PHADA Urges Comments on Proposed Criminal Records Rule

Please Use the Information and Samples Below to Prepare Your HA and Tenant Comments 

In its discussion of the proposed rule, HUD indicates it consulted with many stakeholders, but current public housing resident perspectives were under-represented and public housing authority participation was limited. PHADA urges members to comment and share information on the proposed rule and the mechanisms for public comment with their tenant leadership. Resident commissioners, Resident Advisory Boards, Tenant Councils, and individual tenants can all comment on the rule and may want to. One key question tenants may want to consider: does this rule make public housing safer? 

Comments Due June 10, Discussion Planned at ACE24

The public may submit comments on the rule here until June 10, 2024. PHADA continues to welcome member feedback in developing its comments and positions, which will be considered during Committee meetings at the PHADA Annual Convention & Exhibition on Sunday, June 2.

HA leaders are encouraged to engage employees, residents, and other stakeholders to submit their own comments as individuals, organizations, or anonymously. All are urged to include specific examples and scenarios in their comments. 

Major Provisions of the Proposed Rule “Reducing Barriers to HUD-assisted Housing”

• Would formally prohibit categorical, blanket exclusions of people with criminal records. 
• Would limit the look-back period to three years.  Criminal records older than three years could generally not be considered without more recent criminal activity, with few exceptions.
• Would limit the consideration of criminal history records that do not have a ‘nexus’ (a connection or link) to the health, safety, and right of peaceful enjoyment of other tenants and safety of staff, contractors, etc., or fitness for tenancy.
• Would generally exclude consideration of “victimless” crimes including fraud and financial crimes that cannot be linked to the health, safety, and right to peaceful enjoyment language of the proposed rule.
• Would require completion of a “fact-based and individualized assessment” including consideration of mitigating factors whenever criminal history records are a factor in a decision regarding eligibility for assistance, admittance to a specific property, or in lease enforcement.
• Would require applicants be provided with a copy of criminal records that may contribute to a denial, and to provide 15 days for applicants to provide additional information and/or dispute the accuracy or relevance of the information. 
• Would prohibit HA re-screening of port-in voucher holders, but otherwise does not apply to the HCV program, nor does it apply to the LIHTC program or to private rental housing.   
• Would require corroborating evidence if utilizing arrest records, preferring convictions.
• Would continue use of the preponderance of the evidence standard (more likely than not that the conduct occurred (51%)) when making a discretionary exclusion decision. 
• Would require substantial changes to formal plans and policies (Admissions and Continued Occupancy Policies, Tenant Selections Plans, Agency Annual Plans, HCV Administrative Plans, etc.).

Items to Consider When Making Comments on the Proposed Rule:

• Is a 3-year look-back limitation the appropriate time period?  If not, what would be an appropriate look-back period? HUD asks for data or research to support suggestions. Are there specific crimes for which a longer look-back period should be considered? 
• How will the re-screening prohibition negatively impact or create risk for your agency? 
• Does the Individualized Assessment requirement create additional confusion?  Are you concerned about implementation, staff capacity and legal costs?    
• Do you think the proposed rule would make your properties less safe?
• What do you think about application of this rule to public housing and project-based rental assistance, but not HCV or other federal housing assistance programs? 
• How else are you engaged in attempting to meet the housing needs of those with criminal histories or exiting incarceration that are more effective than relaxing screening requirements? 

Possible Comments

• One size does not fit all, and different contexts, local laws and conditions, should be accounted for through more flexibility. 
• The three-year look-back period restricting consideration of older information is too short for some crimes.  Documenting patterns of behavior may require more than 36 months of information.
• Excluding consideration of a variety of financial crimes (such as fraud) from consideration prevents HAs and operators from considering all available information when making decisions.
• Re-screening of port-in voucher holders may be necessary as agencies and landlords cannot legally or otherwise rely on the screening practices of another agency. 
• Creates potential legal liabilities for HAs regarding protecting the safety of other residents, staff, and contractors and their financial and management obligations to protect their properties. 
• Requirements for an Individualized Assessment may add substantial administrative burden, increased legal fees, additional processing delays, and slowed unit occupancy. 
• Required changes to the ACOP, Administrative Plan, and Annual Plan documents are burdensome.
• The proposed requirements will strain staff capacity and add to legal fees as agencies attempt to modify and implement revised policies and procedures to be in compliance.
• Without information on how HUD will monitor and enforce compliance, the potential for inconsistent action by HUD is high, with additional and unreasonable burdens placed on HUD and HAs.
• This proposed rule would impose requirements and burdens on all public housing agencies to address the practices of some housing authorities and some HUD-assisted multifamily property owners.
• Risks the creation of a two-tiered rental housing market – one for households with extremely low incomes and criminal histories, and one for everyone else, a potential discriminatory disparate impact itself.
• With ongoing implementation of HIP, HOTMA, NSPIRE, and other system and policy changes, this change would add yet another burden to already badly underfunded agencies.    

