1. home and garden

Navigating the Grievance Hearing:
How to Address Common Issues and
Challenges
Texas Housing Association Annual Conference
Corpus Christie, TX
August 28, 2013
Presented By:
Lisa L. Walker
Executive Director & General Counsel
Housing and Development Law Institute
BIOGRAPHY OF LISA L. WALKER
HDLI, 630 Eye St., NW, Washington, DC 20001; [email protected] (email); (202) 289-3400 (office)
Since July 2002 Lisa Walker has been the Executive Director and General Counsel of
the Housing and Development Law Institute (“HDLI”), a legal think tank and training
organization in the public and affordable housing industry. Responsible for all fiscal,
programmatic, operational, and marketing activities of HDLI Ms. Walker also has
authored amicus curiae briefs in support of HDLI and industry members in the
following cases in the U.S. Supreme Court and other appellate courts across the
country: Virginia v. Hicks (U.S. S. Ct.); Public Hous. Agency of the City of St. Paul v.
Edwards (MN); Peart v. Jackson, et. al (DC); Boston Hous. Auth. v. Bridgewaters (MA);
Akron Metro. Hous. Auth. v. Harper (OH); Hinneberg v. Big Stone C. Hous. and Redev.
Auth. (MN); Dallas Hous. Auth. v. Highlands of McKamy IV and V Commun. Improve.
Assn, et al. (TX); Johnson v. Housing Auth. of Jefferson Co.( LA); Nozzi v. Housing Auth. of City of Los Angeles
(9th Cir.); Newark Hous. Auth. v. Melvin (NJ).
Ms. Walker also designed and implements HDLI’s successful on-site training programs directed
toward the unique job responsibilities and challenges of public housing and redevelopment agencies, their
management companies, and development partners. Since 2004, she has provided fair housing training for
more than 3,600 front-line, maintenance, managerial, executive, and legal staff of housing agencies and
developers of all sizes across the country through HDLI’s successful fair housing training program.
Building upon the success of its fair housing training program, in 2011 HDLI rolled out a new
comprehensive “One Strike” evictions training program focusing on the myriad of critical issues relating to
the process of evicting or terminating assisted tenants for criminal, and drug-related criminal, activity and
Ms. Walker has trained more than 200 housing agency staff to date in this new training program. HDLI’s
latest training offering in 2012 is comprehensive training involving the intricacies of the administrative
grievance process for the public housing and Section 8 programs.
Prior to joining HDLI, Ms. Walker was a partner at Whiteford, Taylor & Preston, L.L.P, a large
regional law firm servicing the Washington, D.C.-Maryland-Virginia corridor. As a commercial litigator, Ms.
Walker handled the business disputes of corporations, partnerships, organizations, and individuals in the
areas of contracts, employment, torts, intellectual property, and product liability, among other areas.
Developing a particular interest in and knowledge of fair housing law, Ms. Walker actively represented the
Housing Authority of Baltimore City and City of Baltimore in Thompson v. HUD, major federal public
housing reform litigation, and with respect to a wide variety of fair housing issues.
Ms. Walker is licensed to practice law before the United States Supreme Court, the federal Fourth
and Fifth Circuit Courts of Appeals, and the state and federal courts of Maryland and the District of
Columbia. Ms. Walker holds a Bachelor of Science degree in Finance from the University of Maryland,
College Park, where she received a four-year academic scholarship from the university. She holds a Juris
Doctor from the University of Maryland School of Law, where she received a three-year academic
fellowship and was a member of the competitive Moot Court Board. She has been active in local and
national bar associations, on nonprofit boards of directors, as well as a number of other service and civic
organizations. Ms. Walker serves as pro bono counsel to the Miss Black U.S.A. Pageant & Scholarship
Foundation, Inc. She also is a frequent speaker, trainer, and presenter at industry meetings across the
country.
HDLI GRIEVANCE PRESENTATION
THA 2013
Navigating the Grievance Hearing:
How to Address Common Issues
and Challenges
Copyright © 2013 Housing and Development Law
Institute. All rights reserved.
1
HDLI GRIEVANCE PRESENTATION
THA 2013
Common Grievance Issues
Discussed Today . . .
#2: Process inaccessible
to people with disabilities
#4: PH Informal
settlement conference
issues
#3: Process inaccessible
to people with limited
English proficiency (LEP)
#5: Mitigating
circumstances
#1: Improperly granting
administrative review
Copyright © 2013 Housing and Development Law
Institute. All rights reserved.
#6: Lack of one or more
elements of due process
2
HDLI GRIEVANCE PRESENTATION
THA 2013
Common Grievance Issue #1:
Improperly Granting
Administrative Review
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Institute. All rights reserved.
3
HDLI GRIEVANCE PRESENTATION
THA 2013
Persons With a
Review Right
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Institute. All rights reserved.
4
HDLI GRIEVANCE PRESENTATION
THA 2013
Persons With a Review Right
1. Public housing and Section 8
applicants who are denied admission.
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Institute. All rights reserved.
5
HDLI GRIEVANCE PRESENTATION
THA 2013
Persons With a Review Right
2. Public housing tenants who dispute
any PHA action or PHA failure to act in
accordance with the individual
tenant's lease or PHA regulations
which adversely affect the individual
tenant's rights, duties, welfare or
status.
(a very broad standard)
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Institute. All rights reserved.
6
HDLI GRIEVANCE PRESENTATION
THA 2013
Persons With a Review Right
3. Section 8 participants who have the
following enumerated disputes:
(a very narrow standard)
• Income. PHA’s determination of the family’s
annual or adjusted income, and the use of
such income to compute the HAP;
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Institute. All rights reserved.
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HDLI GRIEVANCE PRESENTATION
THA 2013
Persons With a Review Right
3. Section 8 participants cont’d• Utility Allowances: PHA’s determination of the
appropriate utility allowance (if any) for tenant-paid
utilities from the PHA utility allowance schedule
• Unit Size: PHA’s determination of the family unit size
under PHA’s subsidy standards
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HDLI GRIEVANCE PRESENTATION
THA 2013
Persons With a Review Right
3. Section 8 participants cont’d• Over-housing: PHA’s determination that a family is
over-housed under PHA’s subsidy standards or the
PHA’s determination to deny the family’s request for
an exception from the standards
• Family’s Action/Failure to Act: PHA’s determination
to terminate assistance because of the family’s
action or failure to act
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Institute. All rights reserved.
9
HDLI GRIEVANCE PRESENTATION
THA 2013
Persons With a Review Right
3. Section 8 participants cont’d• Absence From the Unit: PHA’s determination to
terminate assistance because of the family’s
absence from the unit for longer than the maximum
period permitted under PHA policy and HUD rules
If the dispute does not fall within one of the
foregoing categories, then the participant is
not entitled to administrative review.
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Institute. All rights reserved.
10
HDLI GRIEVANCE PRESENTATION
THA 2013
Persons With
No Review Right
Copyright © 2013 Housing and Development Law
Institute. All rights reserved.
11
HDLI GRIEVANCE PRESENTATION
THA 2013
Persons With NO Review Right
For Section 8 applicants:
1) Discretionary administrative determinations
2) General policy issues or class grievances
3) Determination of the family unit size under PHA’s
subsidy standards
4) Determination not to approve an extension or
suspension of a voucher term
5) Determination not to grant approval of the tenancy
(a specific unit)
...
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Institute. All rights reserved.
12
HDLI GRIEVANCE PRESENTATION
THA 2013
Persons With NO Review Right
For Section 8 applicants:
6) Determination that a unit selected by the applicant
is not in compliance with HQS
7) Determination that the unit is not in accordance
with HQS because of the family size or composition
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13
HDLI GRIEVANCE PRESENTATION
THA 2013
Persons With NO Review Right
For Public housing applicants:
Unlike the Section 8 regulations, HUD’s public housing
regulations do not specify any circumstances under
which a public housing applicant is not entitled to
administrative review.
Thus, one can infer that public housing applicants are
entitled to administrative review of all decisions
denying them admission to the program without
qualification.
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Institute. All rights reserved.
14
HDLI GRIEVANCE PRESENTATION
THA 2013
Persons With NO Review Right
For Public housing tenants:
When PHA Has Excluded Four Types of
Criminal Behaviors From the Review
Process:
1) Any criminal activity that threatens the
health, safety or right to peaceful enjoyment of
the premises of other tenants or PHA
employees;
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15
HDLI GRIEVANCE PRESENTATION
THA 2013
Persons With NO Review Right
2) Violent Criminal Activity
3) Drug-related criminal activity
4) Any criminal activity that resulted in a
felony conviction of a household member
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HDLI GRIEVANCE PRESENTATION
THA 2013
Persons With NO Review Right
The foregoing criminal activity can take
place “on or off” public housing
Premises (broad)
-or“on or near” Section 8 Premise (more
narrow)
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Institute. All rights reserved.
17
HDLI GRIEVANCE PRESENTATION
THA 2013
Persons With NO Review Right
For Section 8 participants:
1)
2)
3)
4)
Discretionary administrative determinations
General policy issues or class grievances
Establishment of PHA’s utility allowances
Determination not to approve an extension
or suspension of a voucher term
...
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Institute. All rights reserved.
18
HDLI GRIEVANCE PRESENTATION
THA 2013
Persons With NO Review Right
For Section 8 participants: cont’d
5) Determination not to approve a unit or
tenancy
6) Determination that a unit is not in
compliance with HQS
7) Determination that the unit is not in
accordance with HQS because of family
size
8) Determination to exercise or not any right
or remedy against the owner under a HAP
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Institute. All rights reserved.
19
HDLI GRIEVANCE PRESENTATION
THA 2013
Disregarding the
Hearing Officer’s Decision
The S8 regulations allow a PHA to disregard a
decision if the issue was not grievable in the
first place: 24 CFR §982.555 (f)(1) (There is no
specific PH regulation) e.g.,:
• Disputes between tenants not involving the PHA
24 CFR §966.51(b)
• Class grievances §966.51(b)
• Criminal activity excluded from policy
§966.51(a)(2)(i)(A)–(C)
• Rent dispute where escrow not paid or waived
§966.55(e)
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20
HDLI GRIEVANCE PRESENTATION
THA 2013
Disregarding the
Hearing Officer’s Decision
The S8 regulations also allow a PHA to
disregard a decision that exceeds the
authority of the person conducting the
hearing under the PHA hearing
procedures.
