Reasonable Accommodation e-Briefing on August 10 at 1:30pm ET

On August 10 at 1:30pm, NAHRO Professional Development will present an e-Briefing on Reasonable Accommodation. NAHRO Faculty Member Dennis Morgan will answer many of questions – What is a “reasonable accommodation?” What are your responsibilities as a housing provider? What if a request would creat an undue financial burden, or fundamentally alter the nature of a program?

Reminder: Whether you're watching alone or with an audience of 100, only one registration per connected device is required, making NAHRO Professional Development's e-Briefings an outstanding value!

Register Online at www.nahro.org/training-calendar.

Early Lessons Learned in Affirmatively Furthering Fair Housing

This is a guest blog by Mark Shelburne, Novogradac & Company LLP.

As most readers are aware, in 2015 the U.S. Department of Housing and Urban Development (HUD) substantially revised its approach to affirmatively furthering fair housing (AFFH). One of the key aspects is submitting an Assessment of Fair Housing (AFH), using a “Tool” document as a template.

The first group of 22 cities and counties sent their AFHs to HUD for review October. Under the 2015 rule, thousands of other local governments, states, and housing authorities will do the same over the next several years.

Novogradac & Company LLP partnered with Civitas, LLC to help the city of Wilmington, N.C., and Wilmington Housing Authority on their AFH submission. Late in November, HUD staff reached out regarding a few additions and clarifications, which Novogradac, Civitas, and local officials were able to complete in the two days before Thanksgiving. The notice of acceptance came Dec. 2, making Wilmington’s plan one of the first to be completed in the nation. (Reports suggest HUD did not accept all of the AFHs submitted in the initial round.)

The best news for jurisdictions with upcoming AFFH deadlines is you are not going first. There is an opportunity to learn from those who’ve begun the process. The following is a summary list of the most important lessons learned from Novogradac’s experience in Wilmington.

  1. Collaborate with other local HUD funding recipients. This item is first both because of being an early decision and one of the most important. There is no reason to go it alone–partnering may result in some challenges, but the net is a benefit for all involved.
  1. Have widespread, diverse opportunities for public input. Try to include any fair housing organizations operating within your area. Also be aware of limited English proficiency and disability-access considerations.
  1. Start early and speak often. Applying the prior two lessons will take time, as does drafting the text. In fact, the best time to get started is as soon as you’re finished reading this post. Frequent communication (not just meetings but emails and calls), particularly around goals, is essential.
  1. Consider a consultant, but be realistic. Contracting for assistance can be particularly helpful for data analysis and providing a more objective view, but local staff will do a lot of work regardless.
  1. You know at least some of the concerns. In many cases what should happen in the community is not a mystery. You do not need to rigidly follow the steps in the Tool, it is okay to think of some goals first.
  1. Read accepted AFHs. Wilmington’s and New Orleans’ are good places to start.
  1. Be careful about dot density. Try different settings in the HUD-provided maps. For example, using the 75-per-person setting does not always show patterns of segregation.
  1. Address all protected classes. Usually the focus is on race, but all seven classes are covered. Most will vary even within a state, with disability as the most uniform. Be aware of possible implications of an ADA/Olmstead settlement underway.
  1. Don’t assume the reader knows your community. The review might not be limited to your local or state HUD office. For example, staff from across the HUD Region (Columbia, Greensboro, Jacksonville, and Nashville) were involved in Wilmington’s submission.
  1. Have specific, actionable goals. The next steps should strike a balance between making real progress and being actually achievable. You will need to have a goal for any issue either identified or apparent to the HUD reviewer.
  1. Address all issues identified. Some of the assessed factors may appear to be beyond the jurisdiction’s control. For example, many school districts are distinct governing entities from HUD funding recipients. Yet even in this instance, the goal could be to build new affordable rental properties in areas with high-performing schools.
  1. Change your mindset. True AFFH compliance is less about completing the Tool (although doing so is necessary) and more about a change of thinking. For too long, our nation has seen federal housing programs as being meant only for construction and rehabilitation; reducing segregation and expanding opportunities are equally important. This purpose should be part of program administrators’ every decision.

