HUD Releases Two PIH Notices

Recently, HUD released two new PIH Notices. The first is titled “Housing Opportunity Through Modernization Act of 2016 (HOTMA) – Implementation of Minimum Heating Standards in Public Housing Properties” and the second is titled “Partnering with Utility Companies on Energy Performance Contracts.

The first notice provides implementation guidance related to the minimum heating requirements within public housing dwelling units as required by Section 111 of the Housing Opportunity Through Modernization Act of 2016 (HOTMA). For a PHA where state or local minimum heating standards do not exist, the PHA shall use the following minimum heating requirements for public housing dwelling units in order to comply with Section 111 of HOTMA:

  • Minimum Temperature:
    • If PHA-controlled, the minimum temperature in each unit must be at least 68
      degrees Fahrenheit.
    • If tenant-controlled, then the heating equipment must have the capability of
      heating to at least 68 degrees Fahrenheit.
  • Minimum Temperature Capability:
    • PHAs are allowed flexibility in maintenance of the indoor temperature when
      the outdoor temperature approaches the design day temperature.2 At no point
      should indoor temperatures in occupied space drop below 55 degrees
      Fahrenheit. This flexibility applies when at least one of the below criteria are
      met:

      • The outside temperature reaches or drops below the design day
        temperature, or
      • The outside temperature is within five degrees Fahrenheit of the design
        day temperature for more than two continuous days.
  • Measurement:
    • Temperature measurements must be taken three feet above the floor and two
      feet from an exterior wall in a habitable room.

The second notice, “Partnering with Utility Companies on Energy Performance Contracts,” provides supplemental guidance for Notice PIH 2011-36 and any update which concerns implementing Energy Performance Contracts (EPCs) at PHAs. The notice also introduces a new initiative called the EPC Utility Partnership Program (UPP). The purpose of EPC-UPP is to encourage more PHAs, especially small- and medium-sized PHAs to consider the “potential benefits of implementing an EPC in partnership with utility companies.” This Notice also includes a new simplified approval and verification process for low-risk EPC projects.

Special Admin Fees Available for Small Area FMR Implementation

Earlier today, the Housing Voucher Financial Management Division sent a notice via email reiterating that additional administrative fees are available for PHAs that are implementing Small Area Fair Market Rents (FMRs). Eligible activities include but are not limited to the following:

  • Outreach to families and landlords;
  • Development of additional briefing materials;
  • Hiring of additional staff;
  • Staff training;
  • Changing rent reasonableness methodology; and
  • Software modification.

Both PHAs that must mandatorily implement Small Area FMRs and PHAs that choose to voluntarily implement Small Area FMRs are eligible to apply. To apply, PHAs must submit the following:

  1. Letter addressed to Steven Durham, the Director of the Office of Housing Voucher Programs, requesting reimbursement of costs for adoption of Small Area FMRs;
  2. A board resolution confirming the adoption of Small Area FMRs;
  3. Supporting documentation showing expenses incurred or estimated;
  4. Narrative describing how the above expenses tie to Small Area FMR implementation; and
  5. Certification Signature of the Executive Director.

Electronic applications should be submitted no later than 3 pm ET on Friday, Dec. 31, 2018. Applications should be emailed to PIH.Financial.Management.Division@hud.gov. The subject line must include the PHA Code and the text “SAFMR – Special Fee Request.”

The full notice sent in the email can be found here.

[11/13/2018 3:20 pm ET edit – The link above has been revised to reflect that HUD sent another letter correcting a date in the attachment.]

Election Impact on Congressional Committees

The analysis below is simply a prediction of who is likely to serve as leadership on the committees based on the current information available. Frequently after a large number of losses or retirements, members of Congress shift between committees and chair/ranking member positions, changing the seniority structure of committees as a result. One Senator choosing to take an unexpected chair position can have ripple effects across several committees that are difficult to predict. This is particularly true at the subcommittee level. Additionally, Republicans have established a six-year term limit for committee chairs and ranking members, which causes more committee changes than Democrats who don’t have a term limit.

Finally, one of the biggest impacts on committee change is a flip of party control or a dramatic change in majority size. The committee structure is based on majority party and size, and when for example Senate Republicans increase their majority overall in the Senate, their control of committee seats also increases. Depending on how the remaining three Senate races are called, it could force lower-seniority Democrats off committees.

Appropriations

The House Appropriations Committee will see some turnover in the 116th Congress; while all Democrats won his/her races, four Republican members either lost or are retiring, in addition to Rep. Evan Jenkins (R-W.V.) who retired earlier this year.

The Transportation, Housing and Urban Development (THUD) Subcommittee will look very different next year. Included in the Republican losses/retirements are two members of the Transportation, Housing and Urban Development Subcommittee, Rep. John Culberson (R-Texas) and Rep. David Young (R-Iowa). Also retiring is full committee Chair Rodney Frelinghuysen (R-N.J.). There may be some consistency in the THUD leadership, as current Chair Mario Diaz-Balart (R-Fla.) will have the option of remaining chair if he chooses.

