HUD’s Section 3 Still Required, Very Limited Reporting Extension (Updated)

While HUD’s Offices of Public and Indian Housing (PIH) and Community Planning and Development (CPD) have provided a number of waivers and flexibilities for the Public Housing program, Housing Choice Voucher program, HOME Investment Partnership program, Community Development Block Grant, and Continuum of Care (CoC) program, HUD’s Office of Fair Housing and Equal Opportunity (FHEO) has not waived any of the Section 3 statutory and regulatory requirements.

[Updated Text Begins] On April 17, 2020, FHEO released updated Frequently Asked Questions (FAQ) About the Coronavirus Disease (COVID-19) for Section 3 Covered Recipients which addresses 13 questions on how COVID-19 affects Section 3 compliance. Question 2 specifically asks “Are Section 3 Compliance requirements waived during the virus condition?” and FHEO’s answer is “No, the Section 3 statutory and regulatory requirements have not been waived.” Updated questions are also asked about Section 3 SPEARS reporting requirements and deadlines. In response, FHEO states that the Section 3 reporting requirement is not waived and Public Housing Authorities (PHAs) and community development agencies have an extension until July 31, 2020. Additional extensions are not addressed in the updated FAQ but generally PHAs and community development agencies may request extensions beyond July 31, 2020 but must provide justification and any extension request will be reviewed on a case-by-case basis. [Updated Text Ends]

[Removed Text Begins] On April 3, 2020, FHEO released Frequently Asked Questions (FAQ) About the Coronavirus Disease (COVID-19) for Section 3 Covered Recipients which addresses 13 questions on how COVID-19 affects Section 3 compliance. Question 2 specifically asks “Are Section 3 Compliance requirements waived during the virus condition?” and FHEO’s answer is “No, the Section 3 statutory and regulatory requirements have not been waived.” Questions are also asked about Section 3 SPEARS reporting requirements and deadlines. In response, FHEO states that the Section 3 reporting requirement is not waived and Public Housing Authorities (PHAs) and community development agencies have an extension until June 1, 2020 but “must clearly demonstrate how COVID-19 precluded timely reporting.” PHAs and community development agencies may request extensions beyond June 1, 2020 but must provide justification and any extension request will be reviewed on a case-by-case basis.[Removed Text Ends]

FHEO has not waived or reduced the Section 3 requirements and reporting so PHAs and community development agencies must continue to create employment, training and contracting opportunities to Section 3 residents and Section 3 businesses. The Safe Harbor requirements have not been reduced either. PHAs and community development agencies should continue to hire staff and procure contracts, if possible, and if unable to meet the Safe Harbor requirements, they should document their efforts “to make every possible effort ‘to the greatest extent feasible’ to make employment and contracting opportunities available to” Section 3 residents.

NAHRO is relaying information from our members on the unprecedented operational and economic concerns affordable housing providers are facing to HUD and is requesting maximum flexibility for PHAs and community development agencies during the COVID-19 pandemic emergency.

NAHRO will continue to provide the latest information from HUD and Congress on the COVID-19 emergency response to our members and the public through our communication tools including the NAHRO coronavirus webpage and the NAHRO blog.

HUD Creates Online Guidance Portal

Tomorrow, HUD will publish a notice in the Federal Register announcing the creation of a HUD guidance portal. In the process of complying with a presidential executive order, the Department conducted a review of all of its guidance and ensured that those documents that remain in effect were linked to a single website that could be searched. The single searchable database containing all of HUD’s guidance can be found at: http://www.hud.gov/guidance.

The National Association of Housing and Redevelopment Officials applauds HUD for creating this searchable index and looks forward to further refinements.

The pre-publication copy of the notice announcing this portal can be found here.

Guidance on Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Released

Labradoodle_Assistance_Dogs

Yesterday, HUD released a notice (FHEO-2020-01) titled “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act.” The notice provides PHAs (and other housing providers) with a set of best practices to assess requests for reasonable accommodations to keep animals in housing while complying with the Fair Housing Act (FHA).

The notice states that FHA complaints involving requests for reasonable accommodations for assistance animals are on the rise. One of the purposes of this guidance is to help housing providers distinguish between a person with a non-obvious disability who has a legitimate need for an assistance animal and a person without a disability who wants to have a pet (or otherwise circumvent a rule applicable to a pet).

The guidance does several things. First, it provides a framework for identifying service animals. Second, it provides a framework to analyze reasonable accommodation requests under the Fair Housing Act for assistance animals other than service animals (There are two types of assistance animals–“service animals” and “support animals”; the latter are trained or untrained animals that do work, perform tasks, provide assistance, or emotional support for individuals with disabilities that do not fall under the service animals category). Third, the guidance provides criteria for assessing whether to grant a requested accommodation. Fourth, the guidance provides information on which types of animals (i.e., species of animals) are acceptable in which situations. Fifth, the guidance provides additional considerations that must be taken into account.

