accordance with the terms of the lease.
If a property is subject to foreclosure, during the term of the lease, the new owner of the property does not have good cause to terminate the tenant’s lease, unless the new owner will occupy the unit as their primary residence and has provided the tenant with at least a 90-day notice. In that case, the lease may be terminated effective on the date of sale, although the tenant is still entitled to a 90-day notice to vacate. See Section 13-II.G for a discussion of PHA policies relating to units in foreclosure.
PHA Policy
Property owners in Santa Monica must act in accordance with the Santa Monica City Charter Articles XVIII and XXIII. These articles detail the grounds for owner termination of tenancy, and mandate that an owner may only terminate tenancy if there are documented serious lease violations, certain violations of state or local law, or other good cause.
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).
PHA 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. © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 12-23 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:
x The nature of the offending action
x The seriousness of the offending action;
x The effect on the community of the termination, or of the owner’s failure to terminate the tenancy;
x The extent of participation by the leaseholder in the offending action; x The effect of termination of tenancy on household members not involved in the offending activity;
x The demand for assisted housing by families who will adhere to lease responsibilities; x The extent to which the leaseholder has shown personal responsibility and taken all reasonable steps to prevent or mitigate the offending action; x 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, sexual assault, stalking, or human trafficking, is limited by the Violence Against Women Act (VAWA) and the conforming regulations in 24 CFR Part 5, Subpart L. (See section 12-II.E.)
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Unlimited copies may be made for internal use. Page 12-24 12-III.E. EFFECT OF TENANCY TERMINATION ON THE FAMILY’S ASSISTANCE If a termination is not due to a serious 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).
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Unlimited copies may be made for internal use. Page 12-25 EXHIBIT 12-1: STATEMENT OF FAMILY OBLIGATIONS
Following is a listing of a participant family’s obligations under the HCV program:
1. The family must supply any information that the PHA or HUD determines to be necessary in the administration of the program, including submission of required evidence of citizenship or eligible immigration status. “Information” includes any requested certification, release or other documentation.
2. 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 in accordance with HUD requirements.
3. The family must disclose and verify social security numbers and sign and submit consent forms for obtaining information.
4. Any information supplied by the family must be true and complete.
5. The family may be heldis responsible for any a breach of Housing Quality Standards (HQS) breach caused by the family’s failure to pay tenant-provided utilities or appliances, or damages to the dwelling unit or premises beyond ordinary wear and tear caused by any member of the household or guest.
5. as described in 24 CFR Section 982.404(b).
6. 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.
7. The family must not commit any serious violation of the lease.
PHA Policy
The PHA will determine if a family has committed serious 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 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, sexual assault, stalking, or human trafficking, will not be construed as serious lease violations by the victim [24 CFR 5.2005(c)(1)].
8. The family must notify the PHA and the owner before moving out of the unit or terminating the lease.
PHA 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, but no less than 30 days prior to moving or terminating the lease. © Copyright 20243 Nan McKay & Associates, Inc.
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9. The family must promptly give the PHA a copy of any owner eviction notice.
10. The family must use the assisted unit for residence by the family. The unit must be the family’s only residence.
11. The composition of the assisted family residing in the unit must be approved by the PHA.
The family must immediately notify the PHA in writing of the birth, adoption, or courtawarded custody of a child. The family must request PHA approval to add any other family member as an occupant of the unit. No other person (i.e., nobody but members of the assisted family) may reside in the unit (except for a foster child or live-in aide as provided below).
PHA 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.
12. The family must immediately notify the PHA in writing if any family member no longer lives in the unit.
13. 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).
14. Members of the household may engage in legal profitmaking activities in the unit, but only if such activities are incidental to primary use of the unit for residence by members of the family.
15. The family must not sublease or let the unit.
PHA 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.
16. The family must not assign the lease or transfer the unit.
17. The family must supply any information or certification requested by the PHA to verify that the family is living in the unit, or related to family absence from the unit, including any PHA requested information or certification for the purposes of family absences. The family must cooperate with the PHA for this purpose. The family must promptly notify the PHA when the family is absent from the unit.
PHA 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 prior to the start of the extended absence.
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Unlimited copies may be made for internal use. Page 12-27
18. 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).
19. 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).
20. 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).
21. 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).
22. 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.
23. 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]
24. The family must immediately notify the PHA in writing of any increases in family income or assets.
25. The family must immediately notify the PHA in writing when a full-time adult student is no longer enrolled and/or attending school full-time.
26. 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].
27. The family (including each family member) must not damage the unit or premises (other than damage from ordinary wear and tear) or permit any guest to damage the unit or premises.
28. The family agrees not to pay the owner/landlord any additional compensation (either monetary or other) other than that which is approved by the lease or approved by the PHA.
29. The family must not engage in or threaten abusive or violent behavior towards any PHA employee or representative.
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Unlimited copies may be made for internal use. Page 13-1 Chapter 13
OWNERS
INTRODUCTION
Owners play a major role in the programs 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 programs [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 Program. This part discusses the role of an owner in the PHA’s program and highlights key owner rights and responsibilities.
Part II: HAP Contracts. This part explains provisions of the contract and the relationship between the PHA and the owner as expressed in the contract.
For detailed information about 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.
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13-I.A. OWNER RECRUITMENT AND RETENTION [HCV GB, pp. 2-4 to 2-6; HCV Landlord Strategy Guidebook for PHAs]
Education and Outreach 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 programs.
To accomplish this objective, PHAs must identify and recruit new owners to participate in the program. PHAs can provide education and outreach in a variety of ways. Some strategies include hosting or attending events targeted to landlords or affordable housing providers.
Education and outreach can include activities like newsletters, presentations, briefings to community groups, one-on-one appointments, or other ways of sharing information or creating relationships between PHAs and owners. The PHA may also provide monetary incentives and reimbursements to encourage participation in the program.
If the PHA will be conducting outreach events, the PHA must ensure that notices and communications during outreach events are provided in a manner that is effective for persons with hearing, visual, and other communications-related disabilities. PHAs must also take reasonable steps to ensure meaningful access to programs to persons with limited English proficiency.
PHA 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 an owner packet of printed material about the program to property owners and managers
Contacting property owners and managers by phone or in-person Holding owner recruitment/information meetings.
Participating in community-based organizations comprised of private property and apartment owners and managers
Developing working relationships with owners, apartment associations, industry investor groups, and real estate brokers associations
To the extent practical, partnering with and attending events hosted by other area agencies to deliver information about the HCV program Outreach strategies will be monitored for effectiveness and adapted accordingly. © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 13-3 Retention
In addition to recruiting owners to participate in the programs, the PHA must also provide the kind of customer service that will encourage participating owners to remain active in the program. See the “Landlord-Focused Customer Service” chapter of the HCV Landlord Strategies Guidebook for more information.
PHA 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 factsheet that explains the programs, 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 through a landlord handbook, including answers to frequently asked questions.
Contacting owners via emails or texts to disseminate information.
Additional services may be undertaken on an as-needed basis, and as resources permit. 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. As part of the briefing packet, the PHA is also required to provide a current listing of accessible units known to the PHA. 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 family, or to help the family find a unit [24 CFR 982.301(b)(11)].
PHA Policy
Owners that wish to indicate their willingness to lease a unit to an eligible family or to help the family find a unit must notify the PHA. The PHA will maintain a listing of such units and provide this listing to the family as part of the informational briefing packet if available.
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Unlimited copies may be made for internal use. Page 13-4 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 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 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 pass 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 inspection standards, and policies for HQS inspections at initial lease-up and throughout the family’s tenancy.
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 (Form HUD-52641-A) 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. © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 13-5 The PHA and the owner must execute a Contract (Form HUD-52641). The contract format is prescribed by HUD. See Chapter 9 for a discussion of the HUD requirements for execution of the contract.
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Unlimited copies may be made for internal use. Page 13-6 13-I.C. OWNER RESPONSIBILITIES [24 CFR 982.452]
The basic owner responsibilities in the program are outlined in the regulations as follows:
x Complying with all of the owner's obligations under the contract and the lease. x 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.
x Maintaining the unit in accordance with the Housing Quality Standards (HQS), including performance of ordinary and extraordinary maintenance.
o A unit is not in compliance with housing quality standards if the PHA or other inspector authorized by the state or local government determines that the unit has deficiencies based upon an inspection, the agency or inspector notifies the owner in writing of the deficiencies, and the deficiencies are not remedied within the appropriate timeframe.
x Complying with equal opportunity requirements.
x Preparing and furnishing to the PHA information required under the HAP contract. x Collecting and the security deposit, the tenant rent, and any charges for unit damage by the family.
x Enforcing tenant obligations under the dwelling lease. x Paying for utilities and services that are not the responsibility of the family as specified in the lease.
x Allowing reasonable modifications to a dwelling unit occupied or to be occupied by a disabled person [24 CFR 100.203].
x Complying with the Violence Against Women Act (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); 24 CFR 982.452(b)(1); and FR Notice 1/4/23]. © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 13-7 13-I.D. OWNER QUALIFICATIONS
The PHA does not formally approve an owner to participate in the program. However, there are several 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 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 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.
PHA Policy
In cases where the owner and tenant bear the same last name, the PHA may, at its discretion, require the family and or owner to certify whether they are related to each other in any way.
Conflict of Interest [24 CFR 982.161; HCV GB p. 8-19; Form HUD-52641, Section 13] 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:
x Any present or former member or officer of the PHA (except a participant commissioner) x 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 x Any public official, member of a governing body, or State or local legislator, who exercises functions or responsibilities with respect to the programs x Any member of the Congress of the United States
Such “covered individual” may not have any direct or indirect interest in the HAP contract or in any benefits or payments under the contract (including the interest of an immediate family member of such covered individual) while such person is a covered individual or for one year thereafter.
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Unlimited copies may be made for internal use. Page 13-8 Immediate family member means the spouse, parent (including a stepparent), child (including a stepchild), grandparent, grandchild, sister, or brother (including a stepsister or stepbrother) of any covered individual.
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]:
x Complete statement of the facts of the case;
x Analysis of the specific conflict of interest provision of the HAP contract and justification as to why the provision should be waived;
x 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;
x Opinion by the local HUD office as to whether there would be an appearance of impropriety if the waiver were granted;
x Statement regarding alternative existing housing available for lease under the HCV program or other assisted housing if the waiver is denied;
x If the case involves a hardship for a particular family, statement of the circumstances and discussion of possible alternatives;
x If the case involves a public official or member of the governing body, explanation of their duties under state or local law, including reference to any responsibilities involving the program;
x If the case involves employment of a family member by the PHA or assistance under the program for an eligible PHA employee, explanation of the responsibilities and duties of the position, including any related to the program;
x 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 contract until HUD has made a decision on the waiver request.
PHA 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. © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 13-9 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 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].
PHA 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 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 or any violent criminal activity;
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;
The owner has not paid state or local real estate taxes, fines, or assessment; The owner has engaged in or threatened violent or abusive behavior toward PHA personnel; or
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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.
Legal Ownership of Unit
The following represents PHA policy on legal ownership of a dwelling unit to be assisted under the HCV program.
PHA Policy
The PHA will only enter into a contractual relationship with the legal owner of a qualified unit. No tenancy will be approved without acceptable documentation of legal ownership (e.g., deed of trust, proof of taxes for most recent year).
If a professional management firm represents the owner, the PHA will require a letter from the owner verifying this arrangement. The PHA will also require a Tax ID number for tax purposes and bank deposit information for direct deposit. No housing assistance payment will be made prior to the PHA receiving these documents. 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, disability, or status as a victim of domestic violence, dating violence, sexual assault, or stalking, in connection with any actions or responsibilities under the program and the 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 program and the contract with the PHA.
See Chapter 2 for a more thorough discussion of Fair Housing and Equal Opportunity requirements in the program.
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Unlimited copies may be made for internal use. Page 13-11 PART II: HAP CONTRACTS
13-II.A. OVERVIEW
The contract (Form HUD-52641) represents a written agreement between the PHA and the owner of the dwelling unit occupied by an assisted family. The contract spells out the owner’s responsibilities under the program, as well as the PHA’s obligations. Under the 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 contract is used for all tenant-based 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 contract. See chapter 9 for a discussion of the leasing process, including provisions for execution of the contract. 13-II.B. HAP CONTRACT CONTENTS
The 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 contract cannot be modified. However, PHAs do have the discretion to add language to Part A of the 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 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).
PHA 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 contract will be necessary.