Democratic leadership on the committee is expected to remain fairly stable. Current Ranking Member Nita Lowey has stated that she will take over the gavel in January and has already started pushing Republicans to make a budget deal for FY 2020. THUD Ranking Member David Price (D-N.C.) also has the option of taking over as chair of the subcommittee.

The Senate Appropriations Committee will have far less turnover in the 116th Congress and leadership will likely remain the same. Only a single member of the committee is at risk of losing her seat; Sen. Cindy Hyde-Smith was forced into a run-off election that will take place on November 27.

Full Committee Chair Richard Shelby (R-Ala.) will remain in the top position on the committee, which he took over in April after the retirement of former chair Thad Cochran (R-Miss.). Senator Patrick Leahy (D-Vt.) has the option of remaining ranking member, though as a high-ranking Democrat he may have other committee options. Leadership of the THUD Subcommittee is likely to continue with current Chair Susan Collins (R-Maine) and Ranking Member Jack Reed (D-R.I.).

Authorizing Committees

As a result of a high number of losses and retirements, the House Financial Services Committee will be a significantly different committee in the next Congress. Eight Republicans either lost their re-election bid or are retiring and four additional races are too close to call. Four Democrats are retiring.

Current Ranking Member Maxine Waters (D-Cali.) will take over as chair in January. Current Chair Jeb Hensarling (R-Texas) is retiring and Rep. Patrick McHenry (R-N.C.) has declared his intention to take over as ranking member. Leadership of the Housing and Insurance Subcommittee is likely to remain the same, with current Ranking Member Emanuel Cleaver (D-Mo.) expected to take the chair position and current Chair Sean Duffy (R-Wisc.) likely to be ranking member. The composition of the subcommittee will be extremely different, though, as six Republican members and two Democrats will not return to Congress.

Unlike the big changes coming to Financial Services, the membership of the Senate Banking Committee is likely to remain consistent. Only two Republicans and two Democrats lost their re-election or are retiring. Leadership could see some changes, though. Depending on the committees that other members choose to chair, current Chair Mike Crapo (R-Idaho) could move to head another committee. There are several scenarios that could result in either Sen. Chuck Grassley (R-Iowa) or Sen. Patrick Toomey (R-Penn.) taking over the committee. Current Ranking Member Sherrod Brown (D-Ohio) is expected to remain in his position.

Tax Writing Committees

The Senate Finance Committee is set for a change in leadership thanks to the retirement of current Chair Orrin Hatch (R-Utah). It’s unclear at this point who will take over, though Sen. Grassley does have the option of taking the Chairmanship if he is willing to give up his current role as the Chair of the Judiciary Committee. If he elects to remain at Judiciary, current Banking Committee Chair Mike Crapo would be next in line for the position. Current Ranking Member Ron Wyden (D-Oregon) will probably remain in place, though if he does take a position on another committee, Sen. Debbie Stabenow (D-Mich.) and Sen. Maria Cantwell (D-Wash.) would be next in line. I

The House Ways and Means Committee will be lead by current Ranking Member Richard Neal (D-Mass.) and current Chair Kevin Brady will probably take over as Ranking Member, though he will need to request a waiver from leadership.

Election Brings Changes to Housing, Community Development

As widely predicted, the Democrats took control of the House and the Senate will remain in Republican control. Between the shift in control of the House and a large number of retirements and losses, big changes are coming in the 116th Congress for housing and community development.

Right now, Democrats control 225 seats in the House and Republicans have 197 seats. Thirteen races are still too close to call. This is a net gain of 30 seats for the Democrats and gives them a relatively slim majority of 7 seats. In the Senate, Republicans have picked up two seats so far, giving them a 51 seat majority. Democrats managed to hold 46 seats. However, two races are still too close to call and one seat will go to a run-off election later this month.

The big question is how this new dynamic in Congress will play out within Washington, both between the Congressional chambers and with the White House. Will the Senate Republicans and the House Democrats be able to find enough common ground to pass legislation and spending bills? What role will the President choose to play and will his relationship with (presumptive) House Speaker Nancy Pelosi more closely mirror the deals they were able to forge throughout the past two years or will he revert to his recent campaign rhetoric?

These new dynamics will be tested soon during the lame duck session of Congress, which begins next week when all members of the current Congress return to Washington to finalize unfinished business. Newly-empowered Democrats will begin to assert muscle as Congress attempts to deal with a significant amount of legislative work, including a continuing resolution that expires on December 7, the Violence Against Women Act, the Farm bill, flood insurance, disaster relief, tax credits, and other must-pass legislation.

