[Federal Register Volume 59, Number 139 (Thursday, July 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17703]
[[Page Unknown]]
[Federal Register: July 21, 1994]
-----------------------------------------------------------------------
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Assistant Secretary for Fair Housing and Equal Opportunity
[Docket No. N-94-3661; FR-3566-N-05]
Task Force on Occupancy Standards in Public and Assisted Housing
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal
Opportunity, HUD.
ACTION: Notice of Availability of Final Report.
-----------------------------------------------------------------------
SUMMARY: The Task Force on Occupancy Standards in Public and Assisted
Housing was established on December 31, 1992 in accordance with the
provisions of section 643 of the Housing and Community Development Act
of 1992 (P.L. 102-550) and the Federal Advisory Committee Act (FACA) (5
U.S.C. App 2). The Task Force's charter was published in the Federal
Register on January 7, 1993 at 58 FR 3039. The Task Force was created
to review all rules, policy statements, handbooks and technical
assistance memoranda issued by the Department on the standards and
obligations governing residency in public and assisted housing; and
make recommendations in its final report to HUD and Congress for the
establishment of reasonable criteria for occupancy, so that HUD could
revise its standards, regulations, and guidelines to provide accurate
and complete guidance to owners and managers of federally assisted
housing.
The preliminary report of the task force was made available by a
Federal Register Notice published on August 31, 1993, at 58 FR 45905.
The public was given 60 days to submit comments on the preliminary
report.
This notice is to provide the public with the Executive Summary of
the Report and announce the availability of the Task Force's Final
Report from the Fair Housing Clearinghouse (1-800-343-3442) or (TDD)
(1-800-927-9275), 1600 Research Boulevard, Rockville, Maryland 20850.
This Report reflects the opinions of the Task Force and does not
necessarily represent Departmental policy or procedures. The Department
is presently considering all the recommendations and expects to publish
rules and guidance addressing the issues raised in the Report.
FOR FURTHER INFORMATION CONTACT: Laurence D. Pearl, Director, Office of
Program Standards and Evaluation, Office of Fair Housing and Equal
Opportunity, Room 5226, Department of Housing and Urban Development,
451 Seventh Street, SW, Washington, DC 20410. Telephone: (202) 708-0288
(voice) or (TDD) (202) 708-0113 (These are not toll-free numbers.)
SUPPLEMENTARY INFORMATION: The Executive Summary of the Report.
Preface--Funding and Finance Issues
Throughout its deliberations and recommendations, one theme about
which Occupancy Task Force members agreed was that low-income people
should have more housing choices than they do at present. The issue of
housing choice, along with many other concerns the Task Force
addressed, is complicated by scarcity of resources. The Task Force
therefore proposes a number of recommendations aimed specifically at
funding and cost issues.
Chapter 1--The Application Process
In preparing its report, the Occupancy Task Force decided that it
would be more useful to begin by addressing the sequential tenancy
process: the application process, occupancy and eviction. The first
stage of this process, during which applicants are screened for
eligibility and tenant selection criteria, is an extremely important
one in that the applicants who are selected will become members of the
resident community and those who are not selected will be denied the
opportunity to live in federally assisted housing. Thus, the Task Force
spent significant time considering the issues contained in the
Application Process Chapter. In doing so, the Task Force balanced the
rights of housing providers to choose residents who will fulfill their
lease obligations and the rights of applicants to be chosen fairly.
In addition to including the Task Force's specific recommendations,
Chapter One describes the application process from start to finish in
order to provide a full context for the recommendations. In particular,
the application process issues addressed by the Task Force include the
following:
Guiding principles for the application process;
Accessibility of the application process and the need for
plain language forms and documents;
Marketing;
Waiting lists;
Occupancy standards;
Rent reform;
Screening applicants, including applicants with non-
traditional tenant histories;
Reasonable accommodations in the application and screening
process;
Disability-related inquiries; and
Determinations involving alcohol and controlled
substances.
Chapter 2--Management
The application process ends when the housing provider makes the
decision to admit an applicant. Next, the housing management process
begins, encompassing orientation, execution of the lease, move-in,
occupancy and lease compliance. The Task Force addressed the following
topics within the housing management process;
Guiding Principles for the housing management process;
The lease;
Preventing and addressing lease violations;
Unit transfers; and
Retention of housing during hospitalization or residential
treatment.
Chapter 3--Evictions
Eviction from public or assisted housing is a very serious
sanction; it not only displaces the resident, it also discontinues the
subsidy that makes housing affordable to that resident. Eviction is
nonetheless occasionally necessary. Experience shows that some
individuals are not willing to meet the essential obligations of
tenancy and must be removed in order to preserve the viability of the
housing development. Given the shortage of public and assisted housing,
and the difficulty of preserving this housing, the Task force also
stresses the need to remove those whose conduct is destructive to the
development.
