Slide #1
© 2008 Nan McKay & Associates
Managing Non-Discrimination
Emily Wilcox
© 2008 Nan McKay & Associates
Slide #2
© 2008 Nan McKay & Associates
Fair Housing and Reasonable
Accommodation
© 2008 Nan McKay & Associates
Slide #3
We Will Cover…
 Resources and Factual Overview of Laws
 FHEO Civil Rights Review Documents
 Reasonable Accommodation
• Case studies
• Verification and reporting best practices
© 2008 Nan McKay & Associates
Slide #4
We Will Cover…
 Prohibitions against discrimination affecting
Limited English Proficient persons
 Violence Against Women Act case study
scenarios
 Review of select PHA Fair Housing Voluntary
Compliance Agreements
 Review of recent OIG PHA Audits regarding
over housing/live-in aide findings
© 2008 Nan McKay & Associates
Slide #5
HUD Initiated - 2007
 HUD had 15 Secretary initiated investigations
• More than in the past ten years combined.
 In FY 2007, HUD awarded 88 FHIP grants of $18.1
million to groups in 37 states and the District of
Columbia to conduct fair housing enforcement,
education, and outreach activities.
 Fair Housing Accessibility FIRST (2003)
© 2008 Nan McKay & Associates
Slide #6
Home Sweet Home
© 2008 Nan McKay & Associates
Slide #7
DOJ – Fair Housing
 www.usdoj.gov/crt/housing/fairhousing/
© 2008 Nan McKay & Associates
Slide #8
Home Sweet Home
 Department of Justice (DOJ)- Fair Housing Initiative
 In 2007, the DOJ conducted a record number of
undercover housing discrimination investigations
• 30 lawsuits alleging unlawful housing discrimination
• Obtained settlements and judgments requiring the
payment of over $5 million in monetary damages to
victims of discrimination and civil penalties
© 2008 Nan McKay & Associates
Slide #9
Home Sweet Home
 2/2006 - Operation Home Sweet Home
 The initiative was inspired by the plight of
large numbers of persons displaced by
Hurricane Katrina, many of them minorities,
seeking new housing
• Fair lending
• Access forums
Slide #10
© 2008 Nan McKay & Associates
The Information Super Highway
© 2008 Nan McKay & Associates
Slide #11
Google It - WHO
 Domestic Violence Service Providers
• Breakfast
 Fair Housing councils
• Lunch
 Legal Aid
• Snack
© 2008 Nan McKay & Associates
Slide #12
Google It - WHO
 Disability rights organizations
• Dinner
 Nonprofits/faith based groups who work
with particular immigrant communities
• Dessert
 Nursing homes/rehab centers/mental health
institutions
• Drink
© 2008 Nan McKay & Associates
Slide #13
Google It - WHAT
 State and Local Fair Housing Law (“human
rights commissions”)
 Local housing law protections for victims of
violence
• City, County, State
• Read the definitions of words such as “sex,”
“sexual orientation,” “source of income”
Slide #14
© 2008 Nan McKay & Associates
Steal, Cheat and Use
 Has your neighbor PHA developed LEP
planning (LAP)?
 Has your neighbor PHA developed
RA forms?
 Has your neighbor PHA contacted
Legal Aid?
© 2008 Nan McKay & Associates
Slide #15
Before You Call…
© 2008 Nan McKay & Associates
Slide #16
Before You Call…
Have a plan

•
“We Want Your Help” and Education
Have specific questions

•
DV – How do you take referrals?


Do you work with both men and women?
How can we improve confidentiality/safety
for victims at our PHA?
© 2008 Nan McKay & Associates
Slide #17
After You Meet…
 Follow-up with a thank-you (even if there is
not going to be a partnership)
 Can you “formalize” an agreement?
 Learn: What perceptions did the groups have
of the PHA? How can those interactions be
brought to your Board, Exec Dir?
 Trust and accountability with the community
© 2008 Nan McKay & Associates
Slide #18
Helen Keller
Slide #19
© 2008 Nan McKay & Associates
Customer Service and Fair
Housing Complaints
 Can be filed with HUD, state/local human
rights commission, state ct, federal ct
• HUD has a duty to investigate and respond
within 100 days
 Actions can be brought against a PHA by an
individual, HUD, or DOJ
Slide #20
© 2008 Nan McKay & Associates
Customer Service - Open To
Change
 Ask others/Ask yourself:
• How can we do better?
