Mandatory Covid 19 Vaccinations
February 6, 2021, Lisa L. Walker provided HDLI members with updated
EEOC guidance specifically addressing mandatory vaccinations along
with some other considerations.
The EEOC Updates Employer Guidance to Address COVID-19 Vaccination
by Anne-Marie V. Welch, Dec. 16, 2020
listed in alphabetical order:
Arrest Records - Guidance on
Use in Housing Decisions
On November 2, 2015, HUD issued PIH 2015-19 titled
Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted
Housing on Excluding the Use of Arrest Records in Housing Decisions.
notice is accessible here. The major change in protocol
set forth in this Notice is that HUD now states that arrest records
may not be the basis for denying admission, terminating assistance
or evicting tenants. Otherwise, for the most part, this Notice
serves as a reminder to PHAs and owners that HUD does not require
the adoption of "One Strike" policies, and that they must safeguard
the due process rights of applicants and tenants. The Notice
also provides best practices and peer examples for the use of criminal
records, screening for criminal activity, and evicting and terminating
assistance for criminal activity.
Most importantly, the Notice states that HUD has determined
that an arrest record, alone, cannot serve as evidence of criminal
activity that can support an adverse admission, termination, or
eviction decision. Before a PHA or owner denies admission to,
terminates the assistance of, or evicts an individual or household
on the basis of criminal activity by a household member or guest,
the PHA or owner must determine that the relevant individual actually
engaged in such activity. HUD acknowledges that, in many cases,
arrests do not result in criminal charges, and even where they do,
such charges can be and often are dismissed or the person is not
convicted of the crime alleged. HUD points out that arrest records
are often inaccurate or incomplete.
Asset Management - PHADA's Letter to HUD
On March 16, 2016, PHADA sent this
letter to HUD Secretary Castro concerning possible re-federalization
of COCC fees. Thanks to PHADA for sharing.
David Condon of the Owensboro
Housing Authority received this clarification from Althea Forrester
of HUD concerning a question about the Privacy Act and the U.S.
Census, which was raised at HDLI's 2010 Spring Conference Open Forum.
Code of Conduct Policies
St. Paul Public Housing Agency Code of Conduct policies
and related materials:
Guide to Conduct
Member and Staff Relationships Policy
Policy of PHA Commissioners on Conflicts
Policy for PHA Staff on Conflicts
Conflicts of Interest
Annual Reporting Form
Minnesota Statute 10A.07 Conflicts
Housing Authority Code of Ethics and Standards of Conduct
Disclosure of Tenant Information
The Dallas Housing Authority received a request from
Fox 4 News for information regarding Section 8 Voucher holders.
The Texas Attorney
General has determined that such disclosure is prohibited by VAWA.
Any listing of Section 8 Voucher Holders that do not include VAWA
recipients may be subject to disclosure. VAWA, however, prohibits
PHAs from maintaining a list of VAWA and non-VAWA voucher holders.
A list containing all voucher holders from a PHA that administers
VAWA vouchers, would not therefore be subject to disclosure. The
same prohibition applies to the disclosure of Public Housing tenants.
Disclosure of Tenant Information -
Records Exempt from Florida Requirements
Miami-Dade Housing Agency has received HUD opinions
stating PHA's tenant
records and employee
interview records are exempt from disclosure requirements as
federal FOIA and Privacy Act law preempts Florida's Public Records
Discriminatory Effects Standard
On February 8, 2013, HUD
Issued this Final Rule on Implementation of the Fair Housing Act's
Discriminatory Effects Standard
Domestic Violence - ACLU Resource
Thanks to Stephanie Waller of HUD for sharing the
Safe Homes, Safe Communites: A Guide for Local Leaders on Domestic
Violence and Fair Housing.
Domestic Violence - Secretary Castro Announces
Proposed Rule Implementing VAWA 2013
On March 24, 2015, HUD Secretary Julian Castro announced
HUD's proposed rule implementing VAWA 2013. The
proposed rule is available here.
