HCV Informal Reviews & Hearings Housing Choice Voucher Program January 11, 2017 Presenter: Julie O Connor
What is the purpose of a PHA? to provide Housing But what happens when the families you serve do not hold up their end of the bargain?
What Authority Does a PHA have to Deny or Terminate assistance? 24 CFR 982.552 and 553 Admissions and Terminations 982.554 and 555 Informal Reviews and Informal Hearings 982.54 Administrative Plan PIH 2015-19 Guidance on Excluding the Use of Arrest Records in Housing Decisions HUD Guide - Chapter 16 Informal Reviews and Hearings HUD forms - Housing Choice Voucher Form 52646
MAY vs MUST Permissive/ Discretionary: o may or will, authority to, or however - PHA establishes standards on how they will handle the scenario Mandatory o must -PHA Establishes Standards to cover the exceptions
Permissive Grounds Action or inaction by family Assistance MAY be denied When: Denying listing on the PHA waiting list Denying or withdrawing a voucher Refusing to enter into a HAP contract or approve a lease Refusing to process or provide assistance under portability procedures
DISCRETIONARY Grounds Authority to deny admission or terminate assistance Assistance MAY be denied When: Family violates program obligations Any member was evicted from public housing/section 8 assistance was terminated Owes money to any HA Breaches a repayment agreement Engages in/threatens abusive or violent behavior toward HA personnel
DISCRETIONARY Grounds Authorityto to deny admission or terminate assistance Violent or drug-related criminal activity Member commits fraud, bribery, or other corrupt criminal act Fails to comply with FSS or WTW program
Discretionary considerations May consider relevant circumstances May exclude a household member May Consider Evidence of Rehab Mustallow Reasonable Accommodations Mustcomply with Fair Housing and protection for victims of domestic violence LOOK at your Admin Plan for other considerations
MANDATORY Grounds Denial Of Admission Must be denied: Household is not eligible Refuses to sign forms Does not need assistance Fails to meet mandatory screening requirements Drug and Criminal activity
MANDATORY Grounds Terminating assistance for drugs, alcohol, other criminal activity Must establish standards to terminate: currently engaged in any illegal use of a drug; or a pattern of illegal use of a drug violated the family's obligation not to engage in any drug-related criminal activity Other criminal activity Alcohol abuse Do you know what standards are in your Admin Plan?
MANDATORY Grounds MUST Terminate Assistance When: Household member convicted of producing methamphetamine in Section 8 unit or building Refusal to sign consent forms Failure to comply with non-citizen reporting requirements Family not eligible due to immigration status
Are you Ready to Deny or Terminate Assistance? Do you have enough documentation? Is it good, bad, or meeting the requirements for preponderance of the evidence?
Documentation Good File documents Application/Personal declaration Third party verification/eiv Public records Witness with first hand knowledge Bad Unverified or unverifiable verbal reports/allegations/complaints Assumptions/conclusions based upon unverified fact Drives a luxury car, must be committing fraud
What about those great photos? Documentation Photo logs Who took it What does it show Where was it taken When was it taken Why is photo important Color copies
Documentation Preponderance of the evidence It is the responsibility of the housing agency to prove that the applicant/participant does not qualify for participation in the program Best forms of evidence include: File documents Application forms Third Party Verification/EIV reports Legal Definition of Preponderance of the Evidence: The burden of proof required in a civil (non-criminal) action to convince the court that a given proposition is true The plaintiff must convince the judge or jury by a preponderance of the evidence that the plaintiff's version is true More than 50% of the believable evidence is in the plaintiff's favor www.nolo.com
PIH 2015-19 19 Arrest is NOT Preponderance of the evidence Arrest Records cannot be usedto deny or terminate assistance If an individual was arrested, it is not evidence that he or she has engaged in criminal activity. An arrest shows nothing more than that someone probably suspected the person apprehended of an offense.
