National Housing Law Project Housing Law Bulletin

On September 26, 1997, after a few last-minute negotiations with Sen. Wellstone that produced some benefits for tenants, the Senate passed its public housing and certificate and voucher bill, S.462, by unanimous consent.¹

The bill is basically the same as the one reported by the Senate Banking Committee that was described in previous issues of the Bulletin.² In summary, the bill would (1) require public housing agencies (PHAs) to prepare annual and five-year plans for the administration of their programs; (2) allow PHAs to direct more assistance to higher income applicants, and less to those who are poor; (3) increase some opportunities and eliminate others for tenants to participate in the management of their housing; (4) provide some rent relief for tenants who are employed; (5) take away rent relief for tenants who lose income because of welfare sanctions; (6) cut back on the good cause and procedural protections for tenants facing evictions; (7) impose community service requirements; (8) reduce HUD’s oversight of public housing demolition and sales; and (9) consolidate public housing funding into two accounts, one for capital expenditures and another for operating costs.

There were, however, some changes made to the bill between the Committee’s report and the floor consideration that are worth describing here. The first are the changes secured by Sen. Wellstone, on the eve of the bill’s floor consideration. He focused on two concerns, one the tenants’ opportunities to participate in the planning for their developments and, two, the need to protect tenants against the hardships of displacement when their buildings are torn down or sold out from under them. On both counts, Sen. Wellstone secured significant changes that will protect tenants, but, even with the amendments, the bill still provides less protection to tenants than is desirable, or even than current law provides.

Tenant participation. On tenant participation, Sen. Wellstone secured two amendments. The first requires PHAs to make all information related to its draft five-year plan, not just the plan, available to tenants 45 days prior to the public hearing on the plan.³ The second requires PHAs to describe the manner in which they have addressed recommendations made by the resident advisory board concerning the five-year plan.⁴ In a colloquy on the floor, Sen. Mack also assured Sen. Sarbanes that he expected PHAs to publicize the availability of the draft plan by posting notices at each development, and to contact resident groups to inform them as well.⁵

Relocation. On relocation, Sen. Wellstone secured three amendments. First, public housing tenants being displaced must be given at least 90 days’ notice of the date they will have to move.⁶ Second, the relocation housing must rent at a rate comparable to the rent of the public housing unit the tenant is vacating.⁷ Third, the relocation housing must be in an area that is generally no less desirable than the location from which the tenant is moving.⁸ Again, during a floor colloquy, Sen. Wellstone secured from Sen. Mack an assurance that the neighborhoods would have to be no less desirable with regard to facilities, services, access to the tenant’s employment and environmental conditions.⁹

Targeting. The next major change in the bill relates to targeting. As a result of long negotiations among Senate Republicans, Democrats and the Administration, the bill was amended when it was brought to the floor to increase the targeting of tenant-based assistance to lower income applicants. Under the final version, 65 percent — instead of 50 percent — of the applicants provided tenant-based assistance must have incomes at or beneath 30 percent of the area median. In addition, a new category was added, requiring that 90 percent of the applicants provided tenant-based assistance have incomes at or below 60 percent of the area median.¹⁰ In return for those improvements, the bill reduces the percentages from 75 to 70 percent of public housing and project-based Section 8 units that must be rented to applicants with incomes below 60 percent of the area median.¹¹

Eviction without good cause upon lease expiration. Before moving on to the next group of changes, there is one provision in the bill that we missed in our prior analyses, even though it was there in earlier versions. That is a change regarding leases for all federally assisted housing that would allow PHAs to evict tenants from public housing without good cause once a lease expires.¹² The bill would accomplish that result by repealing 42 U.S.C. § 1437d(l)(4), which now prohibits PHAs from terminating public housing tenancies without good cause, and replacing it with language that requires good cause for eviction only during the term of the lease.¹³ The bill would also do the same for Section 8, Section 202 and Section 811 housing. That change must be eliminated in conference.

PHA plans. On the PHA plans, several other provisions were added beyond those secured by Sen. Wellstone. One specifically requires HUD to determine whether a PHA’s plan is consistent with the locality’s CHAS or Consolidated Plan.¹⁴ Another allows HUD to decide not to review elements of a PHA’s plan, other that the capital expenditures plan and the civil rights certification, unless they are challenged in a complaint.¹⁵ More significantly, a provision was added requiring the PHA to comply with the rules, standards and policies set out in its plans, and authorizing administrative complaints to HUD if there is noncompliance.¹⁶

Flexible housing assistance demonstration. In response to the provision in H.R.2 that would create a block grant for cities, in place of public housing capital and operating funds and tenant-based assistance for PHAs, another amendment sponsored by Sen. Lugar would allow the City of Indianapolis to secure the funds that would go to its housing authority and use them for a flexible housing assistance demonstration program. The demonstration would be limited to five years. The regular rules would apply to the funds, unless HUD were to grant a waiver, which it would be authorized to do. The two restraints on the City would be that it would have to serve as many families in its program as would have been served by the PHA, and no current tenant or participant could be terminated from the program because of the change.¹⁷

Program assessment. In a similar compromise, Sen. Allard succeeded with an amendment that would create a commission to objectively and independently study the costs of the various federal housing programs.¹⁸ His original effort had been to immediately transform all the federal housing assistance programs into a state block grant to be used for vouchers.

