News

2017 Social Security COLA Announced - October 18, 2016

The federal government announced today that the Social Security Cost of Live Adjustment (COLA) for 2017 will be 0.3%. This means that there will be a very slight change in the Social Security income of SS recipients for the upcoming year (about $4 per month on average). Owners and managers of properties that are required to determine the income of residents should use the new COLA SS rate when projecting the income of applicants and residents. This also affects persons receiving SSI, VA pensions, Civil Service Pensions and Railroad Retirement.

HUD Revises Previous Participation Certification Requirements, Final Rule - October 14, 2016

On October 14, 2016, HUD published in the Federal Register a Final Rule, "Improving the Previous Participation Reviews of Prospective Multifamily Housing Program Participants."   This rule revises HUD regulations for review of Previous Participation Certifications (PPC) for certain participants in multifamily housing and healthcare programs. This memo applies only to the changes relating to the multifamily housing programs.   The final rule clarifies which individuals and entities will undergo review, and fully replaces the current PPC regulation. This rule is effective on November 14, 2016.   All applicants for HUD program funding must complete HUD Form 3560 (Previous Participation Certification). The form requires disclosure of all principals involved in a project, a list of prior projects they were involved in, and assurances that they met their responsibilities in the prior projects.   Projects covered by this requirement ("covered projects") include: FHA-Insured Projects; Section 202 and 811 Projects; Risk Share Projects; Projects subject to HUD Use-Restrictions or Affordability Restrictions; Subsidized Projects - if 20% or more of units receive subsidy from: Section 236; Rent Supplement; and Project-Based Section 8   Note - single-family projects are not subject to this requirement.   Controlling Participants   A "controlling participant" is a participant or entity that is serving as a "Specified Capacity." A Specified Capacity is defined as any of the following: An owner of a covered project; Borrower of a loan financing a covered project; A management agent; A master tenant of an FHA-insured project; or A general contractor     Control of Entities   If the Specified Capacity is an entity, rather than an individual, any individuals with control of the financial or operational decisions of the entity will be considered a "controlling participant."   Individuals or entities with the ability to direct the day-to-day operations of a Specified Capacity or a Covered Project may also be considered a controlling participant, as will Individuals or entities that own at least 25% of an entity that is a Specified Capacity; and Individuals or entities with the ability to direct the entity to enter into agreements.   There are exclusions from the definition of Controlling Participant, including: Passive investors and investor entities with limited liability in Covered projects benefitting from tax credits (e.g., the low-income housing tax credit). This applies to both syndicators and direct investors; Individuals/entities that do not exercise financial or operational control; Unless determined by HUD to exercise day-to-day control, Board members of a nonprofit who are not officers or part of the nonprofit management team; Mortgagees acting in their capacity as such; and Public Housing Agencies.   Triggering Events   The following events will trigger the PPC requirements: Application for FHA Mortgage insurance; Application for HUD funds for a program administered by HUD s Office of Housing; A request to change any controlling participant; and A request for consent to assign a Section 8 HAP Contract.   The Appendix to the Final Rule is the Processing Guide for the PPC process and should be carefully reviewed by anyone who may be considered a Controlling Participant under this new guidance.  

Streamlining Administrative Regulations for Multifamily Housing Programs, Notice H-2016-09

