Slide #1 © Copyright 2008 Nan McKay & Associates Terry Provance Public Housing Denials and Terminations © Copyright 2008 Nan McKay & Associates.
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Slide #1 © Copyright 2008 Nan McKay & Associates
Terry Provance
Public Housing
Denials and Terminations
© Copyright 2008 Nan McKay & Associates
Slide #2 © Copyright 2008 Nan McKay & Associates
Welcome to Lunch N Learn!
Today’s Topics:• Denials and terminations in the public housing
program• VAWA protections• Screening and eviction final rule• Eviction notification requirements• Hearings (applicants & tenants)
Slide #3 © Copyright 2008 Nan McKay & Associates
Welcome to Lunch N Learn!
Upcoming topics:• 9/5/08: Occupancy Series
Reasonable Accommodation in the HCV Program – Emily Wilcox, Host
• 9/25/08: Management SeriesHow to Handle Hearings – Cara
Gillette, Host
Slide #4 © Copyright 2008 Nan McKay & Associates
Basic EligibilityRequirements
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Requirements
PHAs may only admit eligible families to the program
This means that they must meet all HUD factors of eligibility
Slide #6 © Copyright 2008 Nan McKay & Associates
Requirements
HUD factors of eligibility• Must be a “family” by PHA definition• Must be income eligible• Must meet SSN, noncitizens rule, consent
form and other PHA requirements to supply information
• Must be suitable
Slide #7 © Copyright 2008 Nan McKay & Associates
Requirements
Standards for adults joining a resident family are the same as for applicant families• Must be suitable• Must meet SSN, noncitizen rule, consent form
and other PHA information requirements• Income eligibility is not redetermined for
resident families
Slide #8 © Copyright 2008 Nan McKay & Associates
Violence Against Women Reauthorization Act of 2005
(VAWA)
Slide #9 © Copyright 2008 Nan McKay & Associates
Denials
VAWA prohibits PHAs from denying admission to otherwise qualified applicants simply because they are, or have been, victims of domestic violence, dating violence, or stalking
Slide #10 © Copyright 2008 Nan McKay & Associates
Terminations
VAWA states that an incident or incidents of actual or threatened domestic violence, dating violence, or stalking• Will not be construed as a serious or repeated
violation of the lease by the victim or threatened victim
• Will not be good cause for terminating the tenancy or occupancy rights of the victim
Slide #11 © Copyright 2008 Nan McKay & Associates
Terminations
However, the PHA may terminate assistance to any individual who is a tenant or lawful occupant, and who engages in criminal acts of violence against family members or others
Slide #12 © Copyright 2008 Nan McKay & Associates
Terminations
A PHA may bifurcate a lease in order to evict any individual who is the perpetrator of such violence without evicting or otherwise penalizing the victim
Bifurcate means to split in two
Slide #13 © Copyright 2008 Nan McKay & Associates
Terminations
The authority to bifurcate the lease or otherwise remove someone is applicable to all existing leases• Specific bifurcation language isn’t necessary• Federal authority to bifurcate a lease takes
precedence over any federal, state, or local law to the contrary
Slide #14 © Copyright 2008 Nan McKay & Associates
Denials and Terminations
(Not Covered in Screening and Eviction Final Rule)
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Mandatory Denials and Terminations
SSN requirements not met Family member fails to sign and submit
consent forms (both HUD and PHA forms) Family member fails to provide evidence of
citizenship or eligible immigration status Family fails to provide other necessary info
Slide #16 © Copyright 2008 Nan McKay & Associates
Mandatory Denials and Terminations
PHAs must terminate assistance for 24 months if a family allows an ineligible individual to reside in unit• If applies, must deny admission if still w/in the
24 mo• Doesn’t apply to prorated individuals in mixed
families
Slide #17 © Copyright 2008 Nan McKay & Associates
Mandatory Terminations
Considered “Other good cause” in regs:• Non-compliance with community service
Grounds for non-renewal of lease• Failure to accept offer of new lease
Slide #18 © Copyright 2008 Nan McKay & Associates
Allowable Denials and Terminations
May deny or terminate if family:• Engaged in or threatened abusive or violent
behavior towards PHA personnel• Any family member committed fraud, bribery
or any other corrupt, criminal act regarding any federal housing program
Slide #19 © Copyright 2008 Nan McKay & Associates
Allowable Denial
PHA may deny if:• Applicant owes rent or other amounts to the
PHA in connection with public housing or Section 8 programsCollection alternatives may be offered in lieu
of denial
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Allowable Denial
PHA may deny due to:• Not meeting financial obligations, esp rent
Lack of credit history has no bearing on eligibility• Disturbing neighbors• Destroying property• Living or housekeeping habits adversely affecting
health, safety, or welfare of others
Slide #21 © Copyright 2008 Nan McKay & Associates
Allowable Terminations
For serious or repeated violations of lease• Failure to make payments due under lease• Failure to fulfill household obligations as