• You are a business
• Approach your work with the nonprofit
community on the offensive – don’t wait for a
lawsuit!
© 2008 Nan McKay & Associates
Slide #21
Customer Service
Communication
Respect – nonjudgmental
Consistency
Listening (show that you have heard what has been
said)
 Can’t control your families – can control a process,
expectations, and follow through



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Slide #22
© 2008 Nan McKay & Associates
Customer Service - Language
 LANGUAGE MATTERS
• People with disabilities are people first
• Most respectful approach – not “handicap”
 Presume Competence
 Presume Ability
• Approach working with people with disabilities
as people with different abilities
© 2008 Nan McKay & Associates
Slide #23
Supervisory Goals
 Training (reception, maintenance,
management)
• What to listen for/when do I refer – listening
between the lines
• Etiquette and support around tough issues
such as mental illness and domestic violence
• What if I do it wrong?
Slide #24
© 2008 Nan McKay & Associates
Supervisory Goals - Attitude
 How we ask is as important as what we ask
 “Program participants know the regulations
better than we do.”
 Zero tolerance for discrimination (comments,
jokes)
 ACOP/Admin Plan available
Slide #25
© 2008 Nan McKay & Associates
Responding to Fair Housing
Complaints
1. Is there a history with this participant?
2. What staff are involved?
3. What is it that this participant really
wants?
4. Is this really just miscommunication?
5. Be eager to LEARN from complaints
Slide #26
© 2008 Nan McKay & Associates
WHAT IS DISCRIMINATION?
Slide #27
© 2008 Nan McKay & Associates
3 Types of Discrimination
1.
2.
Overt – “No _____________ here.”
Disparate Treatment - Discrimination which
occurs when members of a protected class are
treated in a different and less favorable manner
than others
Disparate Impact - adverse effect on members of
a protected class in comparison to majority
3.
•
Policy may be neutral as written but discriminatory
as applied.
© 2008 Nan McKay & Associates
Slide #28
Even Forest…
 Starts the LEP process
• http://www.hud.gov/offices/fheo/promotingfh/leptranslated.cfm
 Puts reasonable accommodation
on applications, forms, notices
 Orally explains RA at annual exams
 Contacts families about rights under VAWA
 Section 504 Coordinator/VAWA coordinator
 Physical needs assessment
Slide #29
© 2008 Nan McKay & Associates
Fair Housing and Equal
Opportunity (FHEO)
• 24 CFR Part 100 (FHA) and 24 CFR
Part 8 (Section 504)
Slide #30
© 2008 Nan McKay & Associates
Discrimination under the Fair
Housing Act
 No person shall be subjected to discrimination
because of
• race, color, religion, sex, handicap, familial status or
national origin
• in the sale, rental or advertising of dwellings, in the
provision of brokerage services in or in the
availability of residential real estate-related
transactions. 24 CFR 100.5
© 2008 Nan McKay & Associates
Slide #31
Websites
 Domestic Violence/VAWA
• www.ndvh.org (365 Days/24 Hours/140 Languages)
• 1-800-799-SAFE (7233)/1-800-787-3224 (TTY)
 Voluntary Compliance Agreements
• http://www.hud.gov./offices/fheo/library/index.cfm
 Department of Justice and HUD
• http://www.usdoj.gov/crt/housing/jointstatement_ra.htm
 Fair Housing
• http://www.fairhousing.com/index.cfm
• http://www.bazelon.org/issues/housing/infosheets/13livei
n.htm
© 2008 Nan McKay & Associates
Slide #32
Websites
 Disability
• http://www.hud.gov/offices/fheo/disabilities/sect504faq.cfm
 Accessibility
• http://www.fairhousingfirst.org
• http://www.hud.gov/offices/fheo/disabilities/fhefhag.cfm
 LEP
• http://www.lep.gov/selfassesstool.htm
• http://www.hud.gov/offices/fheo/promotingfh/lep-faq.cfm
© 2008 Nan McKay & Associates
Slide #33
Websites
 OIG
• http://www.hud.gov/offices/oig/reports/oigstate
.cfm
 Forms – PH Occup GB
• http://www.hud.gov/offices/pih/programs/ph/rhi
ip/phgb_app8.pdf (RA forms)
© 2008 Nan McKay & Associates
Slide #34
HUD References
• Notice 2002-01-Section 504 and accessibility
compliance for people with disabilities
• Notice 2003-31- Fair Housing Act of 1988, Section 504,
the ADA, Architectural Barriers Act.