See also: This
email message from Gustavo Velasquez, HUD Assistant Sectretary for
FHEO, which provides an overview of the proposed rule and links
to related VAWA resources.
Domestic Violence - Stronger State Laws
In April 2015, HUD proposed new regulations implementing
VAWA 2013, including inter alia, a proposed new model notice
of rights, emergency transfer plan, and certification form. See
80 FR 17548 (4/1/15), accessible here.
PHAs must not only follow VAWA, but must obey state
domestic laws, as well. So, be sure that your focus in not only
on VAWA, but any other state or local requirements that may exist
in your jurisdiction. In that regard, I'd like to make you aware
that recently the State of Florida's domestic relations laws have
been revised to provide more domestic violence protections. HDLI
has many Florida members, but I believe the new DV provisions are
instructive for all of our members nationwide, given Congress and
HUD's renewed focus on domestic violence in assisted housing programs
(e.g., enhanced VAWA protections). While perhaps not required by
your local laws, some of Florida's protections may be helpful to
your residents nonetheless.
and instructive provisions of Florida's domestic violence law are
Domestic Violence - VAWA
On April 1, 2015, HUD published this
proposed rule for implementing the Violence Against Women Reauthorization
Act of 2013 in HUD housing programs.
Due Process - HUD Rescinds
Determination in Florida
from HUD General Counsel Helen Kanovsky to Florida Attorney General
Pamela Bondi is available here.
Effective Communication Policy
Hialeah Housing Authority Effective
Communication Policy is available here.
The Effective Communication Policy is available
here in Spanish.
Sample eviction notices used by the Lucas Metropolitan
Housing Authority (LMHA) in Toledo, Ohio:
14-Day Notice with New VAWA Language
3-Day Notice after Hearing Panel
3-Day Notice for Drug-Related Criminal Activity
30-Day Notice for Defaulting on Repayment Agreement
Fair Housing - Disparate Impact
On November 3, 2014, Judge Richard J. Leon of the
U.S. District Court for the District of Columbia vacated HUD's disparate
impact regulations (codified at 24 CFR §100.500 et seq.), ruling
that they are inconsistent with the Fair Housing Act in
Am. Ins. Ass'n v. United States HUD, 2014 U.S. Dist. LEXIS 155383
The decision is available here.
Judge Leon's conclusion says it all: "This is,
yet another example of an Administrative Agency trying desperately
to write into law that which Congress never intended to sanction.
While doing so might have been more understandable-and less troubling-prior
to the Supreme Court's decision in Smith, in its aftermath it is
nothing less than an artful misinterpretation of Congress's intent
that is, frankly, too clever by half. Defendants, of course, were
somehow hoping that a favorable Chevron analysis would muster the
judicial deference necessary to salvage their much desired Rule.
But alas, it did not. Fortunately for us all, however, the Supreme
Court is now perfectly positioned in Texas Department of Housing
to finally address this issue in the not-too-distant future."
Fair Housing - Proposed Rule on
Discriminatory Housing Practices
On October 21, 2015, HUD
issued this proposed rule entitled "Quid Pro Quo and Hostile
Environment Harassment and Liability for Discriminatory Housing
Practices Under the Fair Housing Act."
The proposed rule amends 24 CFR part 100 to establish
a new subpart H, titled "Quid Pro Quo and Hostile Environment Harassment."
This proposed rule would seem to attack various court decisions
across the country that have held that "hostile housing environment"
claims are not cognizable under the Fair Housing Act (FHA). Lisa
Walker's analysis is available here.
In Willoughby Estates Homeowners’ Association,
Inc., v. Lindel Anderson, Case No.: 2011CA007567XXXXMB, the
Palm Beach Circuit Court ruled funds payable by the West Palm Beach
Housing Authority pursuant to Title 24 of the Code of Federal Regulations
to an Owner constituted “a future monetary obligation related to
the parcel” as contemplated by Florida Statutes Section 720.3085(8),
and were properly subject to attachment by the association to offset
the parcel owner’s maintenance assessment delinquency.
