HUD Publishes Expedited Waiver Notice for Public Housing and Voucher Programs

On Dec. 9, HUD published a notice titled “Expedited Regulatory Waivers for the Public Housing and Housing Choice Voucher (including Mainstream and Mod Rehab) Programs” (Notice PIH 2021-34). This notice provides information on flexibilities that HUD will continue to provide for the public housing and Housing Choice Voucher (HCV) programs, even though most regulatory and statutory waivers related to the COVID-19 pandemic will expire at the end of the year. The COVID-19 waivers for the public housing and voucher programs were published because of authority given to HUD through the passage of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Additional information on the expiration of these waivers can be found in HUD’s guidance for winding down CARES Act waivers; PIH 2021-14 (providing revised waivers for public housing and the HCV program); PIH 2020-20 (providing waivers for the Mod. Rehab. program); and PIH 2020-22 (providing waivers for Mainstream vouchers).

This notice divides the additional potential flexibilities into three categories. First, there are flexibilities that will continue with no waivers needed. Second, there are regulatory waivers that PHAs may request and which HUD will review through a streamlined process. Third, there are additional regulatory waivers which PHAs may request, but which HUD will review through its normal waiver review process. None of the statutory waivers provided through CARES Act authority will be extended. In general, HUD lacks the authority to waive statutory program requirements, so PHAs should not request waivers for statutory requirements.

1. Continued Operational Flexibilities

There are certain flexibilities that were initiated during the pandemic that HUD will continue and will not require additional waivers for PHAs to implement.

Capital Fund Grant Deadline Extensions – HUD has extended the obligation end dates by two years for any expenditure deadlines for any Capital Fund grants that were open on April 20, 2020 and for grants that were opened between April 11, 2020 and Dec. 31, 2020. Additionally, HUD has extended the deadline for the submission of Capital Fund grant closeout documents (including the Actual Development Cost Certification [ADCC] and the Actual Modernization Cost Certificate [AMCC]) from 120 days to one year from the end of the period of performance for all Capital Fund grants that were open as of March 19, 2020.

Income Verification Hierarchy – In instances where third-party income verification for families is not available, the PHA may use an alternative verification technique (e.g., tenant declaration), although the PHA must document the reason why the third-party verification was unavailable. See Notice PIH 2018-18 for additional information.

Remote Video Housing Quality Standards (HQS) Inspections – PHAs may perform virtual HQS inspections to inspect units. See Notice PIH 2020-31 for additional information.

PHA Oral Briefing – PHAs may provide oral briefings by means of phone, webcast, in-person meetings, video calls, or other methods. PHAs should follow applicable civil rights laws and ensure that families receive effective communication and are provided with reasonable accommodations when appropriate. See Notice PIH 2020-32 for additional information.

2. Expedited Regulatory Waiver Requests

The Department will provide expedited review for certain regulatory waiver requests. The requests must be received by HUD before March 1, 2022 to receive expedited processing. In requesting one of these waivers for expedited processing, a PHA must show “good cause.” Examples of “good cause” include the following:

  • Increased vacancy;
  • Insufficient staffing levels to address administrative or maintenance backlogs;
  • Potential negative impacts to tenants or the onset of housing instability;
  • Local pandemic-specific delays or limitations caused by supply chain disruption, safety, or social distancing requirements; or
  • Section Eight Management Assessment Program (SEMAP) indicators affected directly or indirectly because of the disruption to PHA operations caused by its adoption of CARES Act waivers.

The following is a list of regulatory waivers eligible for expedited review:

  1. Increase in Payment Standard During HAP Contract Term – this waiver would allow PHAs to increase the payment standard for a family at any time after the effective date of the increase, instead of the next regular reexamination;
  2. SEMAP Score – this waiver would allow PHAs with a fiscal year ending in 3/31/22, 6/30/22. and 9/30/33 to waive the application of SEMAP in its entirety, if the PHA has SEMAP indicators affected directly or indirectly because of the disruption to PHA operations caused by its adoption of CARES Act waivers;
  3. Term of Voucher: Extensions of Term – this waiver would allow PHAs to grant a family one or more extensions of the initial voucher term irrespective of whether the PHA’s administrative plan allowed these extensions;
  4. Homeownership: Maximum Term of Assistance – this waiver would allow a PHA to extend homeownership assistance for up to a year; and
  5. Voucher Tenancy: New Payment Standard Amount – this waiver would allow for a PHA to set a payment standard up to 120% of the Fair Market Rent (FMR). This is only applicable for fiscal year (FY) 2022 FMRs and Small Area FMRs.

There are additional requirements to request the “Voucher Tenancy: New Payment Standard Amount” waiver. To request this waiver, a PHA must meet one of the following “good cause” rationales:

  1. Significant Rental Market Fluctuations – The PHA’s jurisdiction must be in an FMR area that HUD has identified as having “significant rental market fluctuations.” HUD has appended a list of these areas to the back of the notice.
  2. Utilization Rate – The PHA must have a utilization rate (i.e., the higher of either 1. unit months leased divided by unit months available or 2. total Housing Assistance Payment [HAP] spent divided by budget authority–including reserves) lower than 98% or more than a 5% reduction in utilization rate occurring between the years 2019 and 2021.
  3. Timely Leasing of Vouchers – The PHA must have leased less than 85% of the vouchers that it has issued in the last six months.

Before requesting this waiver, PHAs should determine the budgetary impact on their programs.

To apply for an expedited waiver review, PHAs must request one of the waivers listed above and supply a “good cause” for the reason for the adoption of the waiver. Housing agencies should email waiver requests to PIH_Expedited_Waivers@hud.gov, while copying their field office public housing directors. The email should include the subject line “Expedited Pandemic Regulatory Waiver Request [PHA name and code]”; the PHA business name, address, and email point of contact; the specific name and regulation of the waiver extension being requested (from the waivers listed); and a “good cause” justification.

3. General Regulatory Waiver Requests

Housing agencies may also submit normal regulatory waiver requests to their respective field offices. Each waiver request should identify the regulation that the PHA is seeking to waive and should also include a “good cause” justification. Instructions for completing these waiver requests can be found in Notice PIH 2018-16. The notice includes an appendix with a list of regulatory CARES Act waivers, which can be requested through this process.

The full notice can be found here.

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