CDC Eviction Moratorium Ruled Unconstitutional, Still in Effect

Late on Feb. 25, 2021, Judge J. Campbell Barker of the United States District Court for the Eastern District of Texas ruled, in a 21-page order, that the eviction moratorium issued by the Centers for Disease Control and Prevention (CDC) is unconstitutional.  Meaning the Federal government does not have the constitutional authority to issue the CDC eviction moratorium. The US Justice Department, attorneys for the CDC, argued that the federal government did have the authority to enact an eviction moratorium through Article 1 of the US Constitution’s power to enact laws necessary and proper to regulate interstate commerce. The Court was not convinced by this argument and ruled against the federal government. The Court did acknowledge that landlord-tenant relationship can be regulated by state law. 

Even though the CDC Eviction Moratorium was ruled unconstitutional, Judge Barker did not issue an injunction stopping the effect of the eviction moratorium. Therefore, the CDC Eviction Moratorium is still in place and effective at the time of this writing. The Justice Department released a statement on Saturday, February 27, 2021 “respectfully” disagreeing with the Court’s decision and further stating that “the [Justice] Department has appealed that decision.”  

NAHRO will continue to monitor the court activity surrounding the CDC Eviction Moratorium and will provide additional updates as warranted. 

New, Updated Emergency Rental Assistance Guidance Issued

The U.S. Department of Treasury (Treasury) has released new and updated frequently asked questions (FAQs) on the Emergency Rental Assistance Program (ERAP) that was created by the December 27, 2020 omnibus appropriations act. These new February 22, 2021 dated FAQs replace in their entirety the previously issued January 19, 2021 FAQs.

NAHRO commends Treasury for the new FAQs, as they provide much-needed clear and reasonable guidance on the ERAP. NAHRO has been in contact with Treasury on numerous occasions to ensure that PHAs and their residents are served by the ERAP. On January 25, 2021, NAHRO sent a letter to the Treasury and U.S. Department of Housing and Urban Development outlining our concerns with the January 19, 2021 FAQs, and the new FAQs address many of NAHRO’s concerns. These new FAQs are a major step forward for PHAs in meeting their COVID-19 housing needs of HUD-assisted residents.  

Below are a number of the key guidance points provided by the February 22, 2021 FAQs:

  • Federally assisted tenants (Public Housing, Housing Choice Voucher, & Project-Based Rental Assistance) are eligible for ERAP assistance for the tenant-owed portion of rent and utilities that are not subsidized. 
  • Tenants may document their financial hardship due to COVID-19 (unemployment benefits, reduction of income, significant costs, or other COVID-19 financial hardship) by written attestation signed by the tenant that one or more household members meet this eligibility criteria. 
  • Tenant household income is defined by using either HUD’s “annual income” definition in 24 CFR 5.609 or adjusted gross income reported on an Internal Revenue Service Form 1040 series. 
  • “Other expenses related to housing” examples are provided. The examples include but are not limited to: 
    • relocation expenses and rental fees (if a household has been temporarily or permanently displaced due to the COVID-19 outbreak);  
    • reasonable accrued late fees (if not included in rental or utility arrears and if incurred due to COVID-19); and  
    • Internet service provided to the rental unit. 
  • Outreach to landlords and utility providers must be done before providing the funds directly to the tenant. Outreach can be done using the following methods: 
    • a request for participation is sent in writing, by mail, to the landlord or utility provider, and the addressee does not respond to the request within 14 calendar days after mailing;  
    • the grantee has made at least three attempts by phone, text, or e-mail over a 10 calendar-day period to request the landlord or utility provider’s participation; or 
    • a landlord confirms in writing that the landlord does not wish to participate. 
  • PHAs, non-profit organizations, and local governments may operate ERAP programs through contractor, subrecipient, or intergovernmental cooperation agreements with the primary grantee at the state or local jurisdiction level. These agreements must meet monitoring and management requirements of 2 CFR 200.331-200.333 and procurement standards of 2 CFR 200.317-200.327. 