On October 3, 2016, HUD published Notice H-2016-09, relating to the streamlining of Administrative Regulations for Multifamily Housing (and some medically related) Programs. This memo relates only to the portions of the Notice relating to multifamily housing. The full streamlining rule was published in the Federal Register on March 8, 2016.   The Notice only applies to programs administered by the HUD Office of Multifamily Housing, as follows: Project-based Section 8, including new construction, HFA-financed projects, Substantial Rehab, Section 202/8, Rural Housing Section 515/8, Loan Management Set-Aside, and Property Disposition Set-Aside; Section 101 Rent Supplement; Section 202 PAC; Section 202 and 811 PRAC; Section 202 Senior Preservation Rental Assistance Contract (SPRAC); Section 811 Project Rental Assistance Demonstration Units under a Rental Assistance Contract (PRA); Section 236; Section 236 RAP; and Section 221(d)(3) BMIR.   Verification of Social Security Numbers (SSN)   This change applies to Rent Supplement, Section 8, Section 221(d)(3), Section 236, Section 202, and Section 811. It modifies the regulation as it applies to program applicants (as differentiated from program participants).   The regulation now permits owners/agents (OAs) to accept applicant households that include an applicant family member under the age of six, who does not yet have a SSN and was added to the household six months or less from the move-in date. In other words, if the child was added to the household more than six months prior to move-in, the child must have a SSN in order to move into the unit. With this change, the O/A may not deny occupancy to such applicant households.   The O/A must give the applicant 90-days from the effective date of the move-in certification to provide SSN documentation for the child. An additional 90-days must be granted if the failure to provide SSN documentation is due to circumstances that are outside the control of the household. Examples of such circumstances are delayed processing by the SSA, natural disaster, fire, death in the family, etc. During this time, the child will be counted as part of the household and will receive all program benefits, including the dependent deduction. Once the SSN is provided, an interim recertification is required.   TRACS Input   Purchased software used by O/As to transmit data to TRACS may not yet have the ability to properly transmit the SSN data. O/As will input using one of two methods: Pre-Software Change: when completing the SSN field in TRACS for a child who has been added to the applicant household six months or less from move-in and has no SSN, the owner must input an SSN of "999990000." This may only be used for move-in and initial certifications. Post-Software Change: Once software is updated, all SSNs of "999990000" must be edited with an interim certification. For a child without an SSN, the owner will input "999999999," with an "M" exception code. When the child is issued an SSN, an interim will be conducted and the correct SSN will be entered. All software is expected to be updated by February 17, 2017.   Penalty for Nondisclosure of SSN   The penalty for nondisclosure of a SSN for someone who is supposed to have or be issued a SSN is termination of tenancy for the entire household. Proration of assistance is not permitted.   Housing Assistance Payments During Eviction   HAP payments will continue during eviction and continue until the household is actually evicted. If a court refuses to evict a household, the household will be permitted to remain. O/As should continue to use "999999999" until an SSN is obtained, at which point an interim will be done.   Change in the definition of Extremely Low-Income (ELI)   This change applies only to the Section 8 Program.   The definition of "Extremely Low-Income" is now the highest of 30% of the Area Median Income or the Federal Poverty Level. The poverty level definition does not apply for public housing or projects in U.S. possessions, territories, or Puerto Rico.   HUD will publish the ELI annually - no research by the O/A is required.   Section 8 owners must use the ELI limits to meet the income targeting requirements (i.e., at least 40% of units rented at the ELI income level).   Change in the definition of Tuition   This change applies only to the Section 8 Program (other than Section 8 Mod Rehab). It amends the definition of "income" for purposes of tuition. Tuition now includes mandatory fees and charges and is excluded from income for Section 8 only. Formal guidance on this change was published in Notice H-2015-12. I sent a memo to clients on this on December 2, 2015.   Reexamination of Income   This is a major change in procedures, and applies to Project-based Section 8 properties, including 202 and 811 projects.   O/As may now use streamlined income determinations for fixed sources of income. For each fixed source, O/As must apply either a verified cost of living adjustment (COLA) or current rate of interest to previously verified or adjusted income. All non-fixed income must still be third party verified.   O/As have discretion regarding whether or not to adopt this rule. If chosen, the method may be used on the two annual recertifications following the annual recertification or move-in certification for which the income was third party verified. Every third year, all income must be third party verified.   If a household has both fixed and non-fixed income, the streamlined method may be used for the fixed income sources only.   Tenants may instruct owners not to use the streamlined method, in which case third party verification will be required.   Note: Low-Income Housing Tax Credit project owners should check with their HFA prior to using this streamlined method. While state agencies will be able to permit this method for LIHTC projects, they are not required to do so.                 Definition of "Fixed-Income"   Examples of fixed income include Social Security, SSI, SSDI; It is interesting that HUD considers SSI as a fixed-income since it is subject to change at any time. Federal/State/Local/Private Pensions; and Periodic payments from annuities, insurance policies, retirement funds, disability or death benefits, etc.   The Adjustment Factor   O/As must verify all adjustment factors (e.g., COLA or current rate of interest) from public sources or tenant-provided, third party generated documentation. If such documentation is not available, third party verification is required. Once an adjustment factor is verified, it is applied to the previously verified or adjusted income amount.   EIV verification of income is not required in the streamlining years.   All the changes outlined here apply to the HUD Project-based Section 8 program, and one (streamlining) may also apply to the LIHTC program. These changes are now in effect.    

