Author: Tushar Gurjal

HUD Finalizes Disparate Impact Rule

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The U.S. Department of Housing and Urban Development (HUD) has finalized a rule titled “Reinstatement of HUD’s Discriminatory Effects Standard.” The Department has posted a pre-publication copy of the final rule on its website. The rule will go into effect 30 days after it has been published in the Federal Register.

The current final rule would recodify a 2013 rule on disparate impact. The 2013 rule is titled “Implementation of the Fair Housing Act’s Discriminatory Effects Standard.” The 2013 rule was altered by a rule published in 2020 titled “HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard.” The 2020 rule would have made significant changes to, among other things, a three-part burden-shifting test that determined whether a particular practice had an “unjustified discriminatory effect.”

A federal court stayed the implementation and enforcement of the 2020 rule, so the 2013 rule remained in effect, and will continue to remain in effect with this final rule which “reinstates and maintains the 2013 rule.”

The pre-publication copy of the final rule can be found here.

HUD Issues Second HCV Get Ready Letter – Plan for Higher Funding

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In mid-Feb., HUD sent a letter to PHA executive directors. The letter informed PHAs of their individual inflation factors for the Housing Choice Voucher (HCV) program. While HUD had previously revealed that the national average inflation factor for 2023 would be 10.13%, the new letter provides PHAs with their individual inflation factors (which may differ substantially from the national factor). The inflation factor is used by HUD to calculate funding for voucher programs for the upcoming year (i.e., the inflation factor, as a whole number, is multiplied by the renewal funding to calculate the program’s total funding for the year).

In addition to being provided in the letter, the inflation factor has also been added for each individual PHA that has a voucher program in the Two-Year tool. The Two-Year tool is a spreadsheet created by HUD, pre-populated with individualized program data, that PHAs can use to help plan their voucher programs.

This year’s inflation factor is substantially larger than previous years. Housing agencies should plan for a larger yearly increase in funding than they may typically be used to.

The Two-Year Tool can be found here.

The Department has also created a one-pager with links to tools to help increase utilization that can be found here.

Finally, the Department has created a video that provides an overview of the HCV funding process (see below).

FHEO Notice on Filing VAWA Complaints and HUD’s Investigatory Authority

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In late Jan. HUD’s Office of Fair Housing and Equal Opportunity (FHEO) published a notice titled “Notice to Public Regarding FHEO Enforcement Authority and Procedures: Violence Against Women Act 2022 (VAWA)” (FHEO 2023-01). The 2022 reauthorization of the Violence Against Women Act (VAWA) included new requirements for HUD to implement and enforce. The notice implements those requirements related to the filing and processing of individual VAWA complaints and notifies the public of HUD’s authority to investigate VAWA violations.

The notice states that FHEO will “implement and enforce the housing provisions of VAWA with, and in a manner that provides, the same rights and remedies as those provided for in the Fair Housing Act.” Additionally, the notice announces that HUD will engage in rulemaking to fully implement the compliance review provisions of the 2022 reauthorization of VAWA.

People who believe their VAWA rights have been violated may file a complaint here.

The full notice may be found here.

HUD Posts Final HOTMA Rule on Reexaminations, Over-income Households, and Asset Limits

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The Department has posted a final rule implementing changes that will affect how PHAs conduct reexaminations, interact with over-income households, and handle asset limits. The rule would implement sections 102, 103, and 104 of the Housing Opportunity Through Modernization Act of 2016. The rule primarily affects the Public Housing, Housing Choice Voucher, and Project-based Rental Assistance programs. It also impacts certain other community development programs in order to align certain program requirements and definitions between programs. These other programs include Community Development Block Grants; HOME Investment Partnerships; the Housing Trust Fund; Housing Opportunities for Persons with Disabilities, Supportive Housing for the Elderly (Section 202), and Supportive Housing for Persons with Disabilities (Section 811). While not applicable to all sections of the rule, much of it has an effective date of January 1, 2024.

NAHRO will provide its members with additional information on the new rule in the near future.

A one-page fact sheet on the rule can be found here.

The HUD website for the rule can be found here.

The pre-publication copy of the final rule can be found here.

