HUD’s Office of Public and Indian Housing (PIH) issued Notice PIH 2020-33 on November 30, providing five new waivers of law or regulations. The notice also restated waivers and alternative requirements from the previous Notice PIH 2020-13 (see Memo, 7/13), extending the period of availability for certain waivers to June 30, 2021 (generally from December 31, 2020). Notice PIH 2020-33 supersedes Notice PIH 2020-13 and Notice PIH 2020-05 (see Memo, 4/13).
The waivers and alternative requirements established in Notice PIH 2020-05 and Notice PIH 2020-13 remain effective as of the date of their publication that established a waiver/alternative requirement. The new waivers/alternative requirements established in Notice PIH 2020-33 are effective immediately. Public housing agencies (PHAs) that adopted waivers/alternative requirements established in Notices PIH 2020-05 and PIH 2020-13 may continue to operate under those waivers/alternative requirements through the extended availability periods provided in Notice PIH 2020-33.
An appendix has a list of the waivers and alternative requirements extended from Notice PIH 2020-13 by Notice PIH 2020-33.
Notice PIH 2020-33 establishes three new waivers pertaining to public housing and two new alternative requirements pertaining to Housing Choice Vouchers.
Waiver PH-13, Over Income Limit: Termination Requirement (page 32)
Existing requirement. For public housing families whose income has exceeded the over-income limit for the locality (generally 120% of the area median income or AMI) for two consecutive years, a PHA must terminate the family’s tenancy within six months of the third income determination or charge the family a monthly rent equal to the greater of the applicable Fair Market Rent (FMR) or the amount of monthly subsidy for the unit, including amounts from the Operating and Capital Funds.
Waiver. HUD is waiving this requirement and providing an alternative requirement, allowing housing households to remain and be charged the applicable FMR as the household’s monthly rental amount. This waiver prevents evictions during a pandemic and therefore the spread of COVID-19. The waiver will also enable PHAs to continue to expend CARES Act supplemental Operating Funds and other funds to maintain and improve the buildings and units in which these households live. PIH encourages PHAs to adopt this waiver, which is available until June 30, 2021.
Waiver PH-14, Annual Choice of Rent (pages 32-33)
Existing requirement. Once a year, PHAs must give families the option of choosing between a flat rent and an income-based rent. A family may not be offered this choice more than once per year, with the exception that a family may switch from a flat rent to an income-based rent because of financial hardship.
Waiver. Families that experienced a financial hardship due to the coronavirus pandemic because of a change in circumstances, for example a loss of employment, might later no longer be experiencing such hardship and want to continue paying a flat rent. Therefore, PIH is waiving the requirement that a family may not be offered a choice of rent more than once a year. Alternatively, a PHA may give families no more than two opportunities to choose between a flat rent and an income-based rent within the same one-year period.
Section 6(j) of the Housing Act (page 37)
Existing requirement. PHAs that are designated troubled under Public Housing Assessment System (PHAS) are required by statute and regulation to, within the first full fiscal year after the initial release of the troubled designation, improve the PHAS score by 50% of the difference between the initial score and the score required to get the PHA out of troubled status; and, within the second full fiscal year after the initial release of the troubled designation, improve the PHAS score to at least the score required to get the PHA out of troubled status.
Waiver. Item 11(a) of the previous Notices stated that PIH would not issue new a PHAS score for any PHA that had a PHAS score pending or any PHA with a fiscal year ending on or before December 31, 2020. Item 11(a) of Notice PIH 2020-33 (page 33) extends that provision to any PHA with a fiscal year ending on or before March 31, 2021 and specifies that the scores will be advisory only for four consecutive quarters ending with PHAs with fiscal years ending on March 31, 2022.
Due to the suspension of the issuance of new PHAS scores provided by 11(a), the one- and two-year statutory and regulatory substantial improvement benchmarks may fall on the same fiscal year for a troubled PHA. Therefore, for PHAs designated as troubled before the date of Notice PIH 2020-33 that have not received a PHAS assessment for the first full fiscal year after the initial notice of the troubled designation, PIH will evaluate the one-year substantial improvement benchmark based on the first released score for fiscal years ending on or after June 30, 2022, and PIH toll the evaluation of the two-year recovery benchmark to the next sequential fiscal year.
HOUSING CHOICE VOUCHERS
Notice PIH 2020-33 adds two alternative requirements to two previously established Housing Choice Voucher waivers. If a PHA previously adopted the two waivers, the newly added alternative requirements will only apply to actions taken under the waivers as of the November 30, 2020.
HQS-5, HQS Inspection Requirement: Biennial Inspections (pages 18-19)
Existing requirement. The statute and the regulations require a PHA to inspect a unit not less often than biennially during the term of a Housing Assistance Payment (HAP) contract.
Waiver. HUD previously waived this requirement, allowing a PHA to delay biennial inspections for both tenant-based and project-based vouchers (PBV) units. Notice PIH 2020-13 required delayed biennial inspections to be completed as soon as reasonably possible, but no later than one year after the date the biennial inspection would have been required absent the waiver.
Notice PIH 2020-33’s alternate requirement allows a PHA to rely on an owner’s certification that the owner has no reasonable basis to have knowledge that life-threatening conditions exist in the unit or units in question instead of conducting an initial inspection. At minimum, a PHA must require this owner certification. However, a PHA may add other requirements or conditions in addition to the owner’s certification. A PHA must resume biennial inspections by June 30, 2021 and must conduct all delayed biennial inspections no later than December 31, 2021.
HCV-5: Absent from Unit (page 23)
Existing requirement. The regulation prohibits a family from being absent from a unit for more than 180 consecutive calendar days for any reason.
Waiver. HUD previously waived this requirement to allow a PHA to continue housing assistance payments and not terminate a HAP contract due to extenuating circumstances, such as hospitalization, extended stays at nursing homes, or caring for family members. Notice PIH 2020-13 adds that a PHA must maintain documentation in the tenant file explaining the extenuating circumstances that caused the extended absence. The period of availability of this waiver ends on June 30, 2021.
Notice PIH 2020-33 is at: https://bit.ly/2I2iiRe
More information about public housing is on page 4-30 of NLIHC’s 2020 Advocates’ Guide.
More information about vouchers is on page 4-1 of NLIHC’s 2020 Advocates’ Guide.