Part B is the body of the contract. It describes in detail program requirements affecting the owner and owner roles and responsibilities under the program. Most of the requirements © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 13-12 contained in Part B of the HAP contract are outlined elsewhere in this plan. Topics addressed in Part B include:
x Lease of Contract Unit
x Maintenance, Utilities, and Other Services
x Term of Contract
x Provision and Payment of Utilities and Appliances
x Rent to Owner: Reasonable Rent
x PHA Payment to Owner
x Prohibition of Discrimination
x Owner’s Breach of HAP Contract
x PHA and HUD Access to Premises and Owner’s Records
x Exclusion of Third-Party Rights
x Conflict of Interest
x Assignment of the HAP Contract
x Written Notices
x 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.
PHA Policy
To cover the special requirements of the HOME Program, the PHA requires a Lease Addendum to be executed between the tenant and the landlord, which covers the prohibited lease provisions that may not be enforced by the landlord. © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 13-13 13-II.C. HAP CONTRACT PAYMENTS
General
During the term of the contract, and subject to the provisions of the 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 payment is determined according to the policies described in Chapter 6 and is subject to change during the term of the 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.
PHA Policy
The PHA requires property owners to participate in direct deposit of HAP payments. To begin direct deposit service, property owners must provide a completed Direct Deposit Authorization form.
Owner Certification of Compliance
Unless the owner complies with all provisions of the contract, the owner is not entitled to receive housing assistance payments under the contract [HAP Contract – Form HUD-52641].
By accepting the monthly check from the PHA, the owner certifies to compliance with the terms of the 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 © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 13-14 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 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 contract. After the first two calendar months of the contract term, the 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 contract as long as the tenant continues to occupy the unit and the contract is not violated.
HAP payments terminate when the 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.
PHA 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. Notification includes providing a copy of the eviction notice to the PHA at the same time the owner serves the tenant.
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, © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 13-15 whichever is earlier. The owner must inform the PHA of the date when the family moves from the unit or the family is physically evicted from the unit. 13-II.D. BREACH OF CONTRACT [24 CFR 982.453]
Any of the following actions by the owner constitutes a breach of the contract:
x If the owner violates any obligations under the contract including failure to maintain the unit in accordance with HQS
x If the owner has violated any obligation under any other contract x If the owner has committed fraud, bribery or any other corrupt or criminal act in connection with any federal housing program
x 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 x If the owner has engaged in drug-related criminal activity x If the owner has committed any violent criminal activity If the PHA determines that a breach of the contract has occurred, the PHA must take enforcement action in accordance with 24 CFR 982.404.
it may exercise any of its rights and remedies under the contract.
The PHA rights and remedies against the owner under the contract include recovery of any HAP overpayment, withholding or suspension of housing assistance payments, abatement or reduction of the housing assistance payment, termination of the payment or termination of the 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 contract.
PHA 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 contract violations.
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Unlimited copies may be made for internal use. Page 13-16 13-II.E. HAP CONTRACT TERM AND TERMINATIONS
The term of the 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 contract and the housing assistance payments made under the contract terminate if [HCV Guidebook pp.11-4 and 11-5, pg. 15-3]:
x The owner or the family terminates the lease;
x The lease expires;
x The PHA terminates the contract;
x The PHA terminates assistance for the family;
x 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. x 180 calendar days have elapsed since the PHA made the last housing assistance payment to the owner;
x The family is absent from the unit for longer than the maximum period permitted by the PHA;
x The Annual Contributions Contract (ACC) between the PHA and HUD expires x The PHA elects to terminate the contract.
PHA Policy
The PHA may elect to terminate the 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 contract [24 CFR 982.453(b)] – see Section 13-II.D.
If the PHA terminates the 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 contract is terminated, no further HAP payments may be made under that contract [HCV Guidebook pg.15-4].
PHA Policy
In all cases, the contract terminates at the end of the calendar month that follows the calendar month in which the PHA gives written notice to the owner. The owner is not © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 13-17 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 contract for the assisted unit terminates. A new 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 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].
13-II.F. CHANGE IN OWNERSHIP / ASSIGNMENT OF THE HAP CONTRACT [HUD-52641]
The contract cannot be assigned to a new owner without the prior written consent of the PHA.
An owner under a 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 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.
PHA Policy
Assignment of the contract will be approved only if the new owner is qualified to become an owner under the 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 contract.
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 contract assignment;
A written agreement to comply with the terms of the contract; and A certification that the new owner is not a prohibited relative.
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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Unlimited copies may be made for internal use. Page 13-18 13-II.G. FORECLOSURE [Notice PIH 2010-49]
Families receiving HCV assistance are entitled to certain protections set forth under the Protecting Tenants at Foreclosure Act (PTFA). During the term of the lease, the new owner of the property does not have good cause to terminate the tenant’s lease, unless the new owner will occupy the unit as their primary residence and has provided the tenant with at least a 90- day notice. In that case, the lease may be terminated effective on the date of sale, although the tenant is still entitled to a 90-day notice to vacate. Further, the new owner assumes interest in the lease between the prior owner and the tenant and to the HAP contract.
Any state or local law that provides longer time periods or other additional protections for tenants also applies.
PHA Policy
If a property is in foreclosure, the PHA will make all reasonable efforts to determine the status of the foreclosure and ownership of the property and will continue to make payments to the original owner until ownership legally transfers in accordance with the HAP contract.
The PHA will attempt to obtain a written acknowledgement of the assignment of the HAP contract from the successor in interest. This will include a request for owner information, including a tax identification number and payment instructions from the new owner. Even if the new owner does not acknowledge the assignment of the HAP contract in writing, the assignment is still effective by operation of law.
The PHA will inform the tenant that they must continue to pay rent in accordance with the lease, and if the new owner refuses to accept payment or cannot be identified, the tenant should pay rent into escrow. Failure to pay rent may constitute an independent ground for eviction.
In the event that the PHA is unable to make HAP payments to the new owner due to an action or inaction by the new owner that prevents such payments (e.g., rejection of payments or failure to maintain the property according to HQS), or due to an inability to identify the new owner, the PHA will either use the funds to pay:
The utilities that are the owner’s responsibility after taking reasonable steps to notify the owner; except that if the unit has been or will be rendered uninhabitable due to termination or threat of termination of service, prior notice is not required. In the latter case, the PHA shall notify the owner within a reasonable time after making the utility payment; or
For the family’s reasonable moving costs, including security deposit costs.
The PHA will also refer the tenant, as needed, to the local legal aid office in order to ensure adequate protection of the tenant’s rights and enforcement of the successor in interest’s performance under the HAP contract.
See Section 12-III.B for a discussion of foreclosure as it pertains to owner termination of tenancy.
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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. © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 14-2 PART I: PREVENTING, DETECTING, AND
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 at annual reexamination in accordance with HUD administrative guidance [24 CFR
5.233]. PHAs are further required to:
x Provide applicants and participants with form HUD-52675, “Debts Owed to PHAs and Terminations”
x 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 PHA Policy
To ensure that the PHA’s programs are administered effectively and 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 2017-12. In addition, the PHA will require the head of each household to acknowledge receipt of the guide by signing a copy for retention in the family file.
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.
At every regular reexamination, PHA staff will explain any changes in HUD regulations or PHA policy that affect program participants.
The PHA will require first-time owners (or their agents) to participate in a briefing session on contract requirements.
The PHA will provide owners with ongoing information about the program, with an emphasis on actions and situations to avoid.
PHA staff will provide the family the opportunity for review and will explain when the family requests clarification, the contents of HUD and PHA required forms when requesting family member signatures.
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Unlimited copies may be made for internal use. Page 14-3 The PHA will inform participants of the investigative process and their rights by providing each participant with the PHA’s Investigation Protocol in the following manner:
1. As part of the annual recertification process; and
2. Immediately prior to commencement of the investigatory interview.
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 statement, omission, or concealment of a substantial fact, made with the intent to deceive or mislead that result in payment of funds in violation of program requirements. 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).
PHA 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.
Every two years (subject to funding availability) the PHA may obtain a credit report on all adult family members, at no expense to the family.
Independent Audits and HUD Monitoring
OMB Circular A-133 requires all PHAs that expend $500,000 or more in federal awards annually © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 14-4 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.
PHA 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 PHA Policy
The PHA will encourage staff, program participants, and the public to report possible program abuse.
14-I.C. INVESTIGATING ERRORS AND PROGRAM ABUSE
When the PHA Will Investigate
PHA 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, the verification process and, when needed, an independent fraud investigator.
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 families to sign consent forms for the release of additional information.
Analysis and Findings
PHA 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. © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 14-5 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.
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.
PHA 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
PHA 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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Unlimited copies may be made for internal use. Page 14-6 PART II: CORRECTIVE MEASURES AND PENALTIES
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.
PHA 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. 14-II.B. FAMILY-CAUSED ERRORS AND PROGRAM ABUSE
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] PHA 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 or creates more than two overpayments in 36 months by failing to report income, the PHA will terminate the family’s assistance in accordance with the policies in Chapter 12.
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Unlimited copies may be made for internal use. Page 14-7 PHA Reimbursement to Family [HCV GB p. 22-12]
PHA Policy
The PHA will not reimburse the family for any underpayment of assistance when the underpayment clearly is caused by the family.
Prohibited Actions
An applicant or participant in the program must not knowingly:
x Make a false statement to the PHA [Title 18 U.S.C. Section 1001]. x Commit fraud, bribery, or any other corrupt or criminal act in connection with any federal housing program [24 CFR 982.552(c)(iv)].
PHA 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.
x The PHA may require the family to repay excess subsidy amounts paid by the PHA, as described earlier in this section.
x 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).
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Unlimited copies may be made for internal use. Page 14-8 x The PHA may deny or terminate the family’s assistance following the policies set forth in Chapter 3 and Chapter 12 respectively.
x The PHA may refer the family for state or federal criminal prosecution as described in section 14-II.E.
14-II.C. OWNER-CAUSED ERROR OR PROGRAM ABUSE
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].
PHA 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, or by withholding housing assistance payments due for subsequent months.
Prohibited Owner Actions
An owner participating in the program must not:
x Make any false statement to the PHA [Title 18 U.S.C. Section 1001]. x Commit fraud, bribery, or any other corrupt or criminal act in connection with any federal housing program [24 CFR 982.453(a)(3)] including:
PHA 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
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Unlimited copies may be made for internal use. Page 14-9 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 a family as an inducement for the family to make false or misleading statements to the PHA Residing in the unit with an assisted family
Remedies and Penalties
When the PHA determines that the owner has committed program abuse, the PHA may take any of the following actions:
x Require the owner to repay excess housing assistance payments, as discussed earlier in this section and in accordance with the policies in Chapter 16. x Terminate the contract (See Chapter 13).
x Bar the owner from future participation in any PHA programs. x Refer the case to state or federal officials for criminal prosecution as described in section 14-II.E.
14-II.D. PHA-CAUSED ERRORS OR PROGRAM ABUSE
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 program.
Additional standards of conduct may be provided in the PHA personnel policy.
PHA-caused incorrect subsidy determinations include (1) failing to correctly apply rules regarding family composition, income, assets, and expenses, (2) assigning the incorrect voucher size to a family, and (3) errors in calculation.
The following policy is effective upon the PHA’s HOTMA compliance date:
De Minimis Errors [24 CFR 5.609(c)(4)]
The PHA will not be considered out of compliance when making annual income determinations solely due to de minimis errors in calculating family income. A de minimis error is an error where the PHA determination of family income deviates from the correct income determination by no more than $30 per month in monthly adjusted income ($360 in annual adjusted income) per family.
PHAs must take corrective action to credit or repay a family if the family was overcharged rent, including when PHAs make de minimis errors in the income determination. Families will not be required to repay the PHA in instances where the PHA miscalculated income resulting in a family being undercharged for rent. PHAs state in their policies how they will repay or credit a family the amount they were overcharged as a result of the PHA’s de minimis error in income determination.
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The PHA will reimburse a family for any family overpayment of rent, regardless of whether the overpayment was the result of staff-caused error or a de minimis error.
Prohibited Activities
PHA Policy
Any of the following will be considered evidence of program abuse by PHA staff:
Failing to comply with any program requirements for personal gain Failing to comply with any program requirements as a result of a conflict-ofinterest 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 funds
Destroying, concealing, removing, or inappropriately using any records related to the program
Committing any other corrupt or criminal act in connection with any federal housing program
14-II.E. CRIMINAL PROSECUTION
PHA 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 program will be referred to the appropriate local, state, or federal entity.
