Background
In general, each public housing authority (PHA) must develop and submit a Five Year Plan and an Annual Plan to the Department of Housing and Urban Development (HUD). The Annual Plan must set forth the local policies for admission to public housing and the Section 8 voucher program. 42 U.S.C. § 1437c-1(c)-(d). The supporting documents to the Annual Plan – the Admissions and Continued Occupancy Policy (ACOP) for public housing and the Administrative Plan (Admin Plan) for the voucher program – include more detailed information about eligibility criteria and the applicant screening process. Before submitting the Annual Plan to HUD, each PHA must hold a public hearing before its Board of Commissioners. 42 U.S.C. § 1437c-1(f). Advocates should engage PHAs as early as possible in the planning process by meeting with staff and submitting written comments on the contents of the ACOP and Admin Plan.
Screening Process
• The PHA will conduct a criminal background check on each adult member of an applicant household. An adult means a person 18 or older or a person convicted of a crime as an adult under federal, state, or tribal law.
• On the application form, the PHA will explain its policies and procedures on criminal activity and will inform the applicant of his or her right to request a reasonable accommodation and present evidence of mitigating circumstances, as well as the protections available under the Violence Against Women Act.
• If the criminal background check reveals negative information about a household member, and the PHA proposes to deny admission due to the negative information, the PHA will send the subject of the record (and the applicant, if different) a copy of the criminal record and provide an opportunity to dispute the accuracy and relevance of the record. In addition, the PHA will provide referral information for local legal services organizations.
• If the applicant does not contact the PHA to dispute the criminal record within 14 days, the PHA will send a written notice of ineligibility to the applicant. If the applicant did not contact the PHA within the specified time period due to a disability, the PHA will provide a reasonable accommodation if necessary.
• The notice of denial will state the specific reason for denial, inform the applicant that he or she may request an informal hearing to contest the decision, and explain how to request an informal hearing. In addition, the notice of denial will contain referral information for local legal services organizations. If the applicant did not request an informal hearing within the specified time period due to a disability, the PHA will provide a reasonable accommodation if necessary.
• For language groups served by the PHA, the PHA will translate its written materials and provide an oral interpreter at the informal hearing.
Eligibility Criteria
• The PHA will deny admission to a household if a member is subject to a lifetime registration requirement under a state sex offender registration program. (Mandatory bar under federal statute).
• The PHA will deny admission to a household if a member has been convicted of manufacturing or producing methamphetamine on the premises of federally-assisted housing. (Mandatory bar under federal statute).
• The PHA will deny admission to a household if a member has been evicted from federally-assisted housing for drug-related criminal activity within the past three years, unless the member has successfully completed a supervised drug rehabilitation program approved by the PHA or the circumstances leading to the eviction no longer exist. For example, the member who engaged in the drug-related criminal activity died, is in prison, or is no longer a member of the household. (Mandatory bar under federal statute).
• The PHA may deny admission to a household if a member has participated in drug-related or violent criminal activity within the past three years.
Note: Under federal law a PHA may deny an applicant if the criminal activity occurred within a “reasonable time” before the admission decision. A PHA may adopt a different length of time for different types of criminal activity. The New York City Housing Authority ACOP, for example, separates felonies and misdemeanors by class, and for each class, designates a length of time. Although some advocates believe that such a policy benefits individuals with a criminal record because it is easy for the PHA to administer, others find the model too rigid.
• If a household member has participated in drug-related or violent criminal activity, the PHA will consider mitigating circumstances, including, but not limited to: (1) the seriousness of the criminal activity; (2) the relationship between the criminal activity and the safety and security of residents, PHA staff, or property; (3) the length of time since the offense; (4) the age of the household member at the time of the offense; (5) evidence of rehabilitation, such as employment, participation in a job training program, education, participation in a drug or alcohol treatment program, or recommendations from a parole or probation officer, employer, teacher, social worker, or community leader; and (6) the effect a denial of admission will have on the household and the community.
• The PHA will not consider unproven allegations or arrests that did not result in convictions as evidence of criminal activity. In addition, the PHA will not consider expunged/purged/sealed convictions as evidence of criminal activity.
• The PHA will not consider juvenile adjudications that do not qualify as convictions under state law as evidence of criminal activity.
• If the applicant’s past criminal activity was related to his or her disability, the PHA will provide a reasonable accommodation if necessary.
• If the applicant’s past criminal activity was the consequence of acts of domestic violence, dating violence, or stalking against him or her, the PHA will not deny admission.
Note: For complete sample language on the protections available to victims of domestic violence under the Violence Against Women Act, see NHLP’s Sample PHA Domestic Violence Policy.
• If the PHA proposes to deny admission to a household based on the past criminal activity of a member, the PHA will provide the household an opportunity to exclude the member and obtain admission.
This page was supported in part by a grant from the Soros Justice Fellowships Program of the Open Society Institute.