Additionally, there is a second section of the notice which provides a section on documenting an individual’s need for assistance animals in housing and provides a series of frequently-asked questions and accompanying answers.

The full guidance can be found here.

New Proposed Fair Housing Rule

Earlier this week, HUD published a new proposed fair housing rule titled “Fair Housing Act Design and Construction Requirements; Adoption of Additional Safe Harbors.” The Fair Housing Act provides that unlawful discrimination against persons with disabilities includes the failure to properly design and construct certain multifamily dwellings. This proposed rule would amend HUD’s regulations to incorporate the 2009 edition of International Code Council (ICC) Accessible and Usable Building and Facilities (ICC A117.1-2009) as satisfying the design and construction requirements of the Fair Housing Act. The proposed rule would also designate the 2009, 2012, 2015, and 2018 editions of the International Building Code (IBC) as safe harbors under the Fair Housing Act.

Comments on this proposed rule are due on March 16, 2020.

A press release from HUD can be found here.

The proposed rule can be found here.

Webinar for Vera’s Opening Doors to Public Housing Initiative

The Vera Institute of Justice (Vera) is offering a webinar that promises to inform potential applicants about the goals of the Opening Doors to Public Housing Initiative. The Opening Doors to Public Housing Initiative seeks to provide technical assistance to PHAs that wish to plan and implement reentry programs or change their admissions policies for people with conviction histories. Additionally, the webinar will provide an overview of the application requirements, allow time for questions from interested applicants, and present applicants from past Opening Doors sites who will share their experiences implementing reentry programs and changing their housing policies.

Housing authorities and their justice system partners are strongly encouraged to participate in the webinar, though it is open to all.

Opening Doors to Public Housing (Friday, January 17, 2020 at 1 pm ET)

  • Presenters include the following:
    • Andre Bethea, Policy Advisor, Corrections, Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice;
    • Laura Gregory, Resident Services Manager, Oklahoma City Housing Authority; and
    • Julio Sanchez, Senior Probation & Parole Officer, Delaware Correctional Reentry Commission (DCRC) In-reach Coordinator, Georgetown Probation & Parole.

The webinar registration can be found here.

HUD Posts New Sexual Harassment Training

The Department of Housing and Urban Development (HUD) has posted several new items related to sexual harassment training. The main sexual harassment training page on HUD Exchange can be found here. Resources include fact sheets, videos, and a training module.

Additional webinar training can be found below:

Webinar Title Date Time Registration Link
Preventing Harassment for PHA Residents & Voucher Program Participants Now until July 29, 2019 3:00-4:00 PM EDT Register to View Webcast
Preventing and Addressing Sexual and Other Discriminatory Harassment in Housing (for Private Housing Owners and Managers Participating in Voucher Programs) Now until July 29, 2019 3:00-4:00 PM EDT Register to View Webcast
Preventing and Addressing Sexual and Other Discriminatory Harassment in Housing (for PHA Employees) Now until July 29, 2019 3:00-4:00 PM EDT Register to View Webcast

HUD Launches Campaign to Help Protect People from Harassment from Landlords, Property Managers, and Maintenance Workers

[The Call HUD: Because Sexual Harassment in Housing is Illegal poster]

Earlier today, HUD published a press release announcing a campaign “to help protect people from harassment by landlords, property managers, and maintenance workers in HUD-assisted housing.” The campaign–named “Call HUD: Because Sexual Harassment in Housing is Illegal”–will educate people on what activities constitute sexual harassment and who to contact if people experience it. The campaign will also offer sexual harassment training to PHAs and other housing providers.

HUD will introduce the “Call HUD” campaign at HUD headquarters on Thursday, April 4th from 2 pm to 4 pm at the Brooke-Mondale Auditorium.

Persons who believe they have experienced discrimination may file a complaint by contacting HUD’s Office of Fair Housing and Equal Opportunity at (800) 669-9777 or (800) 927-9275.

The complete press release may be found here.

NAHRO Submits Comments on AFFH Rule Streamlining

Earlier this week, NAHRO responded to the Department of Housing and Urban Development’s (HUD’s or the Department’s) request for comments on streamlining the Affirmatively Furthering Fair Housing (AFFH) rule by submitting a comment letter. The National Association of Housing and Redevelopment Officials remains committed to following through on the promise of the Fair Housing Act and its duty to affirmatively further fair housing. At the same time, NAHRO believes that to create a workable rule that delivers results while appropriately balancing the goals of the Fair Housing Act with the limited resources found in communities throughout the United States, certain principles should be followed in refining the AFFH rule.