• Notice 2004-13 - Tracking vouchers for special
populations (disability) on Form 50058
• Notice 2005-5 - New Freedom Initiative
• 05/17/2004 - HUD and DOJ Joint Statement
• PIH Notice 2006-13 - Compliance with the ADA,
Section 504, the Architectural Barriers Act of 1963,
and the Fair Housing Act
Slide #35
© 2008 Nan McKay & Associates
HCV Mobility Counseling
 PHA has an affirmative duty to help the family find an
accessible unit
• Current listing of available units
• Recruiting landlords
• How does PHA attract new HCV owners with accessible
units?
• Extending voucher time
• Transportation
• Linkage/Partnership agreements
Slide #36
© 2008 Nan McKay & Associates
Turnover of Accessible Units
and Transfers
Slide #37
© 2008 Nan McKay & Associates
Turnover of Accessible Units
 PHAs shall adopt notification processes to be
sure that information about the availability of
accessible units reaches people with
disabilities
 PHAs shall take steps to maximize the
utilization of accessible units by eligible
individuals whose disability requires the
accessibility features of the unit
Slide #38
© 2008 Nan McKay & Associates
Section 504/24 CFR 8/ Set-Asides
in Public Housing
 New construction and substantial
rehabilitation in PH:
• 5 percent of the units (or at least one unit)
must be accessible for people with mobility
impairments and
• 2 percent of the units (or at least one unit)
must be accessible for people with hearing or
vision impairments.
Slide #39
© 2008 Nan McKay & Associates
Uniform Federal Accessibility
Standards (UFAS) 24 CFR § 8.32
 The applicable accessibility standards for
compliance under Section 504 are the Uniform
Federal Accessibility Standards (UFAS).
 Just because a unit meets the requirements of the
Fair Housing Act does NOT mean it is an accessible
unit under UFAS and Section 504.
 Federally funded properties must meet both the
Section 504 and FHA design requirements.
Slide #40
© 2008 Nan McKay & Associates
Turnover of Accessible Units
 When an accessible unit becomes vacant:
(1) First, offer the unit to a current occupant who
requires the accessibility features of the
vacant unit (if the current occupant does not
have such accessibility features in their
current unit)
Slide #41
© 2008 Nan McKay & Associates
Turnover of Accessible Units
(2) Second, if there is no current resident in the
same development who requires the
accessible unit, PHA will offer the unit to:
• current resident with disabilities residing in
another development that requires the
accessibility features of the vacant unit
Slide #42
© 2008 Nan McKay & Associates
Turnover of Accessible Units
(3) Third, if there is no current resident who
requires the accessibility features of the
vacant, accessible unit:
• offer the unit to an eligible, qualified applicant
with disabilities on the wait list who can benefit
from accessible features of the unit
Slide #43
© 2008 Nan McKay & Associates
Turnover of Accessible Units
(4) Fourth, if no eligible resident or applicant
with disabilities on wait list who wishes to
reside in the accessible unit, offer the unit to
an applicant on the wait list who:
• does not need the accessible features of the
unit
© 2008 Nan McKay & Associates
Slide #44
Turnover of Accessible Units
 When offering an accessible unit to
applicants/residents without disabilities:
• PHA may require such applicants to agree to
move to a non-accessible unit when the
accessible unit is needed by a disabled family
 At least 30 days notice
 At PHA’s expense
© 2008 Nan McKay & Associates
Slide #45
Transfers
 If a resident needs a transfer due to a verified
medical condition or for a reasonable
accommodation, what priority does that person
have on your move/transfer list?
 How many move/transfer offers will be given?
