Today in the Federal Register, the Department of Housing and Urban Development (HUD) published a final rule amending HUD’s civil monetary penalty (CMP) regulations.

The rule makes final an interim rule published in June of last year, which included a new methodology for calculating civil money penalties, starting with a “catch up” adjustment correcting previous inaccuracies.

HUD has posted Notice PIH 2017-08, Violence Against Women Reauthorization Act of 2013 Guidance. The 52-page notice is dated May 19. While the guidance does not contain any major changes from the VAWA 2013 final rule, it includes a number of useful examples and scenarios to assist PHAs in implementation of the rule. The notice is applicable to the public housing and HCV programs, including the project-based voucher (PBV) and moderate rehabilitation programs.

Here are a few examples of guidance from the notice:

• A list of adverse screening factors which might be the direct result of domestic violence, dating violence, sexual assault, or stalking
• A detailed description of the certification and documentation process
• A summary of policy requirements and a 5-page appendix detailing necessary PHA policies and procedures
• Instructions for customizing the notice of occupancy rights
• A ten-page section on requirements for emergency transfer plans
• A clarification of the VAWA 2013 provision for establishing eligibility following bifurcation of a lease. This provision applies only to mixed families in which the victim has not contended eligible immigration status
• A six-page model owner notification. Use of an owner notification letter is optional, as PHAs may instead rely on VAWA information included in the HAP contract.

In a related development, HUD has released translated versions of the four forms and model notices published in December 2016 for VAWA 2013 implementation. Each of the forms has been translated into 11 languages (Armenian, Cambodian, Creole, Japanese, Korean, Lao, Mandarin, Russian, Spanish, Thai, and Vietnamese).

The translated documents include (links to English versions):

• HUD-5380, Notice of Occupancy Rights under the Violence Against Women Act
• HUD-5381, Model Emergency Transfer Plan for Victims of Domestic Violence, Dating Violence, Sexual Assault, or Stalking
• HUD-5382, Certification of Domestic Violence, Dating Violence, Sexual Assault, or Stalking, and Alternate Documentation (replaces form HUD-50066)
• HUD-5383, Emergency Transfer Request for Certain Victims of Domestic Violence, Dating Violence, Sexual Assault, or Stalking

You’ll find links to all of the translated documents on this page at HUDCLIPS.

Late yesterday HUD’s Office of Public and Indian Housing (PIH) issued Notice PIH 2017-03, “HUD Guidance on Instituting and Enforcing Smoke-Free Public Housing Policies.” The notice follows December’s publication of the smoke-free final rule.

Subjects discussed in the guidance notice include implementation, PHA flexibility, and PHA policy options concerning use of electronic nicotine delivery systems (ENDS) and designated smoking areas (DSAs). The notice also includes instructions for revisions to public housing leases and PHA plans.

The notice also encourages PHAs to adopt graduated enforcement mechanisms for violations of smoke-free policies. PHAs may not evict for a single incident of smoking.

On the subject of reasonable accommodations, the notice includes suggestions for smoke-free policies for residents with disabilities. Such measures could include offering the resident a transfer to a unit near an exit, to a unit on the ground floor, or to a unit in another development where DSAs are provided. However, a PHA may not permit continued smoking in restricted areas.

The notice concludes by encouraging PHAs to engage residents early in the development of smoke-free policies. Best practices have indicated that resident engagement in policy development, implementation, and enforcement are less likely to result in evictions.

Got questions about the smoke-free rule? Don’t miss Nan’s legislative update at the The Housing Conference this August in Boston, where she’ll discuss acts of Congress, regulation changes, and what’s ahead for 2017. Register now for the best rates!

Last week in the Federal Register, the Department of Housing and Urban Development (HUD) published a final rule amending the lead-based paint regulations to reduce the blood lead levels in children under the age of six who reside in federally assisted housing.

