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A "Compliance" view of Tropical Storm Fay (and other matters)

I want to begin this post by thanking the many who expressed concern for myself and my family, knowing that we live in the Tampa area and that Tropical Storm Fay was tracking close to here.  For the moment, the storm reminds me of Change 2 -- a lot of anticipation and build up, but nothing too severe, at least as far as those in my area are concerned.   My thoughts tonight are for all those on the east coast of the state, which was not included in most of the tracking models.  I hope all in the path of the storm will remain safe and sound.

It also caused me to think about the differences between HUD compliance and meteorology; meteorologists are probably *wrong* more times than are people involved in HUD compliance.  They deal with the forces of nature, while we deal with the forces of regulation -- a slightly more predictable phenomenon.  One of the things we have in common is that an incorrect call impacts people.

One of the things that has occurred to me recently is how easy it is for housing professionals to lose sight of what I refer to as "the basics."  We can get so caught up in the newer and arguably more complex rules (such as the Section 8 Student Rule, which continues to be a source of confusion for many) that we come close to forgetting the fundamentals. 

For instance, I received an email a few weeks back in which a housing professional of many years experience was asking my opinion on the issue of medical expenses and Exhibit 5-3, because he was trying to determine eligibility and was concerned that an inaccurate medical expense figure would affect whether they met the income limits for the building.  After determining that it was income limits and not the TTP that was the cause of his anxiety, I reminded him that income eligibility was based on Annual Income, not Adjusted Income -- which he knew as well as anyone -- such was his fixation on the medical expense issue.

In my "Compliance Corner" column on the NCHM website (www.nchm.org) I'll be spending the next few columns going "Back to the Basics." Please feel free to visit, and to tell others.  And if it has been a while since you've been to a "refresher" COS, consider it.  You might be surprised at how much is familiar....and how much is not.

Are you listening, Mrs. Adelman?

Many years ago, although it doesn't seem so, I was regularly invited to participate in the jazzercise class by the many seniors who observed me as I passed through the community room to grab my morning cup of coffee.  I always declined, citing appointments or professional distance.  Those things were true as was the unspoken reason I wouldn't participate: I didn't want to be embarrassed by people in their 70's and 80's who were in better shape than me. 

One resident, Mrs. Ida Adelman, was particularly aggressive in her efforts to recruit me to the class.  "Some day, you'll wish you were part of this class," she said, finally giving up her efforts -- but not before serving up a plate of guilt with my morning coffee, and giving me her best "I know something you don't know" look.

Are you listening, Mrs. Adelman, wherever you are?  If so, please know that you were right!

Which leads me to today's posting.  Now, I am not going to serve up any guilt to go with your morning (or afternoon) coffee, but several of you took issue with my last post where I wrote that stating in the tenant selection plan that management would pay for unit transfers as a reasonable accommodation was a bad idea.  I am not authoritarian, and I welcome opposing views.

I was not saying that management should not make any reference to paying costs of a unit transfer as a reasonable accommodation.  I did indicate that making an absolute statement to this effect was a bad idea with regard to the tenant selection plan.  Certainly, any reasonable accommodations policy must state that owners will pay costs connected to a unit transfer if the request would not result in an undue financial and administrative burden.

My work here is done.  I now resume my morning coffee, sans any guilt.  But no, there is no jazzercise class where I am now.

Sleep well, Mrs. Adelman.  Sleep well.

Unit Transfers and Reasonable Accommodation

As readers of this blog (and my Compliance Corner column) will know, I have taken the HUD Handbook 4350.3, Rev. 1 to be a very literal document.  Perhaps more than most other federal government document, the handbook means exactly what it says.

So, with that introduction in mind I want to address a topic that frequently causes some consternation in our COS and Change 2 programs: Unit transfers and reasonable accommodation.

First, some fine points:

Yes, you must address unit transfer policies in the property's tenant selection plan (Figure 4-2 of HUD Handbook 4350.3, Rev. 1).  Yes, you must reference reasonable accommodation in connection with unit transfers (Chapter 7, Section 3 of HUD Handbook 4350.3, Rev. 1.  No, you do not have to state that the owner has a financial obligation to pay for the move as a reasonable accommodation in the Tenant Selection Plan (A question I have been asked by both managers and Contract Administrators). The first two issues are cause for a finding on an MOR, while the third (in my opinion) is not.

