Federal Regulation

HUD Publishes Notice on HCV Landlord Penalties

~ Tushar Gurjal ~ Leave a comment

On March 31, HUD published a notice titled “Notice on Remedies PHAs have for Poor Performing Owners in the Housing Choice Voucher and Project-Based Voucher Programs” (PIH Notice 2023-06). The notice informs PHAs of the available punitive measures or remedies they have against landlords that do not comply with their Housing Assistance Payment (HAP) contracts. The notice also discusses the punitive measures that HUD has against PHAs that do not comply with the HAP contract.

The notice discusses remedies that PHAs have for landlord non-compliance with the HAP contract. Potential breaches may include the following: violating any obligation under the HAP contract, including maintaining the unit up to Housing Quality Standards (HQS); violating any obligation under Section 8 of the U.S. Housing Act of 1937; committing fraud, bribery, or other corrupt or criminal acts related to any federal housing program; failing to comply with regulations for mortgage insurance of loan programs in certain instances; engaging in drug-related criminal activity; or engaging in violent criminal activity. If an owner fails to maintain the unit according to HQS, the PHA must take “prompt and vigorous” action to enforce owner obligations. The notice details other inspection-related scenarios when PHAs must take certain enforcement actions.

The notice also discusses instances when PHAs are required to exclude owners from the Housing Choice Voucher (HCV) and Project-based Voucher (PBV) programs. Instances when a PHA must not approve an owner’s participation include the following: the owner is debarred from participation; HUD directs the PHA not to approve the owner because the federal government has instituted an administrative or judicial action; or if HUD directs the PHA not to approve the owner because the owner has violated a civil rights law.

There are several instances where a PHA may also use its discretionary authority to exclude owners from HCV and PBV programs. Housing agencies may adopt policies that will exclude owners from participating in the voucher program. The PHA may exclude the owner for the following: violating the HAP contract; committing fraud, bribery, or other corrupt or criminal acts in connection with federal housing programs; engaging in recent drug-related criminal or violent activity; frequent non-compliance with HQS; not evicting tenants that threaten peaceful enjoyment of unit, threaten the health and safety of residents, or are engaged in drug-related or violent criminal activity; frequently renting units that do not meet state or local codes; and not paying taxes, fines, or assessments.

Housing agencies should not penalize owners that consider the nature, severity, and recency of tenant offenses, including mitigating circumstances before evicting.

For PHAs that fail to comply with program requirements, HUD has the authority to take certain punitive actions. The Department may do the following: offset administrative fees; prohibit use of funds in the administrative fee reserve account; direct the PHA to use funds in the reserve account to improve program administration; reduce HAP amounts; reduce other HUD funding amounts; or declare the PHA in default. The Department may also initiate claims against owners in certain instances.

The notice states that the Department may take similar actions against PHAs that do not follow PBV program requirements.

The full notice can be found here.

New Subsidy Layering Review Notice Published

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In mid-March, HUD published a new notice titled “Administrative Guidelines: Subsidy Layering Review for Project-Based Vouchers” in the Federal Register. The new notice provides background information about what subsidy layering reviews (SLRs) are; it provides information about when SLRs are needed and applicable safe harbor standards; it discusses the potential role of Housing Credit Agencies; and provides other miscellaneous information, including an appendix with the required elements of an SLR application, which may also serve as a checklist.

HUD mandates that SLRs are performed when project-based vouchers (PBVs) are used in conjunction with other subsidies to ensure that projects are not overly subsidized. This mandate is not applicable to existing housing.

When a PHA begins a new construction or rehabilitation that requires PBVs, it is required to request that an SLR be completed in certain instances. The PHA is responsible for collecting the appropriate documentation.

There are certain safe harbor requirements in SLRs. When a project falls within the scope of these safe harbors, and HUD is conducting the SLR, the project may move forward without additional justification. If the project falls outside the safe harbors, then additional documentation and justifications are required. If a housing credit agency (i.e., a state housing finance agency; HCA) is performing the SLR, the safe harbor requirements may only be exceeded if costs outside the safe harbor still fall within the HCA’s published qualified allocation plan.

A PHA may not execute an Agreement to Enter Into a Housing Assistance Payments Contract (AHAP) until the SLR has been completed and approved by either HUD or the HCA, depending on the circumstance. The chart below reviews project scenarios and potential entities, if any, that may perform the SLR.

ScenarioSLR ReviewerNo additional government funding certification required?
New construction or rehabilitation with PBV funding and 2 or more forms of government assistance.HCA or HUD.*If by HCA, no certification required. If by HUD, then HUD certifies.
New construction or rehabilitation with PBV and Low-Income Housing Tax Credit (LIHTC) funding.HCA or HUD.If by HCA, no certification required. If by HUD, then HUD certifies.
PBV existing housing.No SLR required.No.
New construction or rehabilitation with only PBV assistance.No SLR required.No.
Mixed-finance projects, with or without LIHTC, with or without PBV assistance, with other forms of government assistance.HUDYes.
*PHAs may request that HUD perform the SLR if the project does not use LIHTCs.

The full notice 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).

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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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 Extends Two HCV Payment Standard Waivers for 2023

~ Tushar Gurjal ~ Leave a comment

On Sept. 26, HUD published a notice titled “Extension of Certain Regulatory Waivers for the Housing Choice Voucher (including Mainstream) Program and Streamlined Review Process” (Notice PIH 2022-30). The notice would extend two waivers that were previously made available for the Housing Choice Voucher (HCV) program.

