[Federal Register Volume 59, Number 139 (Thursday, July 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17703]


[[Page Unknown]]

[Federal Register: July 21, 1994]


-----------------------------------------------------------------------

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Assistant Secretary for Fair Housing and Equal Opportunity
[Docket No. N-94-3661; FR-3566-N-05]

 

Task Force on Occupancy Standards in Public and Assisted Housing

AGENCY: Office of the Assistant Secretary for Fair Housing and Equal 
Opportunity, HUD.

ACTION: Notice of Availability of Final Report.

-----------------------------------------------------------------------

SUMMARY: The Task Force on Occupancy Standards in Public and Assisted 
Housing was established on December 31, 1992 in accordance with the 
provisions of section 643 of the Housing and Community Development Act 
of 1992 (P.L. 102-550) and the Federal Advisory Committee Act (FACA) (5 
U.S.C. App 2). The Task Force's charter was published in the Federal 
Register on January 7, 1993 at 58 FR 3039. The Task Force was created 
to review all rules, policy statements, handbooks and technical 
assistance memoranda issued by the Department on the standards and 
obligations governing residency in public and assisted housing; and 
make recommendations in its final report to HUD and Congress for the 
establishment of reasonable criteria for occupancy, so that HUD could 
revise its standards, regulations, and guidelines to provide accurate 
and complete guidance to owners and managers of federally assisted 
housing.
    The preliminary report of the task force was made available by a 
Federal Register Notice published on August 31, 1993, at 58 FR 45905. 
The public was given 60 days to submit comments on the preliminary 
report.
    This notice is to provide the public with the Executive Summary of 
the Report and announce the availability of the Task Force's Final 
Report from the Fair Housing Clearinghouse (1-800-343-3442) or (TDD) 
(1-800-927-9275), 1600 Research Boulevard, Rockville, Maryland 20850. 
This Report reflects the opinions of the Task Force and does not 
necessarily represent Departmental policy or procedures. The Department 
is presently considering all the recommendations and expects to publish 
rules and guidance addressing the issues raised in the Report.

FOR FURTHER INFORMATION CONTACT: Laurence D. Pearl, Director, Office of 
Program Standards and Evaluation, Office of Fair Housing and Equal 
Opportunity, Room 5226, Department of Housing and Urban Development, 
451 Seventh Street, SW, Washington, DC 20410. Telephone: (202) 708-0288 
(voice) or (TDD) (202) 708-0113 (These are not toll-free numbers.)

SUPPLEMENTARY INFORMATION: The Executive Summary of the Report.

Preface--Funding and Finance Issues

    Throughout its deliberations and recommendations, one theme about 
which Occupancy Task Force members agreed was that low-income people 
should have more housing choices than they do at present. The issue of 
housing choice, along with many other concerns the Task Force 
addressed, is complicated by scarcity of resources. The Task Force 
therefore proposes a number of recommendations aimed specifically at 
funding and cost issues.

Chapter 1--The Application Process

    In preparing its report, the Occupancy Task Force decided that it 
would be more useful to begin by addressing the sequential tenancy 
process: the application process, occupancy and eviction. The first 
stage of this process, during which applicants are screened for 
eligibility and tenant selection criteria, is an extremely important 
one in that the applicants who are selected will become members of the 
resident community and those who are not selected will be denied the 
opportunity to live in federally assisted housing. Thus, the Task Force 
spent significant time considering the issues contained in the 
Application Process Chapter. In doing so, the Task Force balanced the 
rights of housing providers to choose residents who will fulfill their 
lease obligations and the rights of applicants to be chosen fairly.
    In addition to including the Task Force's specific recommendations, 
Chapter One describes the application process from start to finish in 
order to provide a full context for the recommendations. In particular, 
the application process issues addressed by the Task Force include the 
following:
     Guiding principles for the application process;
     Accessibility of the application process and the need for 
plain language forms and documents;
     Marketing;
     Waiting lists;
     Occupancy standards;
     Rent reform;
     Screening applicants, including applicants with non-
traditional tenant histories;
     Reasonable accommodations in the application and screening 
process;
     Disability-related inquiries; and
     Determinations involving alcohol and controlled 
substances.

Chapter 2--Management

    The application process ends when the housing provider makes the 
decision to admit an applicant. Next, the housing management process 
begins, encompassing orientation, execution of the lease, move-in, 
occupancy and lease compliance. The Task Force addressed the following 
topics within the housing management process;
     Guiding Principles for the housing management process;
     The lease;
     Preventing and addressing lease violations;
     Unit transfers; and
     Retention of housing during hospitalization or residential 
treatment.