A statement of this nature could obligate the owner to paying costs for a move as a reasonable accommodation regardless of other factors.  In fact, HUD has never treated reasonable accommodations in such an absolute way.  Instead, HUD has always said that an accommodation that would create or impose either an undue financial and administrative burden or a fundamental alteration of program isn't reasonable. (Paragraph 7-16B2, HUD Handbook 4350.3, Rev. 1 -- although the paragraph makes no reference to "fundamental alteration," that language is included in other areas of the handbook).

It has now been more than one year since the publication of Change 2.  But the requirement to pay for reasonable accommodations in HUD assisted housing, provided that it would not impose an undue financial and administrative burden or fundamental alteration of program, is much older than Change 2.  That requirement goes back to 1988 and the issuance of HUD's Section 504 regulations.

Recertification: "Believe it or not...."

I recently received a couple of emails that essentially complained about the same thing.  Specifically, that my posts to this blog have been serious and that I have so far failed to tap in to the more humorous of housing management issues.  "You're a lot funnier when you talk," wrote one housing professional.  (The speech therapist I had when I was 7 years old said the same thing, by the way).

So with this in mind I'll share a recertification story I haven't told lately in any seminars. 

Early on in my career, I noticed that one of our senior residents -- a gentleman who was well into his 70's -- wore suits that would take at least six weeks of my pay to purchase.  Now you must know that I have never been sartorially resplendent, even now, and would never qualify as a fashion plate even if that plate was made of paper.  But I know expensive suits when I see them and this resident was always "dressed to the nines."

The thing was that his purported sole income source was SSI and he was getting around $450 per month.  It just didn't add up.  On the other hand, the HUD Handbook 4350.3, then as now, excludes clothing from being counted on the certification as it has a "personal property" exemption. 

What to do?

When he came into the office for his next recertification, I complimented him on his nice suit.  I then examined his SSI statement, looked at him, cocked my head somewhat sideways in a darned fine impression of my pet dog, Bruno, and raised my eyebrows.  This was a totally calculated move on my part that I figured would result in one of two reactions: The resident would either "come clean" about how he got these nice suits, or he would burst into hysterical laughter.  I was hoping for the former and I was not disappointed.

This resident was, by his own admission, a gigolo.  According to him, he had a lady friend who insisted that he look wonderful whenever they went out.  Several days later, he came in accompanied by this woman -- also in her 70's -- who gave me a signed and notarized statment attesting that she purchased all of the resident's expensive clothing, took him on trips to New York and Paris, etc.  (I considered myself fortunate when my then girlfriend and I were able to get away to Cape Cod for a day or two).

This was yet another reminder to avoid assumptions at all costs, and an early indicator that I would never cease to be surprised in the field of housing management.

Criminal Background Checks, Tenant Files (and something you may have missed)

I am getting a lot of questions about the retention of criminal records in tenant files, so I thought I would make this first post-holiday posting about that because....well....I can.  This is one of those topics where a clarification by HUD is not only timely, but invaluable.

HUD Handbook 4350.3, Rev. 1, Paragraph 8-14C(13) states that, "All criminal records received are to be maintained confidentially, not misused or improperly disseminated; and destroyed upon completion of the originally intended use."  The paragraph goes on to state that a notation will be placed in the file noting that any criminal record was reviewed and was destroyed for reasons of confidentiality.

(As a side comment, it interested me that this paragraph was located in the handbook chapter dealing with terminations of tenancy, and that it was at variance with the provisions in Chapter 5 that state third party verifications received by mail, fax, etc. should be retained in the tenant file).

However, on October 17, 2007 HUD issued a clarification to this paragraph through their RHIIP Listserve.  Appearing as #75, HUD clarifies that criminal record information is to be retained in the file unless a Public Housing Authority (PHA) is performing the criminal background checks -- in which case they should be destroyed following the proper notations as described in Paragraph 8-14C13.  The same post also clarifies the treatment of EIV records. 

Here's the URL: http://170.97.67.13/offices/hsg/mfh/rhiip/rhiiplistservarchive12.pdf

Happy reading!

Hope you all enjoyed the long weekend. 

HUD on Leases/Contract Administrators

The HUD-RHIIP Listserve issued the following in an email today:

Question 31  What do we do with properties using leases provided by the contract administrator (CA)?  Some states have significantly different lease requirements and CAs have developed leases that Owner/Agents (O/A's) are required to use.  Will the CAs instruct the O/As to use the HUD model leases and the CA will then provide an approved lease addendum?