Crime and drugs. As one might expect, there were several changes related to crime and drugs. One, sponsored by Sen. Allard, may be quite beneficial to many tenants. It appears to mandate that HUD provide tenant-based assistance to every family living in public housing who is a victim of a crime.¹⁹ At least that is the way the provision literally reads.

Another change is the controversial Grams Amendment, which authorizes PHAs to secure medical information about applicants to determine whether they are currently illegally using drugs.²⁰ That amendment was trimmed back somewhat from the version that had been included in the bill reported by the Committee. It now explicitly requires compliance with the Public Health Service Act, which provides some protections for medical records, and implicitly, if Sen. Grams’ floor statement is correct,²¹ requires compliance with the Fair Housing Act, the Rehabilitation Act and the Americans with Disabilities Act. It also allows the PHA to secure information only from drug treatment facilities, and the information must be related to the issue whether the applicant is currently engaging in illegal drug use. The language in the former version, obliging various medical providers to turn over information, was also deleted. Sen. Phil Gramm added an amendment that makes violent sexual predators ineligible for public housing and tenant-based assistance and grants PHAs access to the federal and state databases of sex offenders.²²

Miscellaneous changes. A provision was added allowing PHAs, if requested by the tenants, to put the rent increases of newly employed tenants into savings accounts that those tenants may use for educational expenses, to move out of public housing, or to buy their own homes.²³

Another provision giving PHAs the financial benefits as well as the burdens of adopting ceiling rents was expanded to cover all forms of earned income disregards.²⁴ PHAs would be required to produce project-based accounting of rents and expenses and to make their accounts available to the public.²⁵ If HUD suspects that a PHA’s Public Housing Management Assessment Program (PHMAP) certifications are not accurate, it may require an independent audit of the certifications.²⁶ PHAs’ duties to spend their capital funds expeditiously were lessened somewhat by a provision extending their expenditure deadline from 18 to 24 months and creating more power for HUD to grant exceptions.²⁷

Community service. The community service requirement was amended to prohibit PHAs from using community service workers to replace regular PHA employees.²⁸ Under another amendment, the Tenant Opportunity Program (TOP) and other tenant services grants would get a matching requirement. Each dollar of a TOP grant would have to be matched by 25 cents from any other source, including in-kind contributions.²⁹

Homeownership assistance. There are several changes relating to the use of tenant-based assistance for homeownership. They allow public assistance to be counted when determining the ability of elderly or disabled people to afford their home, require pre-purchase inspection of the property, and eliminate annual inspections of the home. Most importantly, they would allow HUD to run a demonstration relating to the use of tenant-based assistance for homeownership.³⁰

Next Steps

The next step in this process is for the House and the Senate to appoint conferees to serve on a conference committee to reconcile the differences between S.462 and its companion bill in the House, H.R.2. At this point, it is not clear whether that step will be taken before the Congress recesses for this session. If not, then a conference is likely early in 1998.

1. 143 CONG. REC. S10050 (Sept. 26, 1997).
2. See Senate Adopts FY 1998 Funding for HUD Programs, 27 HOUS. L. BULL. 128 (Aug. 1997), Senate Banking Committee Reports Public Housing Revisions to Full Senate: Early Summer Vote Possible, 27 HOUS. L. BULL. 88 (June 1997); Senate Takes More Moderate Approach to Public Housing Revisions, 27 HOUS. L. BULL. 51 (Apr. 1997).
3. See Section 5A(f)(1)(A) of the United States Housing Act, added by S.462, § 106. Hereafter, citations are to sections of the United States Housing Act, added or amended by S.462, and to the section of S.462 that would make the change.
4. Section 5A(e)(2), added by Section 106.
5. 143 CONG. REC. S10049 (Sept. 26, 1997).
6. Section 18(a)(4)(A), as added by Section 115.
7. Section 18(a)(4)(C)(iii), added by Section 115.
8. Section 18(a)(4)(C)(iv), as added by Section 115.
9. 143 CONG. REC. S10050 (Sept. 26, 1997).
10. Section 16(b)(1), added by Section 114.
11. Sections 16(a)(1)(B) and (b)(3)(B), added by Section 114.
12. S.462, §§ 303 and 306.
13. See S.462, § 306(1)(A), repealing 42 U.S.C. § 1437d(l)(4), and § 303 requiring good cause "during the term of the lease."
14. Section 5A(h)(2)(A)(ii), added by Section 106.
15. Section 5A(h)(2)(B), added by Section 106.
16. Section 5A(h)(5), added by Section 106.
17. S.462, § 125; see 143 CONG. REC. S10049.
18. Id. § 404; 143 CONG. REC. S10047.
19. Section 8(o)(15), as added by Section 201; 143 CONG. REC. S10047.
20. S.462, § 301(c). See article elsewhere in this issue on recent federal District Court decision in Minnesota on the problem of medical record confidentiality for public housing applicants.
21. 143 CONG. REC. S10047 (Sept. 26, 1997).
22. S.462, §§ 301(e) and 304(b); 143 CONG. REC. S10048.
23. Section 3(e), added by S.462, § 104(b).
24. S.462, § 110(b)(3)(B).
25. Section 6(c), as added by Section 107.
26. Section 6(j)(5), added by Section 107.
27. Section 9(i), added by Section 110.
28. Section 12(c)(4), as added by Section 111.
29. Section 33(d), as added by Section 122.
30. S.462, § 205.