In response to the ruling, WPBHA ordered the tenant
to move and refused to make payment to any parties, as it had been
directed by HUD that payment could only be made to an Owner. WPBHA
received a Motion to Compel to Comply with Court Order of July 19,
2011. WPBHA opposed the Motion on multiple grounds, including
federal preemption, that the PHA and HUD were indispensible parties,
and that PHAs could not be deemed “tenants” under the amendment
to the statute.
On May 3, 2011, Judge Hoy denied Willoughby Estates
Motion to Compel the WPBHA to comply with the Court Order. While
the issue of federal preemption was not specifically addressed by
the Court Order, HDLI is pleased that the Court has remedied this
controversial ruling and denied its enforcement. A
copy of the Order is available here.
Free Speech - Second Circuit Holds that
Facebook Activity is Protected
Recent decisions by the National Labor Relations Board
and the Second Circuit hold that Facebook activity, including employee
"likes" of others' postings, may constitute concerted activity that
is subject to protection under the National Labor Relations Act.
law firm of Shawe & Rosenthal discussed the decisions here.
Green Development - HUD OIG Audit Report
On September 29, 2015, HUD OIG published an audit
report criticizing my home state of Maryland's compliance with green
development standards in the expenditure of its CDBG funding for
Hurricane Sandy disaster relief in accordance with HUD's 2013 notice
regarding CDBG disaster relief allocations, including a requirement
for green development and certification. See 78 FR 14333 (March
5, 2013). The
report is accessible here.
HUD OIG concluded that the State of Maryland could
not show that replacement homes were designed and constructed to
increase energy efficiency and minimize their environmental footprint
as required. Specifically, the State's subgrantee could not show
that it constructed replacement homes that complied with the Green
Building Standard. The OIG recommended that HUD require the State
to (1) provide documentation to show that the 13 homes, with related
program costs totaling $1.9 million, meet the Green Building Standard
or repay HUD for any amount that it cannot support and (2) continue
to develop and implement procedures to ensure that future replacement
homes comply with the Standard, thereby ensuring that $293,000 in
program funds not yet paid to the subgrantee is put to better use.
HUD OGC Opinion
from June 27, 2013 stating that HAP payments are not subject
See also, this
order from Washington County Court in Minnesota stating that
HAP payments are not subject to state garnishment proceedings; and,
Paul Public Housing Agency's legal memo to the court.
Payments pursuant to IRS levys are allowed according
to this 1994 letter from HUD
to the IRS.
Hoarding as Reasonable Accommodation Request
Hoarding, or any other impairment that meets the operative
definition of "disability," can qualify for a reasonable accommodation.
There seems to be some confusion about the proper definition to
apply when considering whether someone is "disabled" when considering
a request for reasonable accommodation/modification.
The definition to use is that found under 42 U.S.C § 12102 and is:
a physical or mental (or emotional or developmental) impairment
that substantially limits one or more major life activities. Some
states have removed the "substantially" term from the definition
so check your state law. A disability also may be established under
42 U.S.C § 12102 when a person has a record of such an impairment
(like a medical record); or has been "regarded as" having such an
impairment even when they are not, in fact, disabled. The Fair Housing
Act, Section 504 of the Rehabilitation Act, and the Americans With
Disabilities Act all recognize this definition for RA purposes.
also recognizes this definition for RA purposes.
It is not appropriate to use the definition used by the Social Security
Administration to determine social security disability benefits.
Nor is the proper definition the one found in HUD's regulations
for a "person with disabilities" found at 24 CFR 5.403.
The reasonableness of providing a hoarder with a second
bedroom to store his/her "stuff" is quite another issue. HUD programs
house people, not things. I would argue that under HUD regulations
a PHA's obligation is to provide an appropriate number of bedrooms
to house a family based upon the number of people in their household.