As detailed in a separate blog post, the impact on housing and community development could be significant, particularly in the House Financial Services Committee and the House Appropriations Transportation, Housing and Urban Development (THUD) Subcommittee.

Democrats taking control of the House means they will also take control of the committees, putting Rep. Maxine Waters (D-Cali.) in charge of the Financial Services Committee and Rep. Nita Lowey (D-N.Y.) in charge of Appropriations.

Though neither has publicized an outline of their priorities for their respective committees, it can be expected that Rep. Waters will focus a significant amount of committee time on housing and HUD. Whereas the Republican-controlled Congress approved legislation like the Housing Opportunity Through Modernization Act (HOTMA) that provided program reform and regulatory relief, a Democratic-controlled House is likely to focus more on topics like the impact of budget cuts on programs, oversight, and subsidized housing resident impacts. There are benefits to both approaches and both required a bipartisan effort to pass the Senate.

Congresswoman Lowey this week insisted that Democrats would not cave on the President’s demand that FY 2019 spending include funding for a border wall and that she intends to negotiate aggressively for a FY 2020 budget deal to avoid $126 billion in automatic cuts that will otherwise be required because of the Budget Control Act of 2011. Her leadership will be tested early in the lame duck session as Democrats will look to her to lead the negotiations to finalize FY 2019 spending. As difficult of a feat as that may prove to be, her leadership will further be tested early in the year as FY 2020 negotiations begin and the extension of the debt ceiling expires in March, which will require Congress to act before the summer.

 

Marijuana Use in Public Housing and the Housing Choice Voucher Program

On November 6, voters in Michigan legalized the use of recreational marijuana and voters in Utah and Missouri legalized the use of medical marijuana. Although these states, among numerous others, have voted to legalize the use of marijuana to some degree, the Controlled Substance Act (CSA) continues to list marijuana as a Schedule 1 drug that is banned at the federal level. This means that the federal government considers marijuana a “substance with a very high potential for abuse and no accepted medical use in the United States.”

Currently, HUD has not released any guidance specifically related to the use of recreational marijuana in public housing or Section 8 properties. That said, the Quality Housing and Work Responsibility Act (QHWRA) of 1998 requires PHAs to prohibit admission to the Public Housing and Housing Choice Voucher programs based on the illegal use of federally controlled substances. This includes both the medicinal and recreational use of marijuana. QHWRA also requires PHAs to have established occupancy standards and lease provisions that allow the PHA to terminate assistance if a resident is using a controlled substance as defined by the CSA.

A HUD memo from 2011 notes that although new admissions of medical marijuana users are prohibited into the Public Housing and Section 8 program, PHAs have the “discretion to determine, on a case-by-case basis, the appropriateness of program termination of existing residents for the use of medical marijuana.”

Furthermore, although the Instituting Smoke-Free Public Housing Final Rule makes no mention of marijuana (it only refers to lit tobacco products), the rule does give PHAs the flexibility to prohibit other lit products in their smoke-free policies. As such, PHAs could include marijuana in their smoke-free policies if they choose, in order to provide additional clarity to residents.

Although there is still no specific HUD guidance relating to the use of legal recreational marijuana at the state level, marijuana is still considered an illegal substance at the federal level. PHAs should continue following their established occupancy standards and lease provisions as written until additional HUD guidance is released.

HUD Updates Guidance on EIV System

In late October, HUD published a notice titled “Administrative Guidance for Effective and Mandated Use of the Enterprise Income Verification (EIV) System” (PIH 2018-18). The EIV system is a web-based application that allows PHAs to check employment, wage, unemployment compensation and social security benefit information for Section 8 and Public Housing program participants. The notice updates the previous guidance on EIV by discussing  the Income Validation Tool (IVT) Report. The IVT Report replaces the Income Discrepancy Report under the verification reports link. The IVT will be updated monthly. It will provide information on tenant reported income, previous reported income from form HUD-50058, and discrepancies between tenant reported income and information gleaned from HUD data sharing agreements with Health and Human Services and the Social Security Administration.

The notice can be found here.

FY 2018 FSS Funding NOFA Released

On October 31, 2018, HUD released the Fiscal Year (FY) 2018 Family Self-Sufficiency (FSS) Notice of Funding Availability (NOFA). Congress appropriated $75 million for the FY 2018 FSS program. This NOFA is specifically provides renewal funding for FSS programs that were funding under FY 2015, FY 2016, and/or FY 2017 FSS grants. The application deadline is November 30, 2018.

The FSS provisions (Section 306) of  The Economic Growth, Regulatory Relief, and Consumer Protection Act (S. 2155 that became Public Law No: 115-174) are not in effect for this NOFA as HUD must issue the implementing regulations within 365 of the bill passage (May 24, 2018) and the implementing regulations have not, at the time of this blog post, been issued.

The FY 2018 NOFA application can be found on Grants.gov and additional information on this NOFA can be found on the HUD website.