HUD Finalizes Disparate Impact Rule

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.

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

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 Publishes Notice on 2022 VAWA Changes

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.

Continue reading

Join Us!! NAHRO Summer Symposium is Tomorrow!

Please join National Association of Housing and Redevelopment Officials (NAHRO) for our 2021 Summer Symposium on universal vouchers and expansion of the housing voucher program tomorrow, July 13, 2021. There is no cost to attend the NAHRO Summer Symposium! Register at https://www.nahro.org/events/summer-symposium/registration/.

The NAHRO Summer Symposium is a day-long event on the present and future of the Housing Choice Voucher program. The event will bring thought leaders from across the country along with housing industry professional together to discuss the expansion of the housing voucher program. There is no registration fee to attend the Summer Symposium. Anyone interested can register at https://www.nahro.org/events/summer-symposium/registration/ for the July 13, 2021 NAHRO Summer Symposium.

White House Summit on Eviction Prevention Best Practices

At a White House summit on eviction prevention, researchers and experts in the field shared resources and best practices from around the country.

After outlining documented long-term health and economic impacts of evictions, Matthew Desmond, director of the Eviction Lab at Princeton, focused on the problems present in eviction courts. Since so few municipalities guarantee families facing an eviction the right to counsel, many families simply don’t show up because they don’t think they can win. Labeling eviction courts those without “justice or fairness,” Desmond called for advocates to focus three alternate approaches:

  1. Advocacy – including the right to counsel, with either a lawyer or a caseworker
  2. Assistance – wraparound social services
  3. Alternative Processes – eviction diversion  

Desmond urged advocates to focus as much as possible on early stage interventions, because a third of families move between notice and filing, court records can follow families and make it harder to move into a good home, and because families can still end up moving or being harmed by court proceedings without an official eviction. Associate Attorney General Vanita Gupta also recommended that state courts consider issuing orders requiring landlords to apply for emergency rental assistance before filing, and alerting litigants about availability of rental assistance.  

To help stand up new eviction diversion programs that include these three pieces, the National Center for State Courts has developed an eviction diversion program that offers models, resources, and technical assistance here. Multiple administration officials repeated in today’s summit that Treasury made it clear that the $350 billion from the American Rescue Plan can be used for court-supported eviction diversion programs.

Best Practices

Experts from the field then shared their knowledge about how to make these programs work in practice. Rasheedah Phillips, Managing Attorney of Community Legal Services of Philadelphia, and Michigan Supreme Court Justice Bridget Mary McCormack both recommended that diversion programs need a right to counsel or other tenant representation. Philadelphia passed a right to counsel law in 2019, and uses trained mediators, housing counselors, and legal representation depending on tenant need. However, Michigan has only included a right to counsel in its emergency diversion program for COVID, and it has made a significant difference in both application rates and successful cases. Prior to this program, only 4% of tenants in Detroit had representation in eviction cases.

Philadelphia has also recently passed the Renters Access Act, which prohibits landlords from rejecting potential tenants solely because of evictions or low credit scores, prohibits rejections based on failure to pay rent or utility bills during the pandemic, and requires landlords to inform potential tenants why they were rejected.

From the landlord perspective, Gilbert Winn of WinnCompanies, which houses over 45,000 tenants in more than 15 states, spoke about the program his company launched to prevent evictions, which WinnCompanies believes can serve as a blueprint for other landlords going forward. This included:

  • Long-term, sustainable payment agreements to have backpay addressed
  • Pre-court checklist before any staff can file for eviction
  • Incentives to property staff and property legal counsel to lower eviction filings

With zero evictions in the last 15 months with all 15,000 participating families, the program has been extremely successful, and WinnCompanies intends to use it into the post-pandemic period.

More resources on eviction prevention can be found here.

Sec. Fudge Announces New Effort to Address Reentry Housing Needs

Secretary Fudge issued new guidance yesterday clarifying that citizens returning from jail and/or prison and at risk of homelessness are eligible for Emergency Housing Vouchers.

In a letter sent out to PHAs, Continuums of Care, and HUD grantees, Sec. Fudge wrote that “HUD strongly encourages PHAs to work with their Continuum of Care (CoC) partners to ensure that individuals who are at-risk of homelessness after leaving prisons or jails are considered for these vouchers.”

