NLIHC is calling on advocates to comment in support of HUD’s recent Notice of Proposed Rulemaking (NPRM), “Reducing Barriers to HUD-Assisted Housing.” The deadline for comments is June 10.
The NPRM proposes updates to HUD’s existing screening regulations for applicants with conviction histories or a history of involvement with the criminal-legal system, including:
- Clarifying the types of “relevant criminal activity” for which PHAs and owners can screen. The rule would rein in some discretion PHAs and owners/operators have in conducting background screenings by specifying that only drug-related criminal activity, violent criminal activity, and other criminal activity “that would threaten the health, safety, or right to peaceful enjoyment” of the premises by others may be included in background screenings. The rule does not define what constitutes criminal activity “that would threaten the health, safety, or right to peaceful enjoyment” of others.
- Limiting lookback periods in admissions decisions to no more than three years prior to an application. The NPRM states that PHAs and HUD-assisted owners/operators should use a lookback period of “no more than three years” for most convictions; notes that three years may not be the right lookback period for all convictions; and observes that any lookback period longer than three years would be considered “presumptively unreasonable.” PHAs and HUD-assisted owners/operators would be allowed to extend this lookback period for certain convictions if empirical evidence exists justifying the extension.
- Mandating an individualized assessment of rental applicants with a conviction history in admissions decisions. Any time criminal history is used in an admissions decision, the PHA would be required to conduct an individualized assessment of the tenant that considers mitigating factors and other circumstances. However, an individualized assessment need not be performed if an individual’s record includes cases where statute requires denial of admissions based on criminal history.
- Restricting the use of arrest records and banning the use of arrest records as the sole basis for housing denial or eviction. The proposed rule clarifies that an arrest record alone may not be used as the basis for denying someone admission to HUD housing. However, an arrest record may be used in conjunction with other evidence of conduct to assess an applicant’s potential success as a tenant. Similarly, an arrest record could not be used as the sole basis to evict a current tenant from HUD-assisted housing but can be used along with other evidence to determine whether criminal conduct necessitating eviction occurred.
- Clarifying the standard of proof for eviction and termination decisions based on criminal activity. For evictions based on alleged criminal activity, HUD clarifies the standard of proof should be a “preponderance of the evidence” standard, meaning that based on the information available, it is more likely than not that the conduct in question occurred.
- Better regulating third-party screening services and companies. The rule clarifies that tenants should be provided with a detailed copy of their screening report, including when information is pulled by a third-party screening company, and notes that third-party screening companies are expected to abide by the provisions of the “Fair Housing Act.”
Advocates, especially those with lived experience, are encouraged to submit a public comment to help HUD shape the final guidance and support needed updates. Comments are due by June 10.
Advocates can weigh in with HUD by:
- Submitting a comment. Participating in the public comment period is an effective way to influence federal policymaking. After the public comment period ends, HUD must review and take into consideration all comments before publishing a final rule. Your comment can be long or short, written formally or informally, based on research or your own experiences and the experiences of people you know. Consider answering questions like:
- What are some of the biggest challenges you/your clients have faced trying to find housing?
- How many apartments did you/your client apply for before finding your/their current housing?
- Have you/Has your client been able to find stable housing, and what has the impact been?
- How have these barriers impacted your friends/family members/community?
- Using the comment portal from the Vera Institute for Justice (Vera). Vera created a comment portal where advocates can submit comments in support of the proposed rule. The portal includes a template with a pre-written message that advocates can submit as-is or update with their own content. While all positive messages help, to be fully considered by HUD, comments must be at least 30% original content.
NLIHC will also be circulating a comment for sign-on, open to all state, local, national, and tribal partners. We will continue to update our website with additional resources and information.
View the proposed rule and submit a public comment here.
Learn more about the proposed rule here.