HUD PIH Notice § 2012-31

                              U.S. Department of Housing and Urban Development
                                Office of Public and Indian Housing


SPECIAL ATTENTION OF:                                       NOTICE PIH-2012-31 (HA)
Regional Managers; Office of Public Housing                 Issued: June 29, 2012
Directors; Program Center Coordinators;                     This notice remains in effect until
Public Housing Agencies; Resident                           amended, superseded or rescinded
Management Corporations                                     Cross reference:
                                                            PIH Notices 2005-5 and 2011-51

Subject: Assisted housing for persons with disabilities under Olmstead implementation
efforts to provide community-based options rather than institutional settings.

1. Purpose: This guidance to public housing agencies (PHAs) describes actions PHAs may take
to assist persons with disabilities transitioning from institutions and persons at serious risk of
institutionalization access PHA-assisted housing. This guidance supplements prior guidance in
PIH Notice 2005-5 on community-based alternatives for individuals with disabilities.

2. Background: The Olmstead decision refers to the June 1999 Supreme Court ruling in
Olmstead v. L.C., 527 U.S. 581 (1999), where the Court held that Title II of the Americans with
Disabilities Act (ADA) prohibits the unjustified segregation of individuals with disabilities. The
court’s opinion provided a directive that public entities must serve qualified individuals with
mental and physical disabilities in community settings rather than in institutions when such
services are appropriate, the affected persons do not oppose such placement, and the state can
reasonably accommodate the placement, taking into account the resources available to the state
and the needs of others with disabilities.

The Court’s ruling is based upon the regulations implementing Title II, which require that public
entities administer their services, programs and activities “in the most integrated setting
appropriate to the needs of qualified individuals with disabilities.” See 28 CFR 35.130(d). The
Court encouraged states to develop comprehensive and effective plans to provide services to
individuals with disabilities in the most integrated settings. See, Statement of the Department of
Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities
Act and Olmstead vs. L.C.http://www.ada.gov/olmstead/index.htm.

The Department of Justice and the courts interpret the regulations implementing Section 504 of
the Rehabilitation Act of 1973 (Section 504), which applies to PHAs and other entities receiving
financial assistance from HUD, as imposing the same integration mandate. See 24 CFR 8.4(d).

Staff in HUD’s Office of Fair Housing and Equal Opportunity (FHEO) enforces Section 504 and
Title II of the ADA, in part, by conducting compliance and monitoring reviews. HUD’s Section
504 regulations impose an affirmative obligation on PHAs to assess the housing needs of persons
with disabilities in their service area, which includes persons transitioning from institutions and
persons at serious risk of institutionalization.

HUD plays a role in furthering Olmstead implementation by helping persons with disabilities
access affordable, integrated housing opportunities. There are a variety of actions that PHAs
may take under currently existing authority to meet the housing needs of persons with disabilities
transitioning from institutions or at serious risk of institutionalization. These actions, identified
below, may be taken whether or not the PHA’s state or local public entity is subject to
outstanding Olmstead-related litigation, enforcement activities, or undertaking affirmative
Olmstead planning and implementation efforts.

3. Actions: The actions presented below are examples of how PHAs may partner with their
appropriate jurisdiction to address identified local housing needs:

A. Establish a local admission preference: Recent collaborative efforts between HUD and the
   U.S. Department of Health and Human Services (HHS) include Secretary Donovan’s June
   2009 letter to PHAs urging adoption of a local admission preference for persons with
   disabilities who are ready to exit institutions. The letter provides detailed information on
   HHS’ Money Follows the Person (MFP) Demonstration, a national grant program to identify
   individuals in institutions who wish to transition to the community, and for whom necessary
   supportive services are coordinated.

   PHAs may develop a local preference for individuals ready to exit institutional care. PHAs
   may include in this preference persons at serious risk of institutionalization. The preference
   may apply to HCV and/or Public Housing programs. The preference may be limited to a set
   number of vouchers or units or a percentage of vouchers or units as they become available.

