U.S. Department of Housing and Urban Development

OFFICE OF PUBLIC AND INDIAN HOUSING

Special Attention of: Notice PIH 96-27 (HA)

Secretary\'s Representatives;

State/Area Coordinators; Directors, Issued: May 13, 1996

Public Housing Divisions; All Public

Housing and Section 8 Housing Expires: May 31, 1997

Agencies; Resident Management Cross References:

Corporations; All FHEO Directors,

Fair Housing Enforcement Centers;

All FHEO Directors, Program

Operations and Compliance Centers

Subject: Occupancy Provisions of the Housing Opportunity Program
Extension Act of 1996

1\) Overview

This Notice describes the screening, lease, and eviction provisions that

housing agencies (HAs) must adopt as a result of the \"Housing

Opportunity Program Extension Act of 1996,\" which was signed into law
on

March 28, 1996.

HAs are to implement the provisions in this law without awaiting HUD

regulations.

These provisions are in addition to the authority HAs already have in

the areas of screening, leases, evictions, and Section 8 terminations.

This Notice focuses on the new law\'s Section 9, \"Safety and Security
in

Public and Assisted Housing.\" The Notice also provides a summary of

Section 10, \"Public Housing Designated for Elderly and Disabled

Families.\" A more detailed discussion of the requirements of Section 10

is being provided in a separate HUD notice.

2\) Purpose

The purpose of this Notice is to inform HAs of the requirements of the

new law related to safety and security in public and assisted housing,

which, by the law\'s terms, are already in effect. These requirements

are consistent with the Department\'s determination to take every

reasonable step to help HAs promote safer public and assisted housing.

PH: Distribution: W-3-1, R-3-1(PIH), R-6, R-7, R-9, 138-2, 138-3, RMC-2,

R-3-1(FHEO)

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It is one of a series of steps that are being taken along these lines.

These steps include the April 12, 1996 issuance of Notice PIH 96-16

(HAs) entitled \"\'One Strike and You\'re Out\' Screening and Eviction

Guidelines for Public Housing Authorities,\" and a Proposed Rule

published on May 6, 1996 that includes HA\'s security efforts as an

additional performance indicator under the Public Housing Management

Assessment Program (PHMAP).

3\) Programs Covered

The new law makes changes to Subsection 6(r) and Section 16(e) of the

United States Housing Act of 1937, as amended (USHA) (42 U.S.C. 1437 et

seq.), which apply to the Section 8 certificate, voucher, and moderate

rehabilitation programs.

Changes to Sections 6, 7, and 16 of the USHA apply to public housing.

None of these changes is applicable to the administration of Indian

Housing programs under the USHA.

4\) Statutory Changes Applicable to the Section 8 Certificates,
Vouchers.

and Moderate Rehabilitation Programs

HAs must amend their administrative plan to state their policies for

implementing the provisions below.

A\) Ineligibility if Evicted for Drug-Related Activity

Drug-related criminal activity is the illegal manufacture, sale,

distribution, use or possession with intent to manufacture, sell,

distribute or use a controlled substance.

Persons evicted from public housing, Indian housing, Section 23, or

any Section 8 program because of drug-related criminal activity are

ineligible for admission to Section 8 programs for a three-year

period beginning on the date of such eviction.

HAs may waive this requirement if:

\-- the person demonstrates successful completion of a

rehabilitation program approved by the HA, or

\-- the circumstances leading to the eviction no longer exist.

For example, the individual involved in drugs is no longer in

the household because the person is incarcerated.

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B\) Screening Out Illegal Drug Users and Alcohol Abusers

HAs must establish standards (i.e., policies and procedures) that

prohibit the admission to Section 8 programs of any person who the

HA determines is illegally using a controlled substance.

HAs must establish policies and procedures that prohibit admitting

any person to Section 8 programs in cases where the HA determines

that there is reasonable cause to believe that the person abuses

alcohol in a way that may interfere with the health, safety, or

right to peaceful enjoyment of the premises by other residents.