An equitable eviction policy will authorize the eviction, in
appropriate circumstances, of those residents whose conduct violates
essential provisions of the lease, those whose conduct repeatedly
violates minor provisions of the lease, and those who allow others to
do so. The Task Force reviews the proper use of eviction as focusing
generally on whether and how seriously the conduct in question
adversely affects the housing community. In addition, the Task Force
recommends that except as noted, the status, regulations, handbooks and
lease provisions regarding eviction not be changed.
The report addresses the following topics:
Alternatives to eviction;
Alternatives after eviction, to prevent homelessness;
Notices;
Drug abuse and drug related crime;
Criminal activity as grounds for eviction;
Former users of illegal drugs;
Fraud;
Minor crimes and off-premises criminal activity;
Public housing grievance procedure;
Residents' liability for the actions of others;
Consideration of all the facts and circumstances;
Criminal activity prior to admission;
Subsidy termination--certificate and voucher programs; and
Subsidy termination--assisted housing.
Chapter 4--Reasonable Accommodations
Reasonable accommodation is a creative, challenging and evolving
area of disability law and practice, affecting every aspect of
admissions, occupancy and evictions. The Task Force believes that,
despite many uncertainties as to what is required by law, it is
possible to craft sound, basic, reasonable accommodation policies and
procedures which will satisfy the intent of the law without subjecting
either persons with disabilities or housing providers to unintended
burdens.
This chapter tackles a wide range of reasonable accommodations
issues with the intention of providing guidance on the procedural
elements essential to achieving compliance. Specifically, the chapter
is organized as follows:
Regulatory and case-law references that provide background
on the concept of reasonable accommodation followed by brief discussion
of program accessibility requirements (the self-evaluation and
transition plan);
Discussion of a definition of reasonable accommodation;
Statement of principles applicable to reasonable
accommodations, drawn from current law and regulation and describing
both affirmative requirements and the regulatory limits placed on the
implementation of the concept;
Examination of the regulatory limits that apply to
accommodations (undue burdens and fundamental alterations);
Recommendations on effective implementation of reasonable
accommodations;
Review of diverse reasonable accommodation issues
including disagreements about types of accommodation, accommodations in
the occupancy cycle, procedures related to service animals, and the use
of interpreters; and
Recommendations for HUD Technical Assistance.
Chapter 5--Fundamental Alterations
Both Section 504 of the Rehabilitation Act of 1973 and the Fair
Housing Amendments Act of 1988 anticipate that, at some level, the
compliance action requested or required may exhaust available resources
or so alter the housing program that the action becomes infeasible.
Housing providers are required to judge the feasibility of compliance
actions against two criteria; fundamental alternations in the nature of
the program and undue financial and administrative burdens. This
chapter frames these issues in the context of program operations and
management.
Fundamental alternations in the nature of the program and undue
financial and administrative burdens raise issues of resource
management, capital planning, and ultimately, program funding. Many
compliance actions can be absorbed with existing program funds, but the
cost of making some programs accessible and responding to some requests
for accommodations will require that Congress recognize the need for
increased funding levels. Greater flexibility in HUD's rules governing
the use of operating and capital budgets is also required. Specific
changes in budget operating procedures and formula calculations are
recommended.
The Task Force also makes a general recommendation to increase the
level of modernization funds for both public and assisted housing.
This chapter includes:
Examples of actions that might result in fundamental
alternations;
Suggestions for evaluating fundamental alternations in
light of the program purpose and any services delivered on site;
Treatment of profit at assisted housing properties;
Principles that explain how the undue burdens test is
unique to each reasonable accommodation request and how to judge the
impact of compliance actions against available program resources;
Use of operating and capital budgeting line items for
reasonable accommodation and other compliance requirements;
Program factors to consider when assessing undue burdens;
Procedural frameworks for evaluating undue financial
burdens in public and assisted housing; and
A plan for identifying unfunded accessibility needs.
Chapter 6--Certificates and Vouchers
During the course of its deliberations, the Task Force generally
discussed issues that could be addressed in a unified manner for all
federally subsidized housing programs, such as the need for plain
language forms and communications. Thus, the Task Force wishes to make
clear that all such global recommendations, such as the need for plain
language and timely and adequate notice, apply in the Section 8
Certificate and Voucher programs.
However, the Task Force also dealt with issues in the public
housing and project-based assistance programs, such as admissions
procedures, that could not be so readily carried over into the context
of the Certificate and Voucher programs; this posed a particular
challenge. In those programs the housing authority does not admit an
applicant to housing, is not the resident's landlord and does not
evict. Instead, in a delicate balance among the three parties involved,
the housing agency provides a rental subsidy to the participant and, as
a quid pro quo to the private landlord's receipt of a portion of the
market rent, enforces specific regulatory provisions incorporated into
the Housing Assistance Payments contract. Between the private landlord
and the resident-recipient flow another set of rights and obligations,
arising from the lease, the HAP contract, federal law and regulation
and state law.