Characteristics of a Well Written Denial/Termination Notice Written notice State reason Identify the CFR Include the facts to support the violation Explain how the facts are connected If denying or terminating for several reasons, list them all! Identify and provide any Criminal Records CFR 982.553 (d)(1 &2)
Characteristics of a Well Written Denial/Termination Notice Right to request an Informal review/ hearing Or state why they are not entitled 982.554 (c) & 982.555 (b) Deadline What does your ADMIN Plan say? Right to inspect documents How to request a reasonable accommodation if needed
Purpose of Informal Reviews and Hearings Resolve HCV applicant & participant disputes without legal action Enforce Federal Regulations Resolve the problem Enforcement as a Deterrent Opportunity to correct PHA errors that may have occurred in the decision making process
Informal Review and Hearing Goals Treatment that is fair, equitable and professional Consistency and accuracy Timely actions after the applicant /participant request Compliance with applicable laws, HUD regulations and PHA policies
Informal Reviews Required Decisions Concerning: Listing on PHA s Waiting List Voucher Issuance Participation in Program Any Type of Preference Not Required Unit Size under PHA s Subsidy Standards Rejection of Units that Fail HQS or are not in accordance with Family Size Disapproval of Owner s lease Refusal to Extend Voucher General Policy Issues or Class Grievances Discretionary Administrative Determinations by PHA
Informal Hearings Required Decisions Concerning: Eligible Immigration Status Calculation of TTP or Tenant Rent Determination of Appropriate Utility Allowance from PHA s Utility Allowance Schedule Termination of Assistance Unit Size Determinations Denial of a hardship exemption to the minimum rent requirements Not Required Rejection of Unit that Fails HQS Unit Not in Accordance With HQS Due to Family Size How the PHA Establishes its Utility Allowance Schedule Refusal to Extend a Voucher PHA Discretionary Administrative Determinations General Policy Issues or Class Grievances PHA Determination not to approve a Unit/Lease A Determination to Exercise or Not Exercise any Right or Remedy Against the Owner under a HAP Contract
Family s Rights Representation Examine relevant documents Present evidence and arguments Decision based upon the facts presented at the hearing
Documentation Do you have everything you need to present at a hearing? Supporting Evidence Cost to copy Criminal Activity reason
PHAs rights: The PHA hearing procedures may provide: The PHA examine any family documents at PHA offices beforethe PHA hearing PHA allowed copies at PHA s expense. If documents were requested and not provided in advance, may not be relied upon at Hearing
Important Note The Hearing Officer must make his/her decision: Based solely and exclusively upon the facts presented at the hearing
Hearing Officers Staff person from department but different functional team Staff person from different department Outside PHA (attorneys, other civic-minded) Ensure they know program regulations and PHA policy Panels of program participants, staff, impartial representatives from outside PHA
Requests for Informal Review/Hearing Only accept requests that are received in accordance with your administrative plan Making exceptions opens the door to challenge
Scheduling the Hearings Notification includes: Date, time & location of hearing Family s right to bring evidence, witnesses, legal or other representation Right to view any documents or evidence PHA will request copies of documents or other evidence family will use, prior to hearing If special needs, family should request reasonable accommodation prior to hearing
Hearings Concerning Termination of Assistance PHA is required to conduct the hearing prior to terminating assistance. The PHA mayimplement the following changes prior to the hearing: Changes in TTP or tenant rent; Denial of a new voucher for a family that wants to move; or Unit-size determinations for a family that wants to move
Preparing the Hearing Packet Review pertinent documents Appropriate number of copies of documents: one for the file, one for the participant and one for the hearing officer Participant name and corresponding Housing Specialist name to Receptionist, so the she knows to expect a hearing participant Written chronology helpful
Conducting the Hearing Greet, introductions, record of all participants Method of record -written notes, recording Direct questions to hearing office Opportunity for each side to present arguments Ask questions Keep control Inform participants when decision will be made Make decision based on information presented
Informal Hearing 24 CFR 982.555 Option to have counsel at own expense Must provide a private hearing if requested Must issue a written decision Promptly a copy in file No Federal right to record hearing
Document the Hearing Who Attended? What was Reason? What Occurred? No Federal Right to record hearing What was said What Evidence was presented?
Decision Clear, complete and concise Brief overview of the grounds for the decision, including regulatory citation Factual determinations based on the evidence presented at the hearing The decision to uphold or overturn the PHA determination Reasons for the decision
PHA not bound by decision Not bound by the Hearing Officer s Decision when: a hearing is not required the decision exceeds the authority of the hearing officer the decision is contrary to HUD regulations/requirements the decision is contrary to federal, state or local law Promptly notify the family of the determination, and of the reason(s)
Best Practices Include informal hearing information on all termination letters Schedule informal reviews and hearings within [x days] of receipt of request Conduct the informal hearing within [x days] of receipt of the request Review [x%] of hearing decisions to ensure compliance with HUD regulations and PHA policies and procedures
Fair Housing Non-Discrimination Discrimination means to make a decision in favor of or against a person on the basis of the group, class, or category to which the person belongs rather than according to the individual merits of the situation. In federal law the groups, classes or categories are known as Protected Classes
Federal Protected Classes Race Color Religion Sex National Origin Age Disability Familial Status
It s the Law Fair Housing Act (Title VIII of the Civil Rights Act of 1964) Title VI of the Civil Rights Act of 1964 Section 504 of the Rehabilitation Act of 1973 Section 109, Title 1 of the Housing and Community Development Act of 1974 Title II of the Americans with Disabilities Act of 1990 Architectural Barriers Act of 1968 Age Discrimination Act of 1975 Title 6 of the Education Amendments Act of 1974
Reasonable Accommodation In addition to non-discrimination, fair housing rules require that PHAs and landlords make reasonable accommodations for individuals with disabilities. Reasonable accommodations can include: Modifying policies, procedures and practices when needed to make it possible for the person to participate in the program or occupy a unit Sometimes allowing the tenant to make physical modifications to the unit and common areas to accommodate a mobility impairment. Accommodations are reasonable if they do not provide an undue administrative or financial burden or change the nature of the program.
Reasonable Accommodations and Termination of Assistance If PHA terminating assistance the family will be informed that presence of a disability may be considered as a mitigating circumstance. Examples: A person with a cognitive disorder may not have understood the requirement to report increases in income; A person may not understand the need to make regular repayments on a promissory note; and Any other mitigating circumstance as defined by the PHA
Special Needs at Hearing Accessible location Reasonable accommodation examples: Sign language interpreter for hearing impaired Braille, large print, reader or other accommodation for a sight-impaired person, or other accommodations requested by a person with a disability Should be requested in advance and if reasonable, granted
Do the small things the basic things right every day sometimes we try to overcomplicate things We want to be brilliant to the basics. Buck Showalter Manager, Baltimore Orioles
Questions?