The waivers that would be extended are the following:

  • Increase in Payment Standard During HAP [Housing Assistance Payment] 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 at the next regular reexamination.
  • Voucher Tenancy: New Payment Standard Amount – this waiver would allow PHAs to establish payment standards up to 120% of the FMR, instead of 110%, which is the maximum usually allowed in most scenarios.

Extending a Waiver

If a PHA already is using one of these waivers, it need only extend the waiver. Agencies that are using these waivers may continue to use them, without taking additional steps, until Dec. 31, 2022 and may extend them until Dec. 31, 2023. To extend the waivers, PHAs must email PIH_Expedited_Waivers@hud.gov, while copying their local field office. The notice provides details on the contents of the email to be sent. Waiver extensions may be requested until Dec. 31, 2022.

Requesting a Waiver

Agencies that wish to apply for one or both of the waivers, if they do not currently implement them, or agencies that have not extended their waiver before the deadline, may request the use of the waiver through a streamlined approval process. Requests for waiver usage under this process must be submitted to HUD before the end of Sept. 30, 2023.

Agencies that request a waiver through this process must provide a good cause justification. The good cause justification must include all of the following:

  • Why the PHA needs the waiver;
  • The impact on PHA operations or applicants if the waiver is not provided; and
  • The proposed waiver duration (this should be limited to the time the PHA needs the waiver, but should not exceed Dec. 31, 2023).

Examples of good cause for each of the waivers can be found below:

  • Increase in Payment Standard During HAP Contract Term;
    • Increases in family rent burdens;
    • Potential negative impacts to tenants or the onset of housing instability;
  • Voucher Tenancy: New Payment Standard Amount;
    • Rental Market Fluctuations – The PHA is in an area that HUD has determined has significant rental market fluctuations (a list of those areas is listed at the end of the notice);
    • Utilization Rate – The PHA has a lower than 98% utilization rate for the current year or more than a 5% utilization drop between 2019 and 2021; The utilization rate for this purpose is the higher of the unit utilization rate or the budget utilization rate; and
    • Timely Leasing of Vouchers – the PHA has leased less than 85% of the vouchers that it has issued in the last six months.

A PHA may request a waiver by emailing PIH_Expedited_Waivers@hud.gov, while copying their local field office. The notice provides details on the contents of the email to be sent.

Other Waivers

As always, a PHA may use the regular waiver request process for any additional waiver it may require, but those requests will not be subject to a streamlined approval process.

The full notice may be found here.

HUD Announces PHAs for MTW Asset Building Cohort

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Earlier today, HUD published a press release announcing that it had selected PHAs for the fourth cohort of the Moving to Work (MTW) program. The MTW program allows PHAs that have received MTW status certain additional flexibilities in how they use their funds and greater freedom in how they operate. The program allows PHAs to innovate in how they provide housing.

The current expansion of the MTW program requires PHAs to commit to research on a particular policy topic. In addition to the regulatory and operational flexibility afforded by the program, PHAs selected in this cohort have committed to research asset building policies. Housing agencies in this cohort will have to pick, implement, and track one of the three following options for asset building policies:

  1. Opt-Out Savings Account Option – PHAs must deposit a certain amount of funds per month into an escrow account on behalf of an assisted household.
  2. Credit Building Option – PHAs must report public housing rent payments to credit bureaus.
  3. PHA-Designed Asset Building Option – PHAs must design their own local asset building program.

Currently, HUD has selected 87 of the 100 agencies, including 16 in this cohort, to which it is statutorily mandated to award an MTW designation. According to HUD, “MTW agencies are now in 40 states and the District of Columbia.”

HUD’s press release on the MTW fourth cohort can be found here.

The Request for Applications for the MTW fourth cohort (Notice PIH 2022-11) can be found here.

NAHRO congratulates all of the selected PHAs that were selected in this cohort. The complete list can be found below.

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HUD Publishes 2023 FMRs

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On Sept. 1, HUD published in the Federal Register a notice announcing the new Fair Market Rents for 2023. Fair Market Rents (FMRs) are used by the Housing Choice Voucher (HCV) program to determine the payment standard, which is used to calculate the amount of rental assistance a family in the program may receive in a certain area. Certain other programs also use FMRs. In calculating these FMRs, HUD altered their methodology to use additional private-sector data. The Department previously asked for comment on their new methodology and NAHRO responded with comments.

Housing agencies that are interested in reevaluating their area’s Fiscal Year (FY) 2023 FMRs must submit a reevaluation request to HUD by Oct. 3, 2022. The requestor must also submit data to HUD more recent than the 2019 American Community Survey (ACS) data used in calculating the FY 2023 FMRs. The Department requires data on “gross rents paid in the FMR area for occupied standard quality rental housing units” and the data “must be sufficient for HUD to calculate a 40th and 50th percentile two-bedroom gross rent.” Requestors may also gather this data through the use of surveys. This data must be submitted by Jan. 6, 2023.

The FMRs are effective on Oct. 1, 2022.

The FY 2023 FMRs along with other FMR-related information can be found here.

The Federal Register notice can be found here.

HUD’s Press Release on the new FMRs can be found here.