(There is no specific PH regulation)
24 CFR §982.555 (f)(1)
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Institute. All rights reserved.
21
HDLI GRIEVANCE PRESENTATION
THA 2013
Other Bases For Disregarding the
Hearing Officer’s Decision - PH
The PHA Board of Commissioners determines:
(1) The grievance does not concern PHA action or
failure to act in accordance with or involving the
complainant's lease on PHA regulations, which
adversely affect the complainant's rights, duties,
welfare or status;
(2) The decision of the hearing officer or hearing
panel is contrary to applicable Federal, State or
local law, HUD regulations or requirements of the
annual contributions contract between HUD and
the PHA.
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Institute. All rights reserved.
22
HDLI GRIEVANCE PRESENTATION
THA 2013
Review of Bases For Disregarding
the Hearing Officer’s Decision - S8
1. PHA is not required
to provide an
opportunity for an
informal hearing
3. Decision is contrary
to:
• Applicable federal,
state or local law
2. Decision exceeds
the authority of the
person conducting
the hearing under
PHA’s hearing
procedures
• HUD regulations
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Institute. All rights reserved.
23
HDLI GRIEVANCE PRESENTATION
THA 2013
Common Grievance Issue #2:
Process is Inaccessible to
People With Disabilities
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Institute. All rights reserved.
24
HDLI GRIEVANCE PRESENTATION
THA 2013
Notices Not Readable By People
With Visual Impairments
•Larger Font
• Braille
• Audiotape
• A Reader – person;
computer
• Other
24 CFR §966.56(h)
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25
HDLI GRIEVANCE PRESENTATION
THA 2013
Meeting/Hearing Venues Not Accessible
to People With Mobility Impairments
• Unobstructed Routes
• Meeting/Hearing
Room Location
• Assistive animals
allowed
o Comfort animals
• Other
24 CFR §966.56(h)
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Institute. All rights reserved.
26
HDLI GRIEVANCE PRESENTATION
THA 2013
Accommodations Not Made
For People With Disabilities
• Interpreters
• Advocates/
Guardians
• Deadline extensions
• Allowances for
lateness
occasioned by
disability
• Other
24 CFR §966.56(h)
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Institute. All rights reserved.
27
HDLI GRIEVANCE PRESENTATION
THA 2013
Common Grievance Issue #3:
Process is Inaccessible to People
With Limited English Proficiency
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Institute. All rights reserved.
28
HDLI GRIEVANCE PRESENTATION
THA 2013
Limited English Proficiency
Persons with
limited English
proficiency (LEP)
• May need the
assistance of a
translator/interpreter
– at PHA’s cost
• May need
documents
translated or a
reader – at PHA’s
cost
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Institute. All rights reserved.
29
HDLI GRIEVANCE PRESENTATION
THA 2013
Common Grievance Issue #4:
Informal Settlement Conference
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Institute. All rights reserved.
30
HDLI GRIEVANCE PRESENTATION
THA 2013
Informal Settlement Conference
Not Provided
IS REQUIRED FOR PH GRIEVANCES!
24 CFR §966.54
• Requires PHAs to
provide an
opportunity for an
informal settlement
of the grievance
• Courts will reverse
if opportunity not
given
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31
HDLI GRIEVANCE PRESENTATION
THA 2013
Informal Settlement Conference
Not Provided
This step is
MANDATORY
At least one court has
held that offering an
informal settlement
conference is
mandatory.
It is a violation of due
process to skip this
step.
Rivas v. Chelsea Hous. Auth., 464
Mass. 329 (Mass. Mar. 11, 2013)
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Institute. All rights reserved.
32
HDLI GRIEVANCE PRESENTATION
THA 2013
Proper Summary of Informal Settlement
Conference Not Provided
24 CFR §966.54:
“A summary of such
discussion shall be
prepared within a
reasonable time and one
copy shall be given to the
tenant and one retained
in the PHA's tenant file. . .”
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Institute. All rights reserved.
The summary shall
specify:
• Participant names
• Dates of meeting
• Nature of the
proposed disposition
• “Specific reasons
therefor”
• Specify the
procedures for
grievance hearing
33
HDLI GRIEVANCE PRESENTATION
THA 2013
Proper Summary of Informal Settlement
Conference Not Provided
“Specific reasons
for the
disposition”
So that they can
adequately prepare for a
hearing . . .
24 CFR § 966.54
Copyright © 2013 Housing and Development Law
Institute. All rights reserved.
• Who – what family member
or guest did wrong, and their
relation to HOH
• What Facts– what specific
actions violated the lease,
program rules, etc.; Witness
statements
• What Violations– cite to all
lease provisions, regulations,
rules, etc. that was violated
• When – give the month, day,
year, and time, if possible
• Where – give exact location,
and its relationship to
“Premises” (can be “on or
off”)
34
HDLI GRIEVANCE PRESENTATION
THA 2013
Proper Summary of Informal Settlement
Conference Not Provided
“Procedures for
requesting an
informal hearing”
So that they can
adequately prepare for a
hearing . . .
HUD regs don’t specify
whether you must
provide them
complete procedures
or just a summary
24 CFR § 966.54
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Institute. All rights reserved.
35
HDLI GRIEVANCE PRESENTATION
THA 2013
1. Noun. mitigating circumstance
- (law) a circumstance that does
not exonerate a person but which
reduces the penalty associated
with the offense
Common Grievance Issue #5:
Mitigating Circumstances
Copyright © 2013 Housing and Development Law
Institute. All rights reserved.
36
HDLI GRIEVANCE PRESENTATION
THA 2013
Mitigating Circumstances
HUD regulations give PHAs the discretion
to consider mitigating circumstances.
These are circumstances peculiar to the
Complainant that do not exonerate
him/her from a violation of the lease,
policy, statute, or regulation, etc., but
which reduce the penalty associated
with the violation.
Copyright © 2013 Housing and Development Law
Institute. All rights reserved.
37
HDLI GRIEVANCE PRESENTATION
THA 2013
Failure to Consider
Mitigating Circumstances
HUD regulations in both the public
housing and Section 8 programs give
PHA’s discretion to consider mitigating
circumstances
before
terminating
assistance or evicting.
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Institute. All rights reserved.
38
HDLI GRIEVANCE PRESENTATION
THA 2013
Failure to Consider
Mitigating Circumstances
HUD’s public housing regulations provide only three
(3) situations where a PHA MUST deny admission into
the public housing program.
In these 3 circumstances, denial is mandatory, and a
PHA would not have discretion to consider mitigating
circumstances in determining whether to deny
admission to the public housing program.
With respect to all other authorized denials of
applications to the public housing program, a PHA has
discretion to consider mitigating circumstances.
Copyright © 2013 Housing and Development Law
Institute. All rights reserved.
39
HDLI GRIEVANCE PRESENTATION
THA 2013
Mandatory Denials of Public
Housing Applications
3 Situations:
1) Criminal activity involving the drug
methamphetamine;
2) Convicted lifetime registered sex
offender; and
3) Unconfirmed citizenship or
immigration status.
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Institute. All rights reserved.
40
HDLI GRIEVANCE PRESENTATION
THA 2013
Mandatory Denials of
Section 8 Applications
HUD’s Section 8 HCV regulations provide six (6)
situations where a PHA MUST deny admission
into the Section 8 HCV program:
1) PHA determines that any household member is
currently engaging in illegal use of a drug.
2) PHA determines that it has reasonable cause to
believe a household member’s illegal drug use or a
pattern of illegal drug use may threaten the health,
safety, or right to peaceful enjoyment of the
premises by other residents.
24 CFR §982.553(a)(ii)(A)-(C); 24 CFR § 982.553(a)(2)
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Institute. All rights reserved.
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HDLI GRIEVANCE PRESENTATION
THA 2013
Mandatory Denials of
Section 8 Applications
3) Any household member has ever been convicted
of the manufacture or production of
methamphetamine on the premises of assisted
housing.
4) If any member of the household is subject to a
lifetime registration requirement under a State sex
offender registration program.
5) If any member of the family fails to sign and submit
consent forms for obtaining information that the
agency deems is necessary for operation of the
program. 24 CFR §982.552(b)(3)
6) If any member of the family fails to provide
documentation of his/her social security number.
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Institute. All rights reserved.
42
HDLI GRIEVANCE PRESENTATION
THA 2013
Mitigating Circumstances
• The burden of showing mitigating
circumstances is on the Complainant.
• HUD has urged PHAs to consider mitigating
circumstances before resulting to the
ultimate sanction of termination/eviction.
• Some courts require PHAs to consider them;
some do not.
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Institute. All rights reserved.
43
HDLI GRIEVANCE PRESENTATION
THA 2013
Mitigating Circumstances
• Courts have held that the grievance decision
should acknowledge that the HO was aware
of its discretionary authority to consider
mitigating circumstances and indicate
whether it chose to exercise its discretion.
• This is good practice.
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Institute. All rights reserved.
44
HDLI GRIEVANCE PRESENTATION
THA 2013
Mitigating Circumstances
HUD’s Suggested Considerations:
Community-related Considerations:
The degree to which the housing project
suffers from rampant drug-related or violent
crime
• The effect on the community of denial or
termination or the failure of the responsibility
entity/owner to take such action
Copyright © 2013 Housing and Development Law
Institute. All rights reserved.
45
HDLI GRIEVANCE PRESENTATION
THA 2013
Mitigating Circumstances
Community-related Considerations:
• Whether the drug user or alcohol abuser is
participating in or has successfully completed a
supervised drug or alcohol rehabilitation program,
or has otherwise been rehabilitated successfully. For
this purpose, the PHA may require the tenant to
submit evidence of the household member's current
participation in, or successful completion of, a
supervised drug or alcohol rehabilitation program or
evidence of otherwise having been rehabilitated
successfully.
