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HUD Releases Final Rule Implementing HOTMA
The Department of Housing & Urban Development (HUD) has released a Final Rule implementing the Housing Opportunity Through Modernization Act of 2016 (HOTMA). This final rule has not yet been published in the Federal Register. Publication in the Federal Register will establish the effective dates of the rule. The Housing Opportunity Through Modernization Act (HOTMA) was signed into law on July 29, 2016, amending many aspects of Multifamily Housing programs (as well as programs administered through the Offices of Public and Indian Housing and Community Planning and Development). HOTMA was intended to streamline processes and reduce burdens on housing providers. On September 17, 2019, HUD issued a proposed rule to update its regulations according to HOTMA s statutory mandate. The final rule, published on January 9, 2023, considers public comment received on the proposed rule and provides additional guidance for implementing Sections 102, 103, and 104 of HOTMA. Section 102: Changes requirements related to income reviews for the Public Housing, Housing Choice Voucher (HCV), and Section 8 Project-Based Rental Assistance (PBRA) programs. Section 103: Modifies the continued occupancy standards of Public Housing residents (does not apply to Multifamily Housing programs). Section 104: Sets maximum asset limits for eligibility and continued assistance in the Public Housing, HCV, Section 8 PBRA programs. Which Programs will be Affected by the Final Rule? The Section 8 PBRA (including RAD), Section 202/811 PRAC, 202/8, 202/162 PAC, Senior Preservation Rental Assistance Contract (SPRAC), and Section 811 Project Rental Assistance (811 PRA) programs will see changes due to HOTMA. Key Changes to the Multifamily Housing Programs Definitions: HOTMA amends the definitions of family and earned income. Enterprise Income Verification (EIV): HOTMA states that owners are no longer required to use EIV to verify tenant employment and income information during an interim reexamination. Hardship Relief: HOTMA creates hardship relief provisions for childcare, health & medical care, and attendant care, and auxiliary apparatus expense deductions. Imputed Asset Income: HOTMA raises the imputed asset threshold from $5,000 to $50,000 (adjusted annually for inflation). Income and Asset Exclusions: HOTMA codifies additional income and asset exclusions. Income Reviews: HOTMA creates a 10% adjusted income increase/decrease threshold for conducting interim reexaminations. Mandatory Deductions: HOTMA increases the elderly/disabled family deduction to $525. The dependent deduction and the elderly/disabled deduction will be adjusted for inflation on an annual basis. Self-Certification of Assets: HOTMA permits owners to accept self-certification of net assets if estimated to be equal to $50,000 (adjusted for inflation on an annual basis) or less. Final Rule Effective Date & HOTMA Implementation All provisions for Multifamily Housing programs will become effective on January 1, 2024. Owners must implement the revised regulations for all tenant certifications of income effective January 1, 2024, and after. Additional guidance will be forthcoming about the timing of submitting January 1, 2024 certifications to TRACS. This 303-page final rule is complex and makes sweeping changes to HUD programs, particularly with regard to income calculation and reviews. In addition to amending rules for HUD s public housing and Section 8 programs, the final rule revises program regulations for several other HUD programs. HUD did this to align requirements across programs. Affected programs include Community Development Block Grants (CDBG), HOME, Housing Trust Fund, Housing Opportunities for Persons with Aids, Section 202, and Section 811. Due to the complex nature of this final rule, rather than try to describe the changes in one massive article, I will be publishing a series of articles in the coming weeks - each dealing with a separate section of the final rule. _
HUD Announces New Proposed "Affirmatively Furthering Fair Housing Rule"
The Department of Housing & Urban Development (HUD) is preparing to publish a Notice of Proposed Rulemaking in the Federal Register. The rule will be titled "Affirmatively Furthering Fair Housing (AFFH)," and is designed to meet President Biden s call to fully enforce the 1968 Fair Housing Act. The proposed rule implements the Fair Housing Act s furthering fair housing mandate and streamlines the required fair housing analysis for local communities, states, and public housing agencies, and requires them to set ambitious goals to address fair housing issues facing their communities. It is designed to spur HUD program participants to take action in order to ensure members of protected classes have equal access to affordable housing opportunities. The proposed rule incorporates much of the framework of the 2015 AFFH rule, which was effective for only a short time before the previous administration ended it, and includes several refinements based on feedback HUD received from a variety of stakeholders. In