Regulation

HUD Publishes 2023 FMRs

~ Tushar Gurjal ~ Leave a comment

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.

Administration Announces Housing Supply Action Plan

~ Tushar Gurjal ~ 1 Comment

On May 16, the administration announced a housing supply action plan that is intended to “ease the burden of housing costs over time, by boosting the supply of quality housing in every community.” The plan includes both legislative and administrative actions and is meant to align with other policies currently in effect (e.g., federal rental assistance) to create more affordable rents and make homeownership more affordable.

While the plan includes many specific actions, many of those actions can be grouped into the following categories.

  • Incentivizing jurisdictions to reform their zoning and land-use policies by giving higher scores to jurisdictions that do this in federal grant allocations.
  • Implementing new financing mechanisms to build and preserve housing, including manufactured housing; accessory dwelling units; two to four unit properties; and other multifamily buildings.
  • Improving existing federal financing for development and preservation, which includes making construction to permanent loans more available; promoting the use of COVID recovery funds for affordable housing; reforming the low-income housing tax credit and the HOME program.
  • Ensuring that more housing goes to owners that live in the units or non-profits that will rehabilitate them.
  • Addressing supply chain issues by working with the private sector.

The White House’s full announcement of their housing supply action plan can be found here.

HUD Publishes Notice Officially Extending Deadline to April 1st for Submitting Expedited Waiver Requests

~ Tushar Gurjal ~ Leave a comment

As previously reported by NAHRO, HUD has now officially extended the deadline to April 1st for submitting a request for an expedited waiver. The new notice, Notice PIH 2022-04, states the following:

“This notice amends PIH-2021-34 solely by extending the submission deadline in Section 5 of the notice from March 1, 2022 to April 1, 2022. No additional submission extensions will be issued.”

From NAHRO’s discussions with HUD staff, NAHRO was able to learn that even after the deadline, PHAs will be able to apply for these waivers, but post-deadline requests will not go through the expedited waiver process. In addition, the simplified payment standard waiver process in the expedited waiver notice will remain in place after the deadline. Additional details on that process remaining in place will be explained in a future notice.

The full notice extending the deadline to April 1st can be found here.

New HUD Waiver Notice for Disaster Areas

~ Tushar Gurjal ~ Leave a comment

On Jan. 5, HUD published a notice in the Federal Register titled “Regulatory and Administrative Requirement Waivers and Flexibilities Available to HUD Public Housing and Section 8 During CY 2022 and CY 2023 to Public Housing Agencies To Assist With Recovery and Relief Efforts on Behalf of Families Affected by Presidentially Declared Disasters.” The notice provides an expedited process for PHAs to apply for certain waivers and flexibilities when faced with a Presidentially Declared Disaster (PDD) for the calendar years (CYs) 2022 and 2023. The notice is effective from Jan. 1, 2022 to Dec. 31, 2023.

This notice lists the waivers and flexibilities that are available to PHAs, notes that it will consider certain exceptions, and provides instructions on how to submit waiver, flexibility, and exception requests. The following flexibilities and waivers may be requested (please note that the list below is summarized—see the full notice to read the complete descriptions of the waivers):

  • Operating Subsidy Flexibility in Approved Vacancies – a PHA is eligible to receive funding for vacant public housing units that are vacant because of a declared disaster, subject to HUD approval. Eligible units will be considered approved for 12 months.
  • Uniform Financial Reporting Standards; Filing of Financial Reports; Reporting Compliance Dates – HUD may approve delays to certain financial reporting requirements.
  • Public Housing Assessment System – HUD may consider waiving the physical inspection and scoring of public housing projects.
  • Cost and Other Limitations; Maximum Project Cost; TDC Limit – HUD may waive total development costs (TDC) and housing cost cap limits for all work funded through the Capital Fund until the next issuance of TDC limits.
  • Cost and Other Limitations; Types of Labor – HUD may allow PHAs that are not high-performing to use force account labor for modernization-only activities even with not included in the PHA’s 5-year action plan. This waiver will not exceed a period of 12 months.
  • Capital Fund Formula; Replacement Housing Factor to Reflect Formula Need for Projects With Demolition or Disposition Occurring on or After October 1, 1998 and Prior to September 30, 2013 – HUD may allow unexpended Capital Fund Replacement Housing Factor Grants to be used for public housing modernization. This waiver will not exceed a period of 12 months.
  • Tenant Selection Policies and Administrative Plan – HUD may waive requirements that a PHA’s Board of Commissioners approves revisions to tenant selection policies and a PHA’s administrative plan if the revisions are temporary, do not exceed a period of 12 months, are not significant amendments, and comply with the PHA’s plan or state law.
  • Waiting List; Opening and Closing; Public Notice – HUD may waive the requirement that it must provide public notice when opening and closing its waiting list by posting in a local newspaper of general circulation. It would replace that requirement by an alternative one requiring the PHA to post notice to its website. The waiver will not exceed a period of 12 months.
  • HUD Approval of Exception Payment Standard Amount – HUD may approve an exception payment standard that is higher than 110% of the Fair Market Rent.
  • Housing Quality Standards; Space and Security – HUD may waive the requirement that units have at least 1 bedroom for every 2 people to house families displaced by natural disasters. The waiver will be in effect for the initial lease term.
  • Occupancy of Home – HUD may allow families participating in the homeownership program to continue receiving housing assistance payments even if displaced from their homes.
  • Contract of Participation; Contract Extension – HUD may consider authorizing a PHA to extend a family’s contract of participation in a Family Self Sufficiency program for up to 3 years. Any waiver will be in effect for a request made to the PHA during a period of up to 12 months.
  • Section 8 Management Assessment Program (SEMAP) – HUD may consider a request to carry forward a PHA’s last SEMAP score.
  • Verification of the Social Security – HUD may consider a request to transmit form HUD-50058 within 90 days, instead of the usual 30 days, of the receipt of the applicant’s social security documentation.
  • Specific Criteria for HUD Approval of Demolition Requests – for certain Section 18 demolition requests, HUD will accept certain environmental reviews.
  • Approval of Demolition – HUD may waive the requirement for a list of specific and detailed work items for certain Section 18 demolition requests.