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Institute. All rights reserved.
46
HDLI GRIEVANCE PRESENTATION
THA 2013
Mitigating Circumstances
Head of Household-related Considerations:
•
The measure employed by the head of household to
curtail the criminal activity on the premises
• The willingness of the head of household to remove the
wrongdoing household member from the lease as a
condition for continued tenancy, considering the
likelihood of success in each particular case and their
ability under local law to take action if an agreement is
violated. The offending member’s agreement should
expressly provide that the individual thereafter will be a
trespasser on PHA property and the household can be
subject to eviction if the individual comes back.
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Institute. All rights reserved.
47
HDLI GRIEVANCE PRESENTATION
THA 2013
Mitigating Circumstances
Head of Household-related Considerations:
• The extent of participation by the head of
household in the offending action
• Whether the head of household could have
foreseen and prevented the criminal activity
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Institute. All rights reserved.
48
HDLI GRIEVANCE PRESENTATION
THA 2013
Mitigating Circumstances
Head of Household-related Considerations:
• What actions have been taken by the head of
household to show personal responsibility and has
taken all reasonable steps to prevent or mitigate the
offending action, including seeking assistance from
governmental or private sources to end such
criminal activity
Copyright © 2013 Housing and Development Law
Institute. All rights reserved.
49
HDLI GRIEVANCE PRESENTATION
THA 2013
Mitigating Circumstances
Other Considerations
• The effect of the action on the integrity of the
program
• The seriousness of the offending action
• Whether the circumstances leading to the eviction
no longer exist, such as the criminal household
member has died, been imprisoned, or is gone from
the unit for a long time. HUD says that temporary
absences from the household are insufficient for
granting an exception.
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Institute. All rights reserved.
50
HDLI GRIEVANCE PRESENTATION
THA 2013
Mitigating Circumstances
Other Considerations
• The effect that eviction of the entire household
would have on household members not involved in
the criminal activity
• Whether the tenant or another family member is a
victim of domestic violence – VAWA
• Circumstances related to the disability of a family
member and any unusual hardship that may inure to
the family as a result thereof
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51
HDLI GRIEVANCE PRESENTATION
THA 2013
Mitigating Circumstances
Other Considerations
• The effect that eviction of the entire household
would have on household members not involved in
the criminal activity
• Whether the tenant or another family member is a
victim of domestic violence – VAWA
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Institute. All rights reserved.
52
HDLI GRIEVANCE PRESENTATION
THA 2013
Mitigating Circumstances
Other Considerations
• Circumstances related to the disability of a family
member and any unusual hardship that may inure to
the family as a result thereof
• Whether an alcohol abuser’s actions have
threatened the health, safety or peaceful enjoyment
of tenants, employees, etc. There must be a
negative impact. PHA may consider rehabilitation.
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53
HDLI GRIEVANCE PRESENTATION
THA 2013
Mitigating Circumstances
• The seriousness of
the case
• The extent of
participation or
culpability of
individual family
members
Copyright © 2013 Housing and Development Law
Institute. All rights reserved.
• The extent to which
the tenant has
shown personal
responsibility and
has taken all
reasonable steps to
prevent or mitigate
the offending action
54
HDLI GRIEVANCE PRESENTATION
THA 2013
Mitigating Circumstances
• The circumstances
leading to the
eviction no longer
exist (e.g., the
criminal
household
member has died,
is institutionalized,
or is imprisoned)
Copyright © 2013 Housing and Development Law
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• The disability of a
family member
• The effects of denial
or termination on
other family
members who were
not involved
55
HDLI GRIEVANCE PRESENTATION
THA 2013
Mitigating Circumstances
• Successful
completion of
supervised drug or
alcohol
rehabilitation
programs or other
rehabilitation
Copyright © 2013 Housing and Development Law
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• Counseling
• Medication
• Other
circumstances
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HDLI GRIEVANCE PRESENTATION
THA 2013
Common Grievance Issue #6:
Lack of an Element of
Due Process
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HDLI GRIEVANCE PRESENTATION
THA 2013
Six Elements of Due Process
1) Timely & Adequate
Notice
3) Impartial Decisionmaker
2)
4) Representation
Opportunity to be
heard at a pretermination
hearing, present
evidence, &
confront witnesses
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5) Decision Based on
Law & Evidence From
Hearing
6) Written Decision
58
HDLI GRIEVANCE PRESENTATION
THA 2013
#1: Improper Notices
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HDLI GRIEVANCE PRESENTATION
THA 2013
Lease Termination Notices
Depends upon
violation:
Time for Lease
Termination Notices:
• (A) 14 days in the
case of failure to
pay rent;
24 CFR 966.4(l)(3)(i)
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60
HDLI GRIEVANCE PRESENTATION
THA 2013
Lease Termination Notices
Time for Lease
Termination Notices:
24 CFR 966.4(l)(3)(i)
Copyright © 2013 Housing and Development Law
Institute. All rights reserved.
A reasonable period
of time considering
the seriousness of the
situation (but not to
exceed 30 days):
• If the health or
safety of others is
threatened; or
...
61
HDLI GRIEVANCE PRESENTATION
THA 2013
Lease Termination Notices
Time for Lease
Termination Notices:
24 CFR 966.4(l)(3)(i)
Copyright © 2013 Housing and Development Law
Institute. All rights reserved.
• If any member of
the household has
engaged in any
drug-related
criminal activity or
violent criminal
activity; or
...
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HDLI GRIEVANCE PRESENTATION
THA 2013
Lease Termination Notices
Time for Lease
Termination Notices:
• If any member of
the household has
been convicted of a
felony;
24 CFR 966.4(l)(3)(i)
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HDLI GRIEVANCE PRESENTATION
THA 2013
Lease Termination Notices
Time for Lease
Termination Notices:
• 30 days in any other
case, except that if
a State or local law
allows a shorter
notice period, such
shorter period shall
apply.
24 CFR 966.4(l)(3)(i)
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HDLI GRIEVANCE PRESENTATION
THA 2013
Inadequate Notices
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HDLI GRIEVANCE PRESENTATION
THA 2013
Timely & Adequate Notice
An improper notice
can unravel an
The notice element otherwise lawful
termination.
is one of the most
important elements
Courts will overturn
of due process!
a termination/
eviction where the
notice was not
done properly.
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HDLI GRIEVANCE PRESENTATION
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Timely & Adequate Notice
If Complainant is visually impaired, s(he)
has a right to receive required notices in
an accessible format.
Query: Do your forms
inquire as to visual
impairments for notice
purposes?
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HDLI GRIEVANCE PRESENTATION
THA 2013
Notice Is Not Accessible to People
With Visual Impairments
May include:
Large print
Braille
Reader
Sign language
interpreters
Readers
Other (not
exhaustive list)
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HDLI GRIEVANCE PRESENTATION
THA 2013
Notice Time Computations
Always express
notice and filing
deadlines in
terms of
“business days”
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Avoids complications
of whether to consider
weekends, holidays,
etc.
69
HDLI GRIEVANCE PRESENTATION
THA 2013
Timely & Adequate Notice
NO Parroting of
Bases for
Termination/
Eviction
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It is not sufficient to
merely parrot the
language of the
regulation that provides
the specific conduct
that serves as basis for
the denial or
termination without also
stating the specific
conduct that serves as
basis for the denial
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HDLI GRIEVANCE PRESENTATION
THA 2013
Inadequate Notice
• One-sentence summary notices;
• Did not quote regulations concerning
the need to receive approval before
adding other family member as an
occupant of the unit;
• Did not identify the "unauthorized
individual;"
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HDLI GRIEVANCE PRESENTATION
THA 2013
Inadequate Notice
• Did not specify whether the individual
allegedly resided in the unit, or was just
present there
• Did not indicate when the alleged violation
took place
• Did not indicate which family member
committed proscribed acts;
• Did not indicate the nature of the alleged
crime;
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HDLI GRIEVANCE PRESENTATION
THA 2013
Inadequate Notice
• Did not indicate when (date) the relevant
acts were committed;
• Used nonspecific language - “repeated
incidents of intoxication and irresponsible
use of the kitchen facilities in your Unit
[which] have imposed a threat [to] the
peaceful enjoyment and safety of your
neighbors.
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HDLI GRIEVANCE PRESENTATION
THA 2013
Adequate
Public Housing
Notices
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HDLI GRIEVANCE PRESENTATION
THA 2013
Timely & Adequate Notice
Parroting of Notice
Requirements:
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• DO parrot, or track
verbatim, the
specific language of
the HUD regulations,
lease provisions,
etc. that were
violated in your
notices
75
HDLI GRIEVANCE PRESENTATION
THA 2013
Timely & Adequate Notice
1. Specifying “The Violation”
Citing to and parroting the language of the
statute(s), regulation(s), lease provision(s),
and/or house rule(s) alleged to have been
violated.
It is not enough to use generic catch-all
phrases like “for violations of the lease,” or “for
drug-related criminal activity.”
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HDLI GRIEVANCE PRESENTATION
THA 2013
Timely & Adequate Notice
2. Specifying “The Who”
• Identifying by full name, or at least
description, the individual(s) alleged to have
committed the actions which constitute the
violation of the regulations, lease or house
rules, etc.
• Identify his/her relation to the head of
household and/or other household members
• Identifying whether the person resided in the
unit, was an invited guest of the unit, or had
some other purpose for being in the unit.
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HDLI GRIEVANCE PRESENTATION
THA 2013
Timely & Adequate Notice
3. Specifying “The What”
Stating the specific actions or inactions
undertaken by family members or others that
constitute the violation.
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HDLI GRIEVANCE PRESENTATION
THA 2013
Timely & Adequate Notice
4. Specifying “The When”
Stating the month, day, year, and time of day
(if known) of the improper act(s) that
constitutes the violation.;
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HDLI GRIEVANCE PRESENTATION
THA 2013
Timely & Adequate Notice
5. Specifying “The Where”
Stating the place(s) that the specific actions
undertaken by family members or others that
constitute the violation took place, taking care
to note its location in comparison to the
location of the Premises.