HUD Publishes Notice on 2022 VAWA Changes

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On Jan. 6, HUD published a notice in the Federal Register detailing several changes that were made in the 2022 revision to the Violence Against Women Act (VAWA). The changes were made in several sections. Many of the changes became effective on Oct. 1, 2022. The Department is seeking comment on the proposed changes by March 6, 2022.

Changes to VAWA Definitions

The revision amends the definition of “domestic violence” to include “any felony or misdemeanor crimes committed under the family or domestic violence laws of the jurisdiction receiving grant funding.” This definition includes “in the case of victim services, the use 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 certain individuals including current or former spouses, current or former co-inhabitants, people sharing a child, or people who commit acts against people protected from acts by family or domestic violence laws of a jurisdiction.

The definitional change occurred on Oct. 1, 2022. While the change is only for grants authorized under VAWA, HUD notes that the current definition of domestic violence covers all of the additional conduct specified in VAWA 2022, and HUD interprets the existing regulatory definitions of “domestic violence” and “stalking” to encompass all of the revised conduct.

Additional Covered Housing Programs

The revision expands the scope of covered programs to include the Section 202 Direct Loan Program, the Housing Trust Fund, and any other federal housing programs. For the Housing Trust Fund, the Department already considers it a covered program through its regulatory authority. The Department will issue new regulations to cover all the additional programs.

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HUD Sends HCV Get Ready Letter to PHA Executive Directors

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On Jan. 5, HUD sent an HCV Get Ready Letter to PHA Executive Directors. The letter informs PHAs “of the status of HCV program funding, projections for calendar year (CY) 2023 renewal funding” and certain other items.

Funding Levels

The Department estimates that the overall funding proration levels for 2023 will be the following:

  • 99% for Housing Assistance Payments (HAP); and
  • 91% for administrative fees.

Housing agencies should anticipate an offset to ensure that there is enough funding for 100% of voucher renewal expenses. The Department calculates the national average inflation factor to be 10.13%, though individual agencies will have their own individual inflation factors. In absolute terms, there has been an increase in HAP and administrative funding, and HUD recommends that PHAs make adjustments to account for this increase.

Additionally, housing agencies should expect timely HAP and administrative fee disbursements for the HCV program and the mainstream voucher program through Feb. 2023. These payments have been obligated as follows:

  • Jan. and Feb. 2023 HAP obligations at 100% proration of estimated CY 2022 eligibility;
  • Jan. and Feb. 2023 administrative fee obligations at 89% of estimated CY 2023 eligibility; and
  • Jan. and Feb. mainstream voucher funding at the same levels for the respective accounts as listed above.

Reporting Deadlines

The deadline to submit CY 2022 costs and leasing adjustments in the Voucher Management System (VMS) is Jan. 27, 2023. All CY 2022 PIC reporting must be submitted by 4 pm on March 31, 2023.

The full 2023 HCV Get Ready Letter may be found here.

Carbon Monoxide Device Requirement for Voucher Units and Multifamily Units in Effect

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On Dec. 27, HUD sent an email to PHA executive directors reminding them that the requirements for carbon monoxide devices in voucher units and multifamily units are in effect. The requirements went into effect on Dec. 27, 2022. The requirements were first outlined at the beginning of the year, in PIH Notice 2022-01. The email states that the “devices are required in properties with carbon monoxide sources, such as those with fuel-burning appliances or attached garages.” Carbon monoxide devices must be installed according to the standards of the 2018 International Fire Code. Additionally, HUD has created a simple flowchart to help illustrate the instances when an owner may need to install a device.

Resources mentioned in the email include the following:

HUD Publishes 2023 OCAFs

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The Department published a notice titled “Notice of Certain Operating Cost Adjustment Factors for 2023.” Operating cost adjustment factors (OCAFs) are annual factors used to adjust certain Section 8 rents. These OCAFs are calculated as “the sum of weighted component cost changes” for certain publicly available cost indices. Some indices reflect data collected at the state level, while some indices reflect data collected at the national level. The nine cost indicators used in calculating OCAFs are the following:

  • State-level data;
    • Electricity;
    • Fuel Oil;
    • Natural Gas;
  • National-level data;
    • Employee Benefits;
    • Employee Wages;
    • Goods, Supplies, and Equipment;
    • Insurance;
    • Property Taxes; and
    • Water, Sewer, and Trash.