Chapter 3--Evictions

    Eviction from public or assisted housing is a very serious 
sanction; it not only displaces the resident, it also discontinues the 
subsidy that makes housing affordable to that resident. Eviction is 
nonetheless occasionally necessary. Experience shows that some 
individuals are not willing to meet the essential obligations of 
tenancy and must be removed in order to preserve the viability of the 
housing development. Given the shortage of public and assisted housing, 
and the difficulty of preserving this housing, the Task force also 
stresses the need to remove those whose conduct is destructive to the 
development.
    An equitable eviction policy will authorize the eviction, in 
appropriate circumstances, of those residents whose conduct violates 
essential provisions of the lease, those whose conduct repeatedly 
violates minor provisions of the lease, and those who allow others to 
do so. The Task Force reviews the proper use of eviction as focusing 
generally on whether and how seriously the conduct in question 
adversely affects the housing community. In addition, the Task Force 
recommends that except as noted, the status, regulations, handbooks and 
lease provisions regarding eviction not be changed.
    The report addresses the following topics:
     Alternatives to eviction;
     Alternatives after eviction, to prevent homelessness;
     Notices;
     Drug abuse and drug related crime;
     Criminal activity as grounds for eviction;
     Former users of illegal drugs;
     Fraud;
     Minor crimes and off-premises criminal activity;
     Public housing grievance procedure;
     Residents' liability for the actions of others;
     Consideration of all the facts and circumstances;
     Criminal activity prior to admission;
     Subsidy termination--certificate and voucher programs; and
     Subsidy termination--assisted housing.

Chapter 4--Reasonable Accommodations

    Reasonable accommodation is a creative, challenging and evolving 
area of disability law and practice, affecting every aspect of 
admissions, occupancy and evictions. The Task Force believes that, 
despite many uncertainties as to what is required by law, it is 
possible to craft sound, basic, reasonable accommodation policies and 
procedures which will satisfy the intent of the law without subjecting 
either persons with disabilities or housing providers to unintended 
burdens.
    This chapter tackles a wide range of reasonable accommodations 
issues with the intention of providing guidance on the procedural 
elements essential to achieving compliance. Specifically, the chapter 
is organized as follows:
     Regulatory and case-law references that provide background 
on the concept of reasonable accommodation followed by brief discussion 
of program accessibility requirements (the self-evaluation and 
transition plan);
     Discussion of a definition of reasonable accommodation;
     Statement of principles applicable to reasonable 
accommodations, drawn from current law and regulation and describing 
both affirmative requirements and the regulatory limits placed on the 
implementation of the concept;
     Examination of the regulatory limits that apply to 
accommodations (undue burdens and fundamental alterations);
     Recommendations on effective implementation of reasonable 
accommodations;
     Review of diverse reasonable accommodation issues 
including disagreements about types of accommodation, accommodations in 
the occupancy cycle, procedures related to service animals, and the use 
of interpreters; and
     Recommendations for HUD Technical Assistance.

Chapter 5--Fundamental Alterations

    Both Section 504 of the Rehabilitation Act of 1973 and the Fair 
Housing Amendments Act of 1988 anticipate that, at some level, the 
compliance action requested or required may exhaust available resources 
or so alter the housing program that the action becomes infeasible. 
Housing providers are required to judge the feasibility of compliance 
actions against two criteria; fundamental alternations in the nature of 
the program and undue financial and administrative burdens. This 
chapter frames these issues in the context of program operations and 
management.
    Fundamental alternations in the nature of the program and undue 
financial and administrative burdens raise issues of resource 
management, capital planning, and ultimately, program funding. Many 
compliance actions can be absorbed with existing program funds, but the 
cost of making some programs accessible and responding to some requests 
for accommodations will require that Congress recognize the need for 
increased funding levels. Greater flexibility in HUD's rules governing 
the use of operating and capital budgets is also required. Specific 
changes in budget operating procedures and formula calculations are 
recommended.
    The Task Force also makes a general recommendation to increase the 
level of modernization funds for both public and assisted housing.
    This chapter includes:
     Examples of actions that might result in fundamental 
alternations;
     Suggestions for evaluating fundamental alternations in 
light of the program purpose and any services delivered on site;
     Treatment of profit at assisted housing properties;
     Principles that explain how the undue burdens test is 
unique to each reasonable accommodation request and how to judge the 
impact of compliance actions against available program resources;
     Use of operating and capital budgeting line items for 
reasonable accommodation and other compliance requirements;
     Program factors to consider when assessing undue burdens;
     Procedural frameworks for evaluating undue financial 
burdens in public and assisted housing; and
     A plan for identifying unfunded accessibility needs.