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HDLI GRIEVANCE PRESENTATION
THA 2013
Timely & Adequate Notice
6. Informing of the right to examine housing
agency documents directly relevant to the
termination or eviction.
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HDLI GRIEVANCE PRESENTATION
THA 2013
Timely & Adequate Notice
7. Providing information on how to seek
administrative review, if available.
Provide a summary of what to file, where to
file, and deadline by which to file. Consider
attaching your grievance, reasonable
accommodations, and VAWA policies.
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HDLI GRIEVANCE PRESENTATION
THA 2013
Lease Termination Notices
Timing of Termination:
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• The lease or tenancy
cannot be terminated
(even if any notice to
vacate under State or
local law has expired)
until the time for the
resident to request a
grievance hearing has
expired, and (if a
hearing was timely
requested by the
resident) the grievance
process has been
completed.
83
HDLI GRIEVANCE PRESENTATION
THA 2013
Adequate
Section 8
Notices
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HDLI GRIEVANCE PRESENTATION
THA 2013
Timely & Adequate Notice
Content of
Section 8
Notices:
(i) Brief statement of
reasons for the decision,
(ii) Statement that if the
family does not agree
with the decision, the
family may request an
informal hearing on the
decision, and
(iii) State the deadline for
the family to request an
informal hearing.
24 CFR §982.555(c)
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85
HDLI GRIEVANCE PRESENTATION
THA 2013
Timely & Adequate Notice
Content of
Section 8
Notices:
Consider attaching
your administrative
review, reasonable
accommodations,
and VAWA policies.
24 CFR §982.555(c)
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HDLI GRIEVANCE PRESENTATION
THA 2013
#2: Opportunity To Be
Heard (the Hearing)
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HDLI GRIEVANCE PRESENTATION
THA 2013
Opportunity to be Heard, Present
Evidence & Confront Witnesses
This includes:
Opportunity to be heard at a
pre-termination hearing,
present evidence, & confront
witnesses
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HDLI GRIEVANCE PRESENTATION
THA 2013
Opportunity to be Heard, Present
Evidence & Confront Witnesses
Also includes right to
arrange in advance
and at his/her
expense for a
transcript of the
hearing
• PHA has same right
• Either party may
purchase a copy of
such transcript
• PHA can determine
terms for recording
and/or transcribing
& copying
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HDLI GRIEVANCE PRESENTATION
THA 2013
Opportunity to be Heard, Present
Evidence & Confront Witnesses
Since administrative hearings have very
informal rules, PHA should give the
Complainant the ability to present evidence
without regard to admissibility in a court of
law. Where practical, it is good practice to
allow virtually all relevant, non-repetitive
evidence.
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90
HDLI GRIEVANCE PRESENTATION
THA 2013
Pre-Hearing
Discovery
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HDLI GRIEVANCE PRESENTATION
THA 2013
Pre-Hearing Discovery!
Sanction for failure to
provide discovery in
advance of hearing:
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Failure to
provide
means the
party cannot
use at
hearing!
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HDLI GRIEVANCE PRESENTATION
THA 2013
Pre-Hearing Discovery!
If failure is apparent
before hearing:
If failure is not
apparent until
hearing:
HO could postpone
hearing until
opportunity provided
HO could ask other
party if it wants to
proceed or postpone
to review.
If proceeding,
document cannot be
used.
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HDLI GRIEVANCE PRESENTATION
THA 2013
Hearsay
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HDLI GRIEVANCE PRESENTATION
THA 2013
Opportunity to be Heard, Present
Evidence & Confront Witnesses
Hearsay
The most common violation of this element is
when a PHA uses unreliable hearsay evidence
which the Complainant is not able to crossexamine or confront.
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HDLI GRIEVANCE PRESENTATION
THA 2013
Hearsay
What is “hearsay?”
Hearsay is a statement, whether consisting of a
verbal assertion or nonverbal assertive
conduct, other than one made by the
declarant (i.e., party or witness) who is present
and testifying at the trial or hearing, that is
offered in evidence to prove the truth of the
matter asserted.”
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HDLI GRIEVANCE PRESENTATION
THA 2013
Hearsay
Hearsay might include documents such as
police reports, medical records, witness
statements, newspaper articles or other
documents where the speaker is not present
and available for cross-examination by the
Complainant.
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HDLI GRIEVANCE PRESENTATION
THA 2013
Hearsay
Courts have held that HOs can consider
“reliable” hearsay.
“Reliable” hearsay is that which can be
corroborated by other direct evidence, or is
provided by an impartial, unbiased third-party
without a motive to lie.
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98
HDLI GRIEVANCE PRESENTATION
THA 2013
Hearsay
Some courts will reverse decisions that rely
solely on hearsay evidence.
Others will affirm decisions that rely solely on
hearsay, where the hearsay is reliable.
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HDLI GRIEVANCE PRESENTATION
THA 2013
#5 Decision Based on
Hearing Evidence
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HDLI GRIEVANCE PRESENTATION
THA 2013
Decision Based on Law & Evidence
Only From Hearing
HUD’s public housing regulations give tenants the
right to a “decision based solely and exclusively
upon the facts presented at the hearing.” 24 CFR
§ 966.56(b)(5)
One can infer that this means that the HO cannot
consider evidence that is not presented at the
hearing despite the fact that both the public
housing and Section 8 regulations are silent as to
whether the HO may consider evidence provided
or found outside of the hearing.
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HDLI GRIEVANCE PRESENTATION
THA 2013
Decision Based on Law & Evidence
Only From Hearing
 “Right to a (written)
decision based solely
and exclusively upon
the facts presented at
the hearing
• QUERY: Can HO
consider other
evidence?
• With the parties
consent? Without
their consent?
• What “other”
evidence?
Copyright © 2013 Housing and Development Law
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What about:
• Items of general
knowledge – season,
calendars, holidays,
court docket info., etc.
• Applicable law &
regulations
• PHA policies, plans
102
HDLI GRIEVANCE PRESENTATION
THA 2013
Decision Based on Law & Evidence
Only From Hearing
Making a Proper
Administrative
Record
Copyright © 2013 Housing and Development Law
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It is VITAL for the decision
to be thorough enough to
make a proper record for
appeal purposes.
This especially is important
for Conference decisions,
since the Complainant will
not get a new trial.
103
HDLI GRIEVANCE PRESENTATION
THA 2013
Decision Based on Law & Evidence
Only From Hearing
Queries:
• Can the HOs review the tenant’s file after the
hearing? Yes or No?
• Can the HOs consult the file to see if other facts
support the Initial Decision? Yes or No?
• Can HO take a site visit? Yes or No?
• Can HO contact witnesses who were unable to
attend the hearing? Yes or No?
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104
HDLI GRIEVANCE PRESENTATION
THA 2013
#6: The Written
Grievance Decision
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105
HDLI GRIEVANCE PRESENTATION
THA 2013
Grievance Decision
Double Check:
Spelling
Grammar
Use of Terms of
Art
Sequence of
facts
Copyright © 2013 Housing and Development Law
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Parties’ &
witnesses’ names
Place names
Correct citations
to law and
regulations
106
HDLI GRIEVANCE PRESENTATION
THA 2013
Grievance Decision
Hearing Officer
Example:
should consider
whether decision
should be provided Large
in an alternative,
accessible format
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Print
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HDLI GRIEVANCE PRESENTATION
THA 2013
Grievance Decision
Hearing Officer/panel should
consider whether decision should
be translated or interpreted for
families with LEP.
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HDLI GRIEVANCE PRESENTATION
THA 2013
Grievance Decision
CONFIDENTIALITY &
PRIVACY!
• Maintain
confidentiality
Don’t include
personal or medical
information
• Maintain privacy
Keep in private place
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HDLI GRIEVANCE PRESENTATION
THA 2013
Grievance Decision
Decision
Template
• Hearing officers
should all utilize the
same decision
template to ensure
uniformity
• PHA should maintain
a “master file” of
Decisions
• Helpful to index them
by subject matter.
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HDLI GRIEVANCE PRESENTATION
THA 2013
Grievance Decision
Components of the
Decision
• Introduction
• Hearing Summary
• Decision
• Right to Appeal
(No applicable PH
regulation)
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HDLI GRIEVANCE PRESENTATION
THA 2013
Grievance Decision
A copy of the
decision “shall be
sent” to
Complainant and
the PHA
Copyright © 2013 Housing and Development Law
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A redacted copy with
all names and
identifying references
deleted “shall also be
maintained on file by
PHA and made
available for
inspection by a
prospective
complainant, his
representative, or HO
members
112
HDLI GRIEVANCE PRESENTATION
THA 2013
Public Inspection of
Grievance Decisions
HUD regulations require the PHA to keep a
redacted copy of each grievance decision,
with all names and identifying references
deleted, on file by the PHA and made available
for inspection by a prospective complainant,
his representative, or the HO.
24 CFR §966.57(a)
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HDLI GRIEVANCE PRESENTATION
THA 2013
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HDLI GRIEVANCE PRESENTATION
THA 2013
Thank you!
for attending
Navigating the Grievance Hearing:
How to Address Common Issues
and Challenges
We would be delighted to offer
you further training in the future.
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HDLI GRIEVANCE PRESENTATION
THA 2013
HDLI TRAINING
PRODUCTS . . .
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THA 2013
MORE INDEPTH ANALYSIS: Coming Soon:
Over 300
pages !
Copyright © 2013 Housing and Development Law
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Citations to
Statutes,
Regulations,
Guidance,
and
Important
Case Law!
117
HDLI GRIEVANCE PRESENTATION
THA 2013
ON-LINE FAIR HOUSING TRAINING
Stay tuned for HDLI’s upcoming online
fair housing training products that
individual staff members can access
any time on-demand . . .
Coming Soon
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HDLI GRIEVANCE PRESENTATION
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ON-SITE HDLI TRAINING OFFERINGS
1. ON-SITE Administrative Review Process
Training
Public Housing Grievances and Section 8 Reviews
(approx. 7 hours)
2. ON-SITE Customized Fair Housing Trainings
Basic Fair Housing Training (approx. 4 hours)
Advanced Fair Housing Training (approx. 7 hours)
Advanced 504 Reasonable Accommodations Training
(approx. 4 hours)
3. ON-SITE “One Strike” Public Housing
Evictions & Section 8 Terminations Training
(approx. 6 hours)
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HDLI CONTACT INFORMATION
Trainer – Lisa L. Walker, Esq.