Participation of Faith-Based Organizations in HUD Programs

I received a call recently regarding the rights of a faith-based organization operating an apartment community when HUD funding is present at the community. The issue is important enough that I believe other clients may benefit from a general review of the laws in this area.   24 CFR 5.109 is the governing section of the Code of Federal Regulations in this area. Faith-based organizations are eligible to participate in HUD programs and activities on the same basis as other organizations. No governmental entity administering HUD programs may discriminate against a group based on religious character or affiliation, of lack of religious character or affiliation.   A faith-based organization that participates in an HUD-funded program may continue to carry out its religious mission as long as direct federal financial assistance is not used to support or engage in activities that are clearly religious in nature. Religious organizations that receive direct federal funding may use space in its facilities to carry out activities under a HUD program without removing religious symbols from the space. However, if the organization carries out specific religious activities, the activities must be offered at a separate time or location from the programs or activities supported by federal financial assistance. Also, participation in religious activities must be voluntary for program beneficiaries. Faith-based organizations that carry out programs or activities with HUD financial assistance must give written notice to beneficiaries and prospective beneficiaries of the programs or activities and describe the protections available to them. If a beneficiary or prospective beneficiary objects to the religious character of the organization carrying out the programs, the organization must undertake reasonable efforts to refer the beneficiary or potential beneficiary to an alternative provider.   Faith-based organizations that operate HUD-assisted housing, and management companies working for such organizations, must be familiar with these requirements and be prepared to adhere to the federal requirements. Clearly, fair housing law should always be kept in mind when dealing with religious issues on the site. It is against the law to discriminate on the basis of religion. This includes having any practice, program, or policies that indicate a preference for one religion over another. For this reason, owners and managers should carefully review programs offered at properties and how community facilities are used.

HUD Notice H 2016-10; Reminder of Lead-Based Paint Requirements

On October 3, 2016, HUD published Notice H 2016-10, Reminder of Requirements Pertaining to Lead-Based Paint Inspection and Disclosure Forms, and Notification of Upcoming Inspections.   As stated in the Notice, exposure to lead remains a major environmental health problem in the United States. The consequences of an elevated blood lead level, especially for children under the age of six, can be life-long. Neurological development, such as lowered IQ and behavioral problems, are typical issues.   The primary source of childhood lead poisoning is lead-based paint, found in the majority of homes built prior to 1978. HUD has issued this Notice to remind Multifamily Owners and Management Agents of the need to retain lead-based paint risk assessment and inspection records, and lead disclosure forms in accordance with the requirements of HUD s Lead-Based Paint Poisoning Prevention regulations.   The Notice also places owners and agents (O/As) on notice that REAC inspectors will soon be inspecting portfolios on a nationwide basis, and that if files do not contain the required lead risk assessment or inspection records, and lead disclosure forms, O/As will be asked to provide a copy of the missing reports and forms to designated field office representatives.   If a multifamily property assisted under a HUD program does not have any buildings built before 1978, or if the pre-1978 property is listed by the owner in Multifamily Housing records as being designated for the elderly or for persons with disabilities, the inspector will ask if any children under age six live at the property. If there are no children under age six, the property is exempt from the Lead Safe Housing Rule (LSHR). If there are children under six at the property, the LSHR applies to the units in which the children live, any common area servicing those units, and exterior painted surfaces associated with those units or common areas, the inspector will inspect those areas. If some buildings in a property were constructed before 1978, and some in 1978 and later, the property is covered by the LSHR but only the buildings built prior to 1978.   If the property is covered by the LSHR and has been inspected for lead-based paint, the inspector must be shown the lead-based paint inspection report. If the lead-based paint inspection report and the report s executive summary state that the property has no lead-based paint, there will be no REAC inspection regarding lead.   If the property does not have a lead-based paint inspection report stating that there is no lead-based paint, the inspector must be provided a copy of the lead risk assessment.   Unless the property has no lead-based paint, the inspector will ask for a copy of the lead hazard control plan for the project, as well as evidence of a two-year (biennial) lead reevaluation.   In preparing for upcoming REAC inspections, properties subject to the LSHR must ensure that all required lead-related reports are available for the inspector.      

