National Housing Law Project Public Housing

New Mandatory Community Service Requirements in Public Housing

Background

On June 20, 2003, the United States Department of Housing and Urban Development (HUD) issued a notice to all public housing authorities (PHAs) advising of the reinstatement of the mandatory community service requirements, originally enacted under Section 512 of the Quality Housing and Work Responsibility Act of 1998 (QHWRA)./1/ That section requires all public housing residents to perform eight hours of community service each month (96 hours per year) or participate in economic self-sufficiency activities unless exempted./2/ Pursuant to PIH Notice 2003-17 (Notice), all PHAs must have notified residents in writing by July 31, 2003, of the reinstatement of this requirement and must assure that all residents are performing their community service or comparable requirements by October 31, 2003. Many PHAs across the country have scrambled to implement these requirements but have had difficulty given the short time frame imposed by HUD. A review of the notice, regulations, QHWRA and the Public Housing Occupancy Guidebook (PHOG) revealed significant discrepancies which were addressed to HUD, on behalf of the Housing Justice Network, in a letter sent to Assistant Secretary Michael Liu on July 29, 2003. Following receipt of this letter, HUD published a Frequently Asked Questions sheet on their website./3/

Public Housing Authorities Must Determine Who Is Exempt from the Community Service Requirement

There are many residents who qualify for an exemption from the community service and self-sufficiency requirements. Under QHWRA and the new Notice, the burden of making the determination of whether or not a resident is exempt from the community service requirement falls upon the PHA./4/

Who Is Exempt from Community Service and Self-Sufficiency Requirements?

There is an extensive list of exemptions from the QHWRA community service and self-sufficiency requirements. Public housing residents are exempt if they are:/5/

• elderly (62 years of age or older); /6/
• blind or disabled and certify that they are unable to comply with the service requirements; /7/
• a primary caretaker of a blind or disabled person even if the blind and disabled person is not a resident of public housing;
• engaged in work activities;
• exempt from the work requirements of a state welfare program, including Welfare-to-Work (e.g., in many states pregnant women are exempt from work requirements for a period of time);/8/ or
• members of a family which receives Temporary Assistance for Needy Families (TANF) assistance and have not been found to be in noncompliance with TANF or other work requirements./9/

QHWRA defines “work activities” as those activities are defined in Section 407(d) of the Social Security Act./10/ These activities include:

• unsubsidized employment;
• subsidized private sector employment;
• subsidized public sector employment;
• work experience (including work associated with refurbishing of publicly assisted housing) if sufficient private sector employment is not available;
• on the job training;
• job search and job readiness assistance;
• community service programs;
• vocational educational training (not to exceed 12 months with respect to any individual);
• job skills training directly related to employment;
• education directly related to employment, in the case of a recipient who has not received a high school diploma or a certificate of high school equivalency;
• satisfactory attendance at secondary school or in a course of study leading to a certificate of general equivalence, in the case of a recipient who has not completed secondary school or received such a certificate; and
• the provision of child care services to an individual who is participating in a community service program.

Exemptions will vary from state to state depending upon local welfare rules. State welfare departments may be involved in verifying whether a resident is exempt from work activity under the state’s welfare program. The vast majority of adult public housing residents should be exempt from the community service requirement because they are working, elderly, or disabled. Disabled residents who receive Supplemental Security Income (SSI) may self-certify that they cannot comply with the service requirements./11/ A stay-at-home mother is not exempt from the community service requirement unless she can demonstrate that she qualifies for one of the exemptions listed above./12/ For example, a stay-at-home mother may be exempt if she is providing child-care services to someone who is participating in a community service activity. Also, if the state welfare law provides that a mother with children under a certain age is exempt from work requirements, any resident meeting that state definition would also be exempt.

HUD’s Effort to Encourage PHAs to Adopt a 30-Hour Weekly Work Requirement Is Overreaching and Inconsistent with QHWRA

In its Notice 2003-17, HUD provides that residents should work a minimum number of hours per week in order to qualify for a work activities exemption. Unfortunately, HUD’s interpretation is inconsistent with QHWRA which establishes no minimum number of hours.