Housing and Development Law Institute
630 Eye St., N.W.
Washington, DC 20001-3736
Email: [email protected]
Phone: 202-289-3400
Training site: www.hdlitraining.org
Website: www.hdli.org
WebStore: www.hdlistore.org
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120
Title 24: Housing and Urban Development
PART 966—PUBLIC HOUSING LEASE AND GRIEVANCE PROCEDURE
Subpart B—Grievance Procedures and Requirements
Contents
§ 966.50
§ 966.51
§ 966.52
§ 966.53
§ 966.54
§ 966.55
§ 966.56
§ 966.57
Purpose and scope.
Applicability.
Requirements.
Definitions.
Informal settlement of grievance.
Procedures to obtain a hearing.
Procedures governing the hearing.
Decision of the hearing officer or hearing panel.
SOURCE: 40 FR 33406, Aug. 7, 1975, unless otherwise noted. Redesignated at 49
FR 6714, Feb. 23, 1984.
Back to Top
§ 966.50 Purpose and scope.
The purpose of this subpart is to set forth the requirements, standards and criteria
for a grievance procedure to be established and implemented by public housing
agencies (PHAs) to assure that a PHA tenant is afforded an opportunity for a hearing if
the tenant disputes within a reasonable time any PHA action or failure to act involving
the tenant's lease with the PHA or PHA regulations which adversely affect the individual
tenant's rights, duties, welfare or status.
[56 FR 51579, Oct. 11, 1991]
Back to Top
§ 966.51 Applicability.
(a)(1) The PHA grievance procedure shall be applicable (except as provided in
paragraph (a)(2) of this section) to all individual grievances as defined in § 966.53 of
this subpart between the tenant and the PHA.
(2)(i) The term due process determination means a determination by HUD that law
of the jurisdiction requires that the tenant must be given the opportunity for a hearing in
court which provides the basic elements of due process (as defined in § 966.53(c))
before eviction from the dwelling unit. If HUD has issued a due process determination, a
1
PHA may exclude from the PHA administrative grievance procedure under this subpart
any grievance concerning a termination of tenancy or eviction that involves:
(A) Any criminal activity that threatens the health, safety or right to peaceful
enjoyment of the premises of other residents or employees of the PHA;
(B) Any violent or drug-related criminal activity on or off such premises; or
(C) Any criminal activity that resulted in felony conviction of a household member.
(iii) For guidance of the public, HUD will publish in the FEDERAL REGISTER a notice
listing the judicial eviction procedures for which HUD has issued a due process
determination. HUD will make available for public inspection and copying a copy of the
legal analysis on which the determinations are based.
(iv) If HUD has issued a due process determination, the PHA may evict the
occupants of the dwelling unit through the judicial eviction procedures which are the
subject of the determination. In this case, the PHA is not required to provide the
opportunity for a hearing under the PHA's administrative grievance procedure.
(b) The PHA grievance procedure shall not be applicable to disputes between
tenants not involving the PHA or to class grievances. The grievance procedure is not
intended as a forum for initiating or negotiating policy changes between a group or
groups of tenants and the PHA's Board of Commissioners.
[40 FR 33406, Aug. 7, 1975. Redesignated at 49 FR 6714, Feb. 23, 1984, and
amended at 56 FR 51579, Oct. 11, 1991; 61 FR 13273, Mar. 26, 1996; 66 FR 28804,
May 24, 2001]
Back to Top
§ 966.52 Requirements.
(a) Each PHA shall adopt a grievance procedure affording each tenant an
opportunity for a hearing on a grievance as defined in § 966.53 in accordance with the
requirements, standards, and criteria contained in this subpart.
(b) The PHA grievance procedure shall be included in, or incorporated by reference
in, all tenant dwelling leases pursuant to subpart A of this part.
(c) The PHA shall provide at least 30 days notice to tenants and resident
organizations setting forth proposed changes in the PHA grievance procedure, and
providing an opportunity to present written comments. Subject to requirements of this
subpart, comments submitted shall be considered by the PHA before adoption of any
grievance procedure changes by the PHA.
2
(d) The PHA shall furnish a copy of the grievance procedure to each tenant and to
resident organizations.
[56 FR 51579, Oct. 11, 1991]
Back to Top
§ 966.53 Definitions.
For the purpose of this subpart, the following definitions are applicable:
(a) Grievance shall mean any dispute which a tenant may have with respect to PHA
action or failure to act in accordance with the individual tenant's lease or PHA
regulations which adversely affect the individual tenant's rights, duties, welfare or status.
(b) Complainant shall mean any tenant whose grievance is presented to the PHA or
at the project management office in accordance with §§ 966.54 and 966.55(a).
(c) Elements of due process shall mean an eviction action or a termination of
tenancy in a State or local court in which the following procedural safeguards are
required:
(1) Adequate notice to the tenant of the grounds for terminating the tenancy and for
eviction;
(2) Right of the tenant to be represented by counsel;
(3) Opportunity for the tenant to refute the evidence presented by the PHA
including the right to confront and cross-examine witnesses and to present any
affirmative legal or equitable defense which the tenant may have;
(4) A decision on the merits.
(d) Hearing officer shall mean a person selected in accordance with § 966.55 of this
subpart to hear grievances and render a decision with respect thereto.
(e) Hearing panel shall mean a panel selected in accordance with § 966.55 of this
subpart to hear grievances and render a decision with respect thereto.
(f) Tenant shall mean the adult person (or persons) (other than a live-in aide):
(1) Who resides in the unit, and who executed the lease with the PHA as lessee of
the dwelling unit, or, if no such person now resides in the unit,
(2) Who resides in the unit, and who is the remaining head of household of the
tenant family residing in the dwelling unit.
3
(g) Resident organization includes a resident management corporation.
[40 FR 33406, Aug. 7, 1975. Redesignated at 49 FR 6714, Feb. 23, 1984, and
amended at 56 FR 51579, Oct. 11, 1991]
Back to Top
§ 966.54 Informal settlement of grievance.
Any grievance shall be personally presented, either orally or in writing, to the PHA
office or to the office of the project in which the complainant resides so that the
grievance may be discussed informally and settled without a hearing. A summary of
such discussion shall be prepared within a reasonable time and one copy shall be given
to the tenant and one retained in the PHA's tenant file. The summary shall specify the
names of the participants, dates of meeting, the nature of the proposed disposition of
the complaint and the specific reasons therefor, and shall specify the procedures by
which a hearing under § 966.55 may be obtained if the complainant is not satisfied.
Back to Top
§ 966.55 Procedures to obtain a hearing.
(a) Request for hearing. The complainant shall submit a written request for a
hearing to the PHA or the project office within a reasonable time after receipt of the
summary of discussion pursuant to § 966.54. For a grievance under the expedited
grievance procedure pursuant to § 966.55(g) (for which § 966.54 is not applicable), the
complainant shall submit such request at such time as is specified by the PHA for a
grievance under the expedited grievance procedure. The written request shall specify:
(1) The reasons for the grievance; and
(2) The action or relief sought.
(b) Selection of Hearing Officer or Hearing Panel. (1) A grievance hearing shall be
conducted by an impartial person or persons appointed by the PHA, other than a person
who made or approved the PHA action under review or a subordinate of such person.
(2) The method or methods for PHA appointment of a hearing officer or hearing
panel shall be stated in the PHA grievance procedure. The PHA may use either of the
following methods to appoint a hearing officer or panel:
(i) A method approved by the majority of tenants (in any building, group of buildings
or project, or group of projects to which the method is applicable) voting in an election or
meeting of tenants held for the purpose.
4
(ii) Appointment of a person or persons (who may be an officer or employee of the
PHA) selected in the manner required under the PHA grievance procedure.
(3) The PHA shall consult the resident organizations before PHA appointment of
each hearing officer or panel member. Any comments or recommendations submitted
by the tenant organizations shall be considered by the PHA before the appointment.
(c) Failure to request a hearing. If the complainant does not request a hearing in
accordance with this paragraph, then the PHA's disposition of the grievance under
§ 966.54 shall become final: Provided, That failure to request a hearing shall not
constitute a waiver by the complainant of his right thereafter to contest the PHA's action
in disposing of the complaint in an appropriate judicial proceeding.
(d) Hearing prerequisite. All grievances shall be personally presented either orally
or in writing pursuant to the informal procedure prescribed in § 966.54 as a condition
precedent to a hearing under this section: Provided, That if the complainant shall show
good cause why he failed to proceed in accordance with § 966.54 to the hearing officer
or hearing panel, the provisions of this subsection may be waived by the hearing officer
or hearing panel.
(e) Escrow deposit. (1) Before a hearing is scheduled in any grievance involving the
amount of rent (as defined in § 966.4(b)) that the PHA claims is due, the family must
pay an escrow deposit to the PHA. When a family is required to make an escrow
deposit, the amount is the amount of rent the PHA states is due and payable as of the
first of the month preceding the month in which the family's act or failure to act took
place. After the first deposit, the family must deposit the same amount monthly until the
family's complaint is resolved by decision of the hearing officer or hearing panel.
(2) A PHA must waive the requirement for an escrow deposit where required by
§ 5.630 of this title (financial hardship exemption from minimum rent requirements) or
§ 5.615 of this title (effect of welfare benefits reduction in calculation of family income).
Unless the PHA waives the requirement, the family's failure to make the escrow deposit
will terminate the grievance procedure. A family's failure to pay the escrow deposit does
not waive the family's right to contest in any appropriate judicial proceeding the PHA's
disposition of the grievance.
(f) Scheduling of hearings. Upon complainant's compliance with paragraphs (a), (d)
and (e) of this section, a hearing shall be scheduled by the hearing officer or hearing
panel promptly for a time and place reasonably convenient to both the complainant and
the PHA. A written notification specifying the time, place and the procedures governing
the hearing shall be delivered to the complainant and the appropriate PHA official.