HUD 2017 Operating Cost Adjustment Factors Published - October 5, 2016

On October 5, 2016, HUD published a Notice of Certain Operating Cost Adjustment Factors (OCAF) for 2017. The Notice is effective for properties with Project-based rental assistance contracts under Section 8 with an anniversary date on or after February 11, 2017.   Contract rents are adjusted by applying the OCAF to that portion of the rent attributable to operating expenses exclusive of debt service. OCAFs are calculated as the sum of weighted average cost changes for wages, employee benefits, property taxes, insurance, supplies and equipment, fuel oil, electricity, natural gas, and water/sewer/trash using publicly available indices.   Following are the individual state Operating Cost Adjustment Factors for 2017: Alabama: 2.1% Alaska: 0.5% Arizona: 2.1% Arkansas: 2.3% California: 2.2% Colorado: 1.7% Connecticut: 1.1% Delaware: 1.7% District of Columbia: 2.0% Florida: 2.0% Georgia: 2.0% Hawaii: 0% Idaho: 2.3% Illinois: 1.5% Indiana: 2.0% Iowa: 2.1% Kansas: 2.0% Kentucky: 1.9% Louisiana: 1.8% Maine: 1.4% Maryland: 2.1% Massachusetts: 1.8% Michigan: 1.7% Minnesota: 1.8% Mississippi: 2.1% Missouri: 2.2% Montana: 2.1% Nebraska: 2.3% Nevada: 2.2% New Hampshire: 1.8% New Jersey: 1.3% New Mexico: 1.6% New York: 0.4% North Carolina: 2.0% North Dakota: 2.4% Ohio: 1.9% Oklahoma: 2.0% Oregon: 2.2% Pacific Islands: 0.0% Pennsylvania: 2.0% Puerto Rico: 1.9% Rhode Island: 2.1% South Carolina: 2.1% South Dakota: 2.1% Tennessee: 2.0% Texas: 2.0% Utah: 2.2% Vermont: 0.6% Virgin Islands: 2.0% Virginia: 2.0% Washington: 2.2% West Virginia: 2.6% Wisconsin: 1.8% Wyoming: 2.2%