Answer 31:  O/As should be using the HUD model leases and not leases developed by CAs.  HUD model leases that have been modified to include state requirements will now have to have the state requirements incorporated by use of a lease addendum.  Whether or not the CA will provide the approved lease addendum or whether it will be up to the O/A to develop, we cannot answer.  Normally it is the O/A’s responsibility to ensure that the lease is in compliance with state laws. (emphasis added).

I want to use this opportunity to wish all of you a very safe and happy July 4th holiday. 

More on "Are You Willing to Testify....?"

I appreciate the many comments that were sent in response to my "Are you willing to testify...?" post.  This includes posts from those who didn't agree with me...I would never make a claim to always being right.  I hope you'll agree with my feeling that reasonable accommodations is an important topic to discuss.

One of the things I intentionally left out of my earlier post were the guidelines on reasonable accommodation issued jointly by the US Department of Housing and Urban Development-US Department of Justice on May 17, 2004 (similar guidelines have recently been issued on the related topic of reasonable modification).

I want to draw your attention to Question 17 of the May 17, 2004 document that sates as follows: "....If a person's disability is obvious or otherwise known to the [housing] provider, and if the need for the requested accommodation is also readily apparent or known, then the [housing] provider may not request any additional information about the requester's disability or the disability-related need for accommodation. [HUD-Justice Department Guidelines of 5/17/04, pages 12-13, emphasis added].

The guidelines go on to state that you could verify only the disability-related need for accommodation if the disability was "known or obvious," but the need for the accommodation was not as readily apparent.

Finally, since so many of the responses focused on Medical Doctors, Question 18 states that when verification of disability is necessary this can come from "....a doctor or other medical professional, peer support group, a non-medical service agency or a reliable third party who is in a position to know about the individual's disability..." [HUD-Justice Department Guidelines of 5/17/04, pages 13-14].

The full HUD-Justice Department guidelines can be accessed using the following URL: http://www.hud.gov/offices/fheo/library/huddojstatement.pdf

'Are You Willing To Testify ...?'

Several years ago while in the process of doing a policy review, I noticed the following question on a verification form used for reasonable accommodation: "Are you willing to testify to the truth of these statements in a court of law?"  When I asked why this question was on the form, the management company told me that it had been suggested by their attorney since "doctors will write anything their patient asks them to write."  I have a high regard for most attorneys-at-law and generally don't second guess their advice, since I am not an attorney.  And I am not unfamiliar with the other concern the management company expressed.

What leads me to write about this now, and in this forum, is that I believe the practice of asking the question "Are you willing to testify....?" is more widespread than I had imagined.

Social Security and EIV

I have had several questions come in over the past several days concerning the treatment of the Medicare premium based on some notices in connection with the Enterprise Income Verification (EIV) system.  These notices have stated that if an individual "is not paying for" their Medicare or it is "reimbursed from an outside source" these amounts would not be included as either an income or expense item.

In my mind, this is consistent with long standing guidelines in HUD Handbook 4350.3, Rev. 1.  Most individuals receiving SSA (regular Social Security benefits) were paying $93.50 per month for their Medicare B premiums in 2007 and this increased to $96.40 per month in 2008.  Thus, an individual whose full Social Security benefit is $596.40 per month and net benefit is $500.00 per month is paying for their Medicare B insurance and this would be included as income and later added into the medical expenses for the household (assuming they are eligible for the allowance per Paragraph 5-10D of HUD Handbook 4350.3, Rev. 1).

By contrast, most individuals who receive SSI or SSDI are either not paying for Medicare B or are having medical insurance reimbursed by an outside source (usually state funds).  In such cases, their full amount may be $464.00 per month with their net benefit also being $464.00.  In such cases, any reimbursed amount used to cover Medicare/Medicaid is not included as income and should not be used in the calculation of any medical expense.  Exhibit 5-1 of HUD Handbook 4350.3, Rev. 1 excludes as income amounts reimbursed for medical expenses and similarly excludes these as medical expenses in the previously mentioned Paragraph 5-10D.

RHIIP Guide and Management and Occupancy Reviews

During the past several weeks, I have been hearing from housing management professionals whose HUD Form 9834 (Management and Occupancy Reviews) has cited the RHIIP Guidebook in connection with "findings" on the review.  However, the Performance Based Contract Administrators (PBCA's) I have spoken with on this issue have stated they limit their findings to HUD Handbooks 4350.1 and 4350.3 as well as Title 24 of the Code of Federal Regulations -- and they would not cite the RHIIP Guidebook.

I am interested in knowing whether the use of the RHIIP Guidebook in connection with MORs is a widespread practice.  Please feel free to share your views on this, as well as on Management and Occupancy Reviews in general.