HAs must establish policies and procedures that prohibit admitting

any person to Section 8 programs in cases where the HA determines

that there is reasonable cause to believe that the person\'s pattern

of illegal use of a controlled substance or pattern of abuse of

alcohol may interfere with the health, safety, or right to peaceful

enjoyment of the premises by other residents.

HAs may waive the policies prohibiting admission in these

circumstances if the person demonstrates to the HA\'s satisfaction

that the person is no longer engaging in illegal use of a

controlled substance or abuse of alcohol and:

\-- has successfully completed a supervised drug or alcohol

rehabilitation program;

\-- has otherwise been rehabilitated successfully; or

\-- is participating in a supervised drug or alcohol

rehabilitation program.

C\) Terminating Assistance to Illegal Drug Users and Alcohol Abusers

HAs must establish standards (i.e., policies and procedures) that

allow for the termination of Section 8 assistance of any person who

the HA determines is illegally using a controlled substance.

HAs may terminate Section 8 assistance for any person if the HA

determines that the person\'s abuse of alcohol interferes with the

health, safety, or right to peaceful enjoyment of the premises by

other residents.

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5\) Statutory Changes Applicable to Public Housing

Nothing in the Extender Act negates the provisions for applicants\'

rights to informal hearings and tenants\' rights to judicial

proceedings for evictions.

The Extender Act imposes certain requirements beyond those already

in place which, in general, look at a person\'s recent behavior to

see whether it would result in noncompliance with the lease.

Normal screening should look at past conduct as an indicator of

future conduct. In considering the elements discussed below, the

HAs\' focus should not be on whether the applicant or tenant happens

to have a disability.

A\) Ineligibility if Evicted for Drug-Related Activity

Drug-related criminal activity is the illegal manufacture,

sale, distribution, use or possession with intent to

manufacture, sell, distribute or use a controlled substance.

Persons evicted from public housing, Indian housing, Section

23, or any Section 8 program because of drug-related criminal

activity are ineligible for admission to public housing for a

three -year period beginning on the date of such eviction.

HAs can waive this requirement if:

\-- the person demonstrates successful completion of a

rehabilitation program approved by the HA, or

\-- the circumstances leading to the eviction no longer

exist. For example, the individual involved in drugs is

no longer in the household because the person is

incarcerated.

B\) Screening Out Illegal Drug Users and Alcohol Abusers

HAs must establish standards (i.e., policies and procedures)

that prohibit the admission to public housing of any person

who the HA determines is illegally using a controlled

substance.

HAs must establish policies and procedures that prohibit

admitting any person to public housing in cases where the HA

determines that there is reasonable cause to believe that the

person abuses alcohol in a way that may interfere with the

health, safety, or right to peaceful enjoyment of the premises

by other residents.

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HAs must establish policies and procedures that prohibit

admitting any person to public housing in cases where the HA

determines that there is reasonable cause to believe that the

person\'s pattern of illegal use of a controlled substance or

pattern of abuse of alcohol may interfere with the health,

safety, or right to peaceful enjoyment of the premises by

other residents.

HAs may waive policies prohibiting admission in these

circumstances if the person demonstrates to the HA\'s

satisfaction that the person is no longer engaging in illegal

use of a controlled substance or abuse of alcohol and:

\-- has successfully completed a supervised drug or alcohol

rehabilitation program;

\-- has otherwise been rehabilitated successfully; or

\-- is participating in a supervised drug or alcohol

rehabilitation program.

C\) Terminating Assistance to Illegal Drug Users and Alcohol Abusers

HAs must establish standards (i.e., policies and procedures) that

allow for the termination of the tenancy of any person who the HA

determines is illegally using a controlled substance.

HAs may terminate the tenancy of any person if the HA determines

that the person\'s abuse of alcohol interferes with the health,

safety, or right to peaceful enjoyment of the premises by other

residents.

D\) Lease Provision

Public housing lease forms must be amended promptly to provide that

the following activities by any resident are grounds for

termination of tenancy:

\-- drug-related criminal activity on or off the premises, not

just on or near the premises; and

\-- alcohol abuse that the HA determines interferes with the

health, safety, or right to peaceful enjoyment of the premises

by other residents.

In amending the lease form, HAs must provide tenants with notice

and opportunity to comment, according to the provisions in 24 CFR

966.3. The modification may be either in the body of the lease or

in a lease addendum.

