National Housing Law Project Housing Law Bulletin

In striking contrast to the three days of sometimes contentious partisan debate that characterized mark-up of the House bill in late April, the Senate Banking, Housing and Urban Affairs Committee (hereafter Banking Committee), in a collegial session that lasted less than an hour, reported its bill revising public housing to the Senate.¹ Although a report reflecting agreements reached during committee mark-up was filed, several items, including targeting of housing assistance -- arguably the most critical issue in the bill -- remained to be worked out among members and will be included in a manager's amendment.²

Targeting

The Committee Report indicates that the targeting included in the bill is designed to address the needs of low-income families, such as working families needing short-term assistance, while continuing to assist "a significant number of very low-income families in response to local housing needs."³ Senator Kery (D-MA), ranking minority member of the Senate Subcommittee on Housing Opportunity and Community Development, expressed reservations about the shallow targeting included in the measure. The targeting tracks that which was adopted last year by the Senate in S.1260: for public housing, 40 percent of the units that become available would serve families with incomes at 30 percent of area median and below, with 75 percent reserved for families with incomes at 60 percent of median income and below; and for Section 8, 50 percent of the units would go to families with incomes at or below 30 percent of area median.⁴

Although deeper than the targeting proposed in H.R.2, the Senate's initial targeting provisions are shallower than those sought by the Administration in H.R. 1447, particularly for Section 8. HUD would reserve 100 percent of Section 8 units for families earning less than 50 percent of area median income, with 75 percent reserved for the very poorest families earning less than 30 percent of area median.⁵ Senator Kerry indicated he would be offering two targeting amendments before floor consideration before consideration by the full Senate. The first would increase Section 8 targeting to 75 percent of units available to persons at 30 percent of median and below. The second amendment would cap Section 8 eligibility at 50 percent of median income.

Citing a letter authored jointly by Senators Chafee (R-RI) and Jeffords (R-VT) to Senator D'Amato (R-NY) in support of deeper targeting, Senator Kerry expressed a desire that a "proper balance" for targeting be worked out in advance of a floor vote.⁵ Senator Mack (R-FL), chairman of the Housing Opportunity and Community Development Subcommittee, expressed optimism that an agreement on targeting could be reached. Senator D'Amato, who chairs the full Banking Committee, observed during committee mark-up that "model PHAs" (referring to the New York City Housing Authority, no doubt) have pointed to a "correlation between" income mix and a "stable community atmosphere."

In a departure from the almost universal hostility to preferences as having the "unintended consequence of warehousing very low-income families in areas of high concentrations of poverty and despair," the Banking Committee approved a "sense of the Congress" provision encouraging PHAs to establish preferences for victims of domestic violence and to consider the needs of the aging population in creating local preferences.⁷

Some of the amendments agreed to during mark-up with the most direct and potentially adverse consequences for low-income persons are set out below.

Public Housing Tenant Safety

Senator Grams (R-MN) sponsored an amendment authorizing PHAs to require that for screening purposes, as a condition of admission to public or assisted housing, each applicant consent to the disclosure of medical information about his or her illegal use of drugs or abuse of alcohol and relevant treatment.⁸ The information would assist PHAs in assessing the legality of the drug or alcohol use and whether such use poses a threat to the health, safety or peaceful enjoyment of other residents. Solicitation of releases must be universal. Doctors and other health professionals are barred from submitting actual medical treatment records to the PHAs. Although the statute does not spell it out, the Committee anticipates that summaries would be prepared. Entities providing information to PHAs could charge a fee, and PHAs would be required to establish a records management system that maintains confidentiality. No specific penalties for misuse are set out in the bill.⁹

The Grams amendment is an example of excessive measures in the public housing reform legislation. Ample authority exists in current law for PHAs to obtain criminal conviction records and other information about applicants' past tenancies that will facilitate screening out potential troublemakers and assure safe public housing. Such records are more accurate indicators of the ability of applicants to comply with lease terms. In addition, sanctions for improper disclosure of information by public housing employees are not included within the statutory framework of the amendment.