In addition to revising the definition of elevated blood lead level to conform with Centers for Disease Control and Prevention (CDC) guidance, the rule also establishes more comprehensive testing and evaluation procedures and addresses other aspects of CDC guidance regarding assisted housing. Other highlights of the rule include:

• Definitions for the terms certified, environmental investigation, evaluation, and expected to reside have been added to the regulations
• Posting notices of environmental investigation in centrally located common areas is prohibited to protect the family’s privacy, although the PHA must notify residents if conducting lead hazard evaluations or reduction activities
• When a child under six has an elevated blood lead level, the housing provider must conduct an environmental investigation within 15 calendar days of receiving notification
• The housing provider must complete the lead-hazard reduction within 30 calendar days of receiving the environmental investigation report
• If lead hazards are identified at the property, the housing provider must conduct risk assessments for the rest of the property within 30 calendar days from receiving the environmental investigation report when there are fewer than 20 units on the property, and within 60 days if there are more than 20
• If the risk assessment for the rest of the property identifies further lead hazards, the housing provider has 30 calendar days to complete the lead hazard reduction, or 90 days if there are more than 20 units identified with lead-based paint hazards where the control work would disturb more than the de minimis threshold
• The housing provider is required to report cases to HUD and provide documentation that it has completed requirements within the specified timeframes within 10 days of the deadline for each activity

Further information can be found in the notice, and in this press release announcing the publication of the rule. It becomes effective February 13, 2017.

Keep up with final rules like this one with a subscription to NMA’s PIH Alert. You’ll receive a daily email filled with up-to-the-minute program changes, requirements, and assistance. Email sales@nanmckay.com for more information.

On December 20, 2016, the U.S. Department of Housing and Urban Development (HUD) published in the Federal Register a final rule requiring the installation of broadband infrastructure at the time of new construction or substantial rehabilitation of HUD-funded multifamily rental housing. While the title of the rule suggests that it applies only to HUD’s multifamily programs, it does also apply to multifamily rental units funded under the project-based voucher (PBV) program, the public housing capital fund, and Choice Neighborhoods programs.

The purpose of the rule is to “narrow the digital divide,” that is, to provide families residing in HUD-funded housing a platform from which to participate in the digital economy and thereby increase their access to economic opportunities. In addition to making it a requirement to install broadband infrastructure during new construction and substantial rehabilitation, the time at which installation is easier and less expensive, the rule also:

• Defines broadband infrastructure as cables, fiber optics, wiring, or other permanent (integral to the structure) infrastructure—including wireless infrastructure—as long as the installation results in broadband infrastructure in each dwelling unit meeting the Federal Communications Commission’s (FCC’s) definition in effect at the time the pre-construction estimates are generated.
• Defines substantial rehabilitation for programs that do not already have a definition as work on the electrical system with estimated costs equal to or greater than 75 percent of the cost of replacing the entire electrical system, or when the estimated cost of the rehabilitation is equal to or greater than 75 percent of the total estimated cost of replacing the multifamily rental housing after the rehabilitation is complete. This definition for the purpose of broadband infrastructure does not affect definitions of rehabilitation already in place for other purposes.

Further details, including a comprehensive list of programs to which the requirements apply, can be found in the rule. It becomes effective January 19, 2017.

If you’re interested in learning more about HUD's multifamily programs, don’t miss our newly redesigned seminar, Multifamily Housing Specialist. In response to customer feedback, we've extended this class to four days, providing a comprehensive training on the HUD Handbook 4350.3 REV-1 which covers eligibility, screening and selection, admission, rent calculation, recertification, termination, and a discussion of HUD’s multifamily systems. Our next session is being offered in June in Wisconsin and is currently on sale for 10% off when you purchase now. Register here.

Today on the Public and Indian Housing (PIH) home page, HUD posted an advance copy of its final rule on smoke-free public housing. The rule is pending publication in the Federal Register.

The final rule requires all PHAs to ban the use of prohibited tobacco products in living units, indoor common areas, and administrative offices. PHAs will have 18 months from the effective date of the final rule to implement smoke-free policies applicable to all indoor areas and to outdoor areas within 25 feet of buildings. PHAs may establish designated smoking areas or may ban smoking completely.

