National Housing Law Project Housing Law Bulletin

For both public housing and the Section 8 programs, the statute and the proposed regulations authorize the rejection of applicants and the termination of subsidies or tenancies of tenants who use illegal drugs or abuse alcohol or who have been evicted from assisted housing for drug-related criminal activity. The proposed regulations for both programs would go beyond the statute to mandate rejection of applicants who have been evicted from assisted housing for other serious lease violations. They also exceed the statute by mandating the rejection of applicants and the termination of subsidies or tenancies of tenants who have engaged in violent or drug-related criminal activity.

The regulations for public housing have additional purposes beyond implementing the Extension Act. They make some changes in response to the recommendations of the Public and Assisted Housing Occupancy Task Force's Report.⁴ They "streamline" the regulations, as required by President Clinton's March 4, 1995, order. And they put into the regulations some principles that previously had been only in the Annual Contributions Contract.

Comments on the Section 8 regulations were due at HUD on May 30, 1997. Comments for the public housing regulations are not due until July 8, 1997. We strongly recommend that you submit comments on the public housing regulations. In addition, if you wish, you could submit late comments for the Section 8 regulations, or ask that the comments you make on the similar public housing issues be considered in finalizing not only the public housing but also the Section 8 regulations, since they are likely to be identical.

The following discussion first covers the parts of the proposed regulations relating to the Extension Act, and both describes and critiques what is being proposed. Following that is a review of the additional changes made in the public housing admissions regulations.

The Proposed Regulations and the Extension Act

The Extension Act makes two categories of people ineligible for public housing and Section 8 housing: people who have been evicted from housing assisted under the United States Housing Act for drug-related criminal activity and people who use illegal drugs or abuse alcohol. It also authorizes evictions and subsidy terminations for people who use illegal drugs or abuse alcohol.

Rejection of Previously Evicted Applicants

With regard to people who have been evicted from housing assisted under the United States Housing Act for drug-related criminal activity, the Extension Act states:

Second, the regulations would allow a PHA to disqualify the family even in cases where the eviction is more than three years old. The statute does not allow HUD to do that. Congress was quite clear on this point, stating that the person is not eligible "during the 3-year period beginning on the date of [the] eviction. . . ."⁷ The statute does not say "for not less than 3 years" or for "at least 3 years." Congress chose the precise disqualification period and it is not HUD's role to second guess Congress. HUD has no authority to rewrite the statute.⁸

Beyond these principles of statutory interpretation, it is not good policy for HUD to confer upon PHAs the discretion to impose limits longer than the congressionally prescribed three years. One of the areas in which the most abuse of the "one-strike" policy has arisen is on the question of time periods. Many situations have arisen in which PHAs have disqualified people for criminal activity occurring in the far distant past, despite the changed circumstances. To leave it up to the PHAs to decide what evictions are too old to consider invites the same kind of abuse here.

Third, the proposed regulations would grant the PHAs discretion to reject applicants even if the offender has successfully completed a rehabilitation program approved by the PHA or if the circumstances leading to the eviction no longer exist. Again, HUD's regulation is inconsistent with the statute. The statute states that a person is ineligible unless the offender has completed rehabilitation or the circumstances no longer exist. If either of those qualifying conditions exist, the applicant is eligible. The PHA is granted no discretion by the statute to reject an applicant once those conditions are satisfied. HUD may not authorize PHAs to reject categories of applicants where Congress has determined that those types of applicants should not be considered ineligible. Congress has the power to make these choices; once it exercises that power, neither HUD nor a PHA may disregard the choice Congress has made.

Rejection of Applicants Who Illegally Use Drugs or Abuse Alcohol

The second category of people made ineligible by the Extension Act is people who use drugs illegally or who abuse alcohol. Again, the statute provides:

At the very least, the regulations should explain clearly to the PHAs that if they reject a family because one family member is ineligible under this statute, it must inform the family that it may avoid that ineligibility by excluding the offending member from the family. It may be that many families will not want to do that, so the whole family may remain disqualified. But in some situations, the applicant family may decide to change its composition in order to establish or retain its eligibility. Unless the regulations make it clear to the PHAs that they must so inform the family, some will treat the offending member's inclusion at the time of application as final and not consider the possibility that the applicant family could be admitted without the offender.

As now written, the regulations on this point could easily be interpreted to disqualify an entire applicant family forever if one of the members at the time of application is an illegal drug user or an alcohol abuser. If interpreted that way, the regulations would conflict with the statute, which clearly disqualifies only the individual offender, not the rest of the family. The regulations should be revised to eliminate this possible interpretation that would conflict with the statute.