The Notice provides that the community service and self-sufficiency requirements apply to all adult residents in public housing except for those exempted under 12(C) of the Act. The Notice then discloses individuals who are exempt and further provides that “[p]ublic housing agencies (PHAs) are encouraged to consider 30 hours per week as the minimum number of hours for a work activity exemption as described in Section 407(d) of the Social Security Act.”/13/

Pursuant to QHWRA, which first established community service requirements for public housing tenants, exemptions are provided to individuals who are “engaged in a work activity (as such term is defined in section 407 (d) of the Social Security Act (42 U.S.C. § 607(d)), as in effect on and after July 1, 1997).”/14/ The term “work activity” found in Section 407(d) of the Social Security Act contains no minimum required number of hours anywhere in the statute and no reference to 45 C.F.R. §261.31,/15/ which was cited by HUD in making its 30-hour per week recommendation. This 30 hour minimum appears to be a complete change in HUD’s position. In fact, in several prior Frequently Asked Questions posted on HUD’s website there was a statement that the list of exemptions was exclusive and did “...not imply that the PHA adopt additional HHS requirements beyond 407(d) of the Social Security Act (42 U.S.C. 607(d)) such as number of hours required for each activity.” HUD has further updated it’s sample community service policy contained in the Public Housing Occupancy Guidebook (PHOG) released in June, 2003 to now incorporate a 30 hour per week suggested exemption. NHLP’s position is that HUD’s 30-hour per week Notice suggestion is improper because it exceeds the scope of the statute. Housing advocates should encourage PHAs to establish their own policies with regard to the number of hours needed to qualify for an exemption. For those PHAs that adopt a 30 hour per week exemption rule, advocates may be able to launch a legal challenge to the extent that such 30 hours is a “significant” change to their existing community service policy and to the extent that the PHA has adopted such 30 hour requirement without following their annual plan process. See below for more information on what advocates can do.

Residents Delinquent in Community Service/Self Sufficiency Activities Under a Prior Lease

Residents who were delinquent in community service/self-sufficiency hours under a prior lease in effect at the time the community service requirements were suspended are obligated to fulfill their FY 2001 community service and self-sufficiency requirements in addition to any new requirements, provided that they were given written “notice” of noncompliance prior to the expiration of the lease in effect at that time. A copy of that noncompliance notice must be included with the new notice sent to residents advising them of the reinstatement of the community service requirements. Retroactivity, for those tenants, can only be enforced if the PHA sent a written notice to the resident at the time of their non-compliance.

A PHAs Determination That a Resident Is not in Compliance with the Community Service Requirement Triggers an Opportunity to Cure

PHAs must review and determine the compliance of each family member who is not exempt from the community service requirement 30 days before the end of the tenant’s 12-month lease term./16/ Failure to comply with these community service/self sufficiency requirements may result in a non-renewal of the resident’s lease at end of the 12-month period./17/ However, prior to termination, the PHAs must notify residents of their non-compliance and of their right to an administrative grievance of such a determination, and must further provide an opportunity for the residents to cure the non-compliance by entering into an agreement to make up those hours over the 12-month period of the new lease./18/ If the family member is still non-compliant at the end of the new lease period, the law requires that the lease not be renewed and that the entire family vacate unless the non-compliant member agrees to move out. Therefore, in theory, there is an additional 12-month period in which to cure the community service default and make up the hours.

Advocates should work with their local PHAs to ensure that the verification is as simple as possible to minimize the PHA’s paperwork, the resident’s burden, and the documentation burden of any organization to which the resident provides volunteer services or which administers an economic self-sufficiency program. For households receiving TANF, PHAs should adopt a verification policy that recognizes that TANF agencies do not typically report families as being “in compliance” with TANF work requirements. Indeed, TANF agencies routinely report that a family is in “non-compliance” with the work requirements and then reduce the family’s benefits. In recognition of this practice, PHAs should adopt a policy that makes residents automatically exempt from community service requirements whenever they are receiving TANF assistance and have not received a notice from the TANF program that they are not in compliance with that program’s work requirement./19/

Advocates should also work with their PHAs to encourage a broad range of qualifying activities that meet the community service requirement such as passing out flyers for meetings, making telephone reminder calls, providing child care for residents who attend resident meetings, attending girl/boyscout events, working to maintain the resident office, attending organizing classes, planting flowers in front of their unit or attending tenant organization meetings. The New York City Housing Authority has adopted one such policy which informs residents that they will consider almost any form of service to the community to qualify such as volunteering for tenant patrol, participating in their garden program, involvement in a parent association or work with boys and girls club activities. PHAs should provide tenants, through postings and individual notices, a list of acceptable community service activities, the groups that sponsor the activities and ways to contact them./20/

Must PHAs Amend Their Annual Plan?