HUD has eliminated permissive prohibitions for drug-related criminal activity for EHVs, since drug addiction can be a root cause of homelessness. Following a Housing First approach, it now recommends considering drug-related prohibitions to be separate from prohibitions on criminal activity against a person. HUD also no longer requires a “one strike” rule for residents for criminal activity, and instead defers to discretion of landlords and PHAs. More detail on criminal records and eligibility for EHVs can be found here.

Beyond EHVs, more guidance on criminal records in accordance with the Fair Housing Act can be found here. PHAs and federally-assisted housing cannot use arrest records as the basis to deny admission, terminate assistance, or evict residents.

HUD plans to issue future guidance and tools for PHAs and private landlords on tenant screening and best practices on reentry housing. Later this month it will also issue guidance on using Community Development Block Grants on community violence intervention (CVI).

NAHRO and Industry Partners Release Joint Statement Supporting Universal Housing Vouchers

On June 17, 2021, NAHRO along with its industry partners—CLPHA, PHADA, and the MTW Collaborative—jointly issued a statement on universal housing vouchers. Only one in five low-income households that are eligible to receive housing assistance can be served by existing programs due to limited funding. The statement discusses the need for additional rental assistance to address housing instability and prevent homelessness. The statement also discusses the strengths of the voucher program in providing scalable assistance that is proven and effective.

The full statement is can be view here.

Vera Creates “Looking Beyond Conviction History” Fact Sheet

The Vera Institute of Justice has created a fact sheet titled “Looking Beyond Conviction History.” The fact sheet was created by Vera collaborating with multiple PHAs across the country. It provides eight recommendations for PHAs that want to rethink their admission policies for people with criminal conviction histories. While the full fact sheet offers additional details and rationales, the recommendations are the following:

  • Shorten the lookback period to three years or less;
  • Screen for a limited number of convictions and not for arrests;
  • Conduct an individualized assessment of applicants’ conviction histories;
  • Discontinue the use of “one-strike” policies and adopt a case-by-case decision-making approach;
  • Allow people on probation or parole to live in public housing;
  • Limit the use of past evictions to determine successful tenancy in public housing;
  • Specify and limit denials connected to illegal drug use; and
  • Include absence as a result of incarceration as a permitted temporary absence and allow people to stay housed while completing diversion or alternative-to-incarceration programs.

The website hosting the fact sheet can be found here.

The full fact sheet can be found here.

PRRAC Publishes Document on Implementing RAD Choice Mobility

In August, the Poverty & Race Research Action Council (PRRAC) published a document titled “Guidance for Successful Implementation of Rental Assistance Demonstration (RAD) Choice-Mobility.” The document provides suggestions for a PHA to best implement its choice mobility requirement. The choice mobility requirement states that tenants who live in a RAD unit have the option of using a tenant-based voucher after either a year (in project-based voucher units) or two-years (in project-based rental assistance units).

Continue reading

Homeland Security’s Public Charge Rule Implementation Stopped!

On July 29, 2020, Judge George B. Daniels of the U.S District Court for the Southern District of New York issued a preliminary injunction and temporary stay of the U.S. Department of Homeland Security’s (DHS) Public Charge rule. Judge Daniels’ order provides that DHS and U.S. Citizenship & Immigration Services (USCIS) can not enforce, apply, implement, or treat as effective the Public Charge rule as long as “there is a declared national health emergency in response to the COVID-19 outbreak.”

The preliminary injunction and temporary stay applies nationwide as Judge Daniels wrote, “Each infected individual that travels to Governmental Plaintiffs’ jurisdiction [States of New York, Connecticut, and Vermont; and City of New York] risks undoing crucial progress made in combating this disease. Discouraging noncitizens nationwide from obtaining necessary treatment and care certainly undermines those efforts. Issuing geographically limited relief would not meaningfully abate the public health risk, especially when applied to a population that represents a significant portion of essential workers who continue to work outside of their homes ans interact with the public at large.”

The Public Charge rule, that defined public charge to include individuals receiving federal housing benefits, took effect February 24, 2020; after previous injunctions and stays were lifted by the U.S. Supreme Court. It is anticipated that Judge Daniels’ preliminary injunction and temporary stay order will also be appealed to the U.S. Supreme Court.

The July 29, 2020 order can be view here. NAHRO’s Public Charge One-Pager provides additional information on the DHS Public Charge rule. NAHRO will continue to follow the implementation of DHS’s Public Charge rule and share additional information as we receive it.