These are just a few of the answers in the new FAQs. The full FAQs are available on the NAHRO website’s Emergency Rental Assistance Program page. The Emergency Rental Assistance Program, including these FAQs, will be a focus of the 2021 NAHRO Online Washington Conference’s Treasury Affordable Housing Program and Washington Report sessions on March 2, 2021. Click here to register for the 2021 NAHRO Online Washington Conference

NAHRO & NLC Webinar on Eviction Prevention and Emergency Rental Assistance Program – Feb 18 @ 12:30pm ET

NAHRO and the National League of Cities are teaming up to bring their members critical information on eviction prevention strategies and the Treasury Department’s Emergency Rental Assistance Program (ERAP). The complimentary webinar will take place on Thursday, Feb. 18 at 12:30 pm ET. Registration information can be found here.

The webinar will also discuss the upcoming reconciliation process the new COVID-19 relief package will take through Congress, as well as an overview of eviction prevention strategies cities and community partners are implementing in the midst of COVID-19, and highlights of resources to prevent housing instability.

Information on ERAP is changing rapidly, and it is important for PHAs that want to partner with their State and/or local jurisdiction to be up to date. Join the NAHRO and NLC teams to hear the latest information on ERAP, including information on family eligibility and eligible use, along with an update on how the new administration plans on implementing the program. We will also be joined by a PHA that will share how their housing authority has partnered with the local jurisdiction to provide local emergency rental assistance.

The NARHO and NLC teams look forward to sharing this important information! Register Now for the important webinar.

HHS Extends CDC Eviction Moratorium to March 31

Earlier today, the Health and Human Services (HHS) Department made available a pre-publication copy of an order extending the Centers for Disease Control and Prevention’s (CDC’s) eviction moratorium. The eviction moratorium has been extended to March 31, 2021. Additionally, the order now also applies to American Samoa–although it had not previously–because COVID-19 cases have now been reported there.

NAHRO members will receive additional information on this order.

A pre-publication copy of the order can be found here.

CARES Act Admin Fee Eligible Uses Revised

On Dec. 10, HUD revised the list of eligible activities for the Coronavirus Aid, Relief, and Economic Security (CARES) Act Administrative Fee Funds for the Housing Choice Voucher (HCV) program. Congress allocated $1.25 billion in administrative fees to HUD to disburse to PHAs. The administrative fees were transferred by HUD to PHAs in two disbursements. The first disbursement occurred in May, while the second occurred in July.

The new coronavirus-related uses of the CARES Act HCV administrative fee are the following:

  • Relocation of PHA staff and participating families to health units or other designated units for vaccination.
  • Hiring of temporary employees to maintain program operations due to coronavirus.
  • Costs related to office improvements, including improved systems for teleworking and/or rental of additional space, to ensure social distancing and other CDC recommended measures.
  • One-time utility deposits to assist families in securing units.

The uses listed above are in addition to regular administrative fee uses and the older coronavirus-related uses HUD had already authorized.

The updated list of eligible uses of CARES Act HCV administrative fees can be found here.

HUD Releases Revised COVID-19 Waiver Notice

On November 30, HUD released a notice extending COVID-19 waivers for PHAs. This notice is titled “COVID-19 Statutory and Regulatory Waivers and Alternative Requirements for the Public Housing, Housing Choice Voucher (including Mainstream and Mod Rehab), Indian Housing Block Grant and Indian Community Development Block Grant programs, Suspension of Public Housing Assessment System and Section Eight Management Assessment Program, Revision 2” (PIH 2020-33(HA), Rev-2). This notice restates the waivers from previous notices and incorporates the waivers from the mainstream voucher waiver notice and mod. rehab. waiver notice. It also adds several new waivers and alternative requirements and extends most of the waivers until June 30, 2021 (previously, most waivers were set to expire at the end of this year).