(g) Expedited grievance procedure. (1) The PHA may establish an expedited
grievance procedure for any grievance concerning a termination of tenancy or eviction
that involves:
5
(i) Any criminal activity that threatens the health, safety, or right to peaceful
enjoyment of the PHA's public housing premises by other residents or employees of the
PHA, or
(ii) Any drug-related criminal activity on or near such premises.
(2) In the case of a grievance under the expedited grievance procedure, § 966.54
(informal settlement of grievances) is not applicable.
(3) Subject to the requirements of this subpart, the PHA may adopt special
procedures concerning a hearing under the expedited grievance procedure, including
provisions for expedited notice or scheduling, or provisions for expedited decision on
the grievance.
[40 FR 33406, Aug. 7, 1975, as amended at 42 FR 5573, Jan. 28, 1977. Redesignated
at 49 FR 6714, Feb. 23, 1984, and amended at 56 FR 51579, Oct. 11, 1991; 65 FR
16731, Mar. 29, 2000]
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§ 966.56 Procedures governing the hearing.
(a) The hearing shall be held before a hearing officer or hearing panel, as
appropriate.
(b) The complainant shall be afforded a fair hearing, which shall include:
(1) The opportunity to examine before the grievance hearing any PHA documents,
including records and regulations, that are directly relevant to the hearing. (For a
grievance hearing concerning a termination of tenancy or eviction, see also § 966.4(m).)
The tenant shall be allowed to copy any such document at the tenant's expense. If the
PHA does not make the document available for examination upon request by the
complainant, the PHA may not rely on such document at the grievance hearing.
(2) The right to be represented by counsel or other person chosen as the tenant's
representative, and to have such person make statements on the tenant's behalf;
(3) The right to a private hearing unless the complainant requests a public hearing;
(4) The right to present evidence and arguments in support of the tenant's
complaint, to controvert evidence relied on by the PHA or project management, and to
confront and cross-examine all witnesses upon whose testimony or information the PHA
or project management relies; and
(5) A decision based solely and exclusively upon the facts presented at the hearing.
6
(c) The hearing officer or hearing panel may render a decision without proceeding
with the hearing if the hearing officer or hearing panel determines that the issue has
been previously decided in another proceeding.
(d) If the complainant or the PHA fails to appear at a scheduled hearing, the
hearing officer or hearing panel may make a determination to postpone the hearing for
not to exceed five business days or may make a determination that the party has
waived his right to a hearing. Both the complainant and the PHA shall be notified of the
determination by the hearing officer or hearing panel: Provided, That a determination
that the complainant has waived his right to a hearing shall not constitute a waiver of
any right the complainant may have to contest the PHA's disposition of the grievance in
an appropriate judicial proceeding.
(e) At the hearing, the complainant must first make a showing of an entitlement to
the relief sought and thereafter the PHA must sustain the burden of justifying the PHA
action or failure to act against which the complaint is directed.
(f) The hearing shall be conducted informally by the hearing officer or hearing panel
and oral or documentary evidence pertinent to the facts and issues raised by the
complaint may be received without regard to admissibility under the rules of evidence
applicable to judicial proceedings. The hearing officer or hearing panel shall require the
PHA, the complainant, counsel and other participants or spectators to conduct
themselves in an orderly fashion. Failure to comply with the directions of the hearing
officer or hearing panel to obtain order may result in exclusion from the proceedings or
in a decision adverse to the interests of the disorderly party and granting or denial of the
relief sought, as appropriate.
(g) The complainant or the PHA may arrange, in advance and at the expense of the
party making the arrangement, for a transcript of the hearing. Any interested party may
purchase a copy of such transcript.
(h) Accommodation of persons with disabilities. (1) The PHA must provide
reasonable accommodation for persons with disabilities to participate in the hearing.
Reasonable accommodation may include qualified sign language interpreters, readers,
accessible locations, or attendants.
(2) If the tenant is visually impaired, any notice to the tenant which is required
under this subpart must be in an accessible format.
[40 FR 33406, Aug. 7, 1975. Redesignated at 49 FR 6714, Feb. 23, 1984, and
amended at 56 FR 51580, Oct. 11, 1991]
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7
§ 966.57 Decision of the hearing officer or hearing panel.
(a) The hearing officer or hearing panel shall prepare a written decision, together
with the reasons therefor, within a reasonable time after the hearing. A copy of the
decision shall be sent to the complainant and the PHA. The PHA shall retain a copy of
the decision in the tenant's folder. A copy of such decision, with all names and
identifying references deleted, shall also be maintained on file by the PHA and made
available for inspection by a prospective complainant, his representative, or the hearing
panel or hearing officer.
(b) The decision of the hearing officer or hearing panel shall be binding on the PHA
which shall take all actions, or refrain from any actions, necessary to carry out the
decision unless the PHA Board of Commissioners determines within a reasonable time,
and promptly notifies the complainant of its determination, that
(1) The grievance does not concern PHA action or failure to act in accordance with
or involving the complainant's lease on PHA regulations, which adversely affect the
complainant's rights, duties, welfare or status;
(2) The decision of the hearing officer or hearing panel is contrary to applicable
Federal, State or local law, HUD regulations or requirements of the annual contributions
contract between HUD and the PHA.
(c) A decision by the hearing officer, hearing panel, or Board of Commissioners in
favor of the PHA or which denies the relief requested by the complainant in whole or in
part shall not constitute a waiver of, nor affect in any manner whatever, any rights the
complainant may have to a trial de novo or judicial review in any judicial proceedings,
which may thereafter be brought in the matter.
8
Title 24: Housing and Urban Development
PART 982—SECTION 8 TENANT-BASED ASSISTANCE: HOUSING CHOICE
VOUCHER PROGRAM
Subpart L—Family Obligations; Denial and Termination of Assistance
Contents
§ 982.551
§ 982.552
§ 982.553
abusers.
§ 982.554
§ 982.555
Obligations of participant.
PHA denial or termination of assistance for family.
Denial of admission and termination of assistance for criminals and alcohol
Informal review for applicant.
Informal hearing for participant.
SOURCE: 60 FR 34695, July 3, 1995, unless otherwise noted.
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§ 982.551 Obligations of participant.
(a) Purpose. This section states the obligations of a participant family under the
program.
(b) Supplying required information —(1) The family must supply any information
that the PHA or HUD determines is necessary in the administration of the program,
including submission of required evidence of citizenship or eligible immigration status
(as provided by 24 CFR part 5). “Information” includes any requested certification,
release or other documentation.
(2) The family must supply any information requested by the PHA or HUD for use in
a regularly scheduled reexamination or interim reexamination of family income and
composition in accordance with HUD requirements.
(3) The family must disclose and verify social security numbers (as provided by part
5, subpart B, of this title) and must sign and submit consent forms for obtaining
information in accordance with part 5, subpart B, of this title.
(4) Any information supplied by the family must be true and complete.
(c) HQS breach caused by family. The family is responsible for an HQS breach
caused by the family as described in § 982.404(b).
1
(d) Allowing PHA inspection. The family must allow the PHA to inspect the unit at
reasonable times and after reasonable notice.
(e) Violation of lease. The family may not commit any serious or repeated violation
of the lease. Under 24 CFR 5.2005(c)(1), an incident or incidents of actual or threatened
domestic violence, dating violence, or stalking will not be construed as a serious or
repeated lease violation by the victim or threatened victim of the domestic violence,
dating violence, or stalking, or as good cause to terminate the tenancy, occupancy
rights, or assistance of the victim.
(f) Family notice of move or lease termination. The family must notify the PHA and
the owner before the family moves out of the unit, or terminates the lease on notice to
the owner. See § 982.314(d).
(g) Owner eviction notice. The family must promptly give the PHA a copy of any
owner eviction notice.
(h) Use and occupancy of unit —(1) The family must use the assisted unit for
residence by the family. The unit must be the family's only residence.
(2) The composition of the assisted family residing in the unit must be approved by
the PHA. The family must promptly inform the PHA of the birth, adoption or courtawarded custody of a child. The family must request PHA approval to add any other
family member as an occupant of the unit. No other person [i.e., nobody but members of
the assisted family] may reside in the unit (except for a foster child or live-in aide as
provided in paragraph (h)(4) of this section).
(3) The family must promptly notify the PHA if any family member no longer resides
in the unit.
(4) If the PHA has given approval, a foster child or a live-in-aide may reside in the
unit. The PHA has the discretion to adopt reasonable policies concerning residence by
a foster child or a live-in-aide, and defining when PHA consent may be given or denied.
(5) Members of the household may engage in legal profitmaking activities in the
unit, but only if such activities are incidental to primary use of the unit for residence by
members of the family.
(6) The family must not sublease or let the unit.
(7) The family must not assign the lease or transfer the unit.
(i) Absence from unit. The family must supply any information or certification
requested by the PHA to verify that the family is living in the unit, or relating to family
absence from the unit, including any PHA-requested information or certification on the
2
purposes of family absences. The family must cooperate with the PHA for this purpose.
The family must promptly notify the PHA of absence from the unit.
(j) Interest in unit. The family must not own or have any interest in the unit.
(k) Fraud and other program violation. The members of the family must not commit
fraud, bribery or any other corrupt or criminal act in connection with the programs.
(l) Crime by household members. The members of the household may not engage
in drug-related criminal activity or violent criminal activity or other criminal activity that
threatens the health, safety, or right to peaceful enjoyment of other residents and
persons residing in the immediate vicinity of the premises (see § 982.553). Under 24
CFR 5.2005(c)(2), criminal activity directly related to domestic violence, dating violence,
or stalking, engaged in by a member of a tenant's household or any guest or other
person under the tenant's control, shall not be cause for termination of tenancy,
occupancy rights, or assistance of the victim, if the tenant or immediate family member
of the tenant is the victim.
(m) Alcohol abuse by household members. The members of the household must
not abuse alcohol in a way that threatens the health, safety or right to peaceful
enjoyment of other residents and persons residing in the immediate vicinity of the
premises.