   PHAs incorporate such a preference in written policies for their HCV and/or Public Housing
   programs and may open waiting lists strictly to people to whom the preference applies.
   When opening the waiting list, PHAs give public notice in a local newspaper of general
   circulation, by minority media and other suitable means. Such notices comply with federal
   nondiscrimination laws in stating where and when to apply and any limitations on who may
   apply. Upon an adequate number of persons with disabilities meeting the preference, the
   PHA may again close the waiting list. PHAs may also leave their waiting list open only for
   this population, while keeping the waiting list closed for all other applicants.

   When adopting a new preference, PHAs also ensure that current applicants on the waiting list
   who qualify for the preference receive the benefit of the preference and move up accordingly
   on the waiting list. Applicants under this local preference may be assessed for readiness to
   transition, meaning the actual issuance of a voucher or offering of a public housing unit may
   be timed to coincide with an individual’s exit/release plan.

   To ensure that individuals with various disabilities are eligible to receive assistance under
   this preference, PHAs cannot restrict the preference to those referred or approved by a single
   state agency or to persons with specific disabilities or diagnoses, unless such a restriction is a
   HUD-approved remedial action.
   Remedial actions in response to Olmstead-related litigation or enforcement, including a
   settlement agreement, court order or consent decree, or in response to a public entity’s
   documented, voluntary affirmative Olmstead planning and implementation efforts, require
   approval by HUD’s Associate General Counsel for Fair Housing.

   In all other instances, the preference applies broadly to persons transitioning from
   institutions, possibly including persons at serious risk of institutionalization, as may be
   determined by the PHA. Appropriate supportive services are provided by state MFP entities
   or other support service agencies and partnering organizations. The appropriate services may
   include case management and personal care.

   HUD-funded programs or activities must be operated in a way that provides the most
   integrated setting appropriate to the needs of individuals with disabilities benefiting from any
   preference as required by 24 CFR part 8.4(d). Thus, when offering preferences within a
   PHA’s public housing program, a PHA must ensure that units occupied by persons with
   disabilities are not clustered in a particular building, floor or within certain sections within a
   larger development.

B. Dedicate non-elderly disabled (NED) vouchers: PIH Notice 2011-32 provides guidance to
   PHAs awarded special vouchers for non-elderly people with disabilities concerning the
   requirement to re-establish these vouchers for use by the intended population and remain
   with that population upon turnover. PHAs may serve non-elderly persons with disabilities
   transitioning from institutions with NED vouchers by establishing a preference for a
   dedicated number of the NED vouchers and adopting the preference in accordance with
   regular HCV program requirements.

C. Leverage Section 811 funds within public housing: Under a 2012 demonstration program,
   Section 811 Project Rental Assistance (811 PRA) provides funds to state housing agencies or
   other appropriate housing agencies for use as project rental assistance applied to new or
   existing affordable housing units in which capital has been provided through low-income
   housing tax credits (LIHTC), federal HOME funds, or other state and local sources. A
   maximum of 25% of the total units in eligible properties can be provided 811 PRA funds, be
   used for supportive housing for persons with disabilities, or have any occupancy preference
   for persons with disabilities. Section 811 PRA funds may be applied to PHA mixed finance
   or other alternative funding developments. PHAs in states awarded 811 PRA funding are
   encouraged to work with their states and partnering agencies to identify potential projects.
   For more information on program requirements see HUD’s Section 811 PRA notice of
   funding availability (NOFA).

D. Enhance outreach: Seek new ways to ensure information regarding the openings of waiting
   lists reaches eligible individuals who may be ready to transition from institutions and persons
   at serious risk of institutionalization. Expanded outreach may include advertising the
   opening of waiting lists to social service agencies, nursing homes, board and care homes,
   psychiatric hospitals, mental health facilities, and institutions and hospitals for individuals
   with disabilities in the local service area. PHAs may choose to contact the facilities via
   Twitter, Facebook, websites or newsletters.