 Hierarchy of transfers set out in ACOP
• Ex. Emergency transfers, priority admin transfers,
family composition transfers
Slide #46
Section 504/ADA Needs
Assessments and Accessibility
Plans
© 2008 Nan McKay & Associates
 Initial issuance of regulations implementing Section
504 at 24 CFR Part 8 in 1988,
• PHAs required to conduct needs
assessments, transition plans and
implementation strategies meeting the needs
of applicants and residents with disabilities
Slide #47
© 2008 Nan McKay & Associates
Needs Assessment - ADA
 PHA self-evaluation was required after the passage
of the ADA - effective as of Jan 1992.
 Many PHAs followed through w/ implementation
plans in the 1990s, some did not:
• Some PHAs continue to be in noncompliance with
fair housing accessibility laws with non-accessible
admin offices, PHA office properties, and too few
public housing units which are accessible
© 2008 Nan McKay & Associates
Slide #48
PIH Notice 2006-13
 FHEO will continue to request copies of selfevaluations, needs assessments and transition
plans in every compliance review and complaint
investigation conducted of a HUD recipient.
 To ensure compliance, PHAs are encouraged to
conduct self-evaluations yearly with local advocacy
groups – updating plan and units
Slide #49
© 2008 Nan McKay & Associates
Atlanta - Chicago – Seattle – Your
Name Here?
Slide #50
© 2008 Nan McKay & Associates
Voluntary Compliance Agreements
VCA Checklist
 _________________________________
 _________________________________
 _________________________________
 _________________________________
© 2008 Nan McKay & Associates
Slide #51
VCA
 Checklist Cont.
© 2008 Nan McKay & Associates
Slide #52
Steve Gold
 http://www.stevegoldada.com/stevegoldada/ar
chive.php?mode=N&id=157
© 2008 Nan McKay & Associates
Slide #53
Steve Gold
 “What follows is the list of HAs that have entered into VCAs with
HUD. Disability advocates in the listed locales should obtain a copy
of both the Letters of Findings and the VCA (either from your HA or
the regional HUD office under which the VCA was entered). You
should check whether or not the HA has complied with the VCA. If
the VCA required a specific number of units, ask your HA for the
addresses so you could visually determine if they really were made
accessible and if persons who require the accessible units are
actually residing in them….If your local HA is not listed, you should
telephone your regional HUD Office, ask for the Fair Housing official,
and find out whether or not a Section 504 compliance review
occurred recently.”
Slide #54
© 2008 Nan McKay & Associates
PHA Civil Rights Monitoring
© 2008 Nan McKay & Associates
Slide #55
Civil Rights Monitoring
 11/9/2006 & 3/1/2007 – Fed Reg Notices
 6/13/2007 – Final civil rights review
documents posted on www.hudclips.org
• Joint effort by PIH and FHEO to increase
oversight of fair housing issues
 Two checklists – attachment A & B
© 2008 Nan McKay & Associates
Slide #56
Attachments A & B
• PIH is planning to conduct civil rights
monitoring reviews
• Reasonable accommodation and LEP issues
• Data collected helps HUD evaluate PHA
compliance with civil rights and fair housing
laws and regulations
• Expires 2010
Slide #57
© 2008 Nan McKay & Associates
Attachment A – General FH
 Very broad criteria that is being examine:
• (Part II) “Is there anything else that is related to civil
rights or fair housing that should be noted…?”
• Form suggests for PIH reviewers to gather
information from “media reports” and “racial/ethnic
tensions” complaints at developments
© 2008 Nan McKay & Associates
Slide #58
Attachment B
 Checklist purpose “serves as an alert to PIH
and FHEO to certain PHA practices regarding
Section 504”
• Results are referred to FHEO for follow-up
© 2008 Nan McKay & Associates
Slide #59
Attachment B
 Specific questions regarding:
•
•
•
•
Section 504 coordinator
Units meeting UFAS-accessibility standards
Distribution of accessible units
Reasonable accommodation policy/process
 Including how/when RA policy is given to
applicants and residents
© 2008 Nan McKay & Associates
Slide #60
Attachment B
 Additional inquiry into (are you documenting this?):
•
•
•
•
•
Service animals
Deposits
TTY
Alternative forms of communication
Mobility support, voucher exts, FMR exceptions for
HCV applicants/participants
© 2008 Nan McKay & Associates
Slide #61
Attachment B
 Final question is very broad:
• “What other rules or policies has the PHA
implemented that affect persons with
disabilities?”