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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:
x 50 percent of the amount collected from a judgment, litigation (including settlement of a lawsuit) or an administrative repayment agreement, or
x 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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SPECIAL HOUSING TYPES
[24 CFR 982 Subpart M; New HCV GB, Special Housing Types]
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, and the PHA must permit a family to lease a manufactured home and space with assistance under the program. The PHA also may limit the number of families who receive assistance in these housing types and cannot require families to use a particular housing type. No special funding is provided for special housing types.
PHA Policy
Families will not be permitted to use any special housing types, with the exception of Shared Housing, and manufactured homes where the family owns the home and leases the space with the following exceptions:, unless use is needed as a reasonable accommodation so that the program is readily accessible to a person with disabilities.
If needed as a reasonable accommodation so that the program is readily accessible to a person with disabilities; and
The PHA must permit a family to lease a manufactured home and space with assistance under the program.
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]. A single unit cannot be designated as more than one type of special housing. The PHA cannot give preference to households that wish to live in any of these types of housing and cannot require households to select any of these types of housing [New HCV GB, Special Housing Types, p. 3].
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) © Copyright 20243 Nan McKay & Associates, Inc.
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[24 CFR 982.602 through 982.605; Form HUD-52641; New HCV GB, Special Housing Types, p. 4] 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 assistance to an SRO unit, a separate lease and contract are executed for each assisted person. The standard form of the contract is used (form HUD-52641) with the special housing type specified in Part A of the contract, as follows: “This contract is used for the following special housing type under HUD regulations for the Section 8 voucher program: Single room occupancy (SRO) housing.”
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 zerobedroom 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. SRO: HOUSING QUALITY STANDARDS (HQS) [24 CFR 982.605(a)] HQS requirements described in the applicable portions of Chapter 8 apply to SRO housing except that sanitary facilities, and space and security characteristics must meet local code standards for SRO housing. In the absence of applicable local code standards for SRO housing, the following standards apply:
x 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. x Fire Safety: All SRO facilities must have a sprinkler system that protects major spaces. “Major spaces” are defined as hallways, large 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. © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 15-4 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].
x 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 males, 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 to all persons sharing them 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. x 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.
If 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; Form HUD-52641; New HCV GB, Special Housing Types, p. 6] 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 assistance in congregate housing, a separate lease and contract are executed for each assisted family. The standard form of the contract is used (form HUD-52641) with the special housing type specified in Part A of the contract, as follows: “This contract is used for the following special housing type under HUD regulations for the Section 8 voucher program:
Congregate housing.”
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 for the assisted family. 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 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. CONGREGATE: HOUSING QUALITY STANDARDS
HQS requirements as described in Chapter 8 apply to congregate housing except for the requirements stated below.
Congregate housing must have a refrigerator of appropriate size in the private living area of each resident, a central kitchen and dining facilities located within the premises and accessible to the residents, and food service for the residents, that is not provided by the residents themselves.
The congregate housing must contain adequate facilities and services for the sanitary disposal of food waste and refuse, including facilities for temporary storage where necessary.
The housing quality standards applicable to lead-based paint do not apply unless a child under the age of six is expected to reside in the unit. © Copyright 20243 Nan McKay & Associates, Inc.
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[24 CFR 982.610 through 982.614; Form HUD-52641; New HCV GB, Special Housing Types, p. 8] 15-III.A. OVERVIEW
A group home is a state-approved (licensed, certified, or otherwise approved in writing by the state) 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 assistance in a group home, a separate lease and contract is executed for each assisted family. The standard form of the contract is used (form HUD-52641) with the special housing type specified in Part A of the contract, as follows: “This contract is used for the following special housing type under HUD regulations for the Section 8 voucher program:
Group home.”
15-III.B. PAYMENT STANDARD, UTILITY ALLOWANCE, AND HAP CALCULATION Unless there is a live-in aide, the family unit size (voucher size) for an assisted occupant of a group home must be zero- or one-bedroom. 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 pro rata share of the payment standard for the group home size. The pro rata 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 number of persons in the assisted household equals one assisted person plus any PHA-approved live-in aide.
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 family unit size to 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 © Copyright 20243 Nan McKay & Associates, Inc.
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15-III.C. GROUP HOME: HOUSING QUALITY STANDARDS
The entire unit must comply with HQS requirements described in Chapter 8, except for the requirements stated below.
x 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.
x 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. x 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. Doors and windows accessible from outside the unit must be lockable. x 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. x Site and Neighborhood: Group homes must be located in a residential setting. The site and neighborhood should be reasonably free from disturbing noises and reverberations, and other 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.
The housing quality standards applicable to lead-based paint do not apply unless a child under the age of six is expected to reside in the unit.
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[24 CFR 982.615 through 982.618; Form HUD-52641; Notice PIH 2021-05; New HCV GB, Special Housing Types, p. 11]
15-IV.A. OVERVIEW
Families in markets with tight rental conditions or with a prevalence of single-family housing may determine a shared housing living arrangement to be a useful way to secure affordable housing. PHAs offering shared housing as a housing solution may also experience some reduction in the average per-unit-cost (PUC) paid on behalf of assisted families.
Shared housing is a single housing unit occupied by an assisted family and another resident or residents. The unit may be a house or an apartment. 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 program or with other unassisted persons.
Shared housing may be offered in a number of ways, including for-profit co-living (such as a boarding house, single bedroom with common living room/kitchen/dining room) run by a private company [Notice PIH 2021-05].
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 shared housing is offered as a housing option, HUD encourages PHAs to consider ways in which the families may be assisted in finding shared housing, including for-profit shared housing matching (such as roommates or single-family homes) and online sites that charge a fee for their matching services, or nonprofit shared housing matching services. HUD further encourages PHAs to include information about this housing possibility in the family’s voucher briefing.
PHA Policy
If the PHA has information available to families regarding the shared housing option, including a listing to families of any known for-profit or nonprofit shared housing matching services in the community, the PHA will provide it at briefing, and and again after initial briefing, upon written or oral request. Families will be advised they can conduct their own internet search. Families will be cautioned to not enter into any rental agreement or pay any deposit or rental payment until the tenancy is approved by the PHA.
PHAs should be aware of potential local legal barriers to HCV participants using shared housing, which can create additional obstacles for shared housing:
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x Local zoning codes for single family housing may restrict occupancy in certain areas to households whose family members are related by blood.
PHAs should work with local jurisdictions to find solutions that encourage affordable housing and are consistent with the Fair Housing Act, Title VI, and other federal, state, and local fair housing laws. PHAs should inform HUD if they encounter barriers to shared housing that may conflict with fair housing laws.
PHA Policy
The PHA will work with local jurisdictions as necessary to identify solutions consistent with fair housing laws and will inform HUD if the PHA encounters barriers to shared housing that conflict with fair housing laws.
When providing assistance in shared housing, a separate lease and contract are executed for each assisted family. The standard form of the contract is used (form HUD-52641) with the special housing type specified in Part A of the contract, as follows: “This contract is used for the following special housing type under HUD regulations for the Section 8 voucher program:
Shared housing.”
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 (voucher 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, non-shared 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 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 © Copyright 20243 Nan McKay & Associates, Inc.
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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.
x 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.
x 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 zerobedroom or one-bedroom unit may not be used for shared housing. © Copyright 20243 Nan McKay & Associates, Inc.
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[24 CFR 982.619; New HCV GB, Special Housing Types, p. 14] 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.” The monthly carrying charge includes the member’s share of the cooperative debt service, operating expenses, and necessary payments to cooperative reserve funds. It 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.
The occupancy agreement, or lease and other appropriate documents, must provide that the monthly carrying charge is subject to Section 8 limitations on rent to owner, and the rent must be reasonable as compared to comparable unassisted units.
When providing assistance in cooperative housing, the standard form of the contract is used with the special housing type specified in Part A of the contract, as follows: “This contract is used for the following special housing type under HUD regulations for the Section 8 voucher program: Cooperative housing.”
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 gross rent (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. COOPERATIVE: HOUSING QUALITY STANDARDS
All standard HQS requirements apply to cooperative housing units. There are no additional HQS requirements. The PHA remedies described in 24 CFR 982.404 do not apply. Rather, if the unit and premises are not maintained in accordance with HQS, the PHA may exercise all available remedies regardless of whether the family or cooperative is responsible for the breach of HQS.
No housing assistance payment can be made unless unit meets HQS and the defect is corrected within the period as specified by the PHA and the PHA verifies correction (see Chapter 8).
In addition to regular breaches of HQS, breaches of HQS by the family include failure to perform any maintenance for which the family is responsible in accordance with the terms of the cooperative occupancy agreement [HCV GB].
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[24 CFR 982.620 through 982.624; FR Notice 1/18/17; New HCV GB, Special Housing Types, p. 15]
15-VI.A. OVERVIEW
A manufactured home is a manufactured structure, transportable in one or more parts, which is built on a permanent chassis, and designed for use as a principal place of residence. Assisted families may occupy manufactured homes in three different ways. (1) A family maycan 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) A family can purchase a manufactured home under the Housing Choice Voucher Homeownership program.
(3) 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 REQUIREMENTS FOR MANUFACTURED HOMEOWNERS 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 designated HAP Contract (form HUD-52642) and designated Tenancy Addendum (form HUD 52642-A) for this special housing type.
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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 [24 CFR 982.624]
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 hookup 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 [24 CFR 982.622]
Rent to owner for rental of a manufactured home space includes payment for maintenance and services that the owner must provide to the tenant under the lease for the space. Rent to owner does not include the costs of utilities and trash collection for the manufactured home.
However, the owner may charge the family a separate fee for the cost of utilities or trash collection provided by the owner.
The rent for the manufactured home space (including other eligible housing expenses) is the total of:
x The rent charged for the manufactured home space;
x Owner maintenance and management charges for the space; x The monthly payments made by the family to amortize the cost of purchasing the manufactured home, including any required insurance and property taxes; and x The applicable allowance for tenant-paid utilities.
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 © Copyright 20243 Nan McKay & Associates, Inc.
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Housing Assistance Payment [24 CFR 982.623(a)]
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.
Eligible Housing Expenses [24 CFR 982.623(b)]
The family’s eligible housing expenses are the total of:
x The rent charged by the owner for the manufactured home space. x Charges for the maintenance and management the space owner must provide under the lease.
x The monthly payments made by the family to amortize the cost of purchasing the manufactured home established at the time of application to a lender for financing the purchase of the manufactured home if monthly payments are still being made, including any required insurance and property taxes included in the loan payment to the lender. - Any increase in debt service or term due to refinancing after purchase of the home may not be included in the amortization cost.
- Debt service for installation charges incurred by a family may be included in the monthly amortization payments. Installation 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.
x The applicable allowances for tenant-paid utilities, as determined under 24 CFR 982.517 and 982.624.
Rent Reasonableness [24 CFR 982.622(b)]
During the assisted tenancy, the rent to owner for the manufactured home space may not exceed a reasonable rent. Initially, and at least 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 housing assistance payment, the owner of the manufactured home space certifies that the rent does not exceed rents charged by the owner for comparable unassisted spaces in the same manufactured home park or elsewhere.
If requested by the PHA, the owner must give the PHA information on rents charged by the owner for other manufactured home spaces.
Distribution of HAP [24 CFR 982.623(c)]
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Unlimited copies may be made for internal use. Page 15-15 The PHA pays the owner of the space the lesser of the housing assistance payment or the portion of the monthly rent due to the owner. The portion of the monthly rent due to the owner is the total of:
x The actual rent charged by the owner for the manufactured home space; and x Charges for the maintenance and management the space owner must provide under the lease.
If the housing assistance payment exceeds the portion of the monthly rent due to the owner, the PHA may pay the balance of the housing assistance payment to the family. Alternatively, the PHA may pay the balance to the lender or utility company, in an amount no greater than the amount due for the month to each, respectively, subject to the lender’s or utility company’s willingness to accept the PHA’s payment on behalf of the family.
PHA Policy
If the housing assistance payment exceeds the portion of the monthly rent due to the owner, the PHA will pay the balance to the family.
Single HAP to Family [24 CFR 982.623.(d)]
If the owner of the manufactured home space agrees, the PHA may make the entire housing assistance payment to the family, and the family is responsible for paying the owner directly for the full amount of rent of the manufactured home space due to the owner, including owner maintenance and management charges.