Chapter 6--Certificates and Vouchers

    During the course of its deliberations, the Task Force generally 
discussed issues that could be addressed in a unified manner for all 
federally subsidized housing programs, such as the need for plain 
language forms and communications. Thus, the Task Force wishes to make 
clear that all such global recommendations, such as the need for plain 
language and timely and adequate notice, apply in the Section 8 
Certificate and Voucher programs.
    However, the Task Force also dealt with issues in the public 
housing and project-based assistance programs, such as admissions 
procedures, that could not be so readily carried over into the context 
of the Certificate and Voucher programs; this posed a particular 
challenge. In those programs the housing authority does not admit an 
applicant to housing, is not the resident's landlord and does not 
evict. Instead, in a delicate balance among the three parties involved, 
the housing agency provides a rental subsidy to the participant and, as 
a quid pro quo to the private landlord's receipt of a portion of the 
market rent, enforces specific regulatory provisions incorporated into 
the Housing Assistance Payments contract. Between the private landlord 
and the resident-recipient flow another set of rights and obligations, 
arising from the lease, the HAP contract, federal law and regulation 
and state law.
    In this chapter, the Task Force has addressed only those issues 
that were of particular concern to Task Force members or were congruent 
with issues raised in the project-based context. The Task Force has not 
attempted a wholesale critique of the Certificate and Voucher programs 
not wholly rewritten any area of program administration. Nor has the 
Task Force, in particular, dealt with the proposed regulations to 
consolidate the Certificate and Voucher programs, which have not yet 
been implemented and so do not represent current practice. This Chapter 
includes recommendations concerning:
     Expirations/extensions of time;
     Exemptions to fair market rents;
     Assistance for individuals with disabilities;
     Waiting lists;
     Evictions/terminations of assistance;
     Lease terminations in the first year of the lease;
     Damage and vacancy claims;
     Housing quality standards;
     Reasonable accommodations; and
     Portability/mobility.

Chapter 7--Support Services

    This chapter examines the intersection of housing and services and 
makes recommendations to Congress, HUD and the Department of Health and 
Human Services (HHS) about improving coordination, access, and delivery 
of services in an independent housing context. Many people who live in 
federally subsidized housing need, want and are eligible for services 
that have some form of federal subsidy or some form of federal mandate 
or encouragement. Services could help maintain tenancies and 
independence, promote economic and educations opportunity, and 
generally enhance the lives and opportunities of those who live in 
federally subsidized housing. The Task Force believes that one major 
problem is that the housing and service systems often do not understand 
one another or work in a coordinated way to help the same individual. 
Because issues of coordination can be addressed only if HUD and HHS 
work together, this chapter makes recommendations to HHS even though 
the Task Force was created to advise Congress about HUD matters.
    Part A of this chapter covers general services and housing issues 
and recommendations to ensure the provision of services to residents. 
Part B reviews the planning and funding complexities of federal, state 
and local programs, including recommendations to HUD and HHS. Part C 
discusses collaborative agreements between housing and services 
providers.

Chapter 8--Clearinghouse

    In a number of discussions, the Task Force addressed the problems 
associated with the lack of effective coordination among housing 
providers, supportive service providers, tenant representatives and 
advocates. We were also troubled by the general unavailability of 
adequate, reliable, technical assistance on reasonable accommodation 
procedures and substance.
    The Task Force concluded that one way of addressing both problems 
was to recommend that Congress require that each state receiving 
federal housing assistance establish a model clearinghouse program, to 
be funded by the HOME and CDBG programs. This chapter discusses the 
scope and purposes of such clearinghouses.

Chapter 9--Confidentiality

    Because every housing file contains personal information about 
applicants and residents, privacy and confidentiality and persistent 
concerns. The civil rights and housing program laws and regulations all 
address some aspects of privacy and confidentiality, but they leave 
many questions unanswered. Thus, the Task Force recommends that HUD 
research the variety of questions and issues that the chapter lists, 
consult with interested parties, and issue prompt and responsive 
guidance. The questions include issues relating to law enforcement, 
reasonable accommodations, resident screening and eviction committees, 
state and local laws, and service coordinator and provider 
responsibilities.

Chapter 10--NIMBY

    NIMBY, the Not In My Back Yard syndrome, both contributes to and is 
a form of housing discrimination. Like all forms of discrimination, 
NIMBY has ripple effects on subsidized housing providers. When a 
neighborhood association successfully prevents people with 
disabilities, people with low incomes, and people with no homes from 
moving in, it not only exacerbates the pressure on subsidized housing 
providers to house these groups, but it reinforces the stereotype that 
subsidized housing exists for the purpose of keeping ``the 
undesirables'' out of ``decent'' neighborhoods.
    NIMBY, like the dearth of affordable housing, has permeated the 
Task Force's deliberations. Thus, the purpose of this chapter is two-
fold. It describes how community perceptions and stereotypes can limit 
housing opportunities for individuals and families with low- and very 
low-incomes; while emphasizing that every individual and family should 
have an opportunity to choose from a variety of housing options, 
including private, public, federally-assisted, scattered site and 
supportive housing. Second, this chapter offers a number of specific 
recommendations to Congress and the Executive Agencies with regard to 
housing discrimination. This chapter is not an enforcement of one type 
of housing option over others but rather an enforcement of individual 
choice and empowerment. The Task Force was unanimous in its 
identification of discrimination as a major problem for everyone 
involved in the housing industry.

Closing Note on Recommendations to HUD

    Most of the Task Force's recommendations for HUD action suggest 
that HUD develop ``guidance'' for housing providers. The term 
``guidance'' means examples, models, and samples, of letters, forms, 
procedures, systems, etc., designed to help housing providers without 
imposing new requirements on them. The Task Force recommendations for 
guidance should not be interpreted by HUD as creating new requirements.

    Dated: June 23, 1994.
Roberta Achtenberg,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 94-17703 Filed 7-20-94; 8:45 am]
BILLING CODE 4210-28-P