A PHA may also request an exception to a requirement that is not listed. HUD will consider these requests subject to statutory and regulatory limitations.

To request waivers, if in a Presidentially Declared Disaster area, a PHA should complete Appendix A of the notice and email the completed appendix with supporting documentation to PIH_Disaster_Relief@hud.gov.

The full notice can be accessed here.

HUD Publishes Expedited Waiver Notice for Public Housing and Voucher Programs

~ Tushar Gurjal ~ Leave a comment

On Dec. 9, HUD published a notice titled “Expedited Regulatory Waivers for the Public Housing and Housing Choice Voucher (including Mainstream and Mod Rehab) Programs” (Notice PIH 2021-34). This notice provides information on flexibilities that HUD will continue to provide for the public housing and Housing Choice Voucher (HCV) programs, even though most regulatory and statutory waivers related to the COVID-19 pandemic will expire at the end of the year. The COVID-19 waivers for the public housing and voucher programs were published because of authority given to HUD through the passage of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Additional information on the expiration of these waivers can be found in HUD’s guidance for winding down CARES Act waivers; PIH 2021-14 (providing revised waivers for public housing and the HCV program); PIH 2020-20 (providing waivers for the Mod. Rehab. program); and PIH 2020-22 (providing waivers for Mainstream vouchers).

This notice divides the additional potential flexibilities into three categories. First, there are flexibilities that will continue with no waivers needed. Second, there are regulatory waivers that PHAs may request and which HUD will review through a streamlined process. Third, there are additional regulatory waivers which PHAs may request, but which HUD will review through its normal waiver review process. None of the statutory waivers provided through CARES Act authority will be extended. In general, HUD lacks the authority to waive statutory program requirements, so PHAs should not request waivers for statutory requirements.

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OSHA Releases Vaccine and Testing Mandate for Large Employers

~ Georgi Banna ~ Leave a comment

On Nov. 4, the Department of Labor’s Occupational Safety and Health Administration (OSHA) released its vaccine mandate for businesses with 100 or more employees. It is scheduled to be published in the Federal Register tomorrow, Nov. 5, and will take effect immediately. Covered employers have 30-days (by approximately Dec. 5) to become compliant and implement a vaccine and mask mandate and unvaccinated employees must be in compliance with weekly testing requirements within 60-days (by approximately Jan. 4).

A pre-publication copy of the Emergency Temporary Standard (ETS) on COVID-19 Vaccination and Testing can be found here. The majority of the ETS provides background, justification, description; and the last section lists the regulatory updates and additions. While the full document is 490 pages, the regulation itself is much shorter and can be found on page 473.

The purpose of the ETS is to protect unvaccinated employees of large employers from the risk of contracting COVID-19 by strongly encouraging vaccination. Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.

Unvaccinated employees would need to wear a mask indoors or in vehicles with employees at all times except when alone in a room with floor to ceiling walls or windows and a closed door. There is no mask requirement for vaccinated employees.

At this time the ETS only applies to employers of 100 or more employees, however OSHA is continuing to discuss whether or not this should apply to smaller employers.

NAHRO will continue to follow OSHA’s Emergency Temporary Standard on COVID-19 Vaccination and Testing, and will share additional information as it becomes available.

