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

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.

$20 million NOFA for Competitive FUP Vouchers Published

Yesterday, HUD released a Notice of Funding Availability (NOFA) for $20 million of competitive funding for Family Unification Program (FUP) vouchers. These vouchers are for youth aging out of foster care. The appropriations acts of 2020 and 2021 each contained $10 million in competitive FUP funding for youths aging out of foster care. This notice would distribute the competitive FUP allocations for youth aging out of foster care for both of those years. The Department expects to make approximately 40 awards from the funds. No award will be for less than 3 vouchers, while the maximum award will vary depending on the size of the PHA’s program (25 vouchers for programs with fewer than 500 vouchers; 50 vouchers for programs between and including 500 and 1.999 vouchers; and 75 vouchers for programs with 2,000 or more vouchers). The application deadline is March 22, 2021.

The full NOFA can be found here.

HUD Updates Demolition and Disposition Notice

Earlier today, HUD published PIH 2021-07, titled “Demolition and/or disposition of public housing property, eligibility for tenant-protection vouchers, and associated requirements.” This notice updates PIH 2018-04, which was the prior demolition and disposition notice.

The new notice makes several non-substantive and substantive revisions to the prior notice. Non-substantive revisions include clarifying headings, adding spacing between paragraphs, re-numbering paragraphs, and correcting citations to regulatory provisions, which make for a clearer document. Substantive changes in this notice include the following:

  • HUD’s Special Applications Center (SAC) no longer claims to return a SAC application that is substantially incomplete or deficient, while informing a PHA of its deficiencies (previously, SAC would “return” the application by changing the status of the application to DRAFT in the Inventory Management System/PIH Information Center [IMS/PIC]);
  • The Department clarifies that PHAs must not just make resident consultation accessible, but rather that “PHAs must ensure that communications and materials are accessible to individuals with disabilities and take reasonable steps to provide meaningful access to persons with Limited English Proficiency (LEP)”;
  • Use of proceeds is no longer a material term of the SAC application, so if a PHA’s plan on the use of proceeds changes after HUD approval of an application, a PHA would no longer have to request an amendment to the application;
  • Includes new RAD/Section 18 blends;
    • RAD/Section 18 Construction Blend – the percentage of units eligible for disposition is based on hard construction costs for new construction or rehabilitation of the covered project. Transactions that use the 9 percent Low-Income Housing Tax Credit are not eligible.
      • If hard construction costs equal 90 percent of the Housing Construction Costs (HCC) as published by HUD for a given market area, the PHA may dispose of up to 60 percent of the units of the converting project under Section 18;
        • For high-cost areas (HCC exceeds 120 percent of the national average), a PHA may dispose of up to 80 percent of the units of the converting project under Section 18;
      • If the hard construction costs equal or exceed 60 percent, but are less than 90 percent, of HCC, the a PHA may dispose of up to 40 percent of the units of the converting project under Section 18;
      • If the hard construction costs equal or exceed 30 percent, but are less than 60 percent, of HCC the PHA may dispose of up to 20 percent of the units of the converting project under Section 18;
    • RAD/Section 18 Small PHA Blend – for any PHA with 250 or fewer public housing units under its Annual Contributions Contract (ACC), up to 80 percent of the units in a converting project may be disposed of under Section 18;
  • The Department clarifies that tenant-protection voucher (TPV) requests first go to the field office for a threshold review before being sent to HUD’s Financial Management Division (FMD), while HUD’s Financial Management Center (FMC) notifies PHAs of the final TPV awards.

The full notice can be found here.

Mobility Demonstration Updates

The Department has made several updates to the mobility demonstration website. The mobility demonstration will provide funding to PHAs to research the efficacy and cost of providing mobility-related services to voucher participants.

  • On Jan. 14th, HUD updated their Questions and Answers document.
  • On Jan. 6, HUD held a third webinar on the demonstration. The webinar “provided a deeper dive on the application requirements to help PHAs better understand how to submit a proposal to HUD.” A recording can be found here. Slides from the webinar can be found here.
  • Finally, as mentioned before, HUD has also restricted MTW participation in the mobility demonstration in certain ways.

The Department’s application deadline is Feb. 1, 2021.

Additional information on the mobility demonstration can be found on HUD’s website.

MTW Expansion Applications for Cohorts #3 and #4 Posted

Earlier today, HUD published applications to apply for additional cohorts in the Moving to Work (MTW) Expansion. The Moving to Work program allows PHAs additional regulatory flexibilities to implement innovative strategies to house families. The MTW Expansion incorporates a research component with every new cohort of MTW agencies.

The applications can be found here:

NAHRO members will receive additional information about both applications in the coming days.

Assistant PIH Secretary Resigns from HUD

Assistant Secretary of Public and Indian Housing Hunter Kurtz has resigned from his position, effective at the close of business today.

In an email to housing authority executive directors, Mr. Kurtz wrote: “Being the Assistant Secretary for Public and Indian Housing and working with you over the past 18 months has truly been the greatest honor and privilege of my life. During this time, we have done incredible work, in some of the most challenging times our industry has faced. Most importantly we helped the residents of our programs prepare for and respond to a virus, that disproportionately affected the people we serve.”

NAHRO has had a strong working relationship with Assistant Secretary Kurtz.

“He is a thoughtful leader who cares deeply for HUD programs, our public housing and Indian housing agencies, and the people who they serve,” said NAHRO CEO Adrianne Todman. “We are grateful for his work and wish him the best.”

Mr. Kurtz was confirmed on June 20, 2019. He has spent more than 10 years in federal service. He previously served as the Principal Deputy Assistant Secretary for Public and Indian Housing, and also served in the White House as the Deputy Chief of Staff at the Council of Economic Advisers.

He was also previously the Deputy Director of Detroit’s Department of Housing and Revitalization, where he managed the department’s day-to-day operations, implemented programs that helped homeowners, and oversaw reform of the department’s contract and procurement processes.

HUD Restricts MTW Participation in the Mobility Demonstration

Tomorrow, HUD will publish a notice titled “Section 8 Housing Choice Vouchers: Implementation of the Housing Choice Voucher Mobility Demonstration, Restrictions on Participating in the Mobility Demonstration and the Moving to Work Demonstration Expansion.” To maintain the “Congressionally mandated rigorous evaluation” of the Moving to Work (MTW) Demonstration expansion and the mobility demonstration expansion, HUD is restricting the overlap between MTW agencies and agencies that can participate in the mobility demonstration.

In general, PHAs that participate in MTW Expansion cohorts 2, 3, or 4 may not participate in the mobility demonstration program. Housing agencies that participate in MTW Expansion cohorts 1 or 5 may participate, but will have their MTW flexibilities curtailed.

The restrictions are noted below.

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