On June 30, HUD posted Notice H 2017-05 Violence Against Women Act (VAWA) Reauthorization Act of 2013 – Additional Guidance for Multifamily Owners and Management Agents. This 44-page notice provides guidance to owners and management agents (O/As) of HUD multifamily assisted housing on the requirements of the Violence Against Women Reauthorization Act of 2013: Implementation in HUD Housing Programs, Final Rule.
During a discussion with LeadingAge and a coalition of other housing provider, HUD staff gave timely updates on a range of topics.
Among the most significant issues, the status of service coordinator grant funding for FY17, After more than seven months without funding:
LeadingAge has created a series of Market Snapshot Reports on several long-term services and supports sectors. These reports give a brief overview of the size of the sector compared with others, data pertaining to that sector’s growth with trends and what our members are saying about the sector overall. These guides condense both qualitative and quantitative information in a quick reference format.
Use New VAWA Certification Forms NOW
HUD has created Microsoft Word and PDF fillable files for the four model forms included in the Violence Against Women Act (VAWA) final rule that was published in the Federal Register on November 16, 2016. These forms are now available on HUDClips.
The Senate passed the Housing Opportunity Through Modernization Act (HR 3700/S 3083) before it adjourned for summer recess. This is a significant victory for housing advocates. The legislation will streamline tenant income determinations and rent setting, and vastly improve the ability to project-base vouchers, among other benefits.
On Aug. 7, 2015, HUD issued the long-awaited Section 8 Renewal Policy Guidebook (the “Guide”). A FAQ was distributed to HUD field offices on Oct. 30, 2015 to clarify some issues with the updated guide. The FAQ is organized by the chapters in the Guide.
Gates Dunaway provides the following analysis and insights:
In a hearing exploring the interplay between housing costs and government regulations, New York City’s Housing Preservation and Development Commissioner Vicki Been told members of Congress of the need for affordable senior housing.
“Day in and day out, we hear from elected officials and community organizations about the dire need for senior housing,” Commissioner Been testified.
“Historically, the HUD Section 202 program spurred the production of affordable senior housing but it has been completely defunded since 2011. We desperately need Congress to restore funding for the 202 program. In New York City alone, we have more than 200,000 seniors on waiting lists for affordable senior housing. Without 202 funding, we are unable to meet those needs,” Commissioner Been testified.
The hearing, before the House Financial Services Subcommittee on Housing and Insurance, broadly looked at mounting pressures on the rental housing market, particularly affordable housing.
Subcommittee Chair Blaine Luetkemeyer (R-MO) and Ranking Member Emanuel Cleaver (D-MO) sought ideas from witnesses to expand affordable housing opportunities.
Commissioner Been noted that many regulatory requirements serve to protect communities’ infrastructure capacities, and to ensure the structural safety of properties.
Granger MacDonald, on behalf of the National Association of Home Builders, testified that the Davis-Bacon Act artificially drives up construction costs on apartment communities, including those with HUD financing.
An archived webcast of the hearing as well as witness testimony is here.
Disparate Impact theory allows a finding of liability without proof of any actual intent to discriminate.
Recent documents issued by the U.S. Department of Housing and Urban Development (HUD) include a Feb. 15, 2013 regulation entitled "Implementation of the Fair Housing Act’s Discriminatory Effects Standard" that codifies the standard for assessing “disparate impact” liability for practices in sales, rentals, or financing of dwellings and in other housing-related activities.This final rule on disparate impact provides a 3-step analysis that scrutinizes rules and practices that, while neutral on their face, have a harsher impact on members of a class of people protected under the Fair Housing Act.
On April 4, 2016, HUD's Office of General Counsel (OGC) issued a 10-page memo outlining how the 3-step process would be applied to criminal history policies used by housing providers to determine whether their criminal screening history reviews sufficiently consider such factors as type of crime and length of time since conviction, and whether any discriminatory effect caused by the practice is justified.
3-Part Burden-Shifting Test
In effect since March 18, 2013, the final rule lays out a formalized 3-part burden-shifting test for determining when policies or practices resulting in a discriminatory effect violate the Fair Housing Act:
- The charging party or plaintiff first bears the burden of proving that a certain policy or practice results in, or would predictably result in, a discriminatory effect on persons of a particular race, color, religion, sex, disability, familial status, and/or national origin.
- If the charging party or plaintiff proves this, then the burden of proof shifts to the respondent or defendant to provide a "legally sufficient justification" proving that the challenged practice is necessary to achieve one or more of its substantial, legitimate, nondiscriminatory interests.
- If the respondent or defendant satisfies this burden, then the charging party or plaintiff may still establish liability by proving that the substantial, legitimate, nondiscriminatory interest could be served by a practice that has a less discriminatory effect.
Though disparate impact doctrine is focused primarily on harmful outcomes, the final rule points out that it can also help root out intentional discrimination, which is often more difficult to prove. The final rule also explicitly bans practices that create or perpetuate racially segregated housing.
As a result of this rule, defendants (which include housing providers, city governments, lenders, and others) may find themselves attacked due to a policy that appears to be reasonable and nondiscriminatory on its face but that, as applied, may have an inadvertently or even accidentally harsher impact on a protected class.
Disparate Impact of Criminal Histories or Arrest Records
On April 4, 2016, HUD's Office of General Counsel (OGC) issued a 10-page memo outlining how the 3-step process would be applied to criminal history policies used by housing providers to determine whether their criminal screening history reviews sufficiently consider such factors as type of crime and length of time since conviction, and whether any discriminatory effect caused by the practice is justified.
According to the memo, “[b]ecause of widespread racial and ethnic disparities in the U.S. criminal justice system, criminal history-based restrictions on access to housing are likely disproportionately to burden African Americans and Hispanics. While the [Fair Housing] Act does not prohibit housing providers from appropriately considering criminal history information when making housing decisions, arbitrary and overboard criminal history-related bans are likely to lack a legally sufficient justification. Thus , a discriminatory effect resulting from a policy or practice that denies housing to anyone with a prior arrest or any kind of criminal conviction cannot be justified, and therefore such practices would violate the Fair Housing Act.”
The take-away from this document is that policies that exclude persons based on criminal history must be tailored to address such factors as the type of the crime and the length of time since conviction.
Disparate Impact: Additional Business Practices to Watch Out For
So, what kinds of common, and until-now, seemingly justified business practices may have an inadvertent effect or disproportionate adverse impact on persons in a protected class?
HUD’s recent guidance urging federally subsidized housing providers to be more flexible in their tenant-selection policies with regard to keeping ex-convicts out of housing is one example -- as convictions and arrests tend to happen with greater frequency among persons of a particular race than others.
Efforts to set motorized cart or other policies that are intended to be reasonably protective of the safety of residents could potentially be turned against an owner because their policies are too broad, impacting persons with disabilities more severely.
The same goes with marketing to certain zip codes and areas within a specific geographic distance, yet have a demographic profile that would tend to be short on persons of particular racial, ethnic or religious backgrounds. For upscale communities, marketing to persons of a higher economic profile could easily run afoul of the disparate impact theory.
Failure to attempt to compensate for the demographic disparity might be used against a rationale explaining the business case.
Harry Kelly, Esq of Nixon Peabody offers additional insights into the implications of the rule in his analysis, included here by express permission of the author.
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