A second provision sponsored by Senator Grams, and expected to be included in a manager's amendment, expands evictions to any drug-related criminal activity and makes such evictions available in Section 8 housing.¹⁰ This builds on current law which permits eviction with a maximum 30 days' notice in the event of threats to health and safety of PHA employees or other residents.¹¹

Community Service and Economic Self-Sufficiency

This most hotly debated issue in H.R.2 -- the community work requirement -- was reported from the Senate Banking Committee with barely a whisper. The Committee Report states that the community service requirement is not intended to punish, but rather to provide participants with a "rewarding activity" that will enhance both them and their communities.¹²

The reported measure differs from the bill as introduced in several important respects. First, S.462 provides a number of exemptions, including those for persons exempt under the federal welfare law or state-funded programs. The reported bill provides an extensive list of "work activities" that qualify as meeting the work requirement.¹³ The list is intended to be co-extensive with activities that would qualify under welfare reform. The Committee's intent is that if an individual is not on welfare but his work, job training or other activities would otherwise satisfy workfare requirements, that individual could fulfil the community service requirements. A related amendment by Sen. Reed (D-RI) clarifies that, in order for an assisted family to be sanctioned for failure to comply with work requirements -- i.e., receive reduced benefits -- the non-compliance must be willful. This is intended to protect a household that has made good faith efforts to obtain employment but runs up against welfare time limits. Unlike H.R.2, the Senate bill as reported requires PHAs "to the maximum extent possible" to enter into cooperative arrangements with agencies responsible for welfare in order to improve resident access to services that can help them achieve self-sufficiency. The report cites as an example of such cooperative efforts the development of on-site job training and child care centers in public housing, with shared costs between the PHA and welfare agencies. The cooperation agreements are also viewed by the Committee as vehicles for information sharing between the PHAs and relevant welfare agencies on recipient benefits.¹⁴

PHA Board Membership and Resident Participation

An amendment by Sen. Hagel (R-NE) exempts smaller PHAs managing 300 or fewer units from the requirement that a resident be a member of the governing board. A second amendment by Sen. Boxer (D-CA) provides for election rather than appointment of PHA resident board members. A third amendment in this area by Sen. Bryan (D-NV) opens PHA board membership to recipients of tenant-based assistance as well as to public housing residents.

As with the bill as introduced, the PHA plan remains the primary vehicle for PHA operation, management and long- and short-range planning.¹⁵ In the original bill, the role of the resident advisory board was arguably limited to comment on the PHA plan. The Committee Report suggests a larger role for the resident advisory board. This includes examination of any significant changes to the PHA plan, the development of "processes" such as public hearings and meetings to inform residents and to elicit the views of the resident community regarding proposed plans. The report clarifies the "permanent nature" of the resident advisory boards and directs PHAs to "operate in good faith . . . providing them with the sufficient notice and complete information about issues the boards are to consider" to facilitate informed decisionmaking by the resident advisory boards. The Committee Report also issues a directive to PHAs to provide funding to the boards to guarantee their effective functioning. Finally, the Committee Report states that the Committee has no intention of overriding the activities of successful existing resident participation processes, and accordingly affords HUD the authority to waive the requirement for creation of a new board where the PHA can show the existing resident organization provides adequate representation of resident interests.¹⁶

Finally, the reported bill attempts to provide a meaningful enforcement tool for resident advisory boards faced with uncooperative housing authorities. It provides that, upon the written request of a resident advisory board that substantiates the PHA's failure to provide residents adequate notice and opportunity to comment on the plan, HUD may require PHA corrective action before final approval of the PHA plan.¹⁷

Demolitions and "Vouchering Out" of Public Housing

The demolition provision is basically unchanged since introduction of S.462, providing, at best, inadequate protections for residents to be displaced as a result of demolitions. The PHA would be required to pay relocation expenses; ensure the "offer" of (rather than guarantee) comparable housing to residents -- which may include public housing and Section 8 project- or tenant-based assistance; provide counseling to displacees; and to not commence demolition until all residents of the buildings to be demolished have been relocated. The Committee Report emphasizes that in this area of displacement and relocation the Committee's paramount concern was "to enhance the ability of PHAs to remove obsolete, distressed and excessively costly developments" but, with the inadequate relocation protections and particularly the exemption of the Uniform Relocation Act from public housing demolitions, the bill achieves that objective at the expense of residents.¹⁸

