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On A Much Lighter Note......

I've always felt that having a sense of humor is one of the requisites for a housing management career.  While compliance is a very serious topic, there are times when you just can't help but laugh.  This is no less true for those of us who go on the road to train NCHM programs.

This leads me to share with you a recent experience at a training program that is without parallel in the 22 years I've been leading seminars.  In my most recent seminar, a Fair Housing training in Kapaa, Hawaii, I got "heckled" by a rooster.

It's okay.  You can go ahead and read that again.  Yes, I got "heckled" by a rooster.

The property where I was conducting the training was home to 22 roosters, hens and hatchlings according to a memo to residents there that was issued by management.  As a city boy, I was under the mistaken impression that roosters crowed at sunrise.  Boy, was I wrong!  These roosters crowed constantly.

NCHM trainers quickly learn to expect the unexpected.  So, I made the very vocal roosters part of the presentation:

Me: "Sexual harassment is covered in the Fair Housing Act as part of sexual discrimination."

(Rooster crows)

Me (to Rooster): "Really, it's true!  It's right here in the regulations.  You and I can agree to disagree, but the documentation is pretty clear."

In retrospect, I regret I didn't also mention to the rooster that chasing hens all over the place was a form of stalking.  On the other hand, the rooster didn't pay for the course.

FOLLOW UP TO QUESTIONS RAISED DURING NCHM'S "SPOTLIGHT ON" WEBINAR ON HUD'S POLICY OF EQUAL PROGRAM ACCESS REGARDLESS OF SEXUAL ORIENTATION AND GENDER IDENTITY

Several questions were raised during yesterday's NCHM webinar focused on HUD's final rule on equal access to HUD programs regardless of sexual orientation or gender identity that becomes effective on March 5th.

The most frequently asked question during that session was this: "If an individual's sex on a driver's license is male, but they identify themselves to us as female (or vice versa), which sex would we use for purposes of the HUD-50058 or HUD-50059?"

While it is important to wait for official HUD guidance on a question of this nature, I did speak by telephone this morning to several HUD senior staff members who, in essence, said that the item as to "sex" on HUD certification forms is essentially one of self-identification. In other words, if an individual identifies themselves as a woman, or as a man, we take their word for it.

A parallel was drawn to the Racial and Ethnicity Data Certification, which is also a matter of self-identification. "You and I may think someone is white," said one HUD staffer, "but it comes down to how they choose to self-identify."

NCHM Webinar on HUD's new regulation providing equal access to HUD program regardless of sexual orientation and gender identity

As noted in my most recent blog posting, NCHM will have a live webinar on this topic on Tuesday, February 7th, at 2:00 p.m. Eastern time. For additional information, or to register, please go to:

http://www.nchm.org/spoton.html

HUD ANNOUNCES FINAL RULE PROVIDING EQUAL ACCESS TO ITS HOUSING PROGRAMS REGARDLESS OF SEXUAL ORIENTATION AND GENDER IDENTITY
by Mark S. Alper, NCHM Vice President of Compliance

HUD Secretary Shaun Donovan announced that the Department had issued a final rule to insure full and equal access to HUD housing programs regardless of sexual orientation and gender identity. Secretary Donovan made this announcement at a conference sponsored by the National Gay and Lesbian Task Force this past Saturday, January 28th.

The rule impacts all HUD housing programs.

NCHM will be holding a webinar on the new rule as part of its "Spotlight On" series on Tuesday, February 7th, from 2:00 p.m. to 3:30 p.m. Eastern time. Further details and registration information will be forthcoming.

HUD ISSUES NEW NOTICE ON EIV (H2011-21)

Housing Notice 2011-21, Enterprise Income Verification (EIV) System, was issued today, August 19, 2011. This Notice supersedes Notices H 2008-03, H 2009-20, and H 2010-10. The Notice is posted on HUDCLIPS at http://portal.hud.gov/hudportal/documents/huddoc?id=11-21hsgn.pdf .



The revised Notice:



· Clarifies that IPAs may use printed EIV documents when auditing an owner’s compliance (An IPA is an Independent Public Auditor hired to audit a property’s financial statements)

· Clarifies the requirement on resolving discrepancies between TRACS and the current form HUD-50059

· Indicates the following reports must be run by selecting the “All” recertification month:

o No Income Report

o New Hires Report

o Identity Verification Report

o Deceased Tenant Report

· States the O/A must make sure that the income appearing on the EIV Income Report does not meet a regulatory income exclusion.

· Clarifies that a tenant’s monthly repayment agreement payment may exceed 40% of the family’s monthly adjusted income if the family agrees to the amount stated in the repayment agreement.

· Recommends that an O/A has the head of household and, if applicable, the family member who had the unreported income sign a repayment agreement.

· Indicates the comment field on the voucher must be completed when explaining payment and costs retained even if no costs were retained.

· Identifies an updated penalty for not using the EIV system. The O/A will now incur a penalty of a five percent decrease in the voucher payment for the month following the date the violation was found and each subsequent voucher payment until the MOR finding is cured.

· Indicates a new security training requirement. EIV users are now required to complete the online Federal ISS Awareness training program. The most recent HUD EIV webcast will no longer satisfy the security training requirement.