These general principles are as follows:

  • Entities should not be forced to complete analyses on non-housing factors;
  • Entities should not be forced to complete analyses outside their jurisdiction;
  • Additional funding is required to properly conduct fair housing assessments;
  • Housing agencies should be able to complete any required assessments without having to hire a consultant;
  • The Department should accept and approve assessments for entities that have made a good faith effort to comply with the assessment process;
  • The Department should provide clear, regularly updated guidance for completing assessments;
  • The assessments should provide a greater emphasis on place-based solutions; and
  • The Department should closely follow all requirements of the Administrative Procedure Act and any other process requirements required by law.

The comment letter–after providing background on how HUD substantially deviated from modest recommendations of prior technocratic reports by HUD and the Government Accountability Office (GAO) in 2009 and 2010 respectively–responds to specific inquiries requested by HUD. The comment letter also recommends changes to the definition of “Affirmatively Furthering Fair Housing” and “Qualified PHA.”

The full comment letter can be found here.

Federal Judge Dismisses AFFH Suit

In an opinion published on Friday, a federal judge dismissed a suit brought by several fair housing organizations. The fair housing groups wanted HUD to reinstate the local government assessment tool as part of the Affirmatively Furthering Fair Housing (AFFH) process. The court found that the groups did not meet the requirements to sue and that even if they did, HUD should not be required to reinstate the local government tool.

After providing background information and describing the relevant law, the opinion discussed three issues. First, whether the fair housing groups had standing (i.e., met the legal requirements to sue); second, whether the fair housing groups were entitled to a preliminary injunction reinstating the assessment tool for local governments; and third, whether New York State could join the suit. The court found that the fair groups lacked standing (i.e., did not meet the legal requirements to bring suit); that even if they had standing, they were not entitled to a preliminary injunction ordering that the local government tool be reinstated; and that New York State could not join the suit.

Fair Housing Groups Lack Standing

The court found that the fair housing groups lacked standing and could not bring a suit. Although the court found multiple reasons why the fair housing groups lacked standing, the court focused most of its analysis on how there was a lack of injury to the fair housing groups by the withdrawal of the local government tool. The court found that the withdrawal of the local government tool did not impair the mission of the fair housing groups because many aspects of the AFFH rule remain in place, including the new community participation requirements, which give the fair housing groups continuing opportunities to participate in a more robust Analysis of Impediments (AI) process. The court also found that withdrawal of the local government tool did not cause a drain of the fair housing groups’ resources because they are engaged in the same types of activities that they were undertaking before the withdrawal of the local government tool and because withdrawal of the tool does not require that the groups spend more on operational costs. Finally, the court also found that the fair housing groups lacked the other elements of standing–causation and redressability.

Fair Housing Groups Not Entitled to a Preliminary Injunction

The court found that even if the fair housing groups had standing, they were not entitled to a preliminary injunction. Again, although there were several reasons why they were not entitled to a preliminary injunction, the court focused its analysis on showing why the fair housing groups were unlikely to succeed on the merits of the case. First, the court noted that withdrawal of the local government tool did not require notice-and-comment procedures (these are the procedures used in the informal rulemaking process when an agency is creating a regulation) because the local government tool is properly characterized as an “information collection” and not subject to notice-and-comment procedures. Second, the court found that the withdrawal of the tool was not arbitrary or capricious because HUD provided adequate reasoning for its decision to withdraw the local government tool (HUD noted the high failure rate of program participants to submit acceptable first-time submissions and the high costs of scaling up technical assistance for future submissions). The court also did not find the other factors needed for a preliminary injunction including a risk of irreparable harm, a balance of equities in favor of the fair housing groups, or an accord with the public interest.

New York State May Not Join the Suit

The court found that New York State may not join the suit because, like the fair housing groups, it lacked standing because of a lack of injury.

The full opinion can be found here.

HUD Files Complaint Against Facebook

On Friday, HUD published a press release announcing that it was filing a housing discrimination complaint against the social networking site Facebook. The Department claims that Facebook has a series of options which allow advertisers to control which groups can see their advertisements. By allowing advertisers to restrict certain groups–defined by protected characteristics–from viewing advertised housing, HUD believes that Facebook is discriminating.

For example, advertisers may restrict the viewing pool of users based on protected characteristics like race, color, religion, sex, familial status, national origin, and disability. Facebook mines data on its users and classifies its users based on protected characteristics. Advertisers may then choose to restrict which groups see their advertisements based on those groups’ interests. The Department found that Facebook allows the following:

  • Advertisers to discriminate based on sex by showing ads only to men or women;
  • Advertisers to discriminate based on disability by not showing ads to users whom Facebook categorizes as interested in things like assistance dogs or mobility scooters;
  • Advertisers to discriminate based on familial status by not showing ads to users whom Facebook categorizes as interested in things like child care or parenting;
  • Advertisers to discriminate based on national origin by not showing ads to users whom are interested in certain countries or geographical regions like Latin America or China; and
  • Advertisers to discriminate based on race or color by allowing advertisers to advertise to certain zip codes.

The Department’s press release can be found here.

The Department’s complaint can be found here.