particular, the proposed rule is designed to simplify the required fair housing analysis, emphasize goal setting, increase transparency for public review and comment, foster local commitment in addressing fair housing issues, enhance HUD technical assistance to local communities, and provide mechanisms for regular program evaluation and greater accountability. Under the proposed rule, every five years program participants will submit to HUD for review and acceptance an Equity Plan. That plan would contain the local analysis of fair housing issues confronting the communities, goals, and strategies to remedy those issues. The proposed rule would then require program participants to incorporate goals and strategies from their accepted Equity Plans into subsequent planning documents (e.g., Consolidated Plans, Annual Action Plans, and Public Housing Agency Plans). In addition, program participants would be required to conduct and submit to HUD annual progress evaluations that describe progress toward and/or any needed modifications of each goal in the Equity Plan. The proposed rule includes provisions that permit members of the public to file complaints with HUD if program participants are not living up to their AFFH commitments and various other provisions that enable HUD to ensure that program participants are held accountable for complying with the rule. It is important to note that the rule does not apply to individual developers or management companies - either for-profit or non-profit. Timing of Equity Plan Submissions The proposed rule would require larger, higher-capacity program participants to submit Equity Plans first. Submission deadlines would then be staggered across the different categories of program participants, again based on size as well as their respective program year or fiscal year start dates. Who Will the Rule Apply to? The rule will apply to local governments, states, and insular areas participating in and required to submit consolidated plans for the Community Development Block Grant (CDBG) program, the Emergency Solutions Grants (ESG) program, the HOME program, the Housing Trust Fund (HTF), and the Housing Opportunities for Persons with AIDS (HOPWA) program. The rule will also apply to public housing agencies (PHAs) receiving assistance under Section 8 or 9 of the United States Housing Act of 1937. Public Comment The comment period for the AFFH proposed rule will end 60 days after the date of publication in the Federal Register - not the publication on HUD s website. The public may make comments through regulations.gov. States, localities, and PHAs that will be subject to this rule should review the proposed rule as soon as it is published and comment to HUD on the workability of the proposal.
Reminder- HUD CO Alarm Requirement in Effect
All HUD-assisted units with carbon monoxide sources must have carbon monoxide (CO) alarms or detectors installed. This requirement was in place as of December 27, 2022. The requirement applies to units covered under Public Housing, Project-Based Rental Assistance, Housing Choice Vouchers, Project-Based Vouchers, Section 202, and Section 811 with fire-fueled or fire-burning appliances or an attached garage. Following is guidance on determining CO requirements based on sources of CO and location. Units That Contain a Fuel Burning Appliance (FBA) or Fuel Burning Fireplace (FBF):If there is no fuel-burning forced air furnace (FBFAF) in a sleeping area or attached bathroom, a CO alarm is required in the immediate vicinity of the sleeping area; If there is a fuel-burning forced air furnace, fuel-burning appliance, or fuel-burning fireplace in a sleeping area or attached bathroom, a CO alarm is required in the sleeping area. Units served by FBFAF outside the unit:If a CO alarm is installed in the room with the first duct register, no additional alarm is required in the unit. If a CO alarm is not installed in the room with the first duct register, a CO alarm is required in the immediate vicinity of bedrooms. Unit located in a building containing FBA/FBF (not in the unit): A CO alarm is required in the unit, unless -A CO alarm is installed on the ceiling of the room containing the FBA/FBF; orA CO alarm has been installed in an approved location between the FBA/FBF and the unit; or The unit has no openings to the FBA/FBF. Units in buildings with attached garages:If it is an open garage with natural ventilation (e.g., carport), no CO alarm is required; If it is an enclosed garage - A CO alarm is required outside sleeping areas in the unit unless one of the following is present:The unit has no openings to the enclosed garage;The unit is located more than one story above or below the enclosed garage;The enclosed garage connects to the building through an open-ended corridor;A CO detector is provided in an approved location between openings to an enclosed garage and the unit; or The enclosed garage has a mechanical ventilation system for vehicle exhaust. All owners or projects subject to this rule with FBA/FBF should ensure that the HUD requirements relative to CO detection and alarm requirements are now in place.