described in lease (24 CFR 966.4(f))• Being over income limit
Policy issue – not a lease requirementNot if under FSS contract or receiving EID
Slide #22 © Copyright 2008 Nan McKay & Associates
Allowable Terminations
For other good cause, including but not limited to:• Criminal activity or alcohol abuse as defined in
lease (more on this later)• Discovery after admission of facts making
tenant ineligible…
Slide #23 © Copyright 2008 Nan McKay & Associates
Allowable Terminations
Other good cause:• Discovery of false statements or fraud by
tenant in connection with application or reexamination of income
Slide #24 © Copyright 2008 Nan McKay & Associates
Screening and Eviction Final Rule
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Screening & Eviction Rule: Introduction
Screening and Eviction Rule, eff 6/25/01• Provides means to deny applicants engaging in
illegal drug use or other criminal activity• Specifies criminal acts requiring denial or
terminationPHAs may still deny or terminate for other
criminal acts
Slide #26 © Copyright 2008 Nan McKay & Associates
Screening & Eviction Rule: Introduction
The PHA MUST deny/terminate as required by regulations
The PHA MAY deny/terminate for other criminal activity• As described in the ACOP• Important for staff to know ACOP policies
Slide #27 © Copyright 2008 Nan McKay & Associates
Screening & Eviction Rule: Introduction
Gave PHAs authority to obtain criminal conviction records from law enforcement• May have obtained through other means (MOU
with State/local law enforcement)May continue using other means ‘Other means’ not affected by Screening and
Eviction Rule requirementsNeed caution regarding confidentiality
Slide #28 © Copyright 2008 Nan McKay & Associates
Special Authority to Obtain Criminal Record
24 CFR 5.903• Authority to obtain criminal conviction records
from law enforcement agenciesMay be used to screen applicants, enforce lease
or evictMust have signed consent form from each adult
• Rules require law enforcement agency to provide copy of member’s criminal conviction record
Slide #29 © Copyright 2008 Nan McKay & Associates
Special Authority to Obtain Criminal Record
24 CFR 5.903• PHA may only disclose criminal conviction
record info to those with a need to know• Penalties for non-compliance include
Conviction for misdemeanorFine up to $5,000Civil action by applicant
Slide #30 © Copyright 2008 Nan McKay & Associates
Special Authority to Obtain Criminal Record
24 CFR 5.905• PHA must determine if any applicant is subject to
a State’s lifetime sex offender registration requirements Must check in state where housing is and any
state where members known to have residedState or local agency responsible for holding info
MUST provide to PHA upon request
Slide #31 © Copyright 2008 Nan McKay & Associates
Opportunity to Dispute
Prior to taking action based on info received under this authority, PHA must: • Notify applicant / tenant of proposed action• Provide copy of record to subject and
applicant / tenant• Provide opportunity to dispute accuracy &
relevance
Slide #32 © Copyright 2008 Nan McKay & Associates
Records Management
PHA system of records management must ensure records obtained under 24 CFR 5.903/5.905 are:• Maintained confidentially• Not misused or improperly disseminated
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Records Management
PHA system of records management must ensure records obtained under 24 CFR 5.903/5.905 are:• Destroyed once purpose accomplished
Includes expiration of period for filing challenge to PHA action if challenge/litigation not instituted
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Denials and Terminations under the Screening and
Eviction Final Rule
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Household Members
Note that the regulations refer to actions by household members
HUD defines a household as the family and a PHA-approved live-in-aide (24 CFR 5.100)
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Mandatory Denial and Termination
Must deny (permanently) or terminate immediately (required lease provision) if:• Any household member has ever been
convicted for manufacture or production of methamphetamine on premises of federally assisted housing
Slide #37 © Copyright 2008 Nan McKay & Associates
Mandatory Denial
Must deny if:• Any household member evicted from federally
assisted housing for drug-related criminal activity for 3 yrs from date of evictionDrug-related means illegal manufacture, sale,
distribution, or use of a drug, or possession with intent to manufacture, sell, distribute, use
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Mandatory Denial
Persons evicted for drug-related criminal activity• PHA may waive (PHA policy) if:
• Successfully completed rehab• Circumstances no longer exist (e.g. death or
imprisonment)
Slide #39 © Copyright 2008 Nan McKay & Associates
Mandatory Denial
Must deny if:• Any household member currently engages in
illegal use of drugs or• Member’s illegal use or pattern of use may
threaten health, safety, peaceful enjoyment of the premises by other residents
Slide #40 © Copyright 2008 Nan McKay & Associates
Mandatory Denial
Must deny if:• Any household member’s abuse or pattern of
abuse of alcohol may threaten health, safety or peaceful enjoyment of premises by other residents.
