PIH publishes notice on equal access rule

Late yesterday, HUD’s Office of Public and Indian Housing (PIH) posted Notice PIH 2014-20, "Program Eligibility Regardless of Sexual Orientation, Gender Identity or Marital Status as Required by HUD’s Equal Access Rule." The notice is dated August 20 and is effective on that date.

The equal access final rule was published in the Federal Register on February 3, 2012. The rule provides that eligibility for HUD programs must be determined regardless of sexual orientation, gender identity, or marital status. It also prohibits inquiries as to sexual orientation or gender identity for purposes of determining eligibility or making housing available.

The new notice “provides guidance on how the equal access rule applies to PIH-assisted housing programs administered by public housing agencies (PHAs).” Subjects addressed in the notice include the following:

• Applicability: The rule applies to all HUD-assisted housing, including public housing, the housing choice voucher (HCV) program, project-based vouchers (PBV), and the moderate rehabilitation program. It also applies to PHAs under the Moving to Work (MTW) program and the Rental Assistance Demonstration (RAD).
• The notice also clarifies that the equal access rule applies to landlords participating in the HCV program. The landlord becomes subject to the rule when he or she executes a housing assistance payments (HAP) contract with the PHA. Housing providers are also subject to state and local fair housing laws.
• Fair Housing Act: The federal Fair Housing Act does not include sexual orientation, gender identity, or marital status as protected classes. However, violations of the equal access rule could violate the Fair Housing Act’s prohibition on discrimination based on gender or disability.
• Plan and Policy Revisions: PHAs must review and update their annual plans, HCV administrative plans, and public housing admissions and continued occupancy policies (ACOPs) to comply with the equal access rule. PHAs may have already made these revisions in response to the 2012 final rule.
• Prohibited and Permissible Inquiries: The notice points out that the equal access rule does not prohibit all inquiries as to an applicant’s or participant’s sex, including inquiries necessary to determine the number of bedrooms for which a family may qualify. However, PHAs and owners are prohibited from inquiring about an applicant’s or participant’s sexual orientation or gender identity for the purpose of determining eligibility or otherwise making housing available.
• Complaints to PHAs: Upon receipt of a complaint from an applicant or participant alleging a violation of the equal access rule, the PHA must determine if a program violation occurred and implement appropriate corrective action(s). The PHA must follow its written policies for responding to complaints. These policies must include a requirement that the PHA provide written notice of receipt of the complaint to those alleged to have violated the rule, and the complainant must be informed that such notice was made. After investigating the complaint, the PHA must provide the complainant and those alleged to have violated the rule with findings from the investigation, and a proposed corrective action or explanation as to why corrective action is not required. The PHA must keep records of all complaints, investigations, notices and corrective actions consistent with its current record-keeping obligations.

The notice also contains examples of program violations under the equal access rule, and examples of actions that may violate both the rule and the Fair Housing Act. Questions or requests for additional information should be directed to the local HUD field office or fair housing field office.

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.