HUD issued joint Notice PIH 2023-13/CPD 2023-05 providing guidance from the Office of Public and Indian Housing (PIH) to public housing agencies (PHAs) explaining how they could expand housing opportunities for people experiencing homelessness by facilitating access to public housing and private homes assisted with a Housing Choice Voucher. The Notice provides updated guidance regarding: waiting list management and preferences; screening policies regarding criminal activity, substance use, and rental history; and program termination and eviction. The joint Notice encourages PHAs to become familiar with their local Continuums of Care’s (CoC’s) projects and coordinated entry (CE) systems so that they can work collaboratively to better serve people experiencing homelessness. The Office of Community Planning and Development (CPD) oversees HUD’s homelessness assistance programs, administered locally by CoCs.
Pages 14 through 26 of the Notice provide residents and advocates, as well as PHAs, detailed guidance regarding waiting list management, homeless admissions preference, and admission and termination of housing assistance policies relating to criminal activity and substance use. The remaining pages are devoted to the use of Project-Based Vouchers (PBVs) with CoC supportive services to create Permanent Supportive Housing (PSH). The first 13 pages have technical information primarily of interest to PHAs, including three pages helping PHAs learn about CoCs and how PHAs can collaborate with them.
Waiting List Management
When waiting lists are long or closed, people who lack stable housing and reliable contact information may not be able to be contacted when they come to the top of the waiting, especially if it has been months or years since an application was submitted. Also, when PHAs reopen waiting lists for short periods of time, people experiencing homelessness may be excluded from the application process due to a lack of information about the eligibility to apply. Therefore, PHAs are encouraged to establish outreach and intake strategies by partnering with key CoC leadership and service providers within a CoC, such as emergency shelter staff, CE staff, and housing navigators. When a PHA reopens a waiting list and notifies people on the list, as a matter of complying with fair housing law, the PHA must adopt suitable means to ensure that notification reaches individuals with disabilities and those with limited English proficiency (LEP). The Notice provides 11 suggested policy and procedures changes a PHA can consider to help overcome waiting list barriers for people experiencing homelessness.
Homeless Admissions Preferences
The Notice states that a PHA’s greatest tool for increasing program access for people experiencing homelessness is establishing a homeless preference in the public housing Admission and Continued Occupancy Plan (ACOP) and the HCV Administrative Plan. Overall, eight topics are presented in this section of the Notice. The Notice indicates that a PHA may establish a general preference for people experiencing homelessness or may create a more narrowly defined or limited preference, for example a preference for homeless households with children, or veterans experiencing homelessness, or people referred by a partnering homeless service organization. A PHA may limit the number of applicants that may qualify for a particular preference.
Regulations allow a PHA to have a residency preference. The Notice encourages such a PHA to include in their definition of “residence,” shelters and unsheltered locations where homeless people may be living or sleeping. However, the Notice warns that a residence preference cannot have an unjustified discriminatory effect on a group of persons with certain characteristics protected under the “Fair Housing Act,” including race, color, national origin, sex (including sexual orientation and gender identity), disability, family status (children under the age of 18, including pregnancy or seeking legal custody), and religion.
Admission and Termination of Assistance Policies Regarding Criminal Activity and Substance Use
The Notice notes that incarceration and homelessness are highly interrelated, as the difficulties of reintegrating into a community increase the risk of homelessness for people returning from incarceration, and homelessness in turn increases the risk for subsequent re-incarceration. HUD sent a letter to PHAs and CoCs on June 23, 2021, encouraging PHAs to work with their CoC to ensure that housing needs were met for individuals at-risk of homelessness after leaving prisons or jails.
The Notice provides information regarding PHA admission screening policies that are mandatory, potentially mandatory, and those that are discretionary. There are two mandatory, absolute prohibitions on admission: applicants who have a household member convicted of manufacturing or producing methamphetamine on the premises of federally assisted housing, and those who have a household member subject to a lifetime sex offender registration requirement.
An example of a potential mandatory prohibition could be a situation involving an applicant household member who was evicted from federally assisted housing for drug-related criminal activity. In this situation, a PHA would be required to prohibit the household’s admission for three years – unless the PHA determines that the evicted household member has successfully completed a supervised drug rehabilitation program approved by the PHA, or that the person is no longer a part of the household.
Regarding a PHA’s discretion to prohibit admission to public housing or the voucher program, the regulations require a PHA to consider the time, nature, and extent of an applicant's conduct (including the seriousness of the offense). A PHA wishing to serve more people experiencing homelessness may consider reviewing their discretionary policies to identify potential changes to remove barriers. For example, a PHA could:
- Conduct an individualized assessment of each applicant’s case, taking into account relevant mitigating information instead of automatically denying admission based on conviction history.
- Eliminate policies that deny assistance to all individuals with past evictions for any type of criminal activity.
- Eliminate policies that deny assistance to all individuals on probation or parole.
- Consider whether a household member is participating in or has successfully completed a drug rehabilitation program or has otherwise successfully rehabilitated.
- Eliminate “one-strike” policies for individuals with a criminal record.
- Reduce the look-back period for criminal convictions based on when the conduct occurred and/or the type of conduct.
- Avoid using third-party screening companies that use algorithms that may contain racial or other prohibited bias in their design.
- Consider the circumstances in which conduct has occurred. For instance, define criminal activity to focus on activities that pose threats to the safety and security of other residents.
PHAs must comply with the protections for victims/survivors of domestic violence, dating violence, sexual assault, or stalking under the “Violence Against Women Act” (VAWA). HUD’s VAWA rule states that an incident of actual or threatened domestic violence, dating violence, sexual assault, or stalking will not be considered a serious or repeated violation of a lease by the victim/survivor or threatened victim of the domestic violence, dating violence, sexual assault, or stalking, or as good cause to terminate the assistance, tenancy, or occupancy rights of the victim or threatened victim. The VAWA rule also prohibits a tenant from being denied admission, evicted, or having their assistance terminated solely because of criminal activity relating to domestic violence, dating violence, sexual assault, or stalking, if they are the victim and a household member or guest engaged in the criminal activity.
The Notice has a link to a PIH-sponsored guidebook, How PHAs Can Assist People Experiencing Homelessness Guidebook, discussing best practices for operating waiting lists and establishing preferences for people experiencing homelessness.
Joint Notice PIH 2023-13/CPD 2023-05 is at: https://tinyurl.com/48pf3rcu
More information about public housing is on page 4-32 of NLIHC’s 2023 Advocates’ Guide.
More information about Housing Choice Vouchers is on page 4-1 of NLIHC’s 2023 Advocates’ Guide.
More information about HUD’s homeless programs is on page 4-103 of NLIHC’s 2023 Advocates’ Guide.