E. Develop an accessible housing list: Enhance the list of known accessible HCV units by
   adding information about partially accessible units in the area, including accessible features
   and bedroom size for each unit. Present the need for accessible housing to private providers
   and share the list of outreach agencies to interested landlords. Encourage private landlords to
   make accessibility modifications to private units and identify and encourage private landlords
   with accessible units to participate in HCV programs. PHAs are required to make accessible
   public housing units available to eligible households through a lease stipulation requiring
   non-mobility impaired applicants who accept residence within an accessible unit to
   subsequently transfer to a non-accessible unit when such a unit becomes available. See 24
   CFR 8.27(b).

F. Provide flexibility: Adopt a policy to address the challenges related to portability and
   locating accessible housing when considering requests for extensions of a HCV. See 24 CFR
   8.28(a) (4). Permit flexible application procedures/locations, including “in home”
   application processes.

G. Seek service-based resources: Centers for Medicare and Medicaid Services (CMS) released
   the “Community Living Initiative" letter to State Medicaid Directors on May 20,
   2010, reaffirming previous Olmstead policies and offering tools to gain greater
   achievements. States may access technical assistance for long-term services and supports;
   promote affordable housing to maximize community living opportunities; advance home and
   community based services; support infrastructure reforms; share capacities through Home
   and Community Based Services (HCBS) participants; network with aging and disability
   resources centers (ADRCs); and assist discharge planning.

4. Training: Education is an effective tool to disseminate information. PHA and local HUD
staff are encouraged to:

A. Participate in conferences, symposiums and focus groups that reach advocates and consumers
   who have disabilities;
B. Participate in local conferences of disability rights organizations and provide information on
   housing resources; and
C. Collaborate with regional or local Health and Human Services Office of Civil Rights staff to
   conduct joint trainings.

5. Additional Resources: For further information or assistance, contact appropriate PIH and/or
FHEO field staff. Additional guidance is also available electronically:
A. A guide to the Medicaid program for housing professionals, see: Medicaid Primer
B. PIH Notice 2011-32; Policies and Procedures for non-elderly disabled (NED) vouchers, see:
   http://portal.hud.gov/hudportal/HUD?src=/program_offices/administration/hudclips/notices/p
   ih
C. New Freedom Initiative, Executive Order 13217: “Community Based Alternatives for
   Persons with Disabilities,” and the Housing Choice Voucher Program PIH Notice 2005-05,
   see: http://www.hud.gov/offices/pih/publications/notices/05/pih2005-5.pdf
D. Non-Discrimination and Accessibility for Persons with Disabilities Notice PIH 2010-26, see:
   http://www.hud.gov/offices/pih/publications/notices/10/pih2010-26.pdf
E. HUD Section 811 Project Rental Assistance Demonstration NOFA,
   http://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/mfh/grants/section811pt
   l/demoNOFA.
F. Olmstead Decision, see http://www.law.cornell.edu/supct/html/98-536.ZS.html
G. Secretary Donovan letter of June 22, 2009, see:
   http://www.olmsteadva.com/mfp/downloads/tn.pdf
H. FHEO field monitoring guidance, see:
   http://portal.hud.gov/hudportal/documents/huddoc?id=disabilitiestransitioning.PDF
I. Money Follows the Person, see:
   http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Long-Term-
   Services-and-Support/Balancing/Money-Follows-the-Person.html
J. HHS/Office for Civil Rights Regional Staff directory, see:
    http://www.hhs.gov/ocr/office/about/rgn-hqaddresses.html
K. Homelessness and special needs partnerships between community planning and public
   housing see PIH Notice 2011-51
   at: http://portal.hud.gov/hudportal/HUD?src=/program_offices/administration/hudclips/notic
   es/pih/11pihnotices




                                            _______________/s/_____________________
                                            Sandra B. Henriquez, Assistant Secretary for
                                            Public and Indian Housing