PHA Policy
The PHA will not exercise the option to pay a single HAP and will pay HAP directly to the owner 15-VI.D. HOUSING QUALITY STANDARDS
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. © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 15-16 PART VII: HOMEOWNERSHIP
[24 CFR 982.625 through 982.643]
15-VII.A. OVERVIEW [24 CFR 982.625]
The homeownership option is used to assist a family residing in a home purchased and owned by one or more members of the family. A family assisted under this option may be newly admitted or an existing participant in the HCV program. The PHA must have the capacity to operate a successful HCV homeownership program as defined by the regulations.
There are two forms of homeownership assistance described in the regulations: monthly homeownership assistance payments, and single down payment assistance grants. However, PHAs may not offer down payment assistance until and unless funding is allocated by Congress.
Since this has not yet happened, only monthly homeownership assistance may be offered.
The PHA may choose not to offer homeownership assistance. However, the PHA must offer homeownership assistance if needed as a reasonable accommodation so that the program is readily accessible to and usable by persons with disabilities. It is the sole responsibility of the PHA to determine whether it is reasonable to implement a homeownership program as a reasonable accommodation. The PHA must determine what is reasonable based on the specific circumstances and individual needs of the person with a disability. The PHA may determine that it is not reasonable to offer homeownership assistance as a reasonable accommodation in cases where the PHA has otherwise opted not to implement a homeownership program.
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. 15-VII.B. FAMILY ELIGIBILITY [24 CFR 982.627]
If the PHA offers the homeownership option, participation by the family is optional. However, the family must meet all of the requirements listed below before the commencement of homeownership assistance. The PHA may also establish additional initial requirements as long as they are described in the PHA administrative plan.
x The family must have been admitted to the Housing Choice Voucher program. x The family must qualify as a first-time homeowner or may be a cooperative member. x The family must meet the Federal minimum income requirement. The family must have a gross annual income equal to the Federal minimum wage multiplied by 2000, based on the income of adult family members who will own the home. The PHA may establish a higher income standard for families. However, a family that meets the federal minimum income requirement (but not the PHA's requirement) will be considered to meet the minimum income requirement if it can demonstrate that it has been pre-qualified or pre-approved for financing that is sufficient to purchase an eligible unit. x For disabled families, the minimum income requirement is equal to the current SSI monthly payment for an individual living alone, multiplied by 12. © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 15-17 x For elderly or disabled families, welfare assistance payments for adult family members who will own the home will be included in determining whether the family meets the minimum income requirement. It will not be included for other families. x The family must satisfy the employment requirements by demonstrating that one or more adult members of the family who will own the home at commencement of homeownership assistance is currently employed on a full-time basis (the term 'full-time employment' means not less than an average of 25 hours per week); and has been continuously so employed during the year before commencement of homeownership assistance for the family.
x The employment requirement does not apply to elderly and disabled families. In addition, if a family, other than an elderly or disabled family includes a person with disabilities, the PHA must grant an exemption from the employment requirement if the PHA determines that it is needed as a reasonable accommodation.
x The family has not defaulted on a mortgage securing debt to purchase a home under the homeownership option
x Except for cooperative members who have acquired cooperative membership shares prior to commencement of homeownership assistance, no family member has a present ownership interest in a residence at the commencement of homeownership assistance for the purchase of any home.
x Except for cooperative members who have acquired cooperative membership shares prior to the commencement of homeownership assistance, the family has entered a contract of sale in accordance with 24 CFR 982.631(c).
15-VII.C. SELECTION OF FAMILIES [24 CFR 982.626]
Unless otherwise provided (under the homeownership option), the PHA may limit homeownership assistance to families or purposes defined by the PHA and may prescribe additional requirements for commencement of homeownership assistance for a family. Any such limits or additional requirements must be described in the PHA administrative plan.
If the PHA limits the number of families that may participate in the homeownership option, the PHA must establish a system by which to select families to participate. © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 15-18 15-VII.D. ELIGIBLE UNITS [24 CFR 982.628]
In order for a unit to be eligible, the PHA must determine that the unit satisfies all of the following requirements:
x The unit must meet HUD’s “eligible housing” requirements. The unit may not be any of the following:
- A public housing or Indian housing unit;
- A unit receiving Section 8 project-based assistance;
- A nursing home, board and care home, or facility providing continual psychiatric, medical or nursing services;
- A college or other school dormitory;
- On the grounds of penal, reformatory, medical, mental, or similar public or private institutions.
x The unit must be a one-unit property or a single dwelling unit in a cooperative or condominium.
x The unit must have been inspected by the PHA and by an independent inspector designated by the family.
x The unit must meet Housing Quality Standards (see Chapter 8). x For a unit where the family will not own fee title to the real property (such as a manufactured home), the home must have a permanent foundation and the family must have the right to occupy the site for at least 40 years.
Families may enter into contracts of sale for units not yet under construction. However, the PHA will not commence homeownership assistance for the family for that unit until:
1. Either the responsible entity completes the environmental review as required by 24 CFR part 58 and HUD approved the environmental certification and request for release of funds prior to commencement of construction or HUD performed an environmental review under CFR part 50 and notified the PHA in writing of environmental approval of the site prior to construction commencement; and
2. Construction of the unit has been completed and the unit has passed the required HQS inspection and independent inspection as addressed elsewhere in this chapter. x For PHA-owned units (as defined in 24 CFR 982.4),all of the following conditions must be satisfied:
- The PHA informs the family, both orally and in writing, that the family has the right to purchase any eligible unit and a PHA-owned unit is freely selected by the family without PHA pressure or steering;
- The unit is not ineligible housing;
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Unlimited copies may be made for internal use. Page 15-19 - The PHA obtains the services of an independent agency entity (as defined in 24 CFR 982.4) to inspect the unit for compliance with HQS, review the independent inspection report, review the contract of sale, determine the reasonableness of the sales price and any PHA provided financing. All of these actions must be completed in accordance with program requirements.
The PHA must not approve the unit if the PHA has been informed that the seller is debarred, suspended, or subject to a limited denial of participation. 15-VII.E. ADDITIONAL PHA REQUIREMENTS FOR SEARCH AND PURCHASE [24 CFR 982.629] It is the family’s responsibility to find a home that meets the criteria for voucher homeownership assistance. The PHA may establish the maximum time that will be allowed for a family to locate and purchase a home and may require the family to report on their progress in finding and purchasing a home. If the family is unable to purchase a home within the maximum time established by the PHA, the PHA may issue the family a voucher to lease a unit or place the family’s name on the waiting list for a voucher. 15-VII.F. HOMEOWNERSHIP COUNSELING [24 CFR 982.630]
Before commencement of homeownership assistance for a family, the family must attend and satisfactorily complete the pre-assistance homeownership and housing counseling program required by the PHA. HUD suggests the following topics for the PHA-required pre-assistance counseling:
x Home maintenance (including care of the grounds);
x Budgeting and money management;
x Credit counseling;
x How to negotiate the purchase price of a home;
x How to obtain homeownership financing and loan pre-approvals, including a description of types of financing that may be available, and the pros and cons of different types of financing;
x How to find a home, including information about homeownership opportunities, schools, and transportation in the PHA jurisdiction;
x Advantages of purchasing a home in an area that does not have a high concentration of low-income families and how to locate homes in such areas; x Information on fair housing, including fair housing lending and local fair housing enforcement agencies; and
x Information about the Real Estate Settlement Procedures Act (12 U.S.C. 2601 et seq.) (RESPA), state and Federal truth-in-lending laws, and how to identify and avoid loans with oppressive terms and conditions.
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Unlimited copies may be made for internal use. Page 15-20 The PHA may adapt the subjects covered in pre-assistance counseling (as listed) to local circumstances and the needs of individual families.
The PHA may also offer additional counseling after commencement of homeownership assistance (ongoing counseling). If the PHA offers a program of ongoing counseling for participants in the homeownership option, the PHA shall have discretion to determine whether the family is required to participate in the ongoing counseling.
Any homeownership counseling provided to families in connection with this section must be conducted by a HUD certified housing counselor working for an agency approved to participate in If the PHA does not use a HUD-approved housing counseling agency to provide the counseling, the PHA should ensure that its counseling program is consistent with the counseling provided under HUD’s Housing Counseling program.
15-VII.G. HOME INSPECTIONS, CONTRACT OF SALE, AND PHA DISAPPROVAL OF SELLER [24 CFR 982.631]
Home Inspections
The PHA may not commence monthly homeownership assistance payments for a family until the PHA has inspected the unit and has determined that the unit passes HQS.
An independent professional inspector selected by and paid for by the family must also inspect the unit. The independent inspection must cover major building systems and components, including foundation and structure, housing interior and exterior, and the roofing, plumbing, electrical, and heating systems. The independent inspector must be qualified to report on property conditions, including major building systems and components.
The PHA may not require the family to use an independent inspector selected by the PHA. The independent inspector may not be a PHA employee or contractor, or other person under control of the PHA. However, the PHA may establish standards for qualification of inspectors selected by families under the homeownership option.
The PHA may disapprove a unit for assistance based on information in the independent inspector’s report, even if the unit was found to comply with HQS.
Contract of Sale
Before commencement of monthly homeownership assistance payments, a member or members of the family must enter into a contract of sale with the seller of the unit to be acquired by the family. The family must give the PHA a copy of the contract of sale. The contract of sale must:
x Specify the price and other terms of sale by the seller to the purchaser; x Provide that the purchaser will arrange for a pre-purchase inspection of the dwelling unit by an independent inspector selected by the purchaser;
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Unlimited copies may be made for internal use. Page 15-21 x Provide that the purchaser is not obligated to purchase the unit unless the inspection is satisfactory to the purchaser;
x Provide that the purchaser is not obligated to pay for any necessary repairs; and x Contain a certification from the seller that the seller has not been debarred, suspended, or subject to a limited denial of participation under CFR part 24. x A contract for the sale of a unit not yet under construction must meet all above requirements, and requirements below. Commencement of construction in violation of the below requirements voids the purchase contract.
- The purchaser is not obligated to purchase the unit unless an environmental review has been performed and the site received environmental approval prior to commencement of construction in accordance with 24 CFR 982.628; and
- The construction will not commence until the environmental review has been completed and the seller has received written notice from the PHA that environmental approval has been obtained. Environmental approval may be conditioned on the contracting parties’ agreement to modification to the unit design or to mitigation actions.
Disapproval of a Seller
In its administrative discretion, the PHA may deny approval of a seller for the same reasons a PHA may disapprove an owner under the regular HCV program [see 24 CFR 982.306(c)]. 15-VII.H. FINANCING [24 CFR 982.632]
The PHA may establish requirements for financing purchase of a home under the homeownership option. This may include requirements concerning qualification of lenders, terms of financing, restrictions concerning debt secured by the home, lender qualifications, loan terms, and affordability of the debt. The PHA must establish policies describing these requirements in the administrative plan.
A PHA may not require that families acquire financing from one or more specified lenders, thereby restricting the family’s ability to secure favorable financing terms. 15-VII.I. CONTINUED ASSISTANCE REQUIREMENTS; FAMILY OBLIGATIONS [24 CFR 982.633] Homeownership assistance may only be paid while the family is residing in the home. If the family moves out of the home, the PHA may not continue homeownership assistance after the month when the family moves out. The family or lender is not required to refund to the PHA the homeownership assistance for the month when the family moves out.
Before commencement of homeownership assistance, the family must execute a statement of family obligations in the form prescribed by HUD [form HUD-52649]. In the statement, the family agrees to comply with all family obligations under the homeownership option. © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 15-22 The family must comply with the following obligations:
x The family must comply with the terms of the mortgage securing debt incurred to purchase the home, or any refinancing of such debt.
x The family may not convey or transfer ownership of the home, except for purposes of financing, refinancing, or pending settlement of the estate of a deceased family member.
Use and occupancy of the home are subject to 24 CFR 982.551 (h) and (i). x The family must supply information to the PHA or HUD as specified in 24 CFR 982.551(b).