In the final version of the rule, HUD has clarified that the rule prohibits use of waterpipes (“hookahs”). Electronic nicotine delivery systems (ENDS) such as e-cigarettes are not prohibited under the rule, but PHAs may adopt policies banning them. PHAs that have already implemented voluntary smoke-free policies will need to update them only if their existing policies are not consistent with the minimum requirements of the final rule.

In a press release posted this morning, HUD Secretary Julián Castro commented on the final rule. Of the 1.2 million public housing units nationwide, 228,000 are currently smoke free. Once fully implemented, the smoke-free rule announced today would expand the impact to more than 940,000 public housing units, including more than 500,000 units inhabited by elderly residents and 760,000 children living in public housing.

In what appears to be a related development, HUD’s Office of Lead Hazard Control and Healthy Homes (OLHCHH) yesterday announced that it has scheduled a national stakeholder call with Secretary Castro. The call, which was announced in an email to the Healthy Homes mailing list, concerns “a major new step to protect the health and safety of our nation’s public housing residents.” It is scheduled for tomorrow, December 1, at 4 p.m. eastern time. Click here to RSVP for the call (use confirmation number 407550).

Yesterday the Department of Housing and Urban Development (HUD) published in the Federal Register a final rule on the use of small area fair market rents (SAFMRs) in the housing choice voucher (HCV) program.

The rule, which is intended to help reduce the number of assisted families that reside in areas of high poverty concentration, requires the use of SAFMRs in certain metropolitan areas if the area meets a specific set of criteria. It changes the geography used to calculate FMRs in certain areas from a metropolitan area-wide approach to the zip code level, expanding the options of families to live in lower poverty neighborhoods.

In a notice published today in conjunction with the rule, HUD lists the 24 areas required to implement SAFMRs, and discusses several key changes made from the rule proposed in June of this year. These changes include:

• The addition of three payment standard reduction protections
• Additional criteria for selecting SAFMR areas
• The exemption of project-based vouchers (PBVs) except in certain conditions
• Additional changes to reduce the administrative burden on PHAs and simplify the transition

HUD’s Office of Policy Development and Research (PD&R) established a website earlier this year containing tools and information on the use of SAFMRs in the HCV program. To accompany the final rule, HUD has posted links to several supplementary documents on this website, including today’s press release on the rule, the key aspects notice mentioned above, and second Federal Register notice on SAFMRs, also published this morning, which sets the values for the selection criteria used to determine areas subject to small area FMRs, and lists the areas meeting these requirements. The rule becomes effective on January 17, 2017.

This morning in the Federal Register, the Department of Housing and Urban Development (HUD) published a final rule implementing the requirements set forth in the Violence against Women Reauthorization Act of 2013 (VAWA 2013). VAWA 2013 expanded protections to HUD programs beyond public housing and Section 8 tenant-based and project-based programs, while also enhancing protections and options for victims of domestic violence, dating violence, sexual assault, and stalking.

Today's 102-page VAWA final rule covers the expanded protections in VAWA 2013 to HUD programs beyond the previously covered public housing and Section 8 tenant and project-based vouchers, and enhances protections and options for victims of domestic violence, dating violence, sexual assault, and stalking. In brief, the major provisions of the rule include:

• Specifying “sexual assault” as a crime covered by VAWA in HUD-covered programs.
• Establishing a definition for affiliated individual based on the statutory definition and that is usable and workable for HUD-covered programs.
• Applying VAWA protections to all covered HUD programs as well as the Housing Trust Fund, which was not statutorily listed as a covered program.
• Ensuring that existing tenants, as well as new tenants, of all HUD-covered programs receive notification of their rights under VAWA and HUD’s VAWA regulations.
• Establishing reasonable time periods during which a tenant who is a victim of domestic violence, dating violence, sexual assault, or stalking may establish eligibility to remain in housing, where the tenant’s household is divided due to a VAWA crime, and where the tenant was not the member of the household that previously established eligibility for assistance.
• Establishing that housing providers may, but are not required to, request certain documentation from tenants seeking emergency transfers under VAWA.
• Providing for a six-month transition period to complete an emergency transfer plan and provide emergency transfers, when requested, under the plan.
• Revising and establishing new program-specific regulations for implementing VAWA protections in a manner that is workable for each HUD-covered program.

