PART III: DENIAL OF ASSISTANCE 3-III.A. OVERVIEW A family that does not meet the eligibility criteria discussed in Parts I and II, must be denied assistance. In this section we will discuss other situations and circumstances in which denial of assistance is mandatory for the GFHA, and those in which denial of assistance is optional for the GFHA.
While the regulations state that GFHA must prohibit admission for certain types of criminal activity and give GFHA the option to deny for other types of previous criminal history, more recent HUD rules and OGC guidance must also be taken into consideration when determining whether a particular individual’s criminal history merits denial of admission.
When considering any denial of admission, PHAs may not use arrest records as the basis for the denial. Further, HUD does not require the adoption of “One Strike” policies and reminds PHAs of their obligation to safeguard the due process rights of applicants and tenants [Notice PIH 2015-19]. HUD’s Office of General Counsel issued a memo on April 4, 2016, regarding the application of Fair Housing Act standards to the use of criminal records. This memo states that a PHA violates the Fair Housing Act when their policy or practice has an unjustified discriminatory effect, even when the PHA had no intention to discriminate. Where a policy or practice that restricts admission based on criminal history has a disparate impact on a particular race, national origin, or other protected class, that policy or practice is in violation of the Fair Housing Act if it is not necessary to serve a substantial, legitimate, nondiscriminatory interest of the PHA, or if that interest could be served by another practice that has a less discriminatory effect [OGC Memo 4/4/16].
PHAs who impose blanket prohibitions on any person with any conviction record, no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then will be unable to show that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest. Even a PHA with a more tailored policy or practice that excludes individuals with only certain types of convictions must still prove that its policy is necessary. To do this, the PHA must show that its policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety and property and criminal conduct that does not.
Forms of Denial [24 CFR 982.552(a)(2); HCV GB, p. 5-35] Denial of assistance includes any of the following:
Not placing the family's name on the waiting list
Denying or withdrawing a voucher
Not approving a request for tenancy or refusing to enter into a HAP contract
Refusing to process a request for or to provide assistance under portability procedures
Prohibited Reasons for Denial of Program Assistance [24 CFR 982.202(b), 24 CFR 5.2005(b)] HUD rules prohibit denial of program assistance to the program based on any of the following criteria:
Age, disability, race, color, religion, sex, or national origin (See Chapter 2 for additional information about fair housing and equal opportunity requirements.)
Where a family lives prior to admission to the program
Where the family will live with assistance under the program. Although eligibility is not affected by where the family will live, there may be restrictions on the family’s ability to move outside the PHA’s jurisdiction under portability. (See Chapter 10.)
Whether members of the family are unwed parents, recipients of public assistance, or children born out of wedlock
Whether the family includes children
Whether a family decides to participate in a family self-sufficiency program
Whether or not a qualified applicant is or has been a victim of domestic violence, dating violence, sexual assault, or stalking if the applicant is otherwise qualified for assistance (See section 3-III.G.)
3-III.B. MANDATORY DENIAL OF ASSISTANCE [24 CFR 982.553(a)] HUD requires GFHA to deny assistance in the following cases:
Any member of the household has been evicted from federally assisted housing in the last three years for drug-related criminal activity. HUD permits, but does not require, the GFHA to admit an otherwise-eligible family if the household member has completed a GFHA-approved drug rehabilitation program or the circumstances which led to eviction no longer exist (e.g., the person involved in the criminal activity no longer lives in the household).
GFHA Policy The GFHA will deny assistance if any member of the household has been evicted from federally assisted housing in the last three years for drug-related criminal activity.
The GFHA will admit an otherwise-eligible family who was evicted from federally assisted housing within the past three years for drug-related criminal activity, if the GFHA is able to verify that the household member who engaged in the criminal activity has completed a supervised drug rehabilitation program approved by the GFHA, or the person who committed the crime is no longer living in the household.
The GFHA determines that any household member is currently engaged in the use of illegal drugs.
GFHA Policy Currently engaged in refers to behavior occurring recently enough to justify a reasonable belief that the behavior is current.
The GFHA has reasonable cause to believe that any household member’s current use or pattern of use of illegal drugs, or current abuse or pattern of abuse of alcohol, may threaten the health, safety, or right to peaceful enjoyment of the premises by other residents.GFHA Policy In determining reasonable cause, the GFHA will consider all credible evidence, including but not limited to, any record of convictions, arrests, or evictions of household members related to the use of illegal drugs or the abuse of alcohol. A record or records of arrest will not be used as the sole basis of determining reasonable cause. The GFHA will also consider evidence from treatment providers or community-based organizations providing services to household members.