PHADA Holds Member Calls on Criminal Records Rule

Many Perspectives Represented, Concerns Raised

In response to HUD’s publication of the proposed rule, Reducing Barriers to HUD-assisted Housing, PHADA held two member feedback calls on May 8 and 10. Members of the PHADA Housing Committee, as well as members who had responded to PHADA’s request for feedback in the May 1 Advocate, “Criminal Records and Tenant Screening Proposed Rule Published,” were invited to participate. Fifteen members from 11 states participated, expressing a broad range of perspectives and concerns.

Support for the Objectives, Concerns About the Details

Participating members expressed support for the primary objective of the rule – to ensure a fair screening process. Members also expressed that most public housing authorities are already acting within the spirit and letter of the law, and are providing fair screenings, the opportunity to present additional information, consideration of criminal histories in the context of other evidence, and using a preponderance of the available evidence to make an individualized determination. There was no clear consensus regarding the need to codify existing guidance in rulemaking, nor on which provisions of the proposed rule are of the greatest concern.

Roughly half of the participants were larger agencies, many in states that already have more or similarly restrictive provisions, and have already adopted policies consistent with the rule, including limiting look-back periods to three years. One member indicated they do not even consider criminal records beyond the statutory requirements, and focus instead on other tenancy indicators and lease enforcement. Another agency has adopted the limited 3-year criminal record look-back, and works with applicants to address any issues to secure housing—noting that often those applicants being excluded by strict policies are already residing—off the lease—in their communities, so it is better to engage and get them onto a lease than deny. For this member, neighboring agencies with more restrictive policies are effectively pushing those with criminal backgrounds to the city agency, and uniform policies at the regional or state level would be beneficial for both agencies and applicants.

Among the half of participants from smaller and more rural agencies, concerns about the proposed rule were more substantial, including issues such as the capacity of their agencies and staff, and thus the increased legal costs they would face to comply with the added requirements. Additional concerns included local pressure to deny those previously engaged in criminal activity, overly restrictive limitations on what information can be considered, and concerns about unintended consequences, negative impacts, and potential liability when a bad actor is admitted.

Major Concerns Discussed

• Re-screening prohibition on porting voucher holders, primarily regarding liability for failure to screen. Due to a lack of consistency in screening practices (some may not access federal databases, for example), receiving agencies may not want to rely on the work of another agency.
• A three-year look-back is too short for some crimes and needs clarification on the trigger date of the limitation (incident, arrest, conviction, release?).
• Confusion about what, if anything, needs to change.
  • Is the definition of “preponderance of evidence” substantially changed?
  • Is the definition of “current” important and is it a problem in cases not related to illegal drug use or alcohol abuse?
  • Are the standards for “individualized assessment” significantly different from current practices? Is there a standard practice that can be followed?
• Inconsistencies across platforms (LIHTC, PH, PBV, PBRA, etc.) create problems for properties with multiple subsidy layers, as well as for owners and operators who have properties with various subsidy streams and rules. This also creates confusion and an unfair market for tenants, and suggests acknowledgement of problems with the rule.
• Staff capacity – Availability of both time and knowledge/skill to appropriately complete the individualized assessment. In some areas, recruiting and retaining ANY staff is difficult, and increased legal costs are likely to be a result of complying.
• Potential compliance and enforcement strategies by HUD – The rule does not discuss if and how HUD may attempt to monitor and/or enforce compliance beyond the existing fair housing complaint processes, and many agencies are concerned about how HUD PIH and field offices may attempt to monitor and enforce compliance even without any allegation or perception of a fair housing issue.

Broad Agreement that One Size Does Not Fit All; Details are Confusing

Regardless of their perspective or current policy, members agreed that:

• A one-size-fits-all rule is inappropriate and fails to recognize the resource limitations of most agencies.
• With so many other system and rule changes being implemented this year (HIP, HOTMA, NSPIRE, etc.), the timing is terrible for agencies.
• Many provisions of the proposed rule lack clarity. Some of these include what constitutes an “individualized assessment”? Has the “preponderance of evidence” standard changed? If we can only look back three years, three years from what - the incident, the arrest, the conviction, or the release?

Other members questioned the data used to justify this rulemaking and if the national data results may not be relevant in some small and rural communities. PHADA encourages additional member feedback to: policy@phada.org, and the submission of comments to HUD.