• Be prepared to show affirmative steps the
PHA has taken to market to and support
people with disabilities in the community
Slide #62
Heard on
the Street
 Accessible Units - UFAS
 HCV Mobility Supports for People with
Disabilities
 Reasonable accommodation process
 LEP
© 2008 Nan McKay & Associates
Slide #63
© 2008 Nan McKay & Associates
PHA Obligation to Notify
 Must inform applicants and participants of right
to request a reasonable accommodation
• Forms, letters, posters, signs
 Which forms? Which letters? All? Some?
• “If you or anyone in your family is a person
with disabilities, and you require a specific
accommodation in order to fully utilize our
programs and services, contact…”
© 2008 Nan McKay & Associates
Slide #64
Forms
 PHA creates or adopts standardized forms
• Ask the same questions of everyone
• NOTE: PHA must still give consideration to
requests for reasonable accommodation if
requester makes the request orally or doesn’t
use PHA’s preferred forms or procedures
© 2008 Nan McKay & Associates
Slide #65
PHA Process
Best Practice Idea
 TWO TYPES OF REPORTING:
(1) All accommodation requests that are
granted and denied (obvious) are reported
(2) All accommodation requests in which you
need assistance with final decision
Slide #66
© 2008 Nan McKay & Associates
New Freedom Initiative
Slide #67
© 2008 Nan McKay & Associates
New Freedom Initiative
 Executive Order 13217 (Issued 6/18/01)
• U.S. Supreme Court case Olmstead v. L.C.
• Purpose: “de-institutionalize” persons with
disabilities
• Purpose: to improve community integration
• Serve people with disabilities in the most
integrated settings (ADA & 24 CFR Part 8)
© 2008 Nan McKay & Associates
Slide #68
PIH Letter 2007-01
 PIH Letter (Issued May 2007)
• Extension of PIH 2006-21 (HA), reinstated
PIH 2005-5 (HA), New Freedom Initiative,
Executive Order 13217
• See Sec. Jackson’s Letter to PHAs (Oct 2006)
 http://www.hud.gov/offices/pih/publications/me
dicareinitiative.pdf
© 2008 Nan McKay & Associates
Slide #69
July 9, 2007 Letter
HUD “strongly supports
expanding accessible,
affordable and integrated
housing options…”
http://www.hud.gov/offices/fheo/disabiliti
es/MFP-RebalancingMemo.PDF
Slide #70
© 2008 Nan McKay & Associates
People with Disabilities and
Reasonable Accommodation
© 2008 Nan McKay & Associates
Slide #71
Communication
 Some disabilities affect an applicant’s or
participant’s ability to read or understand
 TTY/Vision impairments (what are your PHA’s
resources here – who do you call?)
 PHA must take “appropriate steps to ensure
effective communication…”
• 24 CFR § 8
© 2008 Nan McKay & Associates
Slide #72
Section 504
 PHAs administering public housing will incur
costs to fully comply with the law
• Modifications to a unit for a person with a
physical disability
• Costs for assisted communication
Slide #73
© 2008 Nan McKay & Associates
Section 504 – 24 CFR Part 8
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Program access
504 Coordinator
Transition plans
Notice of non-discrimination
Communications
Grievance procedures
Reasonable accommodation
Physical accessibility standards - UFAS
Slide #74
© 2008 Nan McKay & Associates
Fair Housing Act - Definitions
 Person with a disability (handicapped):
1.Has a physical or mental impairment which
substantially limits one or more of such
person’s major life activities; or
2.Has a record of having an impairment; or
3.Is regarded as having such an impairment
© 2008 Nan McKay & Associates
Slide #75
Disability
(1) Substantially limits one or more of the major
life activities…
• Caring for one's self, performing manual
tasks, walking, seeing, hearing, speaking,
breathing, learning, and working
© 2008 Nan McKay & Associates
Slide #76
Disability
(2) A record of such an impairment…
• Person who has a history of an impairment
that substantially limited a major life activity
 such as someone who has recovered from an
impairment
 includes persons who have been misclassified
as having an impairment
© 2008 Nan McKay & Associates
Slide #77
Disability
(3) Being regarded as having an impairment…
• Person is treated as if he has an impairment
 Perception test: if PHA refused to serve the person
because it perceived that the person had an
impairment
• Remember: we presume competence!