The second deviation from the statute on this point is the provision authorizing PHAs to require individuals who have illegally used drugs or abused alcohol to submit evidence that they have participated in or successfully completed a rehabilitation program. Although the statute does authorize PHAs to admit applicants or retain tenants if they are in or have completed a rehabilitation program, it does not specify what, if any, information about that participation the PHA may demand of the person.

It may make sense to require the person to come forward with documentation of their participation, but the regulations should make clear that the PHAs may not demand release of the person's medical records. All the PHA needs is a statement from a responsible person at the rehabilitation program that the person is participating in or has successfully completed the program. The regulations should be clear that HUD is not authorizing PHAs to demand access to a person's medical file in order to be admitted.

The regulations should also specify that it would be sufficient for persons who have not completed the rehabilitation program to submit evidence that they are participating in one, even though they, by definition, cannot submit evidence that they have completed the program. The PHA may not demand evidence of successful completion of the program from current participants whom the Congress has determined them to be eligible prior to completion.

It is also not enough for the regulations to merely repeat the statutory terms and let it go at that. The Congress has required PHAs to deny admission or assistance to people whose illegal use of drugs or abuse of alcohol gives the PHA reasonable cause to believe that that use or abuse may interfere with other residents' rights. The regulations should make clear that the PHA's belief must be reached in good faith, must be based upon facts, not speculation or suspicion, and must be based upon recent activities, not events from the past. In the absence of such interpretative guidance, some PHAs may automatically reject all applicants who have any history of drug use or alcohol abuse or rely upon evidence of old conduct that has not been repeated in the recent past.

Subsidy Terminations and Evictions for Drug Users and Alcohol Abusers

The Extension Act authorizes PHAs to evict tenants and terminate the subsidies of participants who illegally use drugs or whose abuse of alcohol interferes with other tenants' rights. Specifically the statute provides:

Second, the regulations supplement their implementation of the provision on alcohol abuse by including a new family obligation, i.e., not to abuse alcohol. The regulations provide:

The regulations also fail to make clear that these provisions on subsidy termination apply only to conduct that has occurred while the individual is participating in the program. Illegal drug use or alcohol abuse that happened before the person became a public housing tenant or Section 8 participant is not grounds for termination. The statute uses the present tense to describe the relevant activity: "any person . . . who . . . is illegally using" and "any person . . . whose illegal use . . . or abuse . . . is determined by the public housing agency to interfere . . . ."¹⁶

The regulations¹⁷ use the same tense as the statute and thus should be interpreted to apply only to use or abuse during the term of the tenancy or program participation. Nonetheless, to avoid misinterpretation in the future, the regulations could and should explicitly state that use or abuse before the person became a program participant or tenant would not be grounds for termination or eviction.

Going Beyond the Extension Act

The provisions described so far cover all the changes made in the Extension Act regarding grounds for applicant rejection, subsidy termination and tenant eviction. The regulations, however, did not stop there. Instead, they require PHAs to reject applicants and terminate the subsidies of participants who have been evicted for serious lease violations. In addition, they authorize PHAs to reject applicants and terminate subsidies or tenancies of tenants who have engaged in drug trafficking or violent criminal activity.

Serious Lease Violations

For both Section 8 and public housing, the regulations require PHAs to reject applicants who have been evicted from housing assisted under the United States Housing Act for serious lease violations. In addition, for Section 8, the regulations require PHAs to terminate the subsidy of any participant who is evicted for a serious lease violation. For example, the certificate and voucher regulations provide that:

Given Congress' explicit choices on this question, HUD has no authority to create a blanket rule making other evicted tenants ineligible and to allow PHAs to choose the period of ineligibility. Nor is such a rule necessary, because PHAs already have the power to assess all public housing applicants on their individual merits and to determine whether they can reasonably be expected to comply with the lease. Similarly, the public housing agencies could be authorized to assess certificate and voucher applicants to determine whether they can reasonably be expected to comply with the family obligations under the program. No blanket disqualification is necessary.

This blanket rule is also either going to produce arbitrary results or be difficult to administer, because the regulations do not define what a serious lease violation is. In the introductory comments, HUD justifies creating the blanket rule by stating that it would apply to:

Without such a limiting definition, anyone evicted from HUD-assisted housing is almost certainly going to be banned, because any lease violation that provides a basis for an eviction would be classified as a serious one. For example, the statutes and regulations on public housing and Section 8 evictions allow evictions for lease violations only if they are serious or repeated.²⁰ Examples would include nonpayment or late payment of rent and failure to recertify on time. Thus, as drafted, these regulations will result in the exclusion from public housing and Section 8 not just of tenants previously evicted for serious criminal activity, but others who were simply unable to pay the rent because of financial difficulties and other much less serious matters that do not adversely affect other tenants. If the rationale for the rule is that which the introductory comments state -- covering evictions for criminal activity or activity that adversely affects other residents' health, safety and enjoyment of the premises -- the rule should be redrafted to apply only to those cases.