Assistance to Non-Citizens in the Section 8 Program

Assistance to Non-Citizens in the Section 8 Program   Section 214 of the Housing & Community Development Act of 1980 prohibited HUD from providing housing assistance to aliens unless they meet certain residency requirements.   In 1996, Congress amended Section 214 to revise provisions regarding verification of eligibility and proration of assistance. In Section 214(h) on verification, Congress included an opt-out provision for Public Housing Agencies (PHA). The apparent intent of this provision was to allow PHAs to opt-out of the verification provision, but the literal language allowed PHAs to opt-out of Section 214 in its entirety. The mistake was corrected by the Quality Housing & Work Responsibility Act of 1998 (QHWRA) and allowed PHAs to elect not to verify eligibility before providing financial assistance. This provision does not permit owners of Section 8 properties to do the same; in the case of these properties, verification of eligibility prior to the provision of assistance is always required.   PHAs are the "responsible entity" for implementing the Section 214 requirements for the Housing Choice Voucher Program.   Eligibility of Noncitizens (24 CFR 5.506 (a) (2))   To be eligible, noncitizens must fall into one of the following categories: Lawfully admitted for permanent residence; Lawfully admitted for temporary resident status as Special Agricultural Workers; Granted refugee or asylum status or granted conditional entry because of persecution or fear of persecution on account of race, religion, or political opinion or because of being uprooted by national calamity; Granted parole status by the Attorney General; Lawfully present because the Attorney General withheld deportation due to a threat to life or freedom; or Granted amnesty for temporary or permanent residence.   Evidence of Eligibility [24 CFR 5.508 (b) and (c)]   To receive assistance, each family member - regardless of age - must submit evidence of citizenship or eligible immigration status.   For U.S. citizens, all that is required is a signed declaration of citizenship, though a PHA must request verification through presentation of a passport or other documentation. Noncitizens must submit a signed declaration of eligible immigration status and proper documentation.       Eligibility Verification [24 CFR 5.512 (a) and (b)]   The primary method of verification is use of the INS (HUD regulations still refer to Immigration & Custom Enforcement as the INS) System for Alien Verification of Entitlements (SAVE) which provides access to names, file numbers, and admission numbers of noncitizens. If the SAVE system fails to verify eligibility, the PHA/owner must use secondary verification, consisting of a manual search of INS records.   Generally, no household may receive assistance unless at least one family member is eligible for assistance. However, as noted above, a PHA may elect to provide assistance before verification as long as eligibility is verified by the first annual recertification. This rule applies for voucher residents only - it does not apply to public housing.   24 CFR 5.514 (b) (2) provides that assistance cannot be delayed, denied, reduced, or terminated due to delays in the verification of immigration documents submitted by the applicant.   Denial or Termination of Assistance [24 CFR 5.514 (c)]   Assistance must be denied or terminated to an applicant or recipient if evidence of citizenship or eligible immigration status is not submitted or cannot be verified by primary or secondary verification. If it is determined that a family member knowingly permitted an ineligible individual to reside permanently in a unit (and assistance was not prorated), assistance must be terminated for at least 24-months.   24 CFR 5.514 (d) and (f) provides that from the date of denial or termination of assistance, the family has 30-days to appeal to the INS. The INS must give a decision within 30-days unless it notifies the family and PHA/owner of the reason for a delay. When the INS decision is received, the family must be notified of its right to an informal hearing, which must generally be held within 30-days.   24 CFR 5.514 (b) (2) provides that if a hearing is requested, assistance may not be terminated or reduced prior to the hearing.   Continuation of Assistance [24 CFR 5.518 (a)]   An assisted family with both eligible and ineligible members will be eligible for continued assistance if the family was receiving assistance on June 19, 1995, the head of household or spouse has eligible immigration status, and the family does not include any ineligible member other than the head of household, spouse, parents of the head of household or spouse, or children of the head of household or spouse. After November 29, 1996, continued assistance to a mixed family is prorated based on the number of family members eligible for assistance.     Proration of Assistance [24 CFR 5.520 (c)]   A mixed family not eligible for continued assistance is entitled to receive a prorated Section 8 subsidy based on the number of eligible family members. The proration will not affect the rent received by the owner. The family is responsible for the difference between the prorated assistance and the unit rent.   Noncitizen Students [24 CFR 5.522]   The provisions for continued assistance and temporary deferral of termination of assistance do not apply to noncitizen students admitted temporarily and solely for educational studies and their families, unless the spouse of the student is a citizen.    