Slide #78
© 2008 Nan McKay & Associates
Excluded Under FHA
 Current drug users
 When alcohol use interferes with the rights of
others
 A person with a disability that poses a direct
threat or substantial risk of harm to others
 See HUD/DOJ Memorandum
Slide #79
© 2008 Nan McKay & Associates
Who Determines Disability Status
© 2008 Nan McKay & Associates
Slide #80
RA Verification Form
 Include:
 ____________________________________
 ____________________________________
 ____________________________________
 ____________________________________
Slide #81
© 2008 Nan McKay & Associates
Disability - 3 Definitions
ABC…Easy as…123
Slide #82
© 2008 Nan McKay & Associates
HUD’s Definition of Disability
HUD’s Definition of Disability (24 CFR 5.403):
(A) Person meets the Social Security Administration definition of a
person with disabilities as defined in 42 U.S.C. 423; or
(B) Person has a physical, mental or emotional impairment that:
 is expected to be of long-continued and indefinite duration;
 substantially impedes their ability to live independently; and
 is of such a nature that the ability to live independently could
be improved by more suitable housing conditions; or
(C) Person has a developmental disability as defined in the
Developmental Disabilities Assistance and Bill of Rights Act of 2000:
“A severe, chronic disability that…
© 2008 Nan McKay & Associates
Slide #83
HUD Definition of
“Disabled Family”
Disabled family means a family whose head,
spouse, co-head, or sole member is a person
with disabilities 24 CFR 5.403
Slide #84
© 2008 Nan McKay & Associates
HUD Disability - 3 Definitions
 Your verification forms must reflect these
different definitions
• Meaning: different verification forms
necessary for reasonable accommodation
versus disability status for HUD program
eligibility and rent calc deductions
© 2008 Nan McKay & Associates
Slide #85
“Disabled”
Community service exemption
Working family preference
Medical deductions
Disability assistance deduction
Mainstream voucher program/Mixed Population or
Designated Disabled PH properties
 EID – Voucher program
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Slide #86
© 2008 Nan McKay & Associates
Reasonable Accommodation
© 2008 Nan McKay & Associates
Slide #87
Short Version of RA
1. Was an accommodation requested?
2. Is this a person with a disability?
3. Nexus between disability and the specific
request?
4. Is the request reasonable?
5. Is RA in your application, occupancy, recertification
and termination notices?
Slide #88
© 2008 Nan McKay & Associates
Reasonable Accommodation
 Three most important words: document,
document, and document.
 From moment applicant or occupant requests
an accommodation…
• a paper trail must be created documenting
dates, times, conversations and paperwork
exchanged
© 2008 Nan McKay & Associates
Slide #89
Mini-Procedural List
 PHA should have written procedures:
•
•
•
•
•
•
Notification of all applicants and participants – when?
Standardized forms (live-in aide documentation)
Training front line staff – such as reception staff
PHA staff responsible for receiving request
PHA staff who oversees and reviews verification
Decision-making process
 Ex. Who determines if a RA is an undue administration
and financial burden? How is this documented? Where?
© 2008 Nan McKay & Associates
Slide #90
Mini-Procedural List
 PHA should have written procedures:
• Time periods for decision and implementation
• Right of appeal/hearing processes
• Handling confidential information
 What is a “need to know” basis
 What happens when medical records or detailed
disability information is received by the PHA?
Slide #91
© 2008 Nan McKay & Associates
Request Starts Process
 ART OF THE REASONABLE
ACCOMMODATION CONVERSATION:
• Process may involve fluid negotiations on a
case-by-case basis
• PHA may offer alternative options
• Document from the beginning
Slide #92
© 2008 Nan McKay & Associates
Treat Each Case Individually
 Treat each case on individual merits
 Requestor’s choice accommodation should be
carefully considered
 Not legit reason for denial: floodgates will
open (they will all want it)
© 2008 Nan McKay & Associates
Slide #93
PHA Can Not Ask
 If person has a disability (unless determining
qualification for program or type of
development)
 Nature or extent of disability
 Any question requiring waiving or disclosing
medical condition or history
 Can’t require tenant be able to live independently
Slide #94
© 2008 Nan McKay & Associates
Consideration of Reasonableness
– Reasons to Deny
© 2008 Nan McKay & Associates
Slide #95
Denying Requests
 Requests for accommodations are not
reasonable if
• They impose undue administration and
financial burden on PHA or
• The request fundamentally alters the nature of
PHA work
Slide #96
© 2008 Nan McKay & Associates
Fundamental Change
• Fundamentally alters the nature of PHA
work…
• a substantial change in the primary purpose or
benefit of a program or activity
• Requesting supports outside housing services
• Is person requesting social services?