It is also odd in this era of devolution and deregulation for HUD to make this obligation mandatory. The prevailing wisdom is that PHAs know better than HUD what should be done in particular cases and that they need flexibility, not micromanagement. Yet this part of the proposed regulation is mandatory, not merely an option granted to PHAs. It is hard to understand why HUD thinks its judgment is better than that of the individual PHAs which have all the facts and circumstances of the individual applicants before them. At the very least, the mandatory nature of the regulation should be eliminated.

It is also surprising that the certificate and voucher regulations on this point are mandatory, not discretionary. Merely two years ago -- a nanosecond in the life of HUD rule-making -- HUD issued regulations giving PHAs discretion to terminate Section 8 subsidies of families who are evicted for serious or repeated lease violations.²¹ Now HUD proposes to replace that provision with one that would require PHAs to terminate the subsidy, not merely grant them the flexibility to do so. There is no discussion in the Introductory Comments even speculating, much less documenting, that the discretion conferred in 1995 has not achieved its purpose.²² Given the limited time that has expired, it is unlikely that any such showing could be made, much less that HUD officials would know they had failed. In the absence of any explanation why a mandatory rule is needed, this part of the proposed regulations should be eliminated.

Drug Trafficking and Violent Criminal Activity

The regulations also go beyond the Extension Act by authorizing PHAs to reject applicants and terminate the tenancies or subsidies of tenants who have engaged in violent or drug-related criminal activity. For example, the Section 8 regulations provide:

In the termination and eviction contexts, there is a similar time problem, but there it is more extreme. The only criminal conduct that should justify eviction or subsidy termination would be such conduct that occurs during the term of the tenancy or subsidy program participation. As drafted, however, the proposed regulations may be interpreted to authorize evictions and terminations for criminal activity that occurred even before the person became a tenant. They should be revised to make it explicit that, for evictions and subsidy terminations, the person must have engaged in the criminal activity during the tenancy or while participating in the subsidy program.

Additional Public Housing Regulations

The proposed regulations for public housing cover some topics not covered in the proposed Section 8 regulations. They are a product of HUD's complete rewrite of Part 960 of 24 C.F.R., which is the part of the regulations that covers public housing admissions. That rewriting was undertaken for numerous reasons, including (1) regulatory reinvention or streamlining, (2) implementation of some of the recommendations of the Public and Assisted Housing Occupancy Task Force, (3) implementation of the Extension Act discussed above, and (4) restoration of some of the PHA obligations that had previously been included in the Annual Contributions Contract which was revised in 1995. Some of the more significant proposed changes are described below.

Admissions Criteria

The proposed regulations state the basic screening criteria to be whether the applicants' "past behavior indicates that they can be reasonably expected to comply with the lease."²⁴ They also dictate that:

Verification

The proposed regulations on verification have helpful provisions relating to disabilities. In summary, they prohibit inquiries about disabilities if the applicant is not relying upon a disability for purposes of qualifying for the housing, for a preference, for a deduction from income or for a reasonable accommodation. The proposed regulations also specify that, in situations where an applicant's disability prevents him or her from meeting the PHA's selection criteria, the PHA must consider any mitigating circumstances and whether a reasonable accommodation must be made.²⁶

The verification rules also require the PHAs to do criminal record checks on all adult members of applicant families. At least the public housing regulations implement the part of the Extention Act that grants applicants and tenants a chance to review and dispute the accuracy and relevance of any record that is being used against them.²⁷

Utility Reimbursement

The proposed regulations would eliminate the current regulation at Section 960.208 that governs utility reimbursements for public housing tenants. The primary reason for that deletion is that Section 960.208 duplicates a Department-wide regulation at 24 C.F.R. § 5.615 which governs utility reimbursements. However, the Introductory Comments indicate that, when these proposed regulations are finalized, that Department-wide regulation will be rewritten to allow PHAs to pay the reimbursement directly to the utility company without the consent of the tenant.²⁸

Applications

For the first time, the public housing regulations will require the PHA to have written applications from all applicants and to allow all applicants to file a written application, even if the oral discussion indicates that the family is not eligible. The regulations will also require PHAs to assist applicants with their application if they ask for help.²⁹

Waiting Lists and Tenant Assignment

For the first time, the public housing regulations will explicitly state that applicants must be taken off the waiting list in accordance with applicable preferences and the date and time of application. The regulations will also specify that applicants purged from the waiting list because a disability prevented them from responding may be reinstated as a reasonable accommodation.³⁰

* * *

All of these changes will certainly alter the rules governing eligibility for and continued receipt of Section 8 assistance and public housing. Thus it is important to review them carefully and submit comments on the public housing regulations by the July 8, 1997, deadline.