Slide #41 © Copyright 2008 Nan McKay & Associates
Mandatory Denial
Must deny if:• Any household member is subject to lifetime sex
offender registration requirementProhibit if any member is subjectChecking Internet listings is OK
Slide #42 © Copyright 2008 Nan McKay & Associates
Allowable Denial
HUD does not prevent PHA from denying admission for criminal activity• Other than that specified in the rule or• Which has taken place at times other than
those specified• Must specify in ACOP
Slide #43 © Copyright 2008 Nan McKay & Associates
Allowable Termination Required Lease Provisions
PHA must provide for termination in the lease:• Abuse or pattern of abuse of alcohol that
threatens…• Illegal drug use or pattern of use that
threatens…• False or misleading info concerning alcohol
abuse or drug use, or rehabilitation
Slide #44 © Copyright 2008 Nan McKay & Associates
Allowable Termination Required Lease Provisions
PHA must provide for termination in the lease:• Drug-related criminal activity by any tenant,
member of tenant’s household or guest on or off premises
• Such activity on premises by other person under tenant’s control
Slide #45 © Copyright 2008 Nan McKay & Associates
Allowable Termination Required Lease Provisions
Definitions:• Guest – a person temporarily staying in unit with
consent of tenant or other member who has authority to consent
• Other person under tenant’s control – short term invitee on premises when activity in question occurredNot if present solely for legitimate commercial
purposes
Slide #46 © Copyright 2008 Nan McKay & Associates
Allowable Termination Required Lease Provisions
PHA must provide for termination in the lease:• Criminal activity that threatens health, safety,
peaceful enjoyment of premises by other residents, PHA management/staff residing, and/or persons residing in immediate vicinity
Slide #47 © Copyright 2008 Nan McKay & Associates
Allowable Termination Required Lease Provisions
Although required lease provisions, PHA is not mandated to evict in all situations.
Should consider circumstances (will discuss shortly)
Slide #48 © Copyright 2008 Nan McKay & Associates
Allowable TerminationsOptional Lease Provisions
PHA lease may provide for eviction of a tenant who is:• Fleeing to avoid prosecution, custody, or
confinement after felony conviction (also high misdemeanors in NJ)
• Violating condition of probation or parole
Slide #49 © Copyright 2008 Nan McKay & Associates
Evidence of Criminal Activity
The PHA may terminate for criminal activity if PHA determines the household member has engaged in the activity • Regardless of whether there has been an
arrest or convictionDetermination is based on preponderance of
evidence
Slide #50 © Copyright 2008 Nan McKay & Associates
Where PHA may deny or terminate, PHA may consider the:• Seriousness of the case
For denial, including the time and nature of the applicant’s conduct
• Extent of participation or culpability of individual family members
Consideration of Circumstances
Slide #51 © Copyright 2008 Nan McKay & Associates
PHA may consider:• Extent tenant has taken responsibility and has
taken steps to prevent or mitigateReasonable probability of favorable future
conduct• Effects of denial/termination on other
uninvolved family members• What purpose would denial/termination serve?