• Person requesting nonpayment of rent/no inspection?
• Removing a load bearing structure?
© 2008 Nan McKay & Associates
Slide #97
Direct Threats
 The assessment should consider:
(1) the nature, duration, and severity of the risk of
injury;
(2) the probability that injury will actually occur; and
(3) whether there are any reasonable
accommodations that will eliminate the threat.
 OBJECTIVE DECISION
© 2008 Nan McKay & Associates
Slide #98
Live-In Aides
 Screening your aides?
 Verify the need for an “aide” versus a “helper”
 Live-in Aide Criteria and Live-in Aide Housing
Agreement
 Live-in aide signs addendum making clear:
• Only for employment/no property interest in unit
• Family is accountable for any lease violations by
the live-in aide
Slide #99
© 2008 Nan McKay & Associates
Office of Inspector General
© 2008 Nan McKay & Associates
Slide #100
OIG
Live-in Aide Checklist
 __________________________
 __________________________
 __________________________
 __________________________
© 2008 Nan McKay & Associates
Slide #101
OIG
 Checklist Cont.
© 2008 Nan McKay & Associates
Slide #102
Service Animals
© 2008 Nan McKay & Associates
Slide #103
Service Animals
 May the PHA choose to require animals to
have formal training or certification in order to
be considered service animals? NO (unless?)
 Language: Companion animals, emotional
support animals, therapy animals, assistance
animals (make it easy!)
• All animals could be support animals…
Slide #104
© 2008 Nan McKay & Associates
Federal Register Notice –
Service Animals
 October 15, 2007, HUD published a proposed
rule on assistance animals
• to improve the consistency between its pet
ownership regulations that cover public
housing and assisted housing programs
© 2008 Nan McKay & Associates
Slide #105
VAWA
Slide #106
© 2008 Nan McKay & Associates
Violence Against Women Act
 Violence Against Women Reauthorization Act of
2005 (VAWA) signed into law January 5, 2006,
as Public Law 109-162.
• Technical Amendments signed into law August
12, 2006 as Public Law 109-271.
• NO HUD REGULATIONS
Slide #107
© 2008 Nan McKay & Associates
HUD Notice PIH 2006-23
 Issued on June 23, 2006, HUD reinforced that
PHAs are to implement the VAWA
requirements immediately (Jan 2006).
 HUD will be developing regulations to make
conforming changes to existing regs and will
provide guidance.
Slide #108
© 2008 Nan McKay & Associates
HUD Notice PIH 2006-42
 Issued on Dec. 27, 2006
 Provides optional certification form. (HUD50066).
• Tenant permitted to self-certify - policy
• Other documents can be used in place of or
together with HUD-50066 - policy
• Third party documentation not required policy
Slide #109
© 2008 Nan McKay & Associates
HUD Notice PIH 2007-5
 Issued on Feb. 27, 2007
 Provides the revised HAP Contract and
Tenancy Addendum, and includes instructions
 Note: Public Housing lease provisions not
included
Slide #110
© 2008 Nan McKay & Associates
Federal Register Notice on VAWA
(published March 16, 2007)
 All denials and terminations of assistance
conducted must be in compliance with VAWA
protections (landlords must be aware of this)
 Authority to bifurcate a lease applies to all
leases; PHAs & owners still follow state or
local eviction procedures for eviction
proceedings.
© 2008 Nan McKay & Associates
Slide #111
Certifications
 PHAs are not required to demand that an
individual produce official documents or physical
proof that they are a victim
• PHA are permitted to accept the individual’s
statement alone.
 But then individual could claim victim status even if
they are not a victim?