Part F of the HUD Notice describes the relationship between implementation of the community service requirements and the PHA plan process. It provides that PHAs do not have to amend their Fiscal Year 2003 approved plans but must merely inform their resident advisory boards (RABs) of any significant policy changes. This instruction is disturbing in that it clearly circumvents the well-established and legally required PHA plan process for any significant changes or alterations in policy and procedures. The PHA plan process, which provides for a 45 day notice to residents, a public hearing, opportunity for comment and board approval, ensures a fair and accurate implementation of all new or altered policies. In addition, PHA’s are required to respond to any comments of their RABs. In reinstating the community service/self-sufficiency requirements, Congress in no way altered or suspended the plan process and the instruction are an overreaching on the part of HUD. Any significant changes to the Community Service Policy should be made in accordance with the established plan process. HUD’s contrary treatment demonstrates its lack of consideration of the role that tenants and their respective RABs play in providing input into and influencing the PHA policymaking process. This HUD guidance may not be in accordance with the law since the reinstatement of the community service requirement in no way changed the law and regulations governing the annual plan process and significant changes made to the policies contained therein.

What Can Advocates Do?

Advocates should ensure that their local PHAs have fully complied with the tenant notice requirements prior to reinstating the community service requirements. Both state and federal requirements must be complied with in order to properly implement these policies. By checking local policies that are currently in existence, advocates can also determine whether or not there has been a significant change to such policies (e.g., 20-hour minimum work requirement to qualify for an exemption being changed to a 30-hour minimum). PHAs are required to define what is a significant change. If there is no such definition or if the PHA has loosely defined what constitutes a significant change, advocates will likely be able to challenge any change in number of hours to qualify for an exemption as constituting a significant change which triggers mandatory compliance with the annual plan process. The Quality Housing and Work Responsibility Act, as codified requires that when there is a significant change in policy, the PHA must comply with the annual plan process./21/ That means that a 45-day notice must be given to tenants of the change in policy, opportunity must be provided for public comment and PHA board approval must be secured./22/ If a PHA fails to comply with these requirements, advocates may be able to temporarily stay the implementation of such policies pending full compliance with the law. A recent U.S. District Court ruling in New Jersey on a Summary Judgement Motion and Motion to Dismiss in Baldwin v. Housing Authority of the City of Camden, et. al. supports the notion that housing authorities that make significant changes to their Annual or Administrative Plans are bound by the notice and hearing requirements set forth in QHWRA. In Baldwin, the court, denied Defendants’ Motion to Dismiss, finding that plaintiff/applicant would be entitled to 45 day notice, public hearing and other requirements of the annual plan process, prior to the PHA’s adoption of credit worthiness as admission criterion if her allegations were proved true. In it’s ruling, the court discussed the requirement that PHA’s comply with the annual plan process whenever significant changes are made to their administrative plan/annual plan./23/ Moreover, advocates may be able to challenge the legality of HUD’s establishing directives and guidelines to PHAs that exceed the scope of the statutory and regulatory requirements, such as the 30-hour minimum. Advocates should work with their local PHAs to encourage them to adopt a broad range of activities and exemptions that are easy to implement and that work for their local residents and the community.

Click here for Baldwin Summary Judgment Motion and Motion to Dismiss ruling; Opposition to Dismiss Brief.