Consideration of Circumstances
Slide #52 © Copyright 2008 Nan McKay & Associates
Consideration of Circumstances For household member no longer engaged in
illegal drug use or alcohol abuse, PHA may consider whether member:• Is participating in supervised drug or alcohol
program;• Has successfully completed a supervised drug or
alcohol program; or…
Slide #53 © Copyright 2008 Nan McKay & Associates
Consideration of Circumstances
PHA may consider whether member:• Has otherwise been successfully rehabilitated
May require member to submit evidenceSpecial provisions (24 CFR 960.205) for
obtaining info from drug treatment facilities for applicants (PHA policy)
• Only to determine if currently using
Slide #54 © Copyright 2008 Nan McKay & Associates
Consideration of Circumstances
The PHA may impose a requirement that culpable family members may not reside in the unit and provide assistance to the remaining members
Slide #55 © Copyright 2008 Nan McKay & Associates
Consideration of Circumstances
PHA’s decision is subject to consideration of reasonable accommodation if family includes a person with disabilities• Actions must be consistent with fair housing & equal opportunity
Slide #56 © Copyright 2008 Nan McKay & Associates
Eviction and Notification Requirements
Slide #57 © Copyright 2008 Nan McKay & Associates
Eviction by Court Action
PHA may evict only by bringing court action…
Slide #58 © Copyright 2008 Nan McKay & Associates
How Tenant is Evicted
Unless State/local law permits eviction by administrative action• To evict without court action, tenant must be
given opportunity for a pre-eviction hearing
Slide #59 © Copyright 2008 Nan McKay & Associates
Lease Termination Notice Requirements
PHA shall give written notice of:• 14 calendar days for failure to pay rent• Reasonable time considering seriousness of
situation, not to exceed 30 days:When health or safety of other residents, PHA
employees or persons in immediate vicinity of premises is threatened
Slide #60 © Copyright 2008 Nan McKay & Associates
Lease Termination Notice Requirements
Reasonable (not to exceed 30 days) if:• Any member engaged in drug-related
criminal activity or violent criminal• If any member of household has been
convicted of a felony 30 days in any other case except if state or
local law allows shorter
Slide #61 © Copyright 2008 Nan McKay & Associates
Lease Termination Notice Requirements
Notice of lease terminations shall state:• Specific grounds for termination• Tenant’s right to make reply• Right to examine PHA documents directly
relevant to termination or eviction• Right to request a hearing
Slide #62 © Copyright 2008 Nan McKay & Associates
Lease Termination Notice Requirements
When PHA not required to give hearing, notice of lease termination must state: • Tenant not entitled to hearing• Entitled to due process in court• State whether the eviction is for:
Criminal activity that threatens… or Violent or drug-related criminal activity on or off the
premises
Slide #63 © Copyright 2008 Nan McKay & Associates
Lease Termination Notice Requirements
Notice to vacate required by state/local law:• May be combined with federal requirements,
or • May run concurrently with other lease
termination notice
Slide #64 © Copyright 2008 Nan McKay & Associates
Nondiscrimination Limitation
Actions carried out by PHAs relating to evictions must be consistent with fair housing and equal opportunity provisions of 24 CFR 5.105• Lists Federal mandatory references • PHA must treat protected classes same as
others
Slide #65 © Copyright 2008 Nan McKay & Associates
Notice to the Post Office
When PHA evicts an individual or family for criminal activity, PHA must notify local post office• Purpose:
PO will terminate delivery of mail Evicted persons will not return to the project to
pick up their mail
Slide #66 © Copyright 2008 Nan McKay & Associates
Informal Hearings for Applicants
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Informal Hearings
PHA must provide prompt notice of denial of admission. Notice must:• Contain statement of reasons for decision• State that applicant may request informal
hearing• Describe how to obtain the hearing
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Informal Hearings
Conducted by PHA designated person• Should not be person who made/approved decision,
or their subordinate (safe harbor) Provides applicant opportunity to present
objections After informal hearing, PHA should promptly notify
family in writing of final decision, with reasons
Slide #69 © Copyright 2008 Nan McKay & Associates
Grievance Hearingsfor Residents
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Definitions
Grievance• Any dispute a tenant may have regarding PHA
action or failure to act in accordance with lease or PHA regulations which adversely affect tenant’s rights, duties, welfare or status
• We will focus on those grievances involving terminations
Slide #71 © Copyright 2008 Nan McKay & Associates
Definitions
Complainant • Any tenant whose grievance is presented
Elements of due process• Eviction action or termination of tenancy in
state/local court in which the following safeguards are required…..