Final Thoughts

There is certainly a possibility the process may be different under Secretary Carson, who has expressed concerns about certain aspects of fair housing. However nothing has been announced, nor is likely to change early in the next Administration, so for now HUD recipients should continue with current approach.

Please feel free to reach out with any comments or questions.


SAVE THE DATE

Housing Rules Series! Affirmatively Furthering Fair Housing: How did we get here?

January 10, 2017 from 1:30 PM – 3:00 PM ET

If feels like there is a notice on affirmatively furthering fair housing every few days. In this rapidly changing environment, NAHRO staff will look back at the AFFH rule. Then an overview of the current notices and guidance specifically focusing on the Assessment of Fair Housing (AFH) tools will be discussed. This e-briefing will provide a regulatory context for a constructive and informed discussion on AFFH moving forward. Guest speaker, Mark Shelburne, Senior Manager at Novogradac & Company LLP, will share the important lessons learned from Novogradac’s experience in Wilmington, N.C.

Technical Correction to HUD’s VAWA 2013 Implementation Final Rule

On December 6, HUD will issue a technical correction to the “Violence Against Women Reauthorization Act of 2013: Implementation in HUD Housing Programs” final rule. This correction updates the compliance date for completing an emergency transfer plan and providing emergency transfers, and associated recordkeeping and reporting requirements to June 14, 2017. After the rule’s publication last month, HUD discovered the compliance date was incorrectly listed in the preamble as May 15, 2017, while the regulatory text provided the correct date of June 14, 2017. The final rule’s effective date (separate from the emergency transfer compliance date) is still December 16, 2016. 

HUD Final Rule Provides Expanded Housing Protections for Survivors of Violence

Today, HUD published a final rule in the Federal Register that provides expanded housing protections for survivors of violence and fully codifies the provisions of the Violence Against Women Reauthorization Act of 2013 (VAWA 2013) into HUD’s regulations. At its core, VAWA 2013 prohibits housing providers from denying or terminating housing assistance on the basis that an applicant or tenant is a survivor of violence.

The rule’s regulations become effective on December 16, 2016, and compliance with the rule with respect to completing an emergency transfer plan and providing emergency transfers, and associated recordkeeping and reporting requirements, is required no later than June 14, 2017.

Read more about the rule’s provisions in our blog post, published last month. A more in-depth analysis of the rule is also available in the NAHRO Monitor (members only).

[Note: After the final rule’s publication, HUD discovered an incorrect compliance date in the rule’s preamble, with respect to completing an emergency transfer plan and providing emergency transfers, and associated recordkeeping and reporting requirements. The compliance date was incorrectly listed as May 15, 2017, while the regulatory text provided the correct date of June 14, 2017. This blog post has been updated to reflect the correct compliance date of June 14, 2017]

HUD Extends AFH Submission Deadline for Small Local Governments

On October 24, HUD published a notice in the Federal Register announcing the extension of the initial Assessment of Fair Housing (AFH) submission deadlines for small consolidated plan program participants that received a Community Development Block Grant (CDBG) of $500,000 or less in Fiscal Year (FY) 2015 or in a subsequent FY; or in the case of a HOME consortium, whose members collectively received a CDBG grant of $500,000 or less.

Previously, HUD established the first AFH due date for small consolidated plan program participants to be 270 days (approximately 9 months) before the program year for which a new 3-5 year Consolidated Plan is due, starting on or after January 1, 2018. HUD is now extending the initial due date to 270 days before the program year which a new 3-5 year Consolidated Plan is due, starting on or after January 1, 2019 – the same date that qualified public housing agencies (QPHAs – PHAs with a combined unit total of 550 or less) are required to submit their AFHs.

Learn more about HUD’s Affirmatively Furthering Fair Housing (AFFH) Final Rule and subsequent AFH requirements for states, local governments, and PHAs by accessing NAHRO’s AFFH Resource Page (members only).