1. NOTICE PIH 2003-17 Reinstatement of the Community Service and Self Sufficiency Requirement (June 20, 2003). [Click here to get PIH 2003-17.] For background see Public Housing Mandatory Community Service and Self-Sufficiency Requirements Reinstated, 33 HOUS. L. BULL. 339 (July 2003); Public Housing Community Service Requirement Suspended, 32 HOUS. L .BULL. 12 (Jan. 2002); see also, Public Housing Community Service Policies: Requirements and Advocacy Tips, 31 HOUS. L. BULL. 135 (June 2001).

2. 42 U.S.C.A. § 1437j(c)(West 2003). There is no similar community service requirement for Section 8 recipients.

3. http://www.hud.gov/offices/pih/phr/about/ao_faq4.cfm.

4. See 24 C.F.R. § 960.605(c)(2003), PIH Notice 2003-17(June 20, 2003).

5. 42 U.S.C.A. § 1437j(c)(2) (West 2003); 24 C.F.R. § 960.601 (2003).

6. Any tenant who is subject to the community service requirement who is 61 years old at the time of the determination of nonexempt status should also be exempt as that person will turn 62 during the next 12 months and become prospectively exempt by virtue of his or her age. As noted below, the PHA community service policy ought to be that if the resident becomes exempt at any time during the 12-month lease period, the resident’s exemption should be retroactive to the beginning of the lease term for which eligibility was determined.

7. The definition of a “blind or disabled person” is found in Sections 216(i)(1) and 1614 of the Social Security Act. 42 U.S.C.A. §§ 416(i)(1) and 1382c (West Supp. 2003). 24 C.F.R. § 960.601(b)(2003) (Exempt Individual).

8. Congress recognized that the community service requirements would be coordinated with the state welfare agency exemption requirements. In the legislative history, it is noted that “the welfare reform law prohibits states from penalizing a single parent caring for a child under 6 for refusal to work if the parent is able to prove that child care was unobtainable. States can also exempt single parents who are caring for a child under 12 months of age. Lastly, state funded only programs could have additional exemption requirements.” S. Rep 21, 105 Cong., 1st Sess. 24 (1997).

9. It is important to note that if any member of a family (i.e. part of the household) is receiving assistance, benefits or service under TANF or any other state welfare program, all members of the family are exempt. It is not necessary for the particular individual claiming the exemption to be receiving the public assistance or to be a member of the TANF or welfare assistance unit. 24 C.F.R. § 960.601(b)(5)(2003).

10. 42 U.S.C.A. § 607(d)(West 2003); see 24 C.F.R. § 5.603 (2003).

11. 24 C.F.R. § 960.601(b)(Exempt Individual), 65 Fed. Reg. 16,692, 16,711 (Mar. 29, 2000).

12. Frequently Asked Questions (FAQ), IV, Q9 (published on HUD Web site March 29, 2000).

13. PIH Notice 2003-17, part C (June 2003)(emphasis added).

14. 42 U.S.C.A. §1437j(c)(2) (West 2003).

15. These regulations are not housing regulations. They are the public welfare regulations relating to work requirements for recipients of TANF under the Department of Health and Human Services, Administration for Children and Families Section.

16. 24 C.F.R. § 960.605(c)(3)(2003).

17. Id. §960.607(b).

18. 42 U.S.C.A. § 1437j(c)(3)(C)(ii)(West Supp. 2003); 24 C.F.R. § 960.607 (b)& (c) (2003). The notice should (1) briefly describe the noncompliance; (2) state that the lease will not be renewed at the end of the 12-month period as a result of the noncompliance unless there is a written agreement with the head of household and the noncompliant family member (if it is someone other than the head of household) to correct the noncompliance or a written statement that the resident or noncompliant family member has moved out; and (3) advise the head of household or other adult member that he or she is entitled to a grievance hearing or to any judicial remedy to contest the PHA’s decision.

19. 65 Fed. Reg. 16,692, 16,711 (Mar. 29, 2000).

20. 65 Fed. Reg. 16,692, 16,709 (Mar. 29, 2000).

21. 42 U.S.C.A. 1437c-1 (West 2003), 24 C.F.R.§ 903.21 (2003).

22. 24 C.F.R. § 903.17 (2003).

23. Baldwin v. Housing Authority of the City of Camden, No. CIV.A.02-CV-05931,WL 21991349 (Aug. 21, 2003 as amended Sept. 26, 2003).