National Housing Law Project Housing Law Bulletin

Recent HUD Notices

Minimum Rents

The saga of Congress' minimum rent requirement continues. When we last discussed the matter, Congress had amended the statute to authorize three-month waivers that would provide a transition period for affected families.¹ The "Assisted Housing" side of HUD had issued a notice granting a blanket waiver for all current tenants in housing with Section 8 project-based contracts.² Now the "Public Housing" side of HUD has come out with a waiver notice for the public housing and Section 8 certificate, voucher and moderate rehabilitation programs.³

The public housing side of HUD has been much less compassionate than the Assisted Housing side of HUD on this authority to waive the minimum rent. As is noted above, the Assisted Housing side granted a blanket waiver for all tenants in Section 8 projects for the months of July, August and September 1996. In addition, landlords who had not managed to implement the statute by May 1, 1996 (the implementation date for the Assisted Housing side), or even by June 1, were virtually excused from doing so. The public housing side, in contrast, decided that HUD would not exercise any waiver authority with regard to the public housing, certificate and voucher and moderate rehabilitation programs. Instead, it left all the waiver decisions up to the PHAs.

The Notice does indicate that PHAs may grant blanket waivers for all families in their programs. Yet, the Notice is very stingy about the PHAs' authority to use blanket waivers as a matter of grace. The Notice states that all families in occupancy for all six months from April through September 1996 must pay the minimum rent for at least three of those months. The Notice encourages PHAs to make the waiver retroactive to cover the months of April, May and June of 1996, even in cases where PHAs were unable to implement the minimum rent on April 1, 1996. In an example, the Notice states that if a PHA did not implement until May 1, 1996, the PHA should use those families' waiver privileges to cover April and then use the other two months of the three-month waiver authority for either blanket or individual waiver decisions. From the drafting, it appears that HUD does not think that a PHA would be able to use the waiver authority retroactively to cover April if it was unable to implement the minimum rent on April 1, 1996, because of state law or lease provisions on notices of rent increases.

On a more positive note, the public housing Notice does suggest that waivers may be granted to applicants at the time they move in, even if they move in after the minimum rent requirement went into effect. As an example, the Notice suggests that "a new family moving into assisted housing may need a waiver for July, August and September."⁴ The Notice also states that PHAs should have written policies that ensure consistent implementation of the waiver authority.⁵

"One Strike" and Public Housing Management Assessment

As part of President Clinton's "One Strike and You're Out" policy, HUD will be using PHAs' successes in following the policy, or failures to do so, as part of the grade they will be given in the Public Housing Management Assessment Program (PHMAP).⁶ To implement that policy, HUD published proposed revisions to the PHMAP regulations on May 6, 1996.⁷ That proposed regulation will make success with One Strike policies count for 10 out of a possible 100 points on the assessment. To earn a high grade of on the security indicator, the PHA must track crime-related problems, cooperate with local law enforcement and local courts, have tough screening policies that are effectively implemented, and have tough eviction policies that it also follows effectively. PHAs that score 90 points or higher on PHMAP are eligible to be relieved of some HUD reporting requirements and qualify to serve on HUD task forces.

Even though these proposed PHMAP regulations have not been finalized, HUD has issued a notice to all PHAs strongly encouraging them to adopt and implement One Strike policies that will earn them high scores on this PHMAP indicator.⁸ Beyond warning PHAs that they will be graded on this new "One Strike" indicator, the Notice previews some changes that will be in the final regulation. First, PHAs with less than 250 units will not be graded on this indicator. Second, PHAs will not be graded on their success in cooperating with law enforcement, because it would be unfair to penalize PHAs if law enforcement is itself uncooperative.

Portability

Another HUD Notice deals with the financial arrangements between housing authorities that are needed when a certificate or voucher holder uses portability to move from one PHA to another.⁹ The Notice covers situations where a family moves away from the PHA that issued the certificate or voucher and the PHA where the family lives administers the subsidy but does not absorb the family into its own program. It sets time frames and record-keeping requirements for the billings made by the receiving PHA and the payments made by the initial PHA. The billings cover housing assistance payments, administrative fees and what formerly were called "hard-to-house" fees.

Training Conferences and Workshops

After being badgered by Congressman Shays' Government Operations Subcommittee because of its involvement in the National Tenants' Organization's 1995 convention in Puerto Rico, HUD's Office of Public and Indian Housing has now issued a Notice giving tenant organizations and others guidance about holding training conferences.¹⁰ The Notice sets out a series of DOs and DON'Ts for conference sponsors to follow when they are using HUD funds or charging registration fees that will be paid from HUD funds. Most of the suggestions contained good advice, although bland and somewhat obvious. They boil down to: plan ahead, meet the needs of the trainees, keep good records and evaluate the conference after it has been completed. In addition, don't use a conference just to socialize or raise political funds or to lobby.

Some guidelines, however, were a little bit surprising and maybe even far off the mark. At least they deserve further analysis. For example, the Notice says DON'T charge registration fees that exceed the costs of the event. Does that mean that PHA directors cannot use funds from public housing budgets supported by HUD to go to training workshops presented by for-profit training organizations that charge registration fees that produce a profit? Does it mean that NAHRO, PHADA and CLPHA cannot charge their PHA registrants more for their conferences than the organization's conference-related expenses? The Notice also says that conference announcements should not overly emphasize the participation of HUD employees, and HUD should not be identified if it is not an official co-sponsor. Watch the next conference announcement from one of the housing industry trade associations to see whether it emphasizes the participation of HUD officials to get people to attend.

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All of these Notices are posted on HandsNet in the Legal Services/Substantive Law/Housing folder.

1. Section 230 of Section 101(e) of Pub. L. No. 104-134, 110 Stat. 1321 (Apr. 26, 1996), discussed in Minimum Rents: Issues and New Developments, 26 HOUS. L. BULL. 59 (May 1996).
2. HUD Notice H 96-51 (HUD) (June 12, 1996), discussed in Important Recent Developments Concerning Minimum Rents, 26 HOUS. L. BULL. 96 (July 1996).
3. HUD Notice PIH 96-42, Waiver of the Minimum Rent Requirement (June 20, 1996).
4. Id. at 2.
5. Id. at 2 and 3.
6. HUD, One Strike and You're Out (Mar. 26, 1996), at 3. For background information about that policy, see HUD Pushes Aggressive Eviction Campaigns as the Answer to Crime in Public Housing: One More Time, 26 HOUS. L. BULL. 45 (Apr. 1996), and Update on "One Strike and You're Out": HUD Issues Notice Implementing the Extension Act, 26 HOUS. L. BULL. 97 (July 1996).
7. Proposed 24 C.F.R. § 901.45, 61 Fed. Reg. 20,370, 20,376-77 (May 6, 1996).
8. HUD Notice PIH 96-52 (HA), Public Housing Management Assessment Program (PHMAP) — Indicator #8, Security: "One Strike and You're Out (July 25, 1996).
9. HUD Notice PIH 96-54(HA), Accounting and Financial Management Procedures for the Portability Provisions of the Section 8 Certificate and Voucher Programs (July 26, 1996).
10. HUD Notice PIH 96-50, Guidelines For Sponsoring or Co-Sponsoring Training Conferences and Workshops (July 12, 1996).