The family must further supply any information required by the PHA or HUD concerning mortgage financing or refinancing, sale or transfer of any interest in the home, or homeownership expenses.
x The family must notify the PHA before moving out of the home. x The family must notify the PHA if the family defaults on the mortgage used to purchase the home.
x The family must provide the PHA with information on any satisfaction or payment of the mortgage debt.
x No family member may have any ownership interest in any other residential property. x The family must comply with the obligations of a participant family described in 24 CFR 982.551, except for the following provisions which do not apply to assistance under the homeownership option: 24 CFR 982.551(c), (d), (e), (f), (g) and (j). 15-VII.J. MAXIMUM TERM OF HOMEOWNER ASSISTANCE [24 CFR 982.634] Except in the case of a family that qualifies as an elderly or disabled family, other family members (described below) shall not receive homeownership assistance for more than:
x Fifteen years, if the initial mortgage incurred to finance purchase of the home has a term of 20 years or longer; or
x Ten years, in all other cases.
The maximum term described above applies to any member of the family who:
x Has an ownership interest in the unit during the time that homeownership payments are made; or
x Is the spouse of any member of the household who has an ownership interest in the unit during the time homeownership payments are made.
In the case of an elderly family, the exception only applies if the family qualifies as an elderly family at the start of homeownership assistance. In the case of a disabled family, the exception applies if at any time during receipt of homeownership assistance the family qualifies as a disabled family.
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Unlimited copies may be made for internal use. Page 15-23 If, during the course of homeownership assistance, the family ceases to qualify as a disabled or elderly family, the maximum term becomes applicable from the date homeownership assistance commenced. However, such a family must be provided at least 6 months of homeownership assistance after the maximum term becomes applicable (provided the family is otherwise eligible to receive homeownership assistance).
If the family has received such assistance for different homes, or from different PHAs, the total of such assistance terms is subject to the maximum term described in this part. 15-VII.K. HOMEOWNERSHIP ASSISTANCE PAYMENTS AND HOMEOWNERSHIP EXPENSES [24 CFR 982.635]
The monthly homeownership assistance payment is the lower of: the voucher payment standard minus the total tenant payment, or the monthly homeownership expenses minus the total tenant payment. The payment standard amount may not be lower than what the payment standard amount was at commencement of homeownership assistance.
In determining the amount of the homeownership assistance payment, the PHA will use the same payment standard schedule, payment standard amounts, and subsidy standards as those described in elsewhere in this plan. The payment standard for a family is the greater of (i) The payment standard as determined at the commencement of homeownership assistance for occupancy of the home, or (ii) The payment standard at the most recent regular reexamination of family income and composition since the commencement of homeownership assistance for occupancy of the home.
The PHA must adopt policies for determining the amount of homeownership expenses to be allowed by the PHA in accordance with HUD requirements.
Homeownership expenses (not including cooperatives) must include amounts allowed by the PHA to cover:
x Principal and interest on initial mortgage debt, any refinancing of such debt, and any mortgage insurance premium incurred to finance purchase of the home; x Real estate taxes and public assessments on the home; x Home insurance;
x The PHA allowance for maintenance expenses;
x The PHA allowance for costs of major repairs and replacements; x The PHA utility allowance for the home;
x Principal and interest on mortgage debt incurred to finance costs for major repairs, replacements or improvements for the home. If a member of the family is a person with disabilities, such debt may include debt incurred by the family to finance costs needed to make the home accessible for such person, if the PHA determines that allowance of such costs as homeownership expenses is needed as a reasonable accommodation so that the homeownership option is readily accessible to and usable by such person; © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 15-24 x Land lease payments where a family does not own fee title to the real property on which the home is located; [see 24 CFR 982.628(b)].
x For a condominium unit, condominium operating charges or maintenance fees assessed by the condominium homeowner association.
The PHA does not have the discretion to exclude any of the listed homeownership expenses or to add any additional items.
Homeownership expenses for a cooperative member include amounts allowed by the PHA to cover:
x The cooperative charge under the cooperative occupancy agreement including payment for real estate taxes and public assessments on the home;
x Principal and interest on initial debt incurred to finance purchase of cooperative membership shares and any refinancing of such debt;
x Home insurance;
x The PHA allowance for maintenance expenses;
x The PHA allowance for costs of major repairs and replacements; x The PHA utility allowance for the home; and
x Principal and interest on debt incurred to finance major repairs, replacements or improvements for the home. If a member of the family is a person with disabilities, such debt may include debt incurred by the family to finance costs needed to make the home accessible for such person, if the PHA determines that allowance of such costs as homeownership expenses is needed as a reasonable accommodation so that the homeownership option is readily accessible to and usable by such person. x Cooperative operating charges or maintenance fees assessed by the cooperative homeowner association.
The PHA may pay the homeownership assistance payments directly to the family, or at the PHA’s discretion, to a lender on behalf of the family. If the assistance payment exceeds the amount due to the lender, the PHA must pay the excess directly to the family. 15-VII.L. PORTABILITY [24 CFR 982.636, 982.637, 982.353(b) and (c), 982.552, 982.553] Subject to the restrictions on portability included in HUD regulations and PHA policies, a family may exercise portability if the receiving PHA is administering a voucher homeownership program and accepting new homeownership families. The receiving PHA may absorb the family into its voucher program, or bill the initial PHA.
The family must attend the briefing and counseling sessions required by the receiving PHA. The receiving PHA will determine whether the financing for, and the physical condition of the unit, is acceptable. The receiving PHA must promptly notify the initial PHA if the family has © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use. Page 15-25 purchased an eligible unit under the program, or if the family is unable to purchase a home within the maximum time established by the PHA.
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Unlimited copies may be made for internal use. Page 15-26 15-VII.M. MOVING WITH CONTINUED ASSISTANCE [24 CFR 982.637] A family receiving homeownership assistance may move with continued tenant-based assistance or with voucher homeownership assistance.
The PHA must determine that all initial requirements have been satisfied if a family that has received homeownership assistance wants to move with continued homeownership assistance.
However, the following do not apply:
x The requirement that a family must be a first-time homeowner is not applicable. x The requirement for pre-assistance counseling is not applicable. However, the PHA may require that the family complete additional counseling (before or after moving to a new unit with continued homeownership assistance).
Continued tenant-based assistance for a new unit cannot begin so long as any family member holds title to the prior home. However, when the family or a member of the family is or has been the victim of domestic violence, dating violence, sexual assault, stalking, or human trafficking, and the move is needed to protect the health or safety of the family or family member (or any family member has been the victim of a sexual assault that occurred on the premises during the 90-calendar-day period preceding the family’s request to move), such family or family member may be assisted with continued tenant-based assistance even if they own any title or other interest in the prior home.
The PHA may deny permission to move to a new unit with continued voucher assistance:
x If the PHA has insufficient funding to provide continued assistance. x In accordance with 24 CFR 982.638, regarding denial or termination of assistance. x In accordance with the PHA’s policy regarding number of moves within a 12-month period.
The PHA must deny the family permission to move to a new unit with continued voucher rental assistance if:
x The family defaulted on an FHA-insured mortgage; and
x The family fails to demonstrate that the family has conveyed, or will convey, title to the home, as required by HUD, to HUD or HUD's designee; and x The family has moved, or will move, from the home within the period established or approved by HUD.
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Unlimited copies may be made for internal use. Page 15-27 15-VII.N. DENIAL OR TERMINATION OF ASSISTANCE [24 CFR 982.638] At any time, the PHA may deny or terminate homeownership assistance in accordance with HCV program requirements in 24 CFR 982.552 (Grounds for denial or termination of assistance) or 24 CFR 982.553 (Crime by family members).
The PHA may also deny or terminate assistance for violation of participant obligations described in 24 CFR Parts 982.551 or 982.633 and in accordance with its own policy, with the exception of failure to meet obligations under the Family Self-Sufficiency program as prohibited under the alternative requirements set forth in FR Notice 12/29/14.
Homeownership assistance for a family automatically terminates 180 calendar days after the last homeownership assistance payment on behalf of the family. However, a PHA may grant relief from this requirement in those cases where automatic termination would result in extreme hardship for the family.
The PHA must terminate voucher homeownership assistance for any member of family receiving homeownership assistance that is dispossessed from the home pursuant to a judgment or order of foreclosure on any mortgage (whether FHA insured or non-FHA) securing debt incurred to purchase the home, or any refinancing of such debt. © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use.
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: Recordkeeping. All aspects of the program involve certain types of recordkeeping. 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, 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, stalking, and human trafficking; and maintaining the confidentiality of information obtained from victims.
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Unlimited copies may be made for internal use.
PART I: ADMINISTRATIVE FEE RESERVE [24 CFR 982.155]
The PHA will maintain administrative fee reserves, or unrestricted net position (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).
In addition, as specified in Notice PIH 2022-18, PHAs may use administrative fee funding for both administrative and “other expenses” needed to employ strategies and undertake activities beyond regular administrative responsibilities to facilitate the successful leasing and use of housing choice vouchers by families, such as through the use of security deposit assistance and landlord recruitment and incentive payments, among other allowable expenses specified in the notice. PHAs are also permitted to use UNP for these expenses [Notice PIH 2022-18] If a PHA has not adequately administered its HCV program, HUD may prohibit use of funds in the UNP 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.
PHA Policy
Expenditures from the UNP account will be made in accordance with all applicable federal requirements. Expenditures are approved by HUD and the Board annual budget. © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use.
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:
x Payment Standards, which dictate the maximum subsidy a family can receive (application of the payment standards is discussed in Chapter 6); and
x 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).
PHA Policy
Copies of the payment standard and utility allowance schedules are available for review in the PHA’s offices during normal business hours on the PHA’s website.
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 electronically.
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.). © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use.
16-II.B. PAYMENT STANDARDS [24 CFR 888.113
The payment standard sets the maximum subsidy payment a family can receive from the PHA each month [24 CFR 888.111]. Payment standards are based on the Small Area fair market rents (SAFMRs) published annually by HUD. SAFMRs are set at a percentile within the rent distribution of standard quality rental housing units in each SAFMR 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 SAFMR area within the PHA’s jurisdiction, and for each unit size within each of the SAFMR areas. For each unit size, the PHA may establish a single payment standard amount for the whole SAFMR 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.
PHA Policy
Payment Standards are based on the SAFMRs.
Updating Payment Standards
When HUD updates its SAFMRs, 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)].
PHA Policy
The PHA will review the appropriateness of the payment standards on an annual basis when the new SAFMR is published, and at other times as determined necessary. The PHA will consider the following factors when determining whether an adjustment should be made to the payment standard schedule, including in determining whether to request an exception payment standard from HUD:
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. © Copyright 20243 Nan McKay & Associates, Inc.
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Quality of Units Selected: The PHA may 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 may 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 may 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.
Effective dates of changes to payment standard amounts will be determined at time of update. The PHA will always ensure the payment standards will be within the basic range.
Exception Payment Standards [982.503(c)(5), Notice PIH 2018-01, FR Notice 9/27/21] A non-SAFMR PHA may establish an exception payment standard for a zip code area of up to and including 110 percent of the SAFMR determined by HUD for that zip code area. Regardless of the level of the exception payment standard compared to the metropolitan area FMRs (MAFMRs), the PHA must send an email to [email protected] to notify HUD that it has adopted an exception payment standard based on the SAFMR. A PHA that adopts an exception payment standard pursuant to this authority must apply it to the entire ZIP code area, for both its HCV, and if applicable, its PBV program. For the PBV program, this means that the rent to owner may not exceed the new exception payment standard amount, provided the rent is still reasonable.
A PHA that adopts an exception payment standard area must revise its briefing materials to make families aware of the exception payment standard and the area that it covers.
In addition, HUD allows PHAs to establish a HUD-Veterans Affairs Supportive Housing (HUDVASH) exception payment standard. PHAs may go up to but no higher than 120 percent of the FMR or SAFMR specifically for VASH families. PHAs who want to establish a VASH exception payment standard over 120 percent must still request a waiver from HUD (See Section 19-III.E.).
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 CRF 982.503(b)]. The PHA may request HUD approval © Copyright 20243 Nan McKay & Associates, Inc.
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for an exception to the payment standard for a particular family if the required amount exceeds120 percent of the FMR.
PHA Policy
A family that requires a reasonable accommodation may request a higher payment standard at the time the Request for Tenancy Approval (RTA) is submitted. If the adjusted gross rent is above 120 percent of the SAFMR, the request must be submitted to Headquarters for approval. The regulatory waiver process in Public and Indian Housing requires PHAs to first send their request to the local field office; the field office then forwards the waiver request to the appropriate program office at HUD headquarters along with a field office recommendation (See PIH Notice 2009-41).
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 share would otherwise exceed 40 percent of adjusted monthly income; and
The rent for the unit is reasonable.