(n) Other housing assistance. An assisted family, or members of the family, may
not receive Section 8 tenant-based assistance while receiving another housing subsidy,
for the same unit or for a different unit, under any duplicative (as determined by HUD or
in accordance with HUD requirements) federal, State or local housing assistance
program.
(Approved by the Office of Management and Budget under control number 2577-0169)
[60 FR 34695, July 3, 1995, as amended at 60 FR 45661, Sept. 1, 1995; 61 FR 11119,
Mar. 18, 1996; 61 FR 13627, Mar. 27, 1996; 61 FR 27163, May 30, 1996; 64 FR 26650,
May 14, 1999; 66 FR 28805, May 24, 2001; 73 FR 72345, Nov. 28, 2008; 75 FR 66264,
Oct. 27, 2010]
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§ 982.552 PHA denial or termination of assistance for family.
(a) Action or inaction by family. (1) a PHA may deny assistance for an applicant or
terminate assistance for a participant under the programs because of the family's action
or failure to act as described in this section or § 982.553. The provisions of this section
do not affect denial or termination of assistance for grounds other than action or failure
to act by the family.
3
(2) Denial of assistance for an applicant may include any or all of the following:
denying listing on the PHA waiting list, denying or withdrawing a voucher, refusing to
enter into a HAP contract or approve a lease, and refusing to process or provide
assistance under portability procedures.
(3) Termination of assistance for a participant may include any or all of the
following: refusing to enter into a HAP contract or approve a lease, terminating housing
assistance payments under an outstanding HAP contract, and refusing to process or
provide assistance under portability procedures.
(4) This section does not limit or affect exercise of the PHA rights and remedies
against the owner under the HAP contract, including termination, suspension or
reduction of housing assistance payments, or termination of the HAP contract.
(b) Requirement to deny admission or terminate assistance. (1) For provisions on
denial of admission and termination of assistance for illegal drug use, other criminal
activity, and alcohol abuse that would threaten other residents, see § 982.553.
(2) The PHA must terminate program assistance for a family evicted from housing
assisted under the program for serious violation of the lease.
(3) The PHA must deny admission to the program for an applicant, or terminate
program assistance for a participant, if any member of the family fails to sign and submit
consent forms for obtaining information in accordance with part 5, subparts B and F of
this title.
(4) The family must submit required evidence of citizenship or eligible immigration
status. See part 5 of this title for a statement of circumstances in which the PHA must
deny admission or terminate program assistance because a family member does not
establish citizenship or eligible immigration status, and the applicable informal hearing
procedures.
(5) The PHA must deny or terminate assistance if any family member fails to meet
the eligibility requirements concerning individuals enrolled at an institution of higher
education as specified in 24 CFR 5.612.
(c) Authority to deny admission or terminate assistance —(1) Grounds for denial or
termination of assistance. The PHA may at any time deny program assistance for an
applicant, or terminate program assistance for a participant, for any of the following
grounds:
(i) If the family violates any family obligations under the program (see § 982.551).
See § 982.553 concerning denial or termination of assistance for crime by family
members.
4
(ii) If any member of the family has been evicted from federally assisted housing in
the last five years;
(iii) If a PHA has ever terminated assistance under the program for any member of
the family.
(iv) If any member of the family has committed fraud, bribery, or any other corrupt
or criminal act in connection with any Federal housing program (see also
§ 982.553(a)(1));
(v) If the family currently owes rent or other amounts to the PHA or to another PHA
in connection with Section 8 or public housing assistance under the 1937 Act.
(vi) If the family has not reimbursed any PHA for amounts paid to an owner under a
HAP contract for rent, damages to the unit, or other amounts owed by the family under
the lease.
(vii) If the family breaches an agreement with the PHA to pay amounts owed to a
PHA, or amounts paid to an owner by a PHA. (The PHA, at its discretion, may offer a
family the opportunity to enter an agreement to pay amounts owed to a PHA or amounts
paid to an owner by a PHA. The PHA may prescribe the terms of the agreement.)
(viii) If a family participating in the FSS program fails to comply, without good
cause, with the family's FSS contract of participation.
(ix) If the family has engaged in or threatened abusive or violent behavior toward
PHA personnel.
(x) If a welfare-to-work (WTW) family fails, willfully and persistently, to fulfill its
obligations under the welfare-to-work voucher program.
(xi) If the family has been engaged in criminal activity or alcohol abuse as
described in § 982.553.
(2) Consideration of circumstances. In determining whether to deny or terminate
assistance because of action or failure to act by members of the family:
(i) The PHA may consider all relevant circumstances such as the seriousness of
the case, the extent of participation or culpability of individual family members,
mitigating circumstances related to the disability of a family member, and the effects of
denial or termination of assistance on other family members who were not involved in
the action or failure.
(ii) The PHA may impose, as a condition of continued assistance for other family
members, a requirement that other family members who participated in or were culpable
5
for the action or failure will not reside in the unit. The PHA may permit the other
members of a participant family to continue receiving assistance.
(iii) In determining whether to deny admission or terminate assistance for illegal use
of drugs or alcohol abuse by a household member who is no longer engaged in such
behavior, the PHA consider whether such household member is participating in or has
successfully completed a supervised drug or alcohol rehabilitation program, or has
otherwise been rehabilitated successfully (42 U.S.C. 13661). For this purpose, the PHA
may require the applicant or tenant to submit evidence of the household member's
current participation in, or successful completion of, a supervised drug or alcohol
rehabilitation program or evidence of otherwise having been rehabilitated successfully.
(iv) If the family includes a person with disabilities, the PHA decision concerning
such action is subject to consideration of reasonable accommodation in accordance
with part 8 of this title.
(v) Nondiscrimination limitation and protection for victims of domestic violence,
dating violence, or stalking. The PHA's admission and termination actions must be
consistent with fair housing and equal opportunity provisions of § 5.105 of this title, and
with the requirements of 24 CFR part 5, subpart L, protection for victims of domestic
violence, dating violence, or stalking.
(d) Information for family. The PHA must give the family a written description of:
(1) Family obligations under the program.
(2) The grounds on which the PHA may deny or terminate assistance because of
family action or failure to act.
(3) The PHA informal hearing procedures.
(e) Applicant screening. The PHA may at any time deny program assistance for an
applicant in accordance with the PHA policy, as stated in the PHA administrative plan,
on screening of applicants for family behavior or suitability for tenancy.
(Approved by the Office of Management and Budget under control number 2577-0169)
[60 FR 34695, July 3, 1995, as amended at 60 FR 45661, Sept. 1, 1995; 61 FR 13627,
Mar. 27, 1996; 63 FR 23865, Apr. 30, 1998; 64 FR 26650, May 14, 1999; 64 FR 49659,
Sept. 14, 1999; 64 FR 56915, Oct. 21, 1999; 65 FR 16823, Mar. 30, 2000; 66 FR
28805, May 24, 2001; 70 FR 77744, Dec. 30, 2005; 73 FR 72345, Nov. 28, 2008; 75 FR
66264, Oct. 27, 2010]
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6
§ 982.553 Denial of admission and termination of assistance for criminals and
alcohol abusers.
(a) Denial of admission —(1) Prohibiting admission of drug criminals. (i) The PHA
must prohibit admission to the program of an applicant for three years from the date of
eviction if a household member has been evicted from federally assisted housing for
drug-related criminal activity. However, the PHA may admit the household if the PHA
determines:
(A) That the evicted household member who engaged in drug-related criminal
activity has successfully completed a supervised drug rehabilitation program approved
by the PHA; or
(B) That the circumstances leading to eviction no longer exist (for example, the
criminal household member has died or is imprisoned).
(ii) The PHA must establish standards that prohibit admission if:
(A) The PHA determines that any household member is currently engaging in illegal
use of a drug;
(B) The PHA determines that it has reasonable cause to believe that a household
member's illegal drug use or a pattern of illegal drug use may threaten the health,
safety, or right to peaceful enjoyment of the premises by other residents; or
(C) Any household member has ever been convicted of drug-related criminal
activity for manufacture or production of methamphetamine on the premises of federally
assisted housing.
(2) Prohibiting admission of other criminals—(i) Mandatory prohibition. The PHA
must establish standards that prohibit admission to the program if any member of the
household is subject to a lifetime registration requirement under a State sex offender
registration program. In this screening of applicants, the PHA must perform criminal
history background checks necessary to determine whether any household member is
subject to a lifetime sex offender registration requirement in the State where the housing
is located and in other States where the household members are known to have
resided.
(ii) Permissive prohibitions. (A) The PHA may prohibit admission of a household to
the program if the PHA determines that any household member is currently engaged in,
or has engaged in during a reasonable time before the admission:
(1) Drug-related criminal activity;
(2) Violent criminal activity;
7
(3) Other criminal activity which may threaten the health, safety, or right to peaceful
enjoyment of the premises by other residents or persons residing in the immediate
vicinity; or
(4) Other criminal activity which may threaten the health or safety of the owner,
property management staff, or persons performing a contract administration function or
responsibility on behalf of the PHA (including a PHA employee or a PHA contractor,
subcontractor or agent).
(B) The PHA may establish a period before the admission decision during which an
applicant must not to have engaged in the activities specified in paragraph (a)(2)(i) of
this section (“reasonable time”).
(C) If the PHA previously denied admission to an applicant because a member of
the household engaged in criminal activity, the PHA may reconsider the applicant if the
PHA has sufficient evidence that the members of the household are not currently
engaged in, and have not engaged in, such criminal activity during a reasonable period,
as determined by the PHA, before the admission decision.
(1) The PHA would have “sufficient evidence” if the household member submitted a
certification that she or he is not currently engaged in and has not engaged in such
criminal activity during the specified period and provided supporting information from
such sources as a probation officer, a landlord, neighbors, social service agency
workers and criminal records, which the PHA verified.
(2) For purposes of this section, a household member is “currently engaged in”
criminal activity if the person has engaged in the behavior recently enough to justify a
reasonable belief that the behavior is current.