Dealing with Drug Use Without Violating Fair Housing Law
Drug users are not a protected class under either federal or state fair housing laws. Drug abuse may result in criminal activity, violence, and property destruction. However, drug and alcohol dependency are also considered diseases and may be considered "disabilities" under fair housing laws. While all properties should have anti-drug policies, it is important that those policies be developed and administered in a way that does not violate fair housing law. This article is intended to assist housing operators in walking the line between the protection of residents and property from illegal drug use and violating the rights of the disabled. Background Fair housing law prohibits discrimination based on disability, which is defined as "a physical or mental impairment that substantially limits one or more major life activities." The law also protects persons with a record of having such an impairment, or who are regarded as having such an impairment. Individuals who sue housing operators for disability discrimination have the burden of proving that they are disabled under the law. However, both HUD and the courts have made it clear that drug and alcohol use and addiction are "physical or mental impairments" under the law. There are two caveats to this determination: (1) Fair Housing Act (FHA) protection extends only to former users of controlled substances and illegal drugs. Current use of drugs is legitimate grounds for rejection of a rental applicant or eviction of a current resident. The Americans with Disabilities Act (ADA) defines "current" illegal drug use as "illegal use of drugs that occurred recently enough to justify a reasonable person s belief that a person s drug use is current, or that continuing use is a real and ongoing problem" (28 CFR 36.104). According to HUD Handbook 4350.3, former drug users protected by the FHA ban on disability discrimination include an individual who (i) has successfully completed a supervised drug rehabilitation program or has otherwise been successfully rehabilitated and is no longer engaging in illegal drug use; (ii) is currently participating in a supervised drug rehabilitation program and is no longer engaging in such use; or (iii) is erroneously regarded as engaging current illegal drug use. Note regarding alcohol use: FH law does not distinguish between former and current alcohol use the way it does with drug use. This is because, under federal law, alcohol use is legal. Alcoholism is just like any other disability that is protected by fair housing law and applies to applicants or residents who are currently addicted to alcohol and have no desire to stop drinking. (2) The second caveat is "the Direct Threat Exception." The FHA provides no protection to individuals with or without disabilities who present a direct threat to the persons or property of others. Thoughts on Pre-Admission Drug Testing A requirement that all applicants submit to drug testing prior to admission is probably legal since it detects current, rather than past drug use. With that being said, I do not recommend such a requirement. The costs of drug testing will almost certainly outweigh the benefits. You will also have to be consistent in requiring that all provisionally accepted applicants pass a drug test as a condition of occupancy - not just applicants you suspect may be using illegal drugs. Also, while usually accurate, drug testing is not foolproof. Finally, rejecting an applicant on the basis of a drug test may result in lawsuits over privacy issues and how the tests were administered. Keep in mind that it is likely that your competitors will not be doing drug testing, putting you at a competitive disadvantage. It s just not worth it! Reasonable Anti-Drug & Alcohol Policies are Acceptable Rules relating to drug and alcohol use that are generally acceptable include banning residents from: Dealing, manufacturing, or distributing drugs or engaging in illegal drug-related activity; Keeping large quantities of illegal drugs in their apartment; Using drugs or being intoxicated in common areas; and/or Allowing their families, visitors, or guests to commit any such violations. Don t Ask About Past Drug Use Former drug use is a disability, and you are generally not permitted to ask applicants if they are disabled (the exception to this is housing specifically for the disabled). The FHA regulations (24 CFR 100-202) permit the asking of questions to determine whether an applicant: Is a current illegal abuser or addict of a controlled substance; and/or Has ever been convicted of the illegal manufacture or distribution of a controlled substance. While these questions are permitted, they must be asked of all applicants. What About Current Use of Legally Prescribed Medical Marijuana? 37 states and the District of Columbia allow for the use of medically prescribed marijuana. Owners can certainly ban the use of recreational marijuana on a property, but what about marijuana that is legally prescribed by a physician? While not specifically addressed in the FHA, the legislative history that HUD, courts, and tribunals rely on to interpret the Act makes it clear that the exclusion of current illegal drug users does not apply to individuals who use otherwise controlled substances that are legally prescribed by a doctor. In the report of the House of Representatives, it states, "the exclusion does not eliminate protection for individuals who take drugs defined in the Controlled Substances Act for a medical condition under the care of, or by prescription from a physician." The Report goes on to say, "use of a medically prescribed drug clearly does not constitute illegal use of a controlled substance." However, for a tenant s medical marijuana use to be protected: The marijuana must be legally prescribed by a physician for a medical condition authorized by the law; The tenant must use the marijuana only for the prescribed condition; The tenant must use the marijuana only in his or her own apartment and not in common areas; The tenant may not possess (or cultivate) more than the maximum amount the law permits; and The tenant must not sell or distribute the marijuana to anybody else. So, how can marijuana be legal in some states and illegal under federal law? The fact is, there is no such thing as "legal marijuana." The use of marijuana, both medical and recreational, is illegal under federal law, and