· Clarifies that when mailing EIV data, data must be sent to an office of the O/A and must not be mailed to Independent Auditor offices

· New Attachment 9: Assessing the Five Percent Penalty in Voucher Payment has been added

· New Attachment 10: Sample Tenant Consent to Disclose EIV Income Information has been added

HUD ISSUES LETTER ON PERFORMANCE BASED CONTRACT ADMINISTRATORS

In a letter dated August 11, 2011, Janet M. Golrick, HUD Acting Deputy Assistant Secretary for Multifamily Housing Programs, issued a letter regarding Performance Based Contract Administrators (PBCA's).

HUD had recently announced the award of PBCA contracts in 53 states and territories. However, Ms. Golrick's letter notes complaints filed with the Government Accounting Office (GAO) by unsuccessful bidders, and HUD's interest in avoiding delays caused by litigation that could negatively impact residents, as well as housing providers.

Accordingly, HUD intends to re-evaluate its selection procedures and there will be a "re-compete" for PBCA contracts in 42 states/territories. Incumbent PBCA's will be afforded an opportunity to serve as interim PBCA's for six months under an amended contract, with reduced responsibilities and a reduced administrative fee.

NCHM Compliance Close Up on Twitter

A short announcement for those of you who use Twitter.  Within the next few weeks, I'll be using Twitter to address compliance-related issues and post news items of interest.  You are welcome to "follow" me on Twitter via @NCHMMark.  Hope to see you there!

The Compliance Close Up Blog will continue, but will be used for longer posts.

HUD position on marijuana as a medical expense

With the growing number of states that have enacted laws permitting the possession and use of marijuana for prescribed medical purposes, one of the more common questions I get is: Is medical marijuana and allowable medical expense?

Since none of the existing Handbooks or guidebooks (HUD Handbook 4350.3, Rev. 1; Public Housing Occupancy Guidebook; HUD Guidebook 7420.10G) address the issue, I posed the question to a HUD attorney working in the Department's Office of General Counsel (OGC).

The answer is: No.  Even if a state has made the use of marijuana for medical reasons lawful, HUD will not allow the costs incurred in obtaining it as a medical expense.

The HUD position is contained in a Memorandum to the Assistant Secretaries of Housing, and Public Housing, written by former HUD General Counsel Gay W. Laster on February 24, 1999.

In a longer "Compliance Corner" article that will be available today, I discuss this issue as well as the question of eligibility for federal housing by individuals using medicinal marijuana in the context of the Quality Housing and Work Responsibility Act (QHWRA); as well as the current position of the U.S. Department of Justice (DOJ). 

NCHM certified professionals can contact me through the eHotline section of the NCHM website at www.nchm.org and request the HUD and Justice Department memos, which I will be happy to send as attached files.

EIV,Third Party Verification and PBCA's

During a recent training, I inadvertently stunned my audience by a comment I made about EIV compliance.  To be completely candid, I did not do the best job of phrasing my comment -- and EIV can be confusing enough without the poor explanation of a rule. 

The issue at hand is traditional third party verifications.  According to this audience, their PBCA's were requiring them to get traditional, third party verifications of income even in instances where the EIV Income Report and tenant-submitted documentation agreed, and were without dispute.

HUD Notice H2010-10 states as follows: When there is NO DISPUTE of the EIV Information: "EIV Income Report, current acceptable tenant-provided documentation, and, if necessary (as determined by the Owner/Agent) third party verification. (HUD Notice H2010-10, Section VII, Part A2b(1), page 19 (emphasis added)).

This seems clear to me.  In instances where there is no dispute of EIV Information from the Income Report, it is the decision of the Owner/Agent, not the PBCA, whether or not traditional, third party verification should also be obtained.  An extensive (not exhaustive) listing of acceptable tenant-provided documentation can be found in Appendix 3 of HUD Handbook 4350.3, Rev. 1.

For the record, PBCA's get a bad rap sometimes that's not deserved.  The majority of them do outstanding jobs, and it isn't an easy one.  And we're all human, which means we make mistakes.  The easiest way to create problems, whether you're an Owner/Agent or a PBCA, is to not consistently refer back to source documentation, or to make up rules that are not there. 

JUSTICE DEPARTMENT ISSUES NEW GUIDELINES ON SERVICE ANIMALS

There has been significant press coverage of guidelines issued by the US Department of Justice (DOJ) that limit the types of animals that can be considered to be "service animals" in connection with the Americans with Disabilities Act (ADA).  DOJ is the primary enforcement agency for the ADA, particularly Titles II and III of that law.

Do these guidelines have any impact on the housing management industry?

In a word: No.

The DOJ guidelines have no effect whatsoever on housing, or Section 504, or the Fair Housing Act.  Section 504 and the Fair Housing Act Amendments are principally enforced by HUD, not the Justice Department.

And even for Section 42 Low Income Housing Tax Credit (LIHTC) buildings with no federal funding, which are not subject to Section 504, must still comply with the Fair Housing Act if they have five or more dwelling units.

HUD has consistently said that when a conflict exists between civil rights regulations, the "more stringently protective" rule applies.  On the issue of service animals, HUD's rules are more protective.

The DOJ itself says as follows: "[H]ousing facilities may not rely on the ADA definition of service animal as a justification for reducing their obligations under the Fair Housing Act Amendments."