[ Reply ]
From: Mac McCreight
email: mailto:mmccreight@gbls.org
link: http://
date: 6/30/0 15:46
Date: 12/21/00
Time: 11:37:13 AM
Remote Name: 207.251.188.199
Here are my thoughts on how Chapter 3 of the REAC Manual, Version 1.7 could be reworked. Catherine and others who review, note that the two bracketed paragraphs below, between 3.1 and 3.5, are not part of the formal comments to HUD, but are more for our internal thinking.
Catherine, I assume that you will fold this into one general document that will be forwarded to David Decker at HUD at his e-mail address (and cc'd to Saul Ramirez and others). If not, and you're wanting me to send it on, let me know. However, I will be out Monday and Tuesday (back Wed. 7/5).
Section 3.1 should be revised to read as follows:
"If a tenant's income has been underreported and, based on the 1998 data, the current rent is too low, POAs may increase the tenant's rent. If based on the 1998 data, the current rent is too high, POAs may decrease the tenant's rent. HUD will not require POAs to make rental adjustments for prior years for income that is identified through this process. POAs should afford tenants appropriate due process, as described in HUD program requirements or in state and local regulations, as applicable, and as further described and supplemented below, regarding any unresolved disputes over income discrepancies, or if the POA chooses to take adverse action against the tenant based on the Federal tax data contained in HUD's tenant letter. (Such adverse action is not mandated by HUD with regard to the FY 2000 baseline collection.)".
[Catherine, REAC/HUD or industry may push to keep 3.3.1 in the Manual, Referral to Inspector General, given the discussion in the conference call, and needing to keep IG happy. I don't have strong feelings about this. I don't see any particular problems with that, except for deleting the reference to Section 3.3, which goes out.]
[Catherine, there may also be a question which comes up, in which REAC/HUD realizes that there's nothing in the Manual as revised, with the deletion of most of Chapter 3, describing what actions you take if the tenant doesn't cooperate in providing the HUD letter or in executing the IRS forms. If they push to have something describing this, I don't see that there's a basis to fight this, other than to insure proper due process protections, and other than our statutory argument about the need for agreements.]
Section 3.5 should be renumbered and revised to read as follows:
–Leave 3.5 (quote from statute) alone.
–Revise 3.5.1 to retitle as "Grievance/Informal Hearing/Review Procedures", and have
text say the following: "If there are unresolved disputes between the POA and the tenant regarding income discrepancy based on the Federal tax data, of if the POA chooses to take adverse action against the tenant based on the Federal tax data contained in HUD's tenant letter, the tenant can seek review of the POA's determination regarding the discrepancy, or the POA's adverse action, through a grievance, informal hearing, or review procedure. These procedures are different for the PIH and Housing Programs."
–Revise the title of 3.5.2 to read: "Public Housing and Section 8 Tenant-Based Programs" and revise the text to say: "The following grievance or informal hearing procedures
apply for Public Housing and Section 8 Tenant-Based programs.
–Leave 3.5.2.1 as is.
–Revise the text of 3.5.2.2 to add the following to the end: "There shall be no requirement for the tenant to escrow the disputed rent as a precondition to review of a dispute regarding an income discrepancy or PHA adverse action based on the Federal tax data."
–Revise the first two sentences of 3.5.2.3 to read as follows: "PHAs administering the Section 8 Tenant-Based Program are required to offer participants (tenants) the opportunity for an informal hearing to dispute income and rent data, and various adverse actions taken by the PHA. The informal hearing considers whether certain decisions relating to the household's circumstances are in accordance with the law, HUD regulations, and PHA policies." The last two sentences of the section can be left as is.
Revise existing Section 3.5.3 to be titled as follows: "Project-Based Assistance", and with revised text as follows: "The project-based programs affected by this guide are the Section 8 Project-Based Program, Rent Supplement Program, Rental Assistance Program (RAP), Section 202/811 Project Rental Assistance Contract, and Section 202/162 Project Assistance Contract. Where the program is administered by a PHA, or subject to PHA regulatory oversight (such as for the Section 8 moderate rehabilitation program or the Section 8 project-based certificate program, for Office of Housing units administered by a public housing authority, or for Office of Housing units administered by a state housing finance agency), the PHA is a "state actor", and is subject to federal due process requirements, as well as any applicable state and local due process requirements. Where, on the other hand, the program is not administered by a PHA or subject to PHA regulatory oversight, HUD must insure that governmental due process is provided for matters which cannot otherwise be resolved informally."
Add a new Section 3.5.3.1 as follows: "Project-Based Assistance Administered by a PHA or Subject to PHA Regulatory Oversight:"
"If a Public Housing Agency (including but not limited to a State Housing Finance Agency) administers or provides regulatory oversight for the Section 8 project-based assistance, rent supplement, rental assistance program (RAP program), Section 202/811 project rental assistance, or Section 202/162 project assistance, and it is a "state actor" subject to federal due process requirements, the PHA shall provide tenants with the opportunity to request an informal hearing regarding unresolved disputes on income discrepancies based on federal tax data or any adverse action taken by the PHA based on that data. Such informal hearing process shall be consistent with such federal due process requirements, and any applicable state or local laws related to due process. Such due process protections shall, at a minimum, conform to the procedural requirements of 24 CFR part 982 (for the Section 8 moderate rehabilitation program), 24 CFR part 983 (for the Section 8 project-based certificate program), or 24 CFR 5.514(f)(2)(iii) and (3). "
Add a new Section 3.5.3.2 as follows: "Project-Based Assistance Not Administered by a PHA or Subject to PHA Regulatory Oversight–Availability of HUD Review":
"If Project-Based Assistance is not administered by a PHA or subject to PHA Regulatory Oversight, as described above, the POA shall endeavor to informally resolve any disputes with a tenant concerning income discrepancy identified using Federal tax data or concerning adverse action that the POA chooses to take against a tenant based on such data. If the matter cannot be informally resolved, however, the POA shall inform the tenant of the right to seek review by HUD. The notice shall be in writing and shall advise the tenant of the person or persons at HUD who may be contacted for such review, the manner in which such review can be sought, and any time period for requesting such review. At a minimum, the tenant shall have 30 days to make a written request for such HUD review from receipt of notice from the POA. No final action shall be taken until the time period to request HUD review is exhausted. If a request for HUD review is made, no final action shall be taken until HUD has reviewed the POA process and decision and independently verified the information upon which the POA has based its action. HUD shall provide guidance to POAs as to the specific staff to be contacted where such reviews are sought, and the POA shall provide affected tenants with this information as part of the notice of the right to seek review."
Revise Section 3.6 to be retitled "Tenant Consultation with HUD Regarding Rights and Responsibilities", and revise text as follows: "In addition to the specific right to HUD review of decisions involving Project-Based Assistance not administered or subject to regulatory oversight by a PHA, any tenants affected by this Guide may contact the local HUD Field Office Director, Program Center Coordinator, or HUD Office of Housing for further clarification of the tenant's rights and responsibilities. HUD shall provide guidance to POAs as to the specific staff to be contacted, and the POAs shall provide affected tenants with this information."