The family's obligation is to fit within those parameters, household
goods and all. Moreover, given the propensity for a hoarder to continue
hoarding beyond capacity, approving additional bedrooms will likely
lead to other health and safety issues, and lease violations, down
The usual accommodation is to postpone program termination
or eviction to permit the resident time to bring in assistance (e.g.,
social services help) to clean up the unit and permanently bring
it back into HQS and safety compliance. It may be appropriate to
proceed with the eviction process and then get a stipulated judgment
giving the PHA an immediate right to evict in the event of a subsequent
similar violation. This protects for health and safety.
Thanks to Patricia Rice for sharing this
helpful article from RentPrep.com.
See also: this
2011 memo from HUD's San Francisco Field Office on hoarding and
IT Policy Samples
Housing Authority's IT Policy is available here. Thanks to Nancy
Thomas for sharing
Housing Authority's IT Policy is available here. Thanks to Ray
Buday for sharing.
Legal Privileges for PHAs
On February 14, 2011, HDLI
sent this letter to HUD and the HUD OIG urging that they protect
PHA legal privileges.
On February 8, 2011, ADA
President Stephen N. Zack sent this letter to HUD re: Concerns
Regarding HUD’s Attorney-Client Privilege Waiver Policies and Practices
Litigation Management -
from HDLI's 2015 General Counsel Forum
HDLI Board member Kelly D. MacNeal of the New York
City Housing Authority moderated a session on managing litigation
at HDLI's 10th Anniversary General Counsel Forum. Her
"10 Lessons Learned from Managing Monster Litigation"
is available here.
and the Housing Choice Voucher Program Fact Sheet is available here.
Moving to Work (MTW) -
PHADA's Rebuttal to CBPP Paper
The Public Housing Authorities Directors Association
(PHADA) has issued
this rebuttal to the Center on Budget Policies and Priorities
(CBPP) paper criticizing the MTW program.
See also: this
recent study by Abt Associates entitled "Innovations in the
Moving to Work Demonstration."
HDLI Board Member, Steven J. Riekes, presented an
article on "Nonprofit
Subsidiaries: How and When a Housing Authority Should Use Them"
at HDLI's 2002 Fall Conference in Seattle.
Notice - Industry Groups File U.S. Supreme Court
Amicus Brief on Important Notice Issue
HDLI, PHADA, CLPHA, NAHRO, and HAARG filed an amicus
curiae brief in the U.S. Supreme Court supporting the petition for
certiorari filed by the Housing Authority of the City of Los Angeles
amicus brief is available here.
petition for certiorari to the U.S. Supreme Court is available here.
On February 23, 2011, HUD PIH Assistant Secretary
Sandra Henriquez sent out a letter
to executive directors regarding offsets against operating reserves
and spending down reserves.
"Over-Income" Tenancy - Latest from HUD
Update: HDLI has filed comments to HUD about
the proposed policy change regarding "over-income" tenants.
comments are available here.
On February 3, 2016, HUD published an advanced notice
of proposed rulemaking concerning public housing tenants who are
"over-income" entitled Strengthening Oversight of Over-Income
Tenancy in Public Housing; Advance Notice of Proposed Rulemaking,
81 FR 5677 (2/3/16), accessible
This applies to tenants who met program income limits
at the time of admission to public housing but their income now
exceeds those limits. This follows a July 21, 2015 HUD OIG report
that found that, in 2014, as many as 25,226 families were over-income.
HUD is soliciting comments on how to structure policies to
reduce the number of residents who are significantly over-income.
Comments are due by March 4, 2016.
See also: the St. Paul Public Housing Agency has adopted
a time limit for "over-income" families in public housing.
The agency's report
is available here.
RFP for Paperless Administration of Housing Choice Voucher Program
is available here. Thanks to Ray Buday of Marrietta Housing
Authority for sharing.
Pet Ownership - Dangerous Breeds
2000 Final Rule titled Pet Ownership in Public Housing is
The rule states:
"Comment: Banning of dangerous animals. HUD should
neither encourage nor permit PHAs to ban specific breeds of dogs.