The unit has the feature/s required to meet the needs of the person with disabilities as noted in the statement from the health care provider where such a statement is necessary.
"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:
x Fewer than 75 percent of families who were issued vouchers became participants; x The PHA had established payment standards for all unit sizes, and for the entire jurisdiction, at 110 percent of the published FMR; and
x 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 © Copyright 20243 Nan McKay & Associates, Inc.
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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.
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.
PHA Policy
The PHA has not included an allowance for air-conditioning in its schedule.
Reasonable Accommodation and Individual Relief
Upon request from a family that includes a person with disabilities, the PHA must approve a utility allowance which is higher than the applicable amount on the utility allowance schedule if a higher utility allowance is needed as a reasonable accommodation to make the program accessible and usable by the family member with a disability [24 CFR 982.517(e)]. See Chapter 2 for policies regarding the request and approval of reasonable accommodations.
Further, the PHA may grant requests for relief from charges in excess of the utility allowance on reasonable grounds, such as special needs of the elderly, ill, or residents with disabilities, or © Copyright 20243 Nan McKay & Associates, Inc.
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special factors not within control of the resident, as the PHA deems appropriate. The family must request the higher allowance and provide the PHA with an explanation of the need for the individual relief and information about the amount of additional allowance required [see HCV GB, p. 18-8].
PHAs should develop criteria for granting individual relief and to notify residents about the availability of individual relief, and also to notify participants about the availability of individual relief programs (sometimes referred to as “Medical Baseline discounts”) offered by the local utility company. Policies for granting exception utility allowances can be found in Section 6-III.D. of this plan.
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.
The PHA must maintain information supporting its annual review of utility allowance and any revisions made in its utility allowance schedule [24 CFR 982.517(c)(1)].
PHA Policy
The utility allowances are updated each year by Housing Authority staff, and are consistent with HUD requirements for annual reviews and updated utility allowances.
Revised utility allowance schedules are not subject to approval or adoption by the HA’s Board of Commissioners if the utility allowance study is conducted in accordance with 24 CFR Part 965.476, subpart E.
The annual utility allowance study is prepared in accordance with 24 CFR Part 965.476, subpart E of the federal register rules and regulations which states that allowances should be “based upon the reasonable consumption of utilities by an energyconservative household of modest circumstances consistent with the requirements of a safe, sanitary, and healthful living environment.” The establishment of these utility allowances is based on accepted engineering calculation methods which recognize the design characteristics of each unit type, and load and use of appliances. HUD Handbook 7420.8, Form 52667 and Instructions are utilized in the preparation of new utility allowance schedules for the HCV program.
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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 [24 CFR 982.554(a) and (c)] 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)]:
x Denying listing on the PHA waiting list
x Denying or withdrawing a voucher
x Refusing to enter into a contract or approve a lease
x Refusing to process or provide assistance under portability procedures Informal reviews are not required for the following reasons [24 CFR 982.554(c)]:
x Discretionary administrative determinations by the PHA x General policy issues or class grievances
x A determination of the family unit size under the PHA subsidy standards x A PHA determination not to approve an extension of a voucher term x A PHA determination not to grant approval of the tenancy x A PHA determination that the unit is not in compliance with the HQS x A PHA determination that the unit is not in accordance with the HQS due to family size or composition
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PHA Policy
The PHA will only offer an informal review to applicants for whom assistance is being denied. Denial of assistance includes: denying or withdrawing a voucher; refusing to enter into a contract or approve a lease; refusing to process or provide assistance under portability procedures. Informal reviews will not be offered to individuals whose names are removed from the waitlist, in accordance with the policies in Chapter 4 – Updating the Waitlist.
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. In accordance with the PHA’s LEP Plan, a translated version of the notification of denial of assistance, and other appropriate language assistance, will be provided to LEP applicants.
Scheduling an Informal Review
PHA Policy
A request for an informal review must be made in writing, specify the determination being disputed, and delivered to the PHA either in person, or email to the Housing Authority, or by the first class mail 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 15 business days of the family’s request.
If the informal review will be conducted remotely, at the time the PHA notifies the family of the informal review, the family will be informed:
Regarding the processes to conduct a remote informal review; That, if needed, the PHA will provide technical assistance prior to and during the informal review; and
That if the family or any individual witness has any technological, resource, or accessibility barriers preventing them from fully accessing the remote informal review, the family may inform the PHA and the PHA will assist the family in either resolving the issues or allow the family to participate in an in-person informal review, as appropriate.
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 © Copyright 20243 Nan McKay & Associates, Inc.
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decision of the PHA.
Free language assistance will be provided for LEP applicants, in accordance with the PHA’s LEP Plan.
Remote Informal Reviews [Notice PIH 2020-32]
There is no requirement that informal reviews be conducted in-person and, as such, HUD allows PHAs to conduct all or a portion of their informal review remotely either over the phone, via video conferencing, or through other virtual platforms. If the PHA chooses to conduct remote informal reviews, applicants may still request an in-person informal review, as applicable.
PHA Policy
The PHA has the sole discretion to require that informal reviews be conducted remotely in case of local, state, or national physical distancing orders, and in cases of inclement weather or natural disaster..
In addition, the PHA will conduct an informal review remotely upon request of the applicant as a reasonable accommodation for a person with a disability, if an applicant does not have child care or transportation that would enable them to attend the informal review, or if the applicant believes an in-person informal review would create an undue health risk. The PHA will consider other reasonable requests for a remote informal review on a case-by-case basis.
Ensuring Accessibility for Persons with Disabilities and LEP Individuals As with in-person informal reviews, the platform for conducting remote informal reviews must be accessible to persons with disabilities and the informal review must be conducted in accordance with Section 504 and accessibility requirements. This includes ensuring any information, websites, emails, digital notifications, and other virtual platforms are accessible for persons with vision, hearing, and other disabilities. Further, providing effective communication in a digital context may require the use of individualized auxiliary aids or services, such as audio description, captioning, sign language and other types of interpreters, keyboard accessibility, accessible documents, screen reader support, and transcripts. Auxiliary aids or services must be provided in accessible formats, in a timely manner, and in such a way to protect the privacy and independence of the individual. PHAs may never request or require that individuals with disabilities provide their own auxiliary aids or services, including for remote informal hearings.
PHAs are required to make reasonable accommodations in policies, practices, and procedures to ensure persons with disabilities have a full and equal opportunity to participate in and benefit from all aspects of the informal review process. See Chapter 2 for a more detailed discussion of reasonable accommodation requirements.
If no method of conducting a remote informal review is available that appropriately accommodates an individual’s disability, the PHA may not hold against the individual their inability to participate in the remote informal review, and the PHA should consider whether © Copyright 20243 Nan McKay & Associates, Inc.
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postponing the remote informal review to a later date is appropriate or whether there is a suitable alternative.
Due to the individualized nature of disability, the appropriate auxiliary aid or service necessary, or reasonable accommodation, will depend on the specific circumstances and requirements.
As with in-person reviews, Limited English Proficiency (LEP) requirements also apply to remote informal reviews, including the use of interpretation services and document translation. See Chapter 2 for a more thorough discussion of accessibility and LEP requirements, all of which apply in the context of remote informal reviews.
Conducting Remote Informal Reviews
The PHA must ensure that the lack of technology or inability to use technology for remote informal reviews does not pose a disadvantage to families that may not be apparent to the PHA. The PHA should determine through a survey or other means if these barriers exist prior to conducting the remote informal review and, if the family does not have the proper technology to fully participate, either postpone the informal review or provide an alternative means of access.
As with in-person informal reviews, the PHA must provide all materials presented, whether paper or electronic, to the family prior to the remote informal review. The family must also be provided with an accessible means by which to transmit their own evidence.
The PHA must ensure that the applicant has the right to hear and be heard. All PHA policies and processes for remote informal reviews must be conducted in accordance with due process requirements and be in compliance with HUD regulations at 24 CFR 982.554 and guidance specified in Notice PIH 2020-32.
PHA Policy
The PHA will conduct remote informal reviews via a video conferencing platform, when available. If, after attempting to resolve any barriers, applicants are unable to adequately access the video conferencing platform at any point, or upon applicant request, the informal review will be conducted by telephone conferencing call-in. If the family is unable to adequately access the telephone conferencing call-in at any point, the remote informal review will be postponed, and an in-person alternative will be provided promptly within a reasonable time.
At least five business days prior to scheduling the remote review, the PHA will provide the family with login information and/or conferencing call-in information and an electronic and/or physical copy of all materials being presented via first class mail and/or email. The notice will advise the family of technological requirements for the informal review and request the family notify the PHA of any known barriers. The PHA will resolve any barriers using the guidance in Section 6 of Notice PIH 2020-32, including offering the family the opportunity to attend an in-person informal review.
If the informal review is to be conducted remotely, the PHA will require the family to provide any documents directly relevant to the informal review at least 24 hours before © Copyright 20243 Nan McKay & Associates, Inc.
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the scheduled review through the mail or via email. The PHA will scan and email copies of these documents to the PHA representative the same day.
Documents will be shared electronically whenever possible.
The PHA will follow up the email with a phone call and/or email to the applicant at least one business day prior to the remote informal review to ensure that the applicant received all information and is comfortable accessing the video conferencing or call-in platform.
The PHA will ensure that all electronic information stored or transmitted with respect to the informal review is secure, including protecting personally identifiable information (PII), and meets the requirements for accessibility for persons with disabilities and persons with LEP.
Informal Review Decision [24 CFR 982.554(b)]
The PHA must notify the applicant of the PHA’s final decision, including a brief statement of the reasons for the final decision.
PHA 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 15 business days of the informal review, to the applicant and their representative, if any, along with proof of mailing.
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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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 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:
x Refusing to enter into a contract or approve a lease
x Terminating housing assistance payments under an outstanding contract x 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:
x A determination of the family’s annual or adjusted income, and the use of such income to compute the housing assistance payment
x A determination of the appropriate utility allowance (if any) for tenant-paid utilities from the PHA utility allowance schedule
x A determination of the family unit size under the PHA’s subsidy standards x A determination to terminate assistance for a participant family because of the family’s actions or failure to act
x 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
x 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)] Circumstances for which an informal hearing is not required are as follows:
x Discretionary administrative determinations by the PHA x General policy issues or class grievances
x Establishment of the PHA schedule of utility allowances for families in the program x A PHA determination not to approve an extension or suspension of a voucher term x A PHA determination not to approve a unit or tenancy
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x A PHA determination that a unit selected by the applicant is not in compliance with the HQS x A PHA determination that the unit is not in accordance with HQS because of family size x A determination by the PHA to exercise or not to exercise any right or remedy against an owner under a contract
PHA Policy
The PHA will only offer participants the opportunity for an informal hearing when required to by the regulations, and if the PHA denies a request for a reasonable accommodation (see Chapter 2).
Remote Informal Hearings [Notice PIH 2020-32]
There is no requirement that informal hearings be conducted in-person, and as such, HUD allows PHAs to conduct all or a portion of their informal hearings remotely either over the phone, via video conferencing, or through other virtual platforms. If the PHA chooses to conduct remote informal hearings, applicants may still request an in-person informal hearing, as applicable.
PHA Policy
The PHA has the sole discretion to require that informal hearings be conducted remotely in case of local, state, or national physical distancing orders, and in cases of inclement weather or natural disaster..
In addition, the PHA will conduct an informal hearing remotely upon request as a reasonable accommodation for a person with a disability, if a participant does not have child care or transportation that would enable them to attend the informal hearing, or if the participant believes an in-person hearing would create an undue health risk. The PHA will consider other reasonable requests for a remote informal hearing on a case-bycase basis.
Ensuring Accessibility for Persons with Disabilities and LEP Individuals As with in-person informal hearings, the platform for conducting remote informal hearings must be accessible to persons with disabilities and the informal hearings must be conducted in accordance with Section 504 and accessibility requirements. This includes ensuring any information, websites, emails, digital notifications, and other virtual platforms are accessible for persons with vision, hearing, and other disabilities. Further, providing effective communication in a digital context may require the use of individualized auxiliary aids or services, such as audio description, captioning, sign language and other types of interpreters, keyboard accessibility, accessible documents, screen reader support, and transcripts. Auxiliary aids or services must be provided in accessible formats, in a timely manner, and in such a way to protect the privacy and independence of the individual. PHAs may never request or require that individuals with disabilities provide their own auxiliary aids or services, including for remote informal hearings.