In addition to addressing the major provisions above, the VAWA final rule also includes as appendices a Notice of Occupancy Rights under the Violence against Women Act (Notice of Occupancy Rights) that certain housing providers must give to tenants and applicants to ensure they are aware of their rights under VAWA and implementing regulations, a model Emergency Transfer Plan that may be used by housing providers to develop their own emergency transfer plans, a model Emergency Transfer Request form that housing providers could provide to tenants requesting an emergency transfer under these regulations, and a new certification form for documenting incidents of domestic violence, dating violence, sexual assault, and stalking that must be used by housing providers. As stated in the final rule, these appendices will not appear in the Code of Federal Regulations.

QUESTION    We understand that HOTMA was signed into law by the president on July 29, 2016. Inasmuch as there are many substantive administrative changes to the HCV and public housing programs contained in this new law, we are wondering whether PHAs need to await the issuance of a HUD notice before they implement these changes (for example, increase in elderly/disabled deduction, asset limitations, reporting changes of 10 percent or more) or whether PHAs are obligated to immediately adopt these changes even before HUD issues new rules clarifying this new law? We have many recertifications in the pipeline and an answer to this question will obviously impact these pipeline cases.

ANSWER    Most provisions of the Housing Opportunity through Modernization Act of 2016 (HOTMA) will not take effect until HUD has completed the formal rulemaking process. This typically involves issuance of a proposed rule, review of public comments, and publication of a final rule. Changes would likely go into effect 30 days after publication of the final rule, so it may be a year or more before PHAs are permitted to implement the new law.

Five self-implementing provisions of HOTMA were discussed in a letter to executive directors dated September 26. While the remaining HOTMA changes will be implemented through the formal rulemaking process, these five sections became effective immediately upon enactment. Implementation requirements are described below.

Reasonable accommodation payment standards: Section 102(d) of HOTMA provides that PHAs may establish, without HUD approval, a payment standard of up to 120 percent of the fair market rent (FMR) as a reasonable accommodation for a person with a disability. Since this option was made available under the March 8 streamlining final rule, no further action is required.

Fair market rents: Two changes involving FMRs are included in Section 107 of HOTMA. The first change involves HUD’s methods for establishing and publishing FMRs. HUD will no longer publish “proposed” and “final” versions of the FMRs, but PHAs and other interested parties may comment on the FMRs and request HUD to reevaluate them in a jurisdiction before those rents become effective. FMRs for fiscal year 2017 were published on August 26 using the new method.

HOTMA also provides that no PHA in the housing choice voucher (HCV) program is required, as a result of a reduction in the FMR, to reduce the payment standard applied to a family continuing to reside in a unit under a housing assistance payment (HAP) contract at the time the FMR was reduced. PHAs must adopt policies in their administrative plans that further explain this provision. According to the letter:

Effective July 29, 2016, PHAs may choose, but are no longer required, to reduce the payment standard for a family that remains under HAP contract at the family’s second annual reexamination if, as the result of a decrease in the FMR, the payment standard would otherwise fall outside the basic range. HUD will issue additional guidance on this change in the future.

Family Unification Program (FUP) changes: HOTMA expanded FUP eligibility and increased time limits for eligible youth. The changes were effective upon enactment. HUD issued a letter to FUP executive directors on August 29 to ensure awareness of the changes.

Citizenship preference: This provision applies only to Guam and requires a preference for U.S. citizens and nationals over citizens of the Marshall Islands, Micronesia, and Palau. It was effective upon enactment of HOTMA.

Exception to resident board member requirement: HOTMA provides an exception to the requirement that the board must include at least one public housing resident for the Housing Authority of the County of Los Angeles and for any PHA in the states of Alaska, Iowa, and Mississippi. Since the provision has been in effect for a number of years through appropriations acts, no further action is required.

The letter contained the following guidance on HOTMA implementation:

All of the other sections in HOTMA that impact the HCV and public housing programs require that HUD first issue a notice or regulation for the provision to become effective. Until HUD issues the applicable notices or regulations, your PHA may not implement those additional sections. This information will also be transmitted in the near future via a Federal Register notice.