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Definitions
Elements of due process• Adequate notice to the tenant• Right of tenant to be represented by counsel• Opportunity for tenant to refute evidence,
including the right to confront or cross-examine witnesses & present defense
• A decision on the merits
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Definitions
Hearing officer/panel • A person/panel selected to hear grievances and
render decisions Tenant – Adult person other than live-in aide
• Resides in unit & executed lease, or• Person residing in unit who is remaining head of
household of tenant family
Slide #74 © Copyright 2008 Nan McKay & Associates
Due Process States
In due process states, grievance procedures may be bypassed for:• Any criminal activity that threatens…• Any violent or drug-related criminal activity on
or near the premises• Any criminal activity that resulted in a felony
conviction of a household member
Slide #75 © Copyright 2008 Nan McKay & Associates
Grievance Procedures - Due Process States
In due process states:• May evict through judicial eviction procedures
without a PHA grievance hearing• If hearing not required, PHA must notify
the tenant HUD has determined that all states are now
due process states
Slide #76 © Copyright 2008 Nan McKay & Associates
Accommodation of Persons with Disabilities
PHA grievance procedure must provide reasonable accommodation• Could include qualified sign language
interpreters, accessible locations, and/or attendants
• Notices must be in accessible format if tenant visually impaired
Slide #77 © Copyright 2008 Nan McKay & Associates
Informal Settlement of Grievances
Grievances (oral/written) are presented by tenants to PHA or project office
Slide #78 © Copyright 2008 Nan McKay & Associates
Informal Settlement of Grievances
Objective is to discuss informally Not required for expedited grievance
procedures, nor if PHA can/will bypass grievance process
PHA must send tenant a summary of discussion in reasonable time
Slide #79 © Copyright 2008 Nan McKay & Associates
Informal Settlement of Grievances
Summary must specify• Names of participants• Dates of meeting• Proposed disposition of complaint• Reasons for decisions• Procedures for hearing if tenant not satisfied
Slide #80 © Copyright 2008 Nan McKay & Associates
Requesting Grievance Hearings
Tenant must submit written request to PHA within reasonable time• Request must specify reasons for hearing and
action or relief sought
Slide #81 © Copyright 2008 Nan McKay & Associates
Failure to Request Hearing
Informal grievance summary and/or eviction action final if tenant does not request a hearing
Failure to request hearing is not waiver of tenant’s right to contest action in court
Slide #82 © Copyright 2008 Nan McKay & Associates
Selection of Hearing Officer/Panel
Impartial party appointed by PHA, other than person who made/approved the PHA action, or their subordinate• Method stated in PHA grievance procedure• Tenant not precluded from being Hearing
Officer
Slide #83 © Copyright 2008 Nan McKay & Associates
Scheduling Hearings
Scheduled promptly at time & place convenient to both parties
Written notice provided to tenant & PHA official
Slide #84 © Copyright 2008 Nan McKay & Associates
Requesting a Transcript
Tenant or PHA may arrange in advance for a transcript of the hearing• Some PHAs record hearings on audio tape
as standard procedure Any interested party may purchase a
copy of the hearing transcript
Slide #85 © Copyright 2008 Nan McKay & Associates
Tenant’s Rights Opportunity to examine relevant PHA docs
• Includes relevant records/regs• Tenant has right to copy documents at own expense
If related to termination, PHA may not proceed with the eviction if docs not made available• Otherwise, PHA cannot rely on such docs not made
available for examination upon request Private hearing unless public hearing requested
Slide #86 © Copyright 2008 Nan McKay & Associates
Procedures Governing Grievance Hearings
Grievance hearings held before hearing officer or panel
If tenant or PHA representative does not appear hearing officer or panel may:• Postpone for up to 5 days• Decide missing party has waived right to hearing
Slide #87 © Copyright 2008 Nan McKay & Associates
Procedures Governing Grievance Hearings
Tenant has right to elements of due process Hearing conducted:
• Informally• Evidence received without regard to rules
applicable to judicial proceedings• Orderly
Slide #88 © Copyright 2008 Nan McKay & Associates
Decision of Hearing Official
Hearing official must give tenant & PHA written decision within reasonable time after hearing
PHA keeps copy in tenant file• Must keep copy w/names & identifying refs
deleted for prospective complainants, their reps, or hearing officials
Slide #89 © Copyright 2008 Nan McKay & Associates
Decision of Hearing Official
A decision favorable to the PHA does not waive the right of the tenant to pursue the matter through judicial proceedings
Slide #90 © Copyright 2008 Nan McKay & Associates
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