In this chapter, the Task Force has addressed only those issues
that were of particular concern to Task Force members or were congruent
with issues raised in the project-based context. The Task Force has not
attempted a wholesale critique of the Certificate and Voucher programs
not wholly rewritten any area of program administration. Nor has the
Task Force, in particular, dealt with the proposed regulations to
consolidate the Certificate and Voucher programs, which have not yet
been implemented and so do not represent current practice. This Chapter
includes recommendations concerning:
Expirations/extensions of time;
Exemptions to fair market rents;
Assistance for individuals with disabilities;
Waiting lists;
Evictions/terminations of assistance;
Lease terminations in the first year of the lease;
Damage and vacancy claims;
Housing quality standards;
Reasonable accommodations; and
Portability/mobility.
Chapter 7--Support Services
This chapter examines the intersection of housing and services and
makes recommendations to Congress, HUD and the Department of Health and
Human Services (HHS) about improving coordination, access, and delivery
of services in an independent housing context. Many people who live in
federally subsidized housing need, want and are eligible for services
that have some form of federal subsidy or some form of federal mandate
or encouragement. Services could help maintain tenancies and
independence, promote economic and educations opportunity, and
generally enhance the lives and opportunities of those who live in
federally subsidized housing. The Task Force believes that one major
problem is that the housing and service systems often do not understand
one another or work in a coordinated way to help the same individual.
Because issues of coordination can be addressed only if HUD and HHS
work together, this chapter makes recommendations to HHS even though
the Task Force was created to advise Congress about HUD matters.
Part A of this chapter covers general services and housing issues
and recommendations to ensure the provision of services to residents.
Part B reviews the planning and funding complexities of federal, state
and local programs, including recommendations to HUD and HHS. Part C
discusses collaborative agreements between housing and services
providers.
Chapter 8--Clearinghouse
In a number of discussions, the Task Force addressed the problems
associated with the lack of effective coordination among housing
providers, supportive service providers, tenant representatives and
advocates. We were also troubled by the general unavailability of
adequate, reliable, technical assistance on reasonable accommodation
procedures and substance.
The Task Force concluded that one way of addressing both problems
was to recommend that Congress require that each state receiving
federal housing assistance establish a model clearinghouse program, to
be funded by the HOME and CDBG programs. This chapter discusses the
scope and purposes of such clearinghouses.
Chapter 9--Confidentiality
Because every housing file contains personal information about
applicants and residents, privacy and confidentiality and persistent
concerns. The civil rights and housing program laws and regulations all
address some aspects of privacy and confidentiality, but they leave
many questions unanswered. Thus, the Task Force recommends that HUD
research the variety of questions and issues that the chapter lists,
consult with interested parties, and issue prompt and responsive
guidance. The questions include issues relating to law enforcement,
reasonable accommodations, resident screening and eviction committees,
state and local laws, and service coordinator and provider
responsibilities.
Chapter 10--NIMBY
NIMBY, the Not In My Back Yard syndrome, both contributes to and is
a form of housing discrimination. Like all forms of discrimination,
NIMBY has ripple effects on subsidized housing providers. When a
neighborhood association successfully prevents people with
disabilities, people with low incomes, and people with no homes from
moving in, it not only exacerbates the pressure on subsidized housing
providers to house these groups, but it reinforces the stereotype that
subsidized housing exists for the purpose of keeping ``the
undesirables'' out of ``decent'' neighborhoods.
NIMBY, like the dearth of affordable housing, has permeated the
Task Force's deliberations. Thus, the purpose of this chapter is two-
fold. It describes how community perceptions and stereotypes can limit
housing opportunities for individuals and families with low- and very
low-incomes; while emphasizing that every individual and family should
have an opportunity to choose from a variety of housing options,
including private, public, federally-assisted, scattered site and
supportive housing. Second, this chapter offers a number of specific
recommendations to Congress and the Executive Agencies with regard to
housing discrimination. This chapter is not an enforcement of one type
of housing option over others but rather an enforcement of individual
choice and empowerment. The Task Force was unanimous in its
identification of discrimination as a major problem for everyone
involved in the housing industry.
Closing Note on Recommendations to HUD
Most of the Task Force's recommendations for HUD action suggest
that HUD develop ``guidance'' for housing providers. The term
``guidance'' means examples, models, and samples, of letters, forms,
procedures, systems, etc., designed to help housing providers without
imposing new requirements on them. The Task Force recommendations for
guidance should not be interpreted by HUD as creating new requirements.
Dated: June 23, 1994.
Roberta Achtenberg,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 94-17703 Filed 7-20-94; 8:45 am]
BILLING CODE 4210-28-P