Methodology Changes

The notice states a temporary methodological change. For 2023, due to high levels of inflation, HUD has calculated an inflation factor for each cost component for a time period exceeding a year and used the most recent data available. In the future, HUD will revert to using one-year time periods to calculate levels of inflation for each cost component. NAHRO applauds HUD for recognizing the high levels of inflation that owners are facing and making this change to ensure that cost factors capture the on-the-ground inflationary trends.

In addition to publishing the cost factors, this notice proposes certain permanent technical changes in how OCAFs are calculated in the future. First, in calculating 2024 OCAFs, HUD will begin to use data pulled from August of each year instead of May of each year in order to work with more up-to-date data. Second, HUD will make a change in calculating the insurance component data source inflation factor for the 2023 OCAFs. HUD has used the Bureau of Labor Statistics Consumer Price Index, Tenants and Household Insurance Index in the past, while moving forward for the 2023 OCAFs and beyond, HUD will use data from the Direct property and casualty insurers-Commercial multiple peril insurance series from the Bureau of Labor Statistics, Producer Price Index.

Comments on the methodological changes are due by Dec. 15, 2022.

The full notice with the actual OCAFs by state can be found here.

HUD Posts EHV Fact Sheets

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The Department of Housing and Urban Development (HUD or the Department) has posted several short documents that explain different aspects of the Emergency Housing Voucher (EHV) program. The Department is calling this collection of documents the EHV roadmap. Each roadmap is designed to help housing agencies and partnering entities to understand a different aspect of the EHV program.

A list of each available EHV roadmap can be found below:

  • EHV 101 – this roadmap provides an overview of the EHV program and identifies certain key resources;
  • Administrative Fees – this roadmap describes the different types of administrative fees used in the EHV program and their eligible uses;
  • Waivers and Alternative Requirements – this roadmap describes the waivers and alternative requirements available to entities administering the EHV program;
  • Referral Process – this roadmap describes important parts of the EHV referral process;
  • Advancing Equity (not yet available) – this roadmap describes how the EHV program can focus on equitable outcomes;
  • Partnerships – this roadmap provides information on the mandatory partnership requirements in the EHV program and provides best practices for building those partnerships;
  • Serving Survivors – this roadmap provides resources for serving survivors of domestic violence with the EHV program;
  • Considerations for Rural Communities – this roadmap provides information on serving rural communities along with certain best practices; and
  • Pairing Services – this roadmap provides information on funding and best practices for pairing services with the EHV program.

Additionally, the Department is highlighting its “EHV How to Guide for PHAs” which provides a wealth of information on how to operate a successful EHV program.

All of the available roadmaps can be found here.

HUD Publishes Certain VAWA Forms for Public Comment and Requests Additional Information Collections

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The Department of Housing and Urban Development (HUD or the Department) has published a copy of certain modified model forms required by the Violence Against Women Reauthorization Act of 2013 (VAWA), along with requests for additional information collections. The Department has implemented these VAWA legislative provisions through a rule published in 2016. The forms listed below comply with the legislative changes from 2013 and the 2016 implementing rule. In the intervening time, the Violence Against Women Reauthorization Act of 2022 was also enacted. To the extent that the forms need further updating, they will be updated when the newest implementing rule is promulgated.

The VAWA rule, as currently implemented, covers the following HUD programs:

  • Section 202 Supportive Housing for the Elderly;
  • Section 811 Supportive Housing for Persons with Disabilities;
  • Housing Opportunities for Persons with AIDS (HOPWA) program;
  • HOME Investment Partnerships (HOME) program;
  • Emergency Solutions Grants (ESG) program;
  • the Continuum of Care (CoC) program;
  • Multifamily rental housing under section 221(d) of the National Housing Act with a below-market interest rate;
  • Multifamily rental housing under section 236 of the National Housing Act;
  • Public Housing;
  • the Housing Choice Voucher program;
  • the Section 8 Moderate Rehabilitation Single Room Occupancy program; and
  • the Housing Trust Fund.

The Department must provide entities participating in the above programs to provide housing (i.e., covered housing providers [CHPs]) with the certain model documents. These model documents have been modified in the following ways:

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