Compliance with HUD Live-in Aide Rules

Compliance with HUD Live-in Aide Rules   Allowing a Live-in Aide for a disabled person is both a HUD and fair housing requirement.   The definition of a live-in aide is a person who resides with one or more elderly persons, near-elderly persons, or persons with disabilities, and who: Is determined to be essential to the care and well being of the person(s); is not obligated for the support of the person(s); and would not be living in the unit except to provide the necessary supportive services.   Requirement #1 essentially means that in order to have a live-in aide, a resident would have to meet the Fair Housing Act (FHA) definition of handicapped or disabled; otherwise, the aide would not be essential to the care and well being of the resident.   To qualify as a live-in aide:   The owner must verify the need for the live-in aide. Verification that the live-in aide is needed to provide the necessary supportive services essential to the care and well being of the person must be obtained from the person's physician, psychiatrist, or other medical practitioner or health care provider. The owner must approve a live-in aide if needed as a reasonable accommodation under fair housing law to make the program accessible to or usable by the family member with a disability. The owner may verify whether the live-in aide is necessary only to the extent necessary to document that applicants or tenants who have requested a live-in aide have a disability-related need for the requested accommodation. This may include verification from the person's physician, psychiatrist, or other health care provider. The owner may not require applicants or tenants to provide access to confidential medical records or to submit to a physical examination. It should be noted that fair housing law prohibits verification of the need for a reasonable accommodation when both the disability and the need for the requested accommodation are obvious. If an owner/agent determines by observation that a resident is so clearly disabled as to require the services of an aide, the file should be clearly documented with regard to the reason why no professional verification was obtained.   Expenses for services provided by the Live-in Aide, such as nursing services (dispensing of medications or providing other medical needs) and personal care (such as bathing or dressing), that are unreimbursed out-of-pocket expenses for the tenant are considered eligible medical expenses for HUD purposes (this issue does not apply for purposes of the Low-Income Housing Tax Credit Program since there are no deductions from income). Homemaker services such as housekeeping and meal preparation are not eligible medical expenses.   The Live-in Aide qualifies for occupancy only as long as the disabled resident requires the aide s services and remains a tenant. The Live-in Aide may not qualify for continuing occupancy as a remaining family member, and under no circumstance should a Live-in Aide be converted to a household member. Owners should use a lease addendum (HUD approved in the case of a HUD property) that denies occupancy of the unit to a Live-in Aide after the tenant, for whatever reason, is no longer living in the unit. The addendum should also give the owner the right to evict the Live-in Aide if they violate any house rules. This may also be done through the use of a "Live-in Aide Agreement.   Income of a Live-in Aide is excluded from household income.   In a HUD property, the Live-in Aide must disclose and provide verification of their Social Security Number (SSN).   Live-in Aides should also be required to meet the property s screening criteria - other than credit. The screening of Live-in Aides at initial occupancy and the screening of Live-in Aides to be added to an existing household should be the same. They should be screened based on the criminal screening procedures that the owner uses in screening applicants for housing. HUD properties should note that the EIV Existing Tenant Search is required for Live-in Aides.   A relative may be a Live-in Aide if they meet the requirements stated above - especially #3. This also applies to HUD Section 202 PRAC and Section 811 projects, where adult children are not eligible to move into a unit unless they are performing the functions of a Live-in Aide and are classified as a Live-in Aide for eligibility purposes.   Live-in Aides must be counted for the purpose of determining appropriate unit size, i.e., a Live-in Aide is entitled to their own bedroom. However, if a unit with a separate BR for the aide is not available, the aide should not be denied occupancy as long as permitting such occupancy does not overcrowd the unit under state or local law. If a larger unit becomes available and the tenant requests a transfer to such unit, the owner is obligated to permit the transfer as a reasonable accommodation. However, there is no obligation to charge only the rent that would be charged for the smaller unit.   In the case of HUD-assisted properties, a Live-in Aide may never be considered a dependent.   When permitting a Live-in aide to reside it a unit as a reasonable accommodation, owners and managers should be certain that the file clearly documents the status of the aide. It is also recommended that Live-in Aides be included on the Tenant Income Certification (TIC), but they should not be permitted to sign the TIC. Also, other than on the Live-in Aide addendum to the lease, an aide should never be listed on a lease - not even as an occupant.