PHAs are required to make reasonable accommodations in policies, practices, and procedures to ensure persons with disabilities have a full and equal opportunity to participate in and © Copyright 20243 Nan McKay & Associates, Inc.
Unlimited copies may be made for internal use.
benefit from all aspects of the informal hearing process. See Chapter 2 for a more detailed discussion of reasonable accommodation requirements.
If no method of conducting a remote informal hearing is available that appropriately accommodates an individual’s disability, the PHA may not hold against the individual their inability to participate in the remote informal hearing, and the PHA should consider whether postponing the remote hearing to a later date is appropriate or whether there is a suitable alternative.
Due to the individualized nature of disability, the appropriate auxiliary aid or service necessary, or reasonable accommodation will depend on the specific circumstances and requirements.
As with in-person reviews, Limited English Proficiency (LEP) requirements also apply to remote informal hearings, including the use of interpretation services and document translation. See Chapter 2 for a more thorough discussion of accessibility and LEP requirements, all of which apply in the context of remote informal hearings.
Conducting Informal Hearings Remotely
The PHA must ensure that the lack of technology or inability to use technology for remote informal hearings does not pose a disadvantage to families that may not be apparent to the PHA. The PHA should determine through a survey or other means if these barriers exist prior to conducting the remote informal hearing and, if the family does not have the proper technology to fully participate, either postpone the informal hearing or provide an alternative means of access.
As with in-person informal hearings, the PHA must provide all materials presented, whether paper or electronic, to the family prior to the remote informal hearing. The family must also be provided with an accessible means by which to transmit their own evidence.
The PHA’s essential responsibility is to ensure informal hearings meet the requirements of due process and comply with HUD regulations. Therefore, all PHA policies and processes for remote informal hearings will be conducted in accordance with due process requirements, and will be in compliance with HUD regulations at 24 CFR 982.555 and the guidance for conducting remote hearings specified in Notice PIH 2020-32.
PHA Policy
The PHA will conduct remote informal hearings via a video conferencing platform, when available. If, after attempting to resolve any barriers, participants are unable to adequately access the video conferencing platform at any point, or upon request, the informal hearing will be conducted by telephone conferencing call-in. If the family is unable to adequately access the telephone conferencing call-in at any point, the remote informal hearing will be postponed, and an in-person alternative will be provided promptly within a reasonable time.
At least five business days prior to scheduling the remote hearing, the PHA will provide the family with login information and/or conferencing call-in information and an electronic copy of all materials being presented via first class mail and/or email. The © Copyright 20243 Nan McKay & Associates, Inc.
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notice will advise the family of technological requirements for the informal review and request the family notify the PHA of any known barriers. The PHA will resolve any barriers using the guidance in Section 6 of Notice PIH 2020-32, including offering the family the opportunity to attend an in-person informal hearing.
The PHA will follow up with a phone call and/or email to the family at least one business day prior to the remote informal hearing to ensure that the family received all information and is comfortable accessing the video conferencing or call-in platform.
The PHA will ensure that all electronic information stored or transmitted with respect to the informal hearing is secure, including protecting personally identifiable information (PII), and meets the requirements for accessibility for persons with disabilities and persons with LEP.
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. In accordance with the PHA’s LEP Plan, a translated version of the notification of denial of assistance, and other appropriate language assistance, will be provided to LEP applicants.
PHA 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.
A copy of all the relevant documents utilized to render the determination.
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 deadline for the family to request the informal hearing. © Copyright 20243 Nan McKay & Associates, Inc.
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To whom the hearing request should be addressed.
A copy of the PHA’s hearing procedures.
That the family may request a remote informal hearing.
A statement of the family’s right to request a Reasonable Accommodation for a person with a disability.
A referral to the Santa Monica Office of the Legal Aid Foundation of Los Angeles.
A statement that if the family does not avail itself of the opportunity for an informal hearing at the PHA, it may not appeal a termination decision.
Availability of free language assistance, in accordance with the PHA’s LEP Plan; and
That the participant may bring an interpreter to the informal hearing (other than a minor child)
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.
PHA Policy
A request for an informal hearing must be made in writing, specify the determination being disputed, and delivered to the PHA either in person, 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 15 business days of the family’s request. The hearing is scheduled prior to the date of the final termination (unless there is no landlord involved). If the hearing cannot be scheduled prior to the effective date of the termination, and the participant still lives in the unit, the Housing Assistance Payment will be extended by 1 month to allow for the hearing process to be completed.
If the PHA hearing will be conducted remotely, at the time the notice is sent to the family, the family will be notified:
Regarding the processes involved in a remote informal hearing; That the PHA will provide technical assistance prior to and during the informal hearing, if needed; and
That if the family or any individual witness has any technological, resource, or accessibility barriers, the family may inform the PHA and the PHA will assist the family in either resolving the issue or allow the family to participate in an inperson hearing, as appropriate.
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 © Copyright 20243 Nan McKay & Associates, Inc.
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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 does not appear within 20 minutes of the initial scheduled time, and was unable to reschedule the hearing in advance due to the nature of the conflict, the family must contact the PHA within 24 hours of the scheduled hearing date, excluding weekends and holidays. The PHA will reschedule the hearing only if the family can show good cause for the failure to appear, or if it is needed as a reasonable accommodation for a person with disabilities. If the family cannot show good cause for the failure to appear, or a rescheduling is not needed as a reasonable accommodation, the PHA’s decision will stand. PHA will not grant more than one re-scheduled appointment.
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.
For the purpose of informal hearings, documents include records and regulations.
PHA Policy
The family will be allowed to copy any documents related to the hearing at no cost to the family. The family must request discovery of PHA documents no later than five business days prior to the scheduled hearing date
If the hearing will be conducted remotely, the PHA will compile a hearing packet, consisting of all documents the PHA intends to produce at the informal hearing. The PHA will mail copies of the hearing packet to the family, the family’s representatives, if any, and the hearing officer at least three days before the scheduled remote informal hearing. The original hearing packet will be in the possession of the PHA representative and retained by the PHA.
Documents will be shared electronically whenever possible.
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.
PHA Policy
For in-person hearings, the PHA will not require pre-hearing discovery by the PHA of family documents directly relevant to the hearing.
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If the informal hearing is to be conducted remotely, the PHA will require the family to provide any documents directly relevant to the informal hearing at least 24 hours before the scheduled hearing through the mail or via email. The PHA will scan and email copies of these documents to the hearing officer and the PHA representative the same day.
Documents will be shared electronically whenever possible.
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. If the family will be represented by legal counsel it must notify the PHA at least 5 business days prior to the hearing, and must provide the name, address and telephone number of their designated legal counsel.
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.
Attendance at the Informal Hearing
PHA 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
The family is entitled to arrange for an interpreter to attend the hearing, at the expense of the family, or the PHA, if requested by the family.
Any other person approved by the PHA as a reasonable accommodation for a person with a disability
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)].
PHA 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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Recording of the Hearing
The family is entitled to have the hearing recorded. The PHA may, but is not required, to provide a transcript of the hearing.
PHA Policy
The PHA will have the hearing recorded but will not provide a transcript of the hearing.
The family shall be responsible for any fee associated with obtaining the recording.
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.
PHA 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 based not on a witness’ personal knowledge. In and of itself, hearsay evidence carries no weight when making a finding of fact. The hearing officer may include hearsay evidence when considering their decision if it is corroborated by other evidence. Even though hearsay evidence is generally admissible in a hearing, the hearing officer will not base a hearing decision on hearsay alone unless there is clear probative value and credibility of the evidence, and the party seeking the change has met the burden of proof. If either the PHA (or the family, if required in a remote hearing) 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.
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Procedures for Rehearing or Further Hearing
PHA Policy
The hearing officer 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.
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.
PHA 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 15 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. © Copyright 20243 Nan McKay & Associates, Inc.
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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 their 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 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.
PHA Policy
The hearing officer will mail a “Notice of Hearing Decision” to the PHA and to the participant on the same day. This notice will be sent by first-class mail. The participant will be mailed the original “Notice of Hearing Decision” and a copy of the proof of mailing. A copy of the “Notice of Hearing Decision” 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. The Housing Manager may determine the final decision if the hearing officer’s decision conflicts with regulations or if the hearing is not required.
PHA Policy
The Executive Director has the authority to determine that the PHA 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 © Copyright 20243 Nan McKay & Associates, Inc.
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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” to the PHA and the participant on the same day. The “Notice of Final Decision” will be sent by first-class mail. A copy of this notice will be maintained in the PHA’s file. 16-III.D. HEARING AND APPEAL PROVISIONS FOR NON-CITIZENS [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:
x That financial assistance will be denied or terminated, and provide a brief explanation of the reasons for the proposed denial or termination of assistance. x The family may be eligible for proration of assistance. x 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]. x 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.
x 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. x 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.
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 © Copyright 20243 Nan McKay & Associates, Inc.
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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.
PHA 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. In accordance with the PHA’s LEP Plan, a translated version of this notice, or notification of other appropriate language assistance, will be provided to LEP applicants.
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.
PHA 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.
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 © Copyright 20243 Nan McKay & Associates, Inc.
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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.
PHA Policy
The family will be provided copies of documents related to the hearing at no charge.
The family must request discovery of PHA documents no later than five business days 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 request an interpreter. Upon request, the PHA will provide competent interpretation services, free of charge.
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.
PHA 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.
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. © Copyright 20243 Nan McKay & Associates, Inc.
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Retention of Documents [24 CFR 5.514(h)]
The PHA must retain electronically for a minimum of 3 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:
x The application for assistance
x The form completed by the family for income reexamination x Photocopies of any original documents, including original USCIS documents x The signed verification consent form
x The USCIS verification results
x The request for a USCIS appeal
x The final USCIS determination
x The request for an informal hearing
x The final informal hearing decision
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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]. If the family breaches an agreement with the PHA to pay amounts owed to a PHA, or amounts paid to an owner by a PHA, the PHA, at its discretion, may offer a family the opportunity to enter an agreement to pay amounts owed to a PHA or amounts paid to an owner by a PHA. The PHA may prescribe the terms of the agreement [24 CFR 982.552(c)(1)(vii). This part describes the PHA’s policies for recovery of monies owed to the PHA by families or owners.
PHA 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. 16-IV.B. REPAYMENT POLICY
Owner Debts to the PHA
PHA 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.
When an owner 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 lawsuit
State income tax set-off program
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Family Debts to the PHA
Families are required to reimburse the PHA if they were charged less rent than required because the family either underreported or failed to report income. PHAs are required to determine retroactive rent amounts as far back as the PHA has documentation of family unreported income [Notice PIH 2018-18].
PHA 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.
Refusal to Enter into an Agreement
If the family refuses to repay the debt, does not enter into a repayment agreement, or breaches a repayment agreement, the PHA must terminate assistance [Notice PIH 2018-18].
PHA Policy
When a family refuses to repay monies owed to the PHA, in addition to termination of program assistance, the PHA will utilize other available collection alternatives including, but not limited to, the following:
Collection agencies
Small claims court
Civil lawsuit
State income tax set-off program
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
PHA Policy
Before executing a repayment agreement with a family, the PHA will generally require a down payment of 10 percent of the total amount owed or the PHA may, in its sole discretion, require a lesser percentage down payment.
Payment Thresholds
Notice PIH 2018-18 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 © Copyright 20243 Nan McKay & Associates, Inc.
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per cent or more of its monthly adjusted income in rent. Moreover, Notice PIH 2018-18 acknowledges that PHAs have the discretion to establish “thresholds and policies” for repayment agreements with families [24 CFR 982.552(c)(1)(vii)].
PHA Policy
The PHA has established the following thresholds for repayment of debts:
Amounts between $3,000 and the federal or state threshold for criminal prosecution 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.
Execution of the Agreement
All repayment agreements must be in writing, dated, and signed by both the family and the PHA [Notice PIH 2018-18].
PHA Policy
Any repayment agreement between the PHA and a family must be signed and dated by the PHA and by the head of household and spouse/co-head (if applicable).
Due Dates
PHA Policy
All payments are due by the close of business on the 15th day of the month. If the 15th does not fall on a business day, the due date is the close of business on the first business day after the 15th.
Late or Missed Payments
PHA 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. When a default has occurred, the entire balance is due in full. In such cases, the PHA will deny eligibility to the family, will not issue a new voucher, approve a new lease, or execute a new contract © Copyright 20243 Nan McKay & Associates, Inc.
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until the balance has been paid in full. In addition, under program regulations the PHA will terminate assistance in accordance with the policies in Chapter 12.