© 2008 Nan McKay & Associates
Slide #112
VAWA Scenario 1
 We have a family where the wife has taken the
children and fled an abusive husband. We have
given her a voucher under VAWA. Now we have to
terminate the HAP contract that we have on the unit
where the husband lives. What should we tell the
husband? We know that we should not tell him that
his wife has a voucher somewhere else. We also
know that we should not create a situation where he
might become more violent. How do we explain
why he is no longer being subsidized? Any
suggestions?
© 2008 Nan McKay & Associates
Slide #113
VAWA – Scenario 2
 Woman with children applies to the PHA for
housing. She is otherwise eligible except that she
owes the PHA $300 on a lease where she was the
“spouse” 11 years ago. She reports that her
husband controlled the finances, she has since left
him and has documentation from a DV agency that
she was a victim of DV. Do we accept her
application? May we deny her housing? Can we
require she pay back the $300?
© 2008 Nan McKay & Associates
Slide #114
VAWA Scenarios
 I use drugs because I am a victim of domestic
violence – you can’t kick me out
 What if both partners in an assisted family
point fingers…who does the PHA support?
 “He’s been living with me. I did not tell the
PHA. Now he won’t leave and is abusing me.
He is stealing from me and I cannot pay my
rent.”
© 2008 Nan McKay & Associates
Slide #115
VAWA Scenarios
 I have a bad boyfriend who abuses me. PHA
moves me. I find another bad boyfriend. PHA
moves me. I find another bad boyfriend. PHA
moves me…
 The CRAZY Ex-Girlfriend…
Slide #116
© 2008 Nan McKay & Associates
Limited English Proficient
Persons (LEP)
© 2008 Nan McKay & Associates
Slide #117
LEP
 Persons who, as a result of national origin, do
not speak English as their primary language
• Limited ability to speak, read, write, or
understand English
• Under Title VI and LEP Guidance may be
entitled to language assistance with respect to
a particular service, benefit, or encounter
Slide #118
© 2008 Nan McKay & Associates
Who determines LEP status?
• Generally, a person self-identifies as LEP
in order for the PHA to provide
assistance
• There is no one way to determine whether a
person’s command of English is “limited”
 Q: How does a LEP person know to identify
himself as needing assistance?
© 2008 Nan McKay & Associates
Slide #119
LEP
 Can a person be LEP only “part-time?”
• Yes. “Limited” English Proficiency could
depend on circumstances
• Example: A person may identify as LEP if
there are legal issues involved and special
vocabulary, but could feel comfortable doing
an annual recertification without assistance
© 2008 Nan McKay & Associates
Slide #120
Why Do We Have LEP
Obligations?
 Executive Order 13166 (Aug 2000)
• Affects all federal agencies and recipients
• DOJ instructed HUD to produce guidance
 HUD published proposed LEP Guidance Dec
19, 2003 in Federal Register
 HUD published final LEP Guidance Jan 22,
2007 in Federal Register ( see HUD FAQs)
© 2008 Nan McKay & Associates
Slide #121
LEP and Citizenship
 U.S citizenship does not determine whether a
person is LEP
• Title VI applies to citizens, documented noncitizens, and undocumented non-citizens
• A person who is a citizen may be LEP
• A person who is not a citizen may be fluent in
English
 http://www.hud.gov/offices/fheo/promotingfh/lep-faq.cfm
Slide #122
© 2008 Nan McKay & Associates
Three Steps to LEP Compliance
1. Four Factor Analysis (number, frequency,
importance, costs)
2. Draft a Language Assistance Plan (LAP)
(who will you serve, how, staff training)
3. Implement Plan (and be prepared to revise
– demographics change, technology
changes)
Slide #123
© 2008 Nan McKay & Associates
Family Members as Interpreters
 Question: May recipients rely upon family
members or friends of the LEP person as
interpreters?
 Answer: Generally, recipients should not rely
on family members, friends of the LEP
person, or other informal interpreters….
• Communication cost burdens are on PHA
• “Please bring an interpreter…” (No Good!)
© 2008 Nan McKay & Associates
Slide #124
Question Time
 No one was born knowing Fair Housing laws
and regulations…ASK.
 Encourage your staff to ask
 ewilcox@nanmckay.com
Slide #125
© 2008 Nan McKay & Associates
Thank you for attending!
Upcoming Lunch ‘n’ Learns:
 Mar 20th – HCV Financial Management for
Non-Financial Managers
 Mar 28th – Finance for the Public Housing
Director