We realize that many PHAs are eager to implement the flexibilities and other statutory changes provided under HOTMA, so please be assured that HUD is working diligently to develop and provide the necessary implementation guidance in a timely manner. If you have any questions, please send them to HOTMAquestions@hud.gov.

Are you a PIH Alert subscriber? Every Friday, the PIH Alert includes one frequently asked question (FAQ) submitted by our readers. To submit your question, email Annie Stevenson at annie@nanmckay.com with the subject line "FAQ Friday." If you'd like to try a free 30-day trial subscription to the PIH Alert, email sales@nanmckay.com to get started.

This morning, the Department of Housing and Urban Development (HUD) published in the Federal Register a final rule to formalize legal standards under the Fair Housing Act with respect to sexual and other forms of harassment in housing.

The rule, “Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices under the Fair Housing Act,” focuses on standards for use in investigations and adjudications involving allegations of harassment on the basis of race, color, religion, national origin, sex, familial status, and disability. It also specifies how HUD will evaluate complaints of quid pro quo (“this for that”) and hostile environment harassment under the act, in addition to providing for uniform treatment of Fair Housing Act claims raising allegations of such harassment in administrative and judicial forums. Major provisions of the harassment final rule include:

• Formalizing definitions of quid pro quo harassment and hostile environment harassment under the Fair Housing Act
• Formalizing standards for evaluating claims of quid pro quo and hostile environment harassment under the act
• Adding illustrations of prohibited quid pro quo and hostile environment harassment to HUD’s existing Fair Housing Act regulations
• Identifying traditional principles of direct and vicarious liability applicable to all discriminatory housing practices under the act, including quid pro quo and hostile environment harassment

Part 100 of Title 24 of the Code of Federal Regulations (CFR) is the only part affected by the new rule. To view specific regulatory changes, most of which consist of additions, see pages 71 through 78 of the pre-publication copy of the harassment final rule, available here.

In an accompanying press release, HUD also announced that its Office of General Counsel (OGC) has issued new guidance on the application of Fair Housing Act standards to the enforcement of local “nuisance” and other “crime-free” housing ordinances to protect survivors of domestic violence, other crime victims, and those in need of police or emergency services. The basic idea behind the guidance is to explain how the Fair Housing Act applies to ensure that such ordinances do not lead to discrimination in violation of the act.

Of particular interest, Section III of the guidance lays out the three steps used to analyze whether a local government’s enforcement of such ordinances results in a Fair Housing Act violation. This includes:

• Evaluating whether the challenged nuisance or crime-free housing ordinance policy or practice has a discriminatory effect
• Evaluating whether the challenged ordinance is necessary to achieve a substantial, legitimate, nondiscriminatory interest
• Evaluating whether there is a less discriminatory alternative

A different analytical framework is used to evaluate claims of intentional discrimination, as outlined in Part IV of the guidance. For claims in which the ordinance is enacted for discriminatory reasons, courts look to certain factors, including:

• The impact of the ordinance, i.e., whether it disproportionately impacts a certain population such as women, minority residents, or residents with disabilities
• The historical background of the ordinance
• The sequence of events by which the ordinance was adopted
• Departures from the normal procedural sequence
• Substantive departures, such as whether the factors considered should have suggested a different result
• The legislative or administrative record

For claims in which the ordinance is selectively enforced in a discriminatory manner, the guidance notes that courts look for evidence from which an inference can be drawn—whether direct or circumstantial. Further details can be found in the Part VI of the guidance.

Finally, the guidance reminds those administering HUD programs of their duty to affirmatively further fair housing—to take meaningful action to overcome fair housing issues and barriers to housing—and to frame the assessment of nuisance and crime-free ordinances within this affirmative duty.

To read the press release on this guidance and the harassment final rule, click here. To access the guidance document, click here.

Do you have concerns about whether or not your agency is compliant with federal fair housing law? Nan McKay and Associates can help. Contact sales@nanmckay.com for more information.