(3) Prohibiting admission of alcohol abusers. The PHA must establish standards
that prohibit admission to the program if the PHA determines that it has reasonable
cause to believe that a household member's abuse or pattern of abuse of alcohol may
threaten the health, safety, or right to peaceful enjoyment of the premises by other
residents.
(b) Terminating assistance —(1) Terminating assistance for drug criminals. (i) The
PHA must establish standards that allow the PHA to terminate assistance for a family
under the program if the PHA determines that:
(A) Any household member is currently engaged in any illegal use of a drug; or
(B) A pattern of illegal use of a drug by any household member interferes with the
health, safety, or right to peaceful enjoyment of the premises by other residents.
(ii) The PHA must immediately terminate assistance for a family under the program
if the PHA determines that any member of the household has ever been convicted of
8
drug-related criminal activity for manufacture or production of methamphetamine on the
premises of federally assisted housing.
(iii) The PHA must establish standards that allow the PHA to terminate assistance
under the program for a family if the PHA determines that any family member has
violated the family's obligation under § 982.551 not to engage in any drug-related
criminal activity.
(2) Terminating assistance for other criminals. The PHA must establish standards
that allow the PHA to terminate assistance under the program for a family if the PHA
determines that any household member has violated the family's obligation under
§ 982.551 not to engage in violent criminal activity.
(3) Terminating assistance for alcohol abusers. The PHA must establish standards
that allow termination of assistance for a family if the PHA determines that a household
member's abuse or pattern of abuse of alcohol may threaten the health, safety, or right
to peaceful enjoyment of the premises by other residents.
(c) Evidence of criminal activity. The PHA may terminate assistance for criminal
activity by a household member as authorized in this section if the PHA determines,
based on a preponderance of the evidence, that the household member has engaged in
the activity, regardless of whether the household member has been arrested or
convicted for such activity.
(d) Use of criminal record —(1) Denial. If a PHA proposes to deny admission for
criminal activity as shown by a criminal record, the PHA must provide the subject of the
record and the applicant with a copy of the criminal record. The PHA must give the
family an opportunity to dispute the accuracy and relevance of that record, in the
informal review process in accordance with § 982.554. (See part 5, subpart J for
provision concerning access to criminal records.)
(2) Termination of assistance. If a PHA proposes to terminate assistance for
criminal activity as shown by a criminal record, the PHA must notify the household of
the proposed action to be based on the information and must provide the subject of the
record and the tenant with a copy of the criminal record. The PHA must give the family
an opportunity to dispute the accuracy and relevance of that record in accordance with
§ 982.555.
(3) Cost of obtaining criminal record. The PHA may not pass along to the tenant the
costs of a criminal records check.
(e) In cases of criminal activity related to domestic violence, dating violence, or
stalking, the victim protections of 24 CFR part 5, subpart L, apply.
[66 FR 28805, May 24, 2001, as amended at 73 FR 72345, Nov. 28, 2008; 75 FR
66264, Oct. 27, 2010]
9
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§ 982.554 Informal review for applicant.
(a) Notice to applicant. The PHA must give an applicant for participation prompt
notice of a decision denying assistance to the applicant. The notice must contain a brief
statement of the reasons for the PHA decision. The notice must also state that the
applicant may request an informal review of the decision and must describe how to
obtain the informal review.
(b) Informal review process. The PHA must give an applicant an opportunity for an
informal review of the PHA decision denying assistance to the applicant. The
administrative plan must state the PHA procedures for conducting an informal review.
The PHA review procedures must comply with the following:
(1) The review may be conducted by any person or persons designated by the
PHA, other than a person who made or approved the decision under review or a
subordinate of this person.
(2) The applicant must be given an opportunity to present written or oral objections
to the PHA decision.
(3) The PHA must notify the applicant of the PHA final decision after the informal
review, including a brief statement of the reasons for the final decision.
(c) When informal review is not required. The PHA is not required to provide the
applicant an opportunity for an informal review for any of the following:
(1) Discretionary administrative determinations by the PHA.
(2) General policy issues or class grievances.
(3) A determination of the family unit size under the PHA subsidy standards.
(4) An PHA determination not to approve an extension or suspension of a voucher
term.
(5) A PHA determination not to grant approval of the tenancy.
(6) An PHA determination that a unit selected by the applicant is not in compliance
with HQS.
(7) An PHA determination that the unit is not in accordance with HQS because of
the family size or composition.
10
(d) Restrictions on assistance for noncitizens. The informal hearing provisions for
the denial of assistance on the basis of ineligible immigration status are contained in 24
CFR part 5.
(Approved by the Office of Management and Budget under control number 2577-0169)
[60 FR 34695, July 3, 1995, as amended at 60 FR 45661, Sept. 1, 1995; 61 FR 13627,
Mar. 27, 1996; 64 FR 26650, May 14, 1999]
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§ 982.555 Informal hearing for participant.
(a) When hearing is required. (1) a PHA must give a participant family an
opportunity for an informal hearing to consider whether the following PHA decisions
relating to the individual circumstances of a participant family are in accordance with the
law, HUD regulations and PHA policies:
(i) A determination of the family's annual or adjusted income, and the use of such
income to compute the housing assistance payment.
(ii) A determination of the appropriate utility allowance (if any) for tenant-paid
utilities from the PHA utility allowance schedule.
(iii) A determination of the family unit size under the PHA subsidy standards.
(iv) A determination that a certificate program family is residing in a unit with a
larger number of bedrooms than appropriate for the family unit size under the PHA
subsidy standards, or the PHA determination to deny the family's request for an
exception from the standards.
(v) A determination to terminate assistance for a participant family because of the
family's action or failure to act (see § 982.552).
(vi) A determination to terminate assistance because the participant family has
been absent from the assisted unit for longer than the maximum period permitted under
PHA policy and HUD rules.
(2) In the cases described in paragraphs (a)(1) (iv), (v) and (vi) of this section, the
PHA must give the opportunity for an informal hearing before the PHA terminates
housing assistance payments for the family under an outstanding HAP contract.
(b) When hearing is not required. The PHA is not required to provide a participant
family an opportunity for an informal hearing for any of the following:
(1) Discretionary administrative determinations by the PHA.
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(2) General policy issues or class grievances.
(3) Establishment of the PHA schedule of utility allowances for families in the
program.
(4) a PHA determination not to approve an extension or suspension of a voucher
term.
(5) a PHA determination not to approve a unit or tenancy.
(6) a PHA determination that an assisted unit is not in compliance with HQS.
(However, the PHA must provide the opportunity for an informal hearing for a decision
to terminate assistance for a breach of the HQS caused by the family as described in
§ 982.551(c).)
(7) a PHA determination that the unit is not in accordance with HQS because of the
family size.
(8) A determination by the PHA to exercise or not to exercise any right or remedy
against the owner under a HAP contract.
(c) Notice to family. (1) In the cases described in paragraphs (a)(1) (i), (ii) and (iii) of
this section, the PHA must notify the family that the family may ask for an explanation of
the basis of the PHA determination, and that if the family does not agree with the
determination, the family may request an informal hearing on the decision.
(2) In the cases described in paragraphs (a)(1) (iv), (v) and (vi) of this section, the
PHA must give the family prompt written notice that the family may request a hearing.
The notice must:
(i) Contain a brief statement of reasons for the decision,
(ii) State that if the family does not agree with the decision, the family may request
an informal hearing on the decision, and
(iii) State the deadline for the family to request an informal hearing.
(d) Expeditious hearing process. Where a hearing for a participant family is
required under this section, the PHA must proceed with the hearing in a reasonably
expeditious manner upon the request of the family.
(e) Hearing procedures —(1) Administrative plan. The administrative plan must
state the PHA procedures for conducting informal hearings for participants.
(2) Discovery —(i) By family. The family must be given the opportunity to examine
before the PHA hearing any PHA documents that are directly relevant to the hearing.
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The family must be allowed to copy any such document at the family's expense. If the
PHA does not make the document available for examination on request of the family,
the PHA may not rely on the document at the hearing.
(ii) By PHA. The PHA hearing procedures may provide that the PHA must be given
the opportunity to examine at PHA offices before the PHA hearing any family
documents that are directly relevant to the hearing. The PHA must be allowed to copy
any such document at the PHA's expense. If the family does not make the document
available for examination on request of the PHA, the family may not rely on the
document at the hearing.
(iii) Documents. The term “documents” includes records and regulations.
(3) Representation of family. At its own expense, the family may be represented by
a lawyer or other representative.
(4) Hearing officer: Appointment and authority. (i) The hearing may be conducted
by any person or persons designated by the PHA, other than a person who made or
approved the decision under review or a subordinate of this person.
(ii) The person who conducts the hearing may regulate the conduct of the hearing
in accordance with the PHA hearing procedures.
(5) Evidence. The PHA and the family must be given the opportunity to present
evidence, and may question any witnesses. Evidence may be considered without
regard to admissibility under the rules of evidence applicable to judicial proceedings.
(6) Issuance of decision. The person who conducts the hearing must issue a written
decision, stating briefly the reasons for the decision. Factual determinations relating to
the individual circumstances of the family shall be based on a preponderance of the
evidence presented at the hearing. A copy of the hearing decision shall be furnished
promptly to the family.
(f) Effect of decision. The PHA is not bound by a hearing decision:
(1) Concerning a matter for which the PHA is not required to provide an opportunity
for an informal hearing under this section, or that otherwise exceeds the authority of the
person conducting the hearing under the PHA hearing procedures.
(2) Contrary to HUD regulations or requirements, or otherwise contrary to federal,
State, or local law.
(3) If the PHA determines that it is not bound by a hearing decision, the PHA must
promptly notify the family of the determination, and of the reasons for the determination.
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(g) Restrictions on assistance to noncitizens. The informal hearing provisions for
the denial of assistance on the basis of ineligible immigration status are contained in 24
CFR part 5.
(Approved by the Office of Management and Budget under control number 2577-0169)
[60 FR 34695, July 3, 1995, as amended at 60 FR 45661, Sept. 1, 1995; 61 FR 13627,
Mar. 27, 1996; 64 FR 26650, May 14, 1999; 65 FR 16823, Mar. 30, 2000]
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