Administration Efforts on Fair Housing, CRA, and Public Charge

Regulation | January 28, 2020 | by Linda Couch

The Trump Administration is working to change “affirmatively furthering fair housing” (AFFH) requirements that help enforce the Fair Housing Act, change the way 85% of the banks covered by the Community Reinvestment Act (CRA) meet CRA standards to invest in low and moderate income communities, and make the path to citizenship for immigrants using certain public benefits more difficult.

The Trump Administration is working to change “affirmatively furthering fair housing” (AFFH) requirements that help enforce the Fair Housing Act, change the way 85% of the banks covered by the Community Reinvestment Act (CRA) meet CRA standards to invest in low and moderate-income communities, and make the path to citizenship for immigrants using certain public benefits more difficult.

LeadingAge is concerned that the changes will weaken communities’ obligations to fair housing, lessen resources for affordable housing, and discourage older adults from receiving needed assistance.

Affirmatively Furthering Fair Housing

On January 14, the Administration issued a proposed rule on Affirmatively Furthering Fair Housing (AFFH). AFFH requires governments to promote (“further”) integration, desegregation, and opportunity while also combatting discrimination. Today’s AFFH standards became effective in 2015, a remarkable 47 years after the Fair Housing Act was enacted in 1968. The January 14 AFFH proposed rule would largely eliminate any expectation that communities create housing in areas that increase opportunity and counter segregation. In 2018, the Trump administration suspended local government obligations under the Obama-era AFFH; the January 14 proposed AFFH rule is the Trump Administration’s replacement.

While the 2015 AFFH tool provided clear standards as well as assessment and mapping tools to help jurisdictions assess their hosing markets and barriers their constituents faced in finding housing free from discrimination, the National Fair Housing Alliance says the proposed rule, “does not address segregation or provide clear standards or a format to help jurisdictions and public housing agencies identify and cure housing discrimination.”

LeadingAge will be working in a coalition with other groups to comment on the proposed rule in a way that supports strong AFFH compliance while recognizing the unique needs of local governments and public housing agencies.

Community Reinvestment Act

Two of the nation’s three entities that determine whether banks meet their Community Reinvestment Act (CRA) obligations have jointly issued proposed changes to how the banks they regulate would comply with the CRA. The CRA, enacted in 1977, requires banks to address communities’ banking needs, with an emphasis on how well banks are addressing the needs of low and moderate-income communities within their assessment areas. For affordable housing, this has translated into CRA-regulated banks being the main investor in Low Income Housing Tax Credits. Indeed, CRA-regulated banks provide 85% of the nation’s investment in the Low Income Housing Tax Credit, which an increasing number of LeadingAge members rely on to build and preserve housing.

The proposed rule from Office of the Comptroller of the Currency (OCC) and the Federal Deposit Investment Corporation (FDIC) would change qualifying activities under the CRA, amend how compliance with the CRA would be measured and the asset-sizes of banks that currently compel banks to have different compliance thresholds. In all, it appears that the proposed rule would let banks meet their CRA standards by serving higher-income needs and do so in areas that are not necessarily low or moderate incomes areas.

The third federal CRA regulator, the Federal Reserve, did not join the OCC and FDIC in these proposed CRA changes.

As LeadingAge members increasingly rely on resources like the Low Income Housing Tax Credit to build and preserve housing, bank investment in this housing credit must remain robust. LeadingAge will be working with other groups to submit comments that reflect community needs and the modern banking landscape.

Public Charge

On January 27, the Supreme Court decided to allow the Trump Administration to go ahead with its plans to impose new standards on who is considered a “public charge” and, thus, who may be ineligible to receive green cards. The Administration’s public charge policy has been on hold since October when it was blocked by a district court. The Administration can now move forward with its public charge plan, which will consider receipt of most housing assistance (and other types of assistance like Medicaid and food stamps) negatively when someone has applied for a green card.

The definition of the term ‘‘public benefit’’ was expanded by the Administration’s final public charge rule from its prior meaning of cash benefits for income maintenance and long term care institutionalization to include state or local cash assistance programs, Supplemental Nutrition Assistance Program (SNAP) benefits, most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing. The Section 202 PRAC program will continue to be excluded. More than 260,000 comments were filed on the proposed rule, including LeadingAge’s.

As LeadingAge said in our December 2018 comments to the Department of Homeland Security on their (at the time) proposed public charge rule, “The proposed rule would cause serious harm to older immigrants and their families, localities, states, and health care and housing providers. We urge that the rule be withdrawn in its entirety and that long-standing principles clarified in the 1999 field guidance remain in effect.”