Any household member has ever been convicted of drug-related criminal activity for the production or manufacture of methamphetamine on the premises of federally assisted housing
Any household member is subject to a lifetime registration requirement under a state sex offender registration program
3-III.C. OTHER PERMITTED REASONS FOR DENIAL OF ASSISTANCE Criminal Activity [24 CFR 982.553] HUD permits, but does not require, the PHAs to deny assistance if the PHA determines that any household member is currently engaged in, or has engaged in during a reasonable time before the family would receive assistance, certain types of criminal activity.
GFHA Policy GFHA currently limits denials for Criminal Activity to those listed under section 3-III.B. (above)
Previous Behavior in Assisted Housing [24 CFR 982.552(c)] HUD authorizes the GFHA to deny assistance based on the family’s previous behavior in assisted housing.
GFHA Policy The GFHA will deny assistance to an applicant family if:
The family does not provide information that the GFHA or HUD determines is necessary in the administration of the program.
The family does not provide complete and true information to the GFHA.
Any family member has been evicted from federally assisted housing in the last three years.
Any family member has committed fraud, bribery, or any other corrupt or criminal act in connection with any federal housing program.
The family owes rent or other amounts to any PHA in connection with Section 8 or other public housing assistance under the 1937 Act, unless the family repays the full amount of the debt prior to being selected from the waiting list.
If the family has not reimbursed any PHA for amounts the PHA paid to an owner under a HAP contract for rent, damages to the unit, or other amounts owed by the family under the lease, unless the family repays the full amount of the debt prior to being selected from the waiting list.
The family has breached the terms of a repayment agreement entered into with the GFHA, unless the family repays the full amount of the debt covered in the repayment agreement prior to being selected from the waiting list.
Debt requirements may be waived for applicants who are otherwise deemed eligible for GFHA-designated homeless programs.
A family member has engaged in or threatened violent or abusive behavior toward GFHA personnel
Abusive or violent behavior towards GFHA personnel includes verbal as well as physical abuse or violence. Use of racial epithets, or other language, written or oral, that is customarily used to intimidate may be considered abusive or violent behavior.
Threatening refers to oral or written threats or physical gestures that communicate intent to abuse or commit violence.
In making its decision to deny assistance, the GFHA will consider the factors discussed in Section 3-III.E. Upon consideration of such factors, the GFHA may, on a case-by-case basis, decide not to deny assistance.
3-III.D. SCREENING Screening for Eligibility PHAs are authorized to obtain criminal conviction records from law enforcement agencies to screen applicants for admission to the HCV program. This authority assists the GFHA in complying with HUD requirements and GFHA policies to deny assistance to applicants who are engaging in or have engaged in certain criminal activities. In order to obtain access to the records the GFHA must require every applicant family to submit a consent form signed by each adult household member [24 CFR 5.903].
GFHA Policy All adults in the household will be screened with a criminal background check from every state in which any member of the household has ever resided (if available). Minors may be screened in states where allowed.
While a PHA has regulatory authority to use criminal conviction records for the purpose of applicant screening for admission, there is no corresponding authority to use these records to check for criminal and illegal drug activity by participants, and therefore, PHAs may not use records for this purpose.
PHAs are required to perform criminal background checks necessary to determine whether any household member is subject to a lifetime registration requirement under a state sex offender program in the state where the housing is located, as well as in any other state where a household member is known to have resided [24 CFR 982.553(a)(2)(i)].
GFHA Policy The GFHA will use the Dru Sjodin National Sex Offender and the ND State Sex Offender database to screen applicants for admission. Additionally, PHAs must ask whether the applicant, or any member of the applicant’s household, is subject to a lifetime registered sex offender registration requirement in any state [Notice PIH 2012-28].
If the GFHA proposes to deny assistance based on a criminal record or on lifetime sex offender registration information, the GFHA must notify the household of the proposed action and must provide the subject of the record and the applicant a copy of the record and an opportunity to dispute the accuracy and relevance of the information prior to a denial of admission. [24 CFR 5.903(f) and 5.905(d)].
Screening for Suitability as a Tenant [24 CFR 982.307] The PHA has no liability or responsibility to the owner for the family’s behavior or suitability for tenancy. The PHA has the authority to conduct additional screening to determine whether an applicant is likely to be a suitable tenant.
GFHA Policy The GFHA will not conduct additional screening to determine an applicant family’s suitability for tenancy.
The owner is responsible for screening and selection of the family to occupy the owner’s unit. The PHA must inform the owner that screening and selection for tenancy is the responsibility of the owner. An owner may consider a family’s history with respect to factors such as: payment of rent and utilities, caring for a unit and premises, respecting the rights of other residents to the peaceful enjoyment of their housing, criminal activity that is a threat to the health, safety or property of others, and compliance with other essential conditions of tenancy.
HUD requires the GFHA to provide prospective owners with the family's current and prior address (as shown in GFHA records) and the name and address (if known) of the owner at the family's current and prior addresses. HUD permits the PHA to provide owners with additional information, as long as families are notified that the information will be provided, and the same type of information is provided to all owners.