Comments should be sent to:

Rules Docket Clerk
Office of General Counsel
Room 10276
Department of Housing and Urban Development
431 - 7th Street, S.W.
Washington, DC 20410

Comments must be received by July 8, 1997, and fax copies are not acceptable. Unlike the Rural Housing Service, HUD does not yet accept comments by e-mail.

1. Pub. L. No. 104-120, § 110 Stat. 834 (Mar. 28, 1996), adding 42 U.S.C.A. §§ 1437d(q) and 1437n(e) (West 1997) (hereafter, "Extension Act").
2. Proposed 24 C.F.R. §§ 882.413 and 882.514, 62 Fed. Reg. 15,345 (Mar. 31, 1997) (Section 8 Moderate Rehabilitation); proposed 24 C.F.R. §§ 982.201, 982.551, 982.552 and 982.553, 62 Fed. Reg. 15,345 (Mar. 31, 1997) (certificate and voucher); proposed 24 C.F.R. Part 960 and § 966.4(l)(2), 62 Fed. Reg. 25,727 (May 9, 1997) (public housing).
3. HUD Notice, Occupancy Provisions of the Housing Opportunity Program Extension Act of 1996, PIH 96-27 (HA) (May 13, 1996).
4. Public and Assisted Occupancy Task Force, Report to Congress and to the Department of Housing and Urban Development (Apr. 7, 1994).
5. 42 U.S.C.A. § 1437d(r) (West Supp. 1997).
6. Proposed 24 C.F.R. § 982.201(a)(2); see proposed 24 C.F.R. §§ 882.514(a)(2)(i), 960.201(a)(3) and 982.553(c) (emphasis added).
7. 42 U.S.C.A. § 1437d(r) (West Supp. 1997).
8. See, e.g., Negonsott v. Samuels, 507 U.S. 99, 113 S.Ct. 1119, 1122-23 (1993) (Rehnquist, Ch. J.); Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475-78, 112 S.Ct. 2589, 2594-96 (1992) (Kennedy, J.); West Virginia Univ. Hospitals, Inc. v. Casey, 499 U.S. 83, 98-99, 111 S.Ct. 1138, 1146-47 (1991) (Scalia, J.).
9. 42 U.S.C.A. § 1437n(e) (West Supp. 1997).
10. Id. § 1437n(e)(2).
11. Proposed 24 C.F.R. § 982.553(b); see proposed 24 C.F.R. §§ 882.514(g) and 960.201(c)(1).
12. 42 U.S.C.A. § 1437n(e)(1)(A) (West Supp. 1997).
13. Id. § 1437n(e).
14. Proposed 24 C.F.R. § 982.553(b)(2); see proposed 24 C.F.R. §§ 882.514(g)(2) and 966.4(l)(2)(iii).
15. Proposed 24 C.F.R. § 982.551(m) (emphasis added); see proposed 24 C.F.R. § 882.413(b).
16. 42 U.S.C.A. § 1437n(e)(1)(B) (West Supp. 1997).
17. Proposed 24 C.F.R. §§ 882.514(g)(2), 982.553(b)(2) and 966.4(l)(2)(iii).
18. Proposed 24 C.F.R. §§ 982.201(a)(3) and 982.552(g); see proposed 24 C.F.R. §§ 882.514(a)(2)(ii) and 960.201(a)(4).
19. 62 Fed. Reg. 15,346.
20. 42 U.S.C.A. §§ 1437d(l) and 1437f(d)(1)(B)(ii) (West Supp. 1997); 24 C.F.R. §§ 966.4(l)(2) and 982.310(a) (1996).
21. 24 C.F.R. §§ 982.552(b)(1) and 982.551(e) (1996), added at 60 Fed. Reg. 34,695 (July 3, 1995).
22. 62 Fed. Reg. 15,346 (Mar. 31, 1997).
23. Proposed 24 C.F.R. § 982.553(a); see proposed 24 C.F.R. §§ 882.514(a)(3), 960.201(b) and 966.4(l)(2)(ii).
24. Proposed 24 C.F.R. § 960.201(a)(2).
25. Proposed 24 C.F.R. § 201(c)(3)(iii).
26. Proposed 24 C.F.R. § 960.206(b).
27. Proposed 24 C.F.R. §§ 960.206(c) and (e).
28. 62 Fed. Reg. 25,731-32.
29. Proposed 24 C.F.R. § 960.301.
30. Proposed 24 C.F.R. § 960.304.