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Tenants must be required to execute the new lease/addendum no later

than their next reexamination.

E\) Grievance Procedures

In states where HUD has determined that a court provides the

elements of due process, HAs may bypass the grievance procedures in

cases involving termination of tenancy for any activity, not just

a criminal activity, that threatens the health, safety, or right to

peaceful enjoyment of the premises by other tenants or employees of

the HA; or any drug-related criminal activity on or off such

premises, not just on or near such premises. Otherwise, grievance

procedures would remain the same as they have been, per 24 CFR 966.

If HAs plan to amend their grievance procedures, they must provide

tenants with notice and opportunity to comment, according to the

provisions in 24 CFR 966.52(c).

F\) Availability of Criminal Records

The law states that, notwithstanding any other provision of law,

the National Crime Information Center, police departments, and

other law enforcement agencies shall, upon request, provide HAs

information regarding the criminal conviction records of adult

applicants for, or tenants of, public housing for purposes of

applicant screening, lease enforcement, and eviction.

This information must be provided for persons 18 years of age or

older, or for those convicted of a crime as an adult.

The provisions of this paragraph (5F) pre-empt any contrary

provision in State, local, or tribal laws, and prevail over any

contrary federal requirement. These provisions do not pre-empt or

limit any laws or authority that permit broader access to records.

On request, HAs must be provided the same information for

juveniles, only to the extent that the release of such information

is authorized by State, local, or tribal laws.

While not addressed by the statute, HAs may pay reasonable fees

charged by law enforcement agencies that provide the information.

The applicant or tenant may not be charged.

HUD is working with the FBI on this matter and will issue

additional guidance when it is available.

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HAs must establish a system to ensure that any criminal record

received be maintained confidentially, not misused or improperly

disseminated, and destroyed once the purpose for which it was

requested is accomplished.

Before HAs take any adverse action based on a criminal conviction

record, the HA must provide the applicant or tenant with a copy of

the criminal record and an opportunity to dispute the accuracy or

relevancy of the record. The opportunity to dispute the record can

be at an informal hearing for rejected applicants or at the court

hearing in the case of evictions.

6\) Statutory Changes in Designating Public Housing for Elderly and
Disabled

Families

Some important elements of Section 10 of the Housing Opportunity Program

Extension Act of 1996 are summarized here:

\-- Provides new statutory requirements for HAs in developing plans to

designate projects for elderly families only, disabled families

only, or elderly and disabled families. Provides that an

allocation plan that was submitted prior to the new law but has not

yet been approved or disapproved shall be considered submitted

under the new law.

\-- Provides that any plan approved before enactment of this law shall

be in effect for five years beginning with the date of such

approval.

\-- Explains that HAs must establish that the designation is necessary

to achieve the housing goals in the jurisdiction\'s Comprehensive

Housing Affordability Strategy (CHAS) and necessary to meet the

housing needs of its low-income population.

\-- Requires that the plan include a description of the designated

project, the tenants, any supportive services that will be

provided, how the design and related facilities accommodate the

special environmental needs of the intended occupants, and any

plans to secure additional housing resources or housing assistance

for the families that may have been housed in the project if it had

not been designated.

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Notes that no tenants in compliance with their lease may be evicted

or required to move because of the designation of the unit. HAs

must provide relocation assistance to tenants who agree to be

relocated in connection with the designation.

More detailed requirements for designating public housing will be

covered in a separate notice.

7\) Nondiscrimination

Nothing in this Notice relieves HAs from complying with Federal

requirements prohibiting unlawful discrimination. In particular, in

implementing the provisions described in this Notice, HAs must abide by

Federal laws prohibiting discrimination on the basis of race, religion,

sex, color, national origin, age, disability, and familial status.

HAs must apply their procedures objectively in dealing with both

applicants and participants. Only an individual\'s particular behavior

may be considered, not traits that might be attributed to a specific

group or category of persons. HAs should carefully document the

rationale for their decisions.

Kevin Emanuel Marchman, Deputy Assistant

Secretary for Distressed and

Troubled Housing Recovery