No Offer of Repayment Agreement
PHA Policy
The PHA 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, or if the family has entered into a repayment agreement with the PHA in the past 36 months. In the absence of a repayment agreement due to one of these conditions, the family will be required to pay the debt in full within 30 days.
Repayment Agreement Terms
All repayment agreements must be in writing, dated, signed by both the family and the PHA, include the total retroactive rent amount owed, any amount of lump sum payment made at time of execution, if applicable, and the monthly repayment amount. Notice PIH 2018-18 requires certain provisions, at a minimum, be included in any repayment agreement involving amounts owed by a family because it underreported or failed to report income:
x 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 x 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
x A statement that the terms of the repayment agreement may be renegotiated if the family’s income decreases or increases
x A statement that late or missed payments constitute default of the repayment agreement and may result in termination of assistance
Renegotiation of Repayment Agreements
x The PHA will consider a request for a renegotiation of a repayment agreement only under the circumstances that a family is current on the payments to the PHA and can demonstrate that their income has changed since the repayment agreement was issued.
The request must be submitted in writing, along with applicable evidence of the change in income, before the family makes any changes to their payment amount. The request will be reviewed by the PHA within 10 business days, at which time a letter with the PHA’s decision will be mailed to the family. This request is not subject to an informal hearing.
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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.
x High-performing PHAs can be given a competitive advantage under notices of funding availability [24 CFR 985.103].
x PHAs with deficiencies on one or more indicators are required to correct the deficiencies and report to HUD [24 CFR 985.106].
x 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]. x 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].
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 Housing Manager.
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. © Copyright 20243 Nan McKay & Associates, Inc.
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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]. 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 to be rated under SEMAP indicators 1-7.
SEMAP Indicators
Indicator 1: Selection from the waiting list
Maximum Score: 15
x 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 from the waiting list.
x 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 samples.
Indicator 2: Rent reasonableness
Maximum Score: 20
x 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 at the required times.
x 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
x 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. x Points are based on the percent of files that are calculated and verified correctly, according to the PHA’s quality control sample.
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Indicator 4: Utility allowance schedule
Maximum Score: 5
x This indicator shows whether the PHA maintains an up-to-date utility allowance schedule.
x Points are based on whether the PHA has reviewed the utility allowance schedule and adjusted it when required, according to the PHA’s certification.
Indicator 5: HQS quality control inspections
Maximum Score: 5
x This indicator shows whether a PHA supervisor re-inspects a sample of units under contract during the PHA fiscal year, which meets the minimum sample size requirements for quality control of HQS inspections.
x Points are based on whether the required quality control reinspection’s were completed, according to the PHA’s certification.
Indicator 6: HQS enforcement
Maximum Score: 10
x 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. x 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
x Only applies to PHAs with jurisdiction in metropolitan FMR areas. x 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. x 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
x 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. x 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
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x This indicator shows whether the PHA completes a reexamination for each participating family at least every 12 months.
x Points are based on the percent of reexaminations that are less than two months overdue, according to data from PIC.
Indicator 10: Correct tenant rent calculations
Maximum Points: 5
x This indicator shows whether the PHA correctly calculates the family’s share of the rent to owner.
x 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
x This indicator shows whether newly leased units pass HQS inspection on or before the effective date of the assisted lease and HAP contract.
x Points are based on the percent of newly leased units that passed HQS inspection on or before the effective date of the lease and HAP contract, according to data from PIC.
Indicator 12: Annual HQS inspections
Maximum Points: 10
x This indicator shows whether the PHA inspects each unit under contract at least annually.
x 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
x 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.
x 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
x Only applies to PHAs with mandatory FSS programs.
x 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. x 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. © Copyright 20243 Nan McKay & Associates, Inc.
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Success Rate of Voucher Holders
Maximum Points: 5
x 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. x This indicator shows whether voucher holders were successful in leasing units with voucher assistance.
x Points are based on the percent of families that were issued vouchers, and that became participants in the voucher program.
Deconcentration Bonus Indicator
Maximum Points: 5
x 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. x Additional points are available to PHAs that have jurisdiction in metropolitan FMR areas and that choose to submit the required data.
x Points are based on whether the data that is submitted meets the requirements for bonus points.
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PART VI: RECORDKEEPING
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; 24 CFR 908.101] During the term of each assisted lease, and for at least three years thereafter, the PHA must keep:
x A copy of the executed lease;
x The contract; and
x The application from the family.
In addition, the PHA must keep the following records for at least three years:
x Records that provide income, racial, ethnic, gender, and disability status data on program applicants and participants;
x An application from each ineligible family and notice that the applicant is not eligible; x HUD-required reports;
x Unit inspection reports;
x Lead-based paint records as required by 24 CFR 35, Subpart B. x Accounts and other records supporting PHA budget and financial statements for the program;
x Records to document the basis for PHA determination that rent to owner is a reasonable rent (initially and during the term of a contract); and x Other records specified by HUD.
The PHA must keep the last three years of the Form HUD-50058 and supporting documentation during the term of each assisted lease, and for a period of at least three years from the end of participation (EOP) date [24 CFR 908.101].
The PHA must maintain Enterprise Income Verification (EIV) system Income Reports in the tenant file for the duration of the tenancy but for a period not to exceed three years from the EOP date [Notice PIH 2018-18].
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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.
PHA Policy
The PHA will keep for at least three years records of all complaints, investigations, notices, and corrective actions related to violations of the Fair Housing Act, the equal access final rule, or VAWA.
The PHA must keep confidential records of all emergency transfer requested by victims of domestic violence, dating violence, sexual assault, stalking, and human trafficking, 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)].
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.
16-VI.C. RECORDS MANAGEMENT
PHAs must maintain applicant and participant files and information in accordance with the regulatory requirements described below.
PHA Policy
All applicant and participant information will be kept electronically 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 © Copyright 20243 Nan McKay & Associates, Inc.
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protected in accordance with federal 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.
PHA Policy
Prior to utilizing HUD’s EIV system, the PHA will adopt and implement EIV security procedures required by HUD.
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, Stalking, or Human Trafficking
For requirements and PHA policies related to management of documentation obtained from victims of domestic violence, dating violence, sexual assault, stalking, or human trafficking see section 16-IX.E.
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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 2017-13] 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.
PHA Policy
Upon notification by the owner, 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 within five business days.
Upon notification by the owner, the PHA will 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.
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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 identified 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.
PHA Policy
HOME Program: At least quarterly, the PHA will communicate with the local public health department to both request and provide information. The goal of this information sharing is to identify children with lead poisoning, under the age of six, in TBRA units, so that proper hazard reduction activity can take place. Specifically, the PHA will:
1) Attempt to obtain from the public health department, the names and addresses of any children under age six with an environmental intervention blood level. If the PHA receives this list from the Public Health Department, the PHA will match those addresses against units receiving TBRA and take required hazard evaluation and reduction in those units per 24 CFR 35.1225.
2) Provide to the public health department a list of addresses of units receiving TBRA, unless the public health department states that they do not want to receive this list. © Copyright 20243 Nan McKay & Associates, Inc.
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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 982.354(e)(1) and 982.454]. If a PHA denies a family a portability move based on insufficient funding, the PHA is required to notify the local HUD office within 10 business days [24 CFR 982.354]. 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
PHA 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 and funding reserves, 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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PART IX: VIOLENCE AGAINST WOMEN ACT (VAWA)
NOTIFICATION, DOCUMENTATION, CONFIDENTIALITY
16-IX.A. OVERVIEW
The Violence against Women Act (VAWA) provides special protections for victims of domestic violence, dating violence, sexual assault, stalking, and human trafficking 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 apply in conjunction with VAWA. • Although the VAWA 2022 statute does not specifically include human trafficking in the list of victims protected under VAWA, in 2022 HUD began including human trafficking as part of the list of victims protected under VAWA (as seen in Notices PIH 2022-06, PIH 2022-22, and PIH 2022-24). In the absence of a final rule implementing VAWA 2022 and to mirror HUD’s recent usage, this policy includes human trafficking in addition to domestic violence, dating violence, sexual assault, and stalking anywhere such a list appears.
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, Stalking and Human Trafficking”; 10-I.A, “Allowable Moves”; 10-I.B, “Restrictions on Moves”; 12-II.E, “Terminations Related to Domestic Violence, Dating Violence, Sexual Assault, Stalking, or Human Trafficking”; and 12-II.F, “Termination Notice.”
16-IX.B. DEFINITIONS [24 CFR 5.2003, 42 USC 13925]
As used in VAWA:
x 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 the victim of domestic violence, dating violence, sexual assault, or stalking. x 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. x 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
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- The type of relationship
- The frequency of interaction between the persons involved in the relationship x The term domestic violence includes felony or misdemeanor crimes committed by a current or former spouse or intimate partner of the victim under the family or domestic violence laws of the jurisdiction receiving grant funding, and in the case of victim services, includes the user or attempted use of physical abuse or sexual abuse, or a pattern of any other coercive behavior committed, enabled, or solicited to gain or maintain power and control over a victim, including verbal, psychological, economic, or technological abuse that may or may not constitute criminal behavior, by a person who is:
- The current or former spouse or intimate partner of the victim, or person similarly situated to a spouse or intimate partner of the victim
- A person who is cohabitating or has cohabitated with the victim as a spouse or intimate partner
- A person with whom the victim shares a child in common - A person who commits acts against a youth or adult victim who is protected from those acts under the domestic or family violence laws of the jurisdiction x The term economic abuse means behavior that is coercive, deceptive, or unreasonably controls or restrains a person’s ability to acquire, use, or maintain economic resources to which they are entitle, including using coercion, fraud, and manipulation to:
- Restrict a person’s access to money, assets, credit, or financial information - Unfairly use a person’s personal economic resources, including money, assets, and credit, for one’s own advantage
- Exert undue influence over a person’s financial and economic behavior or decisions, including forcing default on joint or other financial obligations, exploiting powers of attorney, guardianship, or conservatorship, or to whom one has a fiduciary duty x 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
x The term stalking means:
- To engage in a course of conduct directed at a specific person that would cause a reasonable person to fear for their safety or the safety of others, or suffer substantial emotional distress.
x The term technological abuse means an act or pattern of behavior that occurs within domestic violence, dating violence, sexual assault, or stalking and is intended to harm, threaten, intimidate, control, stalk, harass, impersonate, exploit, extort, or monitor another person, except as otherwise permitted by law, that occurs using any form of © Copyright 20243 Nan McKay & Associates, Inc.
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technology, including but not limited to:
- Internet enabled devices
- Online spaces and platforms
- Computers
- Mobile devices
- Cameras and imaging programs
- Apps
- Location tracking devices
- Communication technologies
- Any other emergency technologies
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.
PHA Policy
The PHA will post the following information regarding VAWA in its offices and on its website. It will also make the information readily available to anyone who requests it.
A copy of the notice of occupancy right under VAWA to housing choice voucher program applicants and participants who are or have been victims of domestic violence, dating violence, sexual assault, or stalking (Form HUD-5380, see exhibit 16-1) A copy of form HUD-5382, Certification of Domestic Violence, Dating Violence, Sexual Assault, or Stalking and Alternate Documentation (see Exhibit 16-2) A copy of the PHA’s emergency transfer plan (Exhibit 16-3) A copy of HUD’s Emergency Transfer Request for Certain Victims of Domestic Violence, Dating Violence, Sexual Assault, or Stalking, Form HUD-5383 (Exhibit 16-4) 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 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. VAWA 2013 also requires that this notice of VAWA rights be © Copyright 20243 Nan McKay & Associates, Inc.
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translated in accordance with HUD’s LEP Guidance and Executive Order 13166.
PHA Policy
The PHA will provide all applicants with information about VAWA at the time they request an application for housing assistance, as part of the written briefing packet, and at the time the family is admitted to the program. 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 about VAWA at the time of admission (see section 5-I. B) and at annual reexamination. The PHA will also include information about VAWA in notices of termination of assistance, as provided in section 12-II.F.
The VAWA information provided to applicants and participants will consist of the notice in Exhibits 16-1 and 16-2.
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.
PHA 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.
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.
Notification to Owners and Managers
While PHAs are no longer required by regulation to notify owners and managers participating in the HCV program of their rights and obligations under VAWA, the PHA may still choose to inform them.
PHA Policy
The PHA will provide owners and managers with information about their rights and obligations under VAWA when they begin their participation in the program and at least annually thereafter.
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