Similarly, for both voluntary and mandatory conversion to vouchers in the distressed housing context, S.462, as reported, continues to provide inadequate relocation protections. The Committee Report sets out the Committee's dual goals of supporting adequate tenant-based assistance to meet low-income housing need while continuing to protect the taxpayers' investment in the nation's stock of public housing. Among the problems with the conversion provisions is the authority for HUD to waive the requirement that PHAs, in their overall assessment comparing costs of continuing to operate as public housing with the cost of conversion to vouchers, provide an appraisal of the impact of a conversion on the neighborhood where the building proposed for conversion is located, as well as a streamlined assessment in certain circumstances. PHAs that make a voluntary determination to voucher out a part of their stock need only demonstrate that such conversion "would principally benefit the residents, the PHA and the community" and that vouchers are not more costly than maintaining the public housing units. The Committee intends for the conversion option to serve as a carrot for PHAs to operate at high and efficient levels, since in the context of the PHA plan residents and other members of the community could urge vouchering out as an option for poor performers.¹⁹

No Net Gain in Public Housing Units

The ban on the use of funds for construction of new public housing other than replacement housing survived the mark-up. It would permit new construction and operating funding only if no new or additional units resulted. During mark-up a clarification was included to ensure the availability of operating and capital funds for mixed-finance projects.²⁰

Next Steps

Although the most contentious issue in the bill, targeting of assistance, remains to be resolved prior to floor action, some Committee staff believe that a manager's amendment is possible in early June with the measure coming to the Senate floor shortly thereafter. Whether the bill will be considered by unanimous consent (as was the case during Senate consideration of S.1260 in the 104th Congress) or whether it will be debated is still unknown.

Senate action lays the groundwork for a House-Senate conference prior to the August recess.

1. For background, see Senate Takes More Moderate Approach to Public Housing Revisions, 27 HOUS. L. BULL. 51 (Apr. 1997).
2. S. REP. NO. 21, 105th Cong., 1st Sess. (May 23, 1997), to accompany S.462, the Public Housing Reform and Empowerment Act of 1997 (hereafter Committee Report).
3. Committee Report, at 34; S.462, § 114, amending Section 16 of the United States Housing Act of 1937, as amended, 42 U.S.C. §§ 1437 etseq. (West 1996).
4. S.462, § 114, amending Section 16 of the United States Housing Act to create sections 16(a)(1) and (b)(1); seeSenate Takes More Moderate Approach to Public Housing Revisions, supra note 1, at 53; seealso S.1260, Public Housing Reform and Empowerment Act, 104th Cong., 2d Sess. (adopted by voice vote, Jan. 10, 1996), 142 CONG. REC. S136 (Jan. 10, 1996).
5. H.R. 1447, The Public Housing Management Reform Act of 1997 (introduced by request Apr. 24, 1997), § 202. The Senate companion bill, S.784 was introduced by reqyest May 22, 1997.
6. The letter is on file at the Project's Washington, DC, office, and will be part of the official record of proceedings on S.462.
7. Committee Report at 43; S.462, § 406.
8. Committee Report at 59; S.462, § 301(d).
9. Committee Report at 43.
10. Committee Report at 4; S.462, § 303.
11. 42 U.S.C. § 1437d(l)(3)(A) (West 1996).
12. Committee Report at 22; S.462, § 111.
13. S.462, amending Section 12 of the United States Housing Act of 1937, as amended (42 U.S.C. § 1437j), to add sections (c) and (d).
14. Committee Report at 23; S.462, § 111, creating Section 12(d)(4) of the United States Housing Act of 1937, as amended.
15. For background on the PHA plan, seesupra note 1, 27 HOUS. L. BULL. at 56.
16. Committee Report at 13-14; S.462, § 106 creating Section 5A(e)(3) of the United States Housing Act of 1937, as amended.
17. S.462, § 106 creating Section 5A(h)(3)(C) of the United States Housing Act of 1937, as amended.
18. See supra note 1, 27 HOUS. L. BULL. at 55; Committee Report at 25.
19. Committee Report at 27-28.
20. Committee Report at 18-19; S.462, § 110, creating Section 9(e)(2) of the United States Housing Act of 1937, as amended.