federal law supersedes state law. Many states have passed laws legalizing marijuana within their own boundaries, but people who use, manufacture, and distribute marijuana in those states are breaking federal law. The reason these folks are not being prosecuted is that the federal government has an enforcement policy that has instructed U.S. attorneys not to enforce marijuana prohibitions against states with legalization statutes as long as the state program follows certain criteria designed to prevent the financing of terrorism and organized crime, diversion of marijuana to minors and states where the use is not legal, and other activities harmful to national health and security. In 2014, a Michigan federal court ruled that a state law legalizing medical marijuana did not bar a federally assisted housing community from evicting a tenant for use of medical marijuana. The marijuana was prescribed by the resident s doctor for multiple sclerosis. The court indicated that while the use may have been legal under state law, it was still illegal under federal law. The court did say that whether the resident should actually be evicted was for state courts to determine [Forest City Residential Management, Inc. v. Beasley, December 3, 2014]. Current Alcohol Use is not an Issue Management should never ask applicants or residents about current alcohol use. Both former and current alcohol dependency are considered disabilities under the FHA. While questions about current drug use are permitted, questions about current alcohol use are not. Verification of No Current Drug Use You may be entitled to ask applicants or tenants who claim they have recovered from drug use to provide evidence from a third party that they are not current users of illegal drugs. Such evidence could include verification from a: Reliable drug treatment counselor or program administrator; and/or A probation or parole officer. There are four questions that should never be asked of applicants: Have you ever used illegal drugs? Have you ever been arrested for manufacturing or distributing illegal drugs? Ever you ever had a drinking problem? Do you currently have a drinking problem? However, you may ask if someone is a current user of illegal drugs or if they have been convicted of manufacturing or distributing illegal drugs. Applicants Should Not be Rejected Because They are Alcoholics or Former Drug Users Assuming that an alcoholic or former drug user will be bad for your property is a generalized stereotype based on a disability - and, is illegal. Each applicant is entitled to an individual assessment relating to eligibility, and assumptions based on preconceived notions should be avoided. In other words, simply being a current or former alcoholic and/or former drug user is not grounds to exclude or evict. A Direct Threat Allows for the Exclusion of Substance Abusers Persons who are a direct threat to the property or other people are not protected by the FHA. But, how do you know if a person poses a direct threat? Subjective beliefs, generalized stereotypes, and speculation about substance abusers are not enough. According to a HUD/DOJ statement on the subject, the assessment must be based on "reliable objective evidence," such as current conduct or a recent history of overt acts. In Wirtz Realty Corporation v. Freund, 721 N.E. 2d 589 (ILL. App. 1999), an Illinois court found that a landlord was justified in evicting a tenant under the "direct threat" defense. The landlord evicted the tenant for engaging in erratic and dangerous behavior. The tenant urinated in the elevator, threatened to kill a neighbor, and threw a lit cigarette and coke can at the doorman, as well as other incidents. He said it was due to mental disorders and sued the landlord under the FHA. Guidance from HUD and DOJ indicates that landlords should perform a direct threat assessment, and consider: The nature, duration, and severity of the risk of injury; and The probability that injury will actually occur. When looking at a recent history of overt acts (such as those outlined in the Wirtz case above), the landlord must take into account whether the individual has received intervening treatment or medication that has eliminated the direct threat. The landlord may ask the individual to document how the circumstances have changed and why he or she no longer poses a direct threat. Based on court cases, it is clear that the mere potential or threat of harm may be enough to constitute a direct threat, even if no actual harm is done. As long as the threat to other people is objective, severe, and real, landlords don t have to wait until the tenant actually hurts someone to use the "direct threat" exception. This point is well made in Foster v. Tinnea, So.2d 782. In this case, a Louisiana court ruled that a tenant with severe brain damage due to an auto accident was a direct threat to other tenants based on his potential for harm rather than any harm he had actually inflicted. He had had altercations with other tenants, chased kids with a knife, listened to loud and vulgar music, and made inappropriate sexual comments to tenants. The "Direct Threat" Defense Does not Eliminate the Possibility of a Reasonable Accommodation Individuals who pose direct threats are still entitled to reasonable accommodations to the point of undue hardship. So, before deciding to reject an applicant or evict a resident, management must consider whether there are any reasonable accommodations that may be made to eliminate the direct threat. Of course, this assumes that a request for such accommodation has been made, either by the resident/applicant or someone acting on their behalf. If such requests are made, landlords are entitled to request verification from a healthcare provider, social worker, or other reliable third parties that the treatment plan will be effective in eliminating the direct threat, as well as assurances that the tenant will comply with its terms. Bottom Line - while current drug users are not protected under fair housing laws, former drug users who have successfully completed or are currently in a rehab program and are no longer engaging in the illegal use of drugs are protected. Requests for reasonable accommodations from former drug users should always be considered and except in the case of a demonstrable direct threat, reasonable accommodations that will allow former drug users to live at a property should generally be granted.