HUD Publishes New Guidance on Eviction Requirements for Public Housing and PBRA

~ Tushar Gurjal ~ Leave a comment

On Oct. 7, 2021, HUD published a notice titled “Supplemental Guidance to the Interim Final Rule ‘Extension of Time and Required Disclosures for Notification of Nonpayment of Rent’” Notice PIH 2021-29. This notice serves as additional guidance to an interim final rule that was also published in October. The interim final rule specified that where there is federal funding available due to the declaration of a national emergency, PHAs with public housing and owners with project-based rental assistance (PBRA) must do the following at HUD’s discretion:

  • Provide at least 30 days from the date a tenant receives a notice of lease termination for failure to pay rent before terminating the tenant; and
  • Provide information (e.g., information about how to apply for and receive emergency federal funding) to the tenant as determined by HUD.

This PIH notice provides additional guidance to the requirements of the interim final rule. First, it clarifies the instances in which the rule is applicable. The rule applies to PHAs with a public housing program, including Moving to Work (MTW) agencies, and owners with PBRA. For the purposes of this notice, PBRA is defined as the following (i.e., this notice applies to the following programs):

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HUD Creates New Eviction Requirements for Public Housing and PBRA

~ Tushar Gurjal ~ Leave a comment

In a notice titled “Extension of Time and Required Disclosures for Notification of Nonpayment of Rent,” HUD updates its regulations–through an interim final rule–to give itself the authority to require that public housing and project-based rental assistance (PBRA) developments give tenants the opportunity to receive emergency rent relief before eviction. Specifically, when there is federal funding available due to the declaration of a national emergency, PHAs with public housing and owners with PBRA properties must do the following at HUD’s discretion:

  • Provide at least 30 days from the date a tenant receives a notice of lease termination for failure to pay rent before terminating the tenant; and
  • Provide information (e.g., information about how to apply for and receive emergency federal funding) to the tenant as determined by HUD.

HUD will publish another notice outlining the specific information that must be included in the lease termination notification. That notice will also provide the requirements for PHAs and owners to provide the information in an accessible manner for effective communication for people with disabilities and people with limited English proficiency (LEP).

These requirements apply to public housing and PBRA, which is defined in this rule to include Section 8, Section 8 Moderate Rehabilitation, Section 202/162 Project Assistance Contract, Section 2020 Project Rental Assistance Contract (PRAC), Section 811 PRAC, Section 236 Rental Housing Assistance Program and Rent Supplement. The rule does not apply to the Housing Choice Voucher program.

The interim final rule will become effective in 30 days after publication of the notice in the Federal Register.

Comments for the rule will be due within 30 days of publication of the notice in the Federal Register.

A pre-publication copy of the rule may be found here.

HUD Publishes 2022 OCAFs

~ Tushar Gurjal ~ Leave a comment

In early Oct., HUD published the list of operating cost adjustment factors (OCAFs) for project-based assistance contracts under Section 8. These adjustment factors are used to adjust certain Section 8 rents. They were calculated in the same manner the 2021 OCAFs. They are calculated as “the sum of weighted component cost changes for wages, employee benefits, property taxes, insurance, supplies and equipment, fuel, oil, electricity, natural gas, and water/sewer/trash, using publicly available indices.” They are applicable beginning Feb. 11, 2022. These OCAFs are distinct from renewal funding inflation factors (RFIFs), which are usually applicable for the Housing Choice Voucher program.

The Federal Register notice announcing the OCAFs may be found here.

US Supreme Court Overturns CDC Eviction Moratorium

~ Georgi Banna ~ Leave a comment

On Thursday, August 26, the United States Supreme Court vacated the stay that has allowed the current CDC eviction moratorium to continue. The order vacating the stay and dissent arguing to keep the stay can be found here. It confirms lower court decisions that the CDC did not have statutory authority to impose a nationwide eviction moratorium and states, “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it. The application to vacate stay presented to THE CHIEF JUSTICE and by him referred to the Court is granted.”

The Court order placed considerable responsibility on Congress to act on a federal eviction moratorium, “It is up to Congress, not the CDC, to decide whether the public interest merits further action here. And Congress was on notice that a further extension would almost surely require new legislation, yet it failed to act in the several weeks leading up to the moratorium’s expiration.”

NAHRO continues to meet and work with HUD to develop solutions that will provide housing authorities the flexibility to minimize local evictions and will provide additional information when it becomes available. NAHRO encourages housing authorities, landlords, and tenants to work together to avoid COVID related evictions and to review HUD’s Eviction Prevention and Stability Toolkit for information and best practices. A White House Fact Sheet has also been released that provides additional actions that are being taken to prevent eviction and increase access to emergency rental assistance funds.