The final rule should require that an animal behaviorist make any
final decision that an animal is dangerous. The final rule should
either define the term ''dangerous animal'' or provide a list of
Response: Section 31 of the Act provides that a
PHA's reasonable requirements may include prohibitions on types
of animals that are classified as dangerous. Thus, the rule contains
a provision implementing that statutory provision. In some cases,
State or local law may govern the classification and treatment of
"dangerous animals" and whether to ban specific breeds; in those
cases, the PHA's pet policy must be consistent with State or local
For HUD guidance on insurance policy restrictions
as a defense for a refusal to allow a certain breed(s), see the
2006 HUD memorandum accessible here. If you choose to
rely upon what an insurance broker is telling you as a basis for
a wholesale denial of the breed(s), make sure that you shop around
and make sure that no other insurance company will provide you more
Preemption - Milwaukee HA v. Cobb
In a March 12, 2015 decision in Milwaukee City
Housing Authority v. Felton Cobb, the Wisconsin Supreme Court,
ruled that "42 U.S.C. § 1437d(l)(6) preempts the right-to-remedy
provision of Wis. Stat. § 704.17(2)(b) when a public housing tenant
is evicted for engaging in 'drug-related criminal activity' within
the meaning of 42 U.S.C. § 1437d(l)." Affirmatively agreeing with
the reasoning in Scarborough and Boston Hous. Auth. v. Garcia,
the court held that Wis. Stat. § 704.17(2)(b) is preempted because
it stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress.
The decision is accessible here.
HDLI filed an amicus curiae brief in support of the Milwaukee
City Housing Authority, which
is accessible here.
Procurement - SFHA Policy
Francisco Housing Authority's Procurement Policy is available here.
The policy was revised in March 2019 to incorporate Presidential
Memorandum M-18-18 which increased Simplified Acquisition and Micro-Purchase
Thresholds. Thanks to Solomon Gebala of SFHA for sharing this policy.
Procurement - Uniform Rule Changes
At HDLI's 2015 Spring Conference, Julie McGovern of
Reno & Cavanaugh moderated a session concerning PHA obligations
under the new uniform rules. The
PowerPoint presentation from that session is available here.
HDLI CEO & General Counsel, Lisa L. Walker, moderated
a session on the new procurement
rules at HDLI's 10th Anniversary General Counsel Forum. Ms.
Walker's outline and other materials are available here.
See also: This
redline comparison of 24 CFR Part 85 and 2 CFR 200 prepared by Shayla
Simmons of the Cambridge Housing Authority.
RAD Updates -
from HDLI's 2018 Fall Conference
Kathie Soroka's PowerPoint slides concerning "Legal
Interests & Issues in RAD Conversions" are available here.
From HDLI's 2018 Fall Legal Conference in Atlanta, Georgia.
RAD Updates -
from HDLI's 2015 General Counsel Forum
On January 29, 2015, HUD published a Federal Register
notice indicating they are processing 1st component RAD applications
over the cap. The notice is
See also: HDLI Board member Rod Solomon's article
on RAD entitled "The 2014 Public Housing Investment Update"
is available here.