Some aspects of the previous waiver notice remain in place. First, the use of these waivers is discretionary. The PHA may choose which waivers it wishes to use. Additionally, some waivers have alternative requirements which should be read carefully. Finally, PHAs must publicly post or otherwise make available a list of all the waivers and alternative requirements the PHA choose to implement. The PHA must also notify residents and owners or the impact of the waivers and alternative requirements.

Members of NAHRO will receive additional information about this notice.

The full notice can be read here.

A quick reference chart of the waivers and their period of availability can be found here.

New HUD Guidance on Remote Hearings and Remote Briefings

The Department has published a notice titled “Guidance for PHAs on the Allowability of Remote Hearings and Remote Briefings” (PIH 2020-32). The notice provides additional guidance for conducting remote hearings (e.g., informal hearings for denial of admission, informal settlement of a grievance, etc.) and remote briefings (e.g., oral briefings for new Housing Choice Voucher [HCV] applicants, project-based voucher applicants, and tenant-protection voucher families). The notice outlines requirements for the technology platform used to conduct these activities remotely, discusses how to identify and resolve technology barriers prior to conducting remote hearings or briefings, discusses presenting documents prior to remote hearings and remote briefings, discusses specific public housing requirements, and specific HCV requirements.

Members of NAHRO will receive additional information on this notice.

The full notice can be found here.

Voucher Programs with Higher Per Unit Costs (PUC) Can Apply for Additional HAP

Earlier this summer, HUD published a notice titled “CARES Act – Housing Choice Voucher (HCV) Program Housing Assistance Payments (HAP) Supplemental Funding” (PIH Notice 2020-17). This notice allows for PHAs to apply for additional CARES Act funding for significant increases in per unit cost (PUC) due to extraordinary circumstances. Applications for this funding must be submitted by October 31, 2020.

If a PHA has previously submitted applications for calendar year (CY) 2020 HAP renewal set-aside funding under the “Unforeseen Circumstances” category due to PUC increases caused by COVID-19, the PHA must resubmit according to instructions in this new notice. For those who submitted under the “Unforeseen Circumstances” category for other reasons, they are not required to resubmit, but may do so if their PUC has further increased because of COVID-19.

Public Housing Agencies must meet certain requirements to access this funding. First, applications must be submitted by Oct. 31, 2020. Applications will be reviewed by HUD on a rolling basis. Second, to be eligible, a PHA must have a PUC that is 102 percent or greater than the PUC HUD used to determine the PHA’s CY 2020 renewal funding. The PHA must also meet the submission requirements detailed in the notice.

The PHA will also receive a priority status. If the PHA’s HAP reserves contain an amount that is less than the amount needed to cover 3 months of HAP expenses, the PHA will qualify for priority status. Public housing agencies qualifying for priority status will receive funding shortly after their application is processed, subject to funding availability. Those agencies that receive regular priority will receive notification that their application has been approved, but funding will not be made until November.

Group Complete ApplicationPUC > than 102%HAP Reserve < 3 months
PriorityEligible for Immediate fundingYesYesYes
RegularTo be funded in Nov. 2020YesYesNo
IneligibleIneligible for FundingNoNoN/A

To be eligible for funding, a PHA must submit a completed Appendix B in the notice to 2020COVIDHCV@hud.gov.

These funds may not be rolled into restricted net position (RNP) and must be tracked and accounted for separately through the period of availability.

HUD Publishes Guidance on RAD and CARES Act Funding

Earlier today, HUD published PIH 2020-26, titled “Rental Assistance Demonstration (RAD) – Supplemental COVID-19 Guidance.” This notice does two things. First, in obligating operating funds for a RAD conversation in the first calendar year in which a housing assistance payment (HAP) contract is effective, this notice states that the project is eligible to receive up to the CARES Act operating fund grant amount provided (prorated by the number of ACC units converted and removed from PIC). Second it provides flexibilities for PHAs in conducting required resident meetings prior to conversion until Dec. 31 2020 due to the COVID-19 emergency.

Members of NAHRO will receive additional information on this notice.

The full notice can be found here.