HUD Finalizes Rule to Expand Housing Protections for Survivors of Violence

On October 24, HUD announced the impending publication of a final rule that will expand the housing protections for victims of  domestic violence, dating violence, sexual assault, and stalking (hereinafter known as “victim”) regardless of sex, gender identity, sexual orientation, or age. The final rule will fully codify the provisions of the Violence Against Women Reauthorization Act of 2013 (VAWA 2013) into HUD’s regulations.

At its core, VAWA 2013 prohibits housing providers from denying or terminating housing assistance on the basis that an applicant or tenant is a victim. HUD’s final rule expands the universe of HUD rental assistance programs subject to the VAWA 2013 statute beyond Public Housing and Section 8 programs to also include:

  • Housing Trust Fund (HTF) – a program originally not listed under VAWA 2013;
  • HOME Investment Partnerships (HOME) program;
  • Housing Opportunities for Persons With AIDS (HOPWA) program;
  • HUD’s McKinney-Vento Homeless programs;
  • Section 811 Supportive Housing for Persons with Disabilities;
  • Section 202 Supportive Housing for the Elderly;
  • Section 221(d)(3) Below Market Interest Rate (BMIR) Program
  • Section 236 Rental Program

These programs, along with properties assisted through the USDA Rural Housing programs and the Low-Income Housing Tax Credit program, are collectively referred to as “covered housing programs.”

Overall, HUD’s final rule:

  • Codifies the core protections under VAWA 2013 across HUD’s covered programs by ensuring survivors are not denied assistance as an applicant, or evicted or have assistance terminated due to the individual’s victim status, or for being affiliated with a victim.
  • Provides a model emergency transfer plan for housing providers and explains how housing providers must address their tenants’ requests for emergency transfers.
  • Offers protections against the adverse effects of abuse that can often have negative economic and criminal consequences on a survivor. For example, a perpetrator may take out credit cards in a survivor’s name, ruining their credit history. Covered housing providers may  not deny tenancy or occupancy rights based solely on adverse factors that are a direct result of being a survivor.
  • Makes clear that under most circumstances, a survivor need only to self-certify in order to exercise their rights under VAWA, there by “ensuring third party documentation does not cause a barrier in a survivor expressing their rights and receiving the protections needed to keep themselves safe.”

HUD’s final rule is currently pending publication in the Federal Register. Once published, the rule’s regulations will become effective after 30 days.

An in-depth analysis of the final rule can be found in the October 30, 2016 edition of the NAHRO Monitor (members only).

 

HUD Finalizes Rule to Protect Victims of Harassment

HUD has announced that it will publish final rule titled “Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices under the Fair Housing Act” on September 14, 2016. This final rule will formalize the standards for use in investigations and adjudications involving allegations of harassment on the basis of race, color, religion, national origin, sex, familial status, or disability. The rule defines and specifies how HUD will evaluate “hostile environment” and “quid pro quo” harassment claims under the Fair Housing Act (FHA), and clarifies the operation of traditional principles of direct and vicarious liability in the FHA context. The final rule will become effective 30 days after it’s publication in the Federal Register.

During the proposed rulemaking stage of this final rule, NAHRO submitted comments to HUD commending the Department’s objective to protect individuals who experience harassment. NAHRO also expressed concerns over some aspects of the proposed rule, particularly the proposed rule’s definition of “direct liability” and the unintended consequences that may arise from that definition. Under the proposed rule, a housing provider and their employees and agencies would be held directly liable when it fails to “fulfill a duty to take prompt action to correct and end a discriminatory housing practice by a third-party.” NAHRO’s comment letter expressed concern over scenarios where the third party is outside the scope of control of the principal.

Along with the final rule, HUD’s Office of General Counsel is issuing Fair Housing Act guidance on local ‘nuisance ordinances’ that may lead to housing discrimination against survivors of domestic violence and other persons in need of emergency services. HUD’s press release on the final rule can be accessed here.

Deeper analysis of the final rule and guidance will be forthcoming for NAHRO members.