On January 7, 2009 the Supreme Judicial Court of
Massachusetts handed down its decision
in Bridgewaters v. Boston Housing Authority involving
a case where the housing authority argued, inter alia, that
it did not have a duty to consider whether a mentally disabled tenant
that committed a vicious violent act upon another tenant was entitled
to a reasonable accommodation that would avoid his eviction from
public housing. The tenant argued that he suffered from bipolar
disorder, that he had been unmedicated at the time of the attack,
and that the housing authority had a duty, but failed, to explore
the feasibility of a reasonable accommodation of his disability
before concluding that continuation of his tenancy would constitute
a threat to the safety of other tenants. Reversing prior court decisions
upholding the tenant's eviction, the supreme court held that, by
regulation, prior to moving to evict the tenant, a housing authority
has a duty to make an individualized assessment as to whether a
proposed accommodation will eliminate the direct threat posed by
the tenant. The court held that such an assessment should be based
on reasonable judgment that relies on current medical knowledge
or on the best available objective evidence to ascertain: the nature,
duration, and severity of the risk; the probability that the potential
injury will actually occur; and whether reasonable modifications
of policies, practices, or procedures will mitigate the risk. It
is important to note that this decision does not prevent a housing
authority from evicting a disabled tenant where it can demonstrate
that no accommodation is available that would protect the health
or safety of other tenants. Rather, it underscores the requirement
that housing authorities not automatically reject a request for
accommodation before making the individual assessment as to whether
the proposed accommodation would eliminate the disabled tenant's
direct threat to the health or safety of others. HDLI's
amicus brief is available here.
Reasonable Accommodations for the Hearing Impaired
HDLI CEO & General Counsel,
Lisa L. Walker, gave a presentation at the 2014 annual legal conference
for the Virginia Association of Housing and Community Development
Officials (VAHCDO) on reasonable accommodations for the hearing
impaired and recent HUD settlements on that topic. The PowerPoint
slides from this presentation are available here.
Reasonable Accommodation Grievance Policy
Hialeah Housing Authority's Reasonable
Accommodation Grievance & Appeal Policy and Procedures is available
here. Thanks to Nicole Bates for sharing.
Detroit Housing Commission Repayment
Policy and Repayment
Kankakee County Housing Authority Section
8 Payment Agreement
Stark Metropolitan Housing Authority Repayment
Resident Council Funds
John Heinen's opinion
letter to the the Milwaukee Housing Authority in response to
a challenge from the Freedom From Religion Foundation.
Section 3 - Draft Policy
Philadelphia Housing Authority's proposed amended
and restated Section
3 policy is available here. Thanks to Phildalephia HA's
Barbara Adams for sharing.
16, 2009 letter from HUD Assistant General Counsel to NYC Dept.
of Preservation and Development States that section 578 of the
Quality Housing and Work Responsibility Act of 1998 provides sound
legal basis to terminate the assistance of sex offenders erroneously
Smoke-Free Housing - Proposed Rule
HUD has published the proposed "Smoke-Free Housing"
can access the proposed rule here.
of the rule are available here.
HUD is soliciting comments on the Proposed Rule and
has included a specific series of questions for feedback. Comments
are due January 19, 2016.
Smoke-Free Housing - Sample Policies
Housing Authority's Draft No Smoking Policy
North Bend City / Coos-Curry Housing
Authority's No Smoking Policy
HUD Notice 2010-21: Optional Smoke-Free Housing Policy Implementation
Social Media Policy
Housing Authority's Electronic Communications Policy
See also: City
of Ontario v. Quon
Streamlining Housing Programs
On January 5, 2015, HUD published in the Federal Register
proposed rules intended to relieve some administrative burdens on
PHAs and Multifamily Housing owners. Some of these previously only
were enjoyed by MTW agencies. HUD invites comments on the
proposed streamlining methods and asks if there are other changes
that should be addressed.
proposed rules are accessible here.
of these proposed rules is available here along with a list
of the proposed changes that HUD specifically seeks comment on. Comments
are due by March 9, 2015.
Tablet Use Agreement
iPad Use and Possession Agreement available here. Thanks
to Fort Worth Housing Authority for sharing.
Opelika Housing Authority's Employee
Telecommuter Agreement is available here.
Lucas Metropolitan Housing Authority's Teleworking
Policy is available here.
Trespass and Barring
HDLI created a Model
Limited Access and Barring Policy that considered nationwide
case law on barring and trespass policies, and incorporated the
"best" provisions from certain existing housing agency trespass
policies. The model policy was last updated in April 2004.
Please contact HDLI at (202) 289-3400 or firstname.lastname@example.org
with any questions.