The GFHA may not disclose to the owner any confidential information provided to the GFHA by the family in response to a GFHA request for documentation of domestic violence, dating violence, sexual assault, or stalking except at the written request or with the written consent of the individual providing the documentation [24 CFR 5.2007(a)(4)].
GFHA Policy The GFHA will inform owners of their responsibility to screen prospective tenants, and will provide owners with the required known name and address information, at the time of the initial HQS inspection or before. The GFHA will not provide any additional information to the owner, such as tenancy history or criminal history, etc.
3-III.E. CRITERIA FOR DECIDING TO DENY ASSISTANCE Evidence [24 CFR 982.553(c)] GFHA Policy The GFHA will use the concept of the preponderance of the evidence as the standard for making all admission decisions.
Preponderance of the evidence is defined as evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not. Preponderance of the evidence may not be determined by the number of witnesses, but by the greater weight of all evidence.
Consideration of Circumstances [24 CFR 982.552(c)(2)] HUD authorizes the PHA to consider all relevant circumstances when deciding whether to deny assistance based on a family’s past history except in the situations for which denial of assistance is mandatory (see Section 3-III.B).
GFHA Policy The GFHA will consider the following facts and circumstances prior to making its decision:
The seriousness of the case, especially with respect to how it would affect other residents’ safety or property
The effects that denial of assistance may have on other members of the family who were not involved in the action or failure to act
The extent of participation or culpability of individual family members, including whether the culpable family member is a minor or a person with disabilities, or (as discussed further in section 3-III.G) a victim of domestic violence, dating violence, sexual assault, or stalking
The length of time since the violation occurred, including the age of the individual at the time of the conduct, as well as the family’s recent history and the likelihood of favorable conduct in the future
While a record or records of arrest will not be used as the sole basis for denial, an arrest may trigger an investigation to determine whether the applicant actually engaged in disqualifying criminal activity. As part of its investigation, the GFHA may obtain the police report associated with the arrest and consider the reported circumstances of the arrest. The GFHA may also consider:
Any statements made by witnesses or the applicant not included in the police report
Whether criminal charges were filed
Whether, if filed, criminal charges were abandoned, dismissed, not prosecuted, or ultimately resulted in an acquittal
Any other evidence relevant to determining whether or not the applicant engaged in disqualifying activity
Evidence of criminal conduct will be considered if it indicates a demonstrable risk to safety and/or property
In the case of drug or alcohol abuse, whether the culpable household member is participating in or has successfully completed a supervised drug or alcohol rehabilitation program or has otherwise been rehabilitated successfully
The GFHA will require the applicant to submit evidence of the household member’s current participation in or successful completion of a supervised drug or alcohol rehabilitation program, or evidence of otherwise having been rehabilitated successfully.
Removal of a Family Member's Name from the Application Should the GFHA’s screening process reveal that an applicant’s household includes an individual subject to state lifetime registered sex offender registration, the GFHA must offer the family the opportunity to remove the ineligible family member from the household. If the family is unwilling to remove that individual from the household, the GFHA must deny admission to the family [Notice PIH 2012-28].
For other criminal activity, the GFHA may permit the family to exclude the culpable family members as a condition of eligibility. [24 CFR 982.552(c)(2)(ii)].
GFHA Policy As a condition of receiving assistance, a family may agree to remove the culpable family member from the application. In such instances, the head of household must certify that the family member will not be permitted to visit, stay as a guest, or reside in the assisted unit. After admission to the program, the family must present evidence of the former family member’s current address upon GFHA request.
Reasonable Accommodation [24 CFR 982.552(c)(2)(iv)] If the family includes a person with disabilities, the GFHA’s decision concerning denial of admission is subject to consideration of reasonable accommodation in accordance with 24 CFR Part 8.
GFHA Policy If the family indicates that the behavior of a family member with a disability is the reason for the proposed denial of assistance, GFHA will determine whether the behavior is related to the stated disability. If so, upon the family’s request, the GFHA will determine whether admitting the family as a reasonable accommodation is appropriate. The GFHA will only consider accommodations that can reasonably be expected to address the behavior that is the basis of the proposed denial of assistance. See Chapter 2 for a discussion of reasonable accommodation.
3-III.F. NOTICE OF ELIGIBILITY OR DENIAL
If the family is eligible for assistance, the PHA will notify the family in writing and schedule a tenant briefing, as discussed in Chapter 5. If the GFHA determines that a family is not eligible for the program for any reason, the family must be notified promptly. Thenotice must describe: (1) the reasons for which assistance has been denied, (2) the family’s right to an informal review, and (3) the process for obtaining the informal review [24 CFR 982.554 (a)]. See Chapter 16, for informal review policies and procedures.
GFHA Policy The family will be notified of a decision to deny assistance in writing within 10 business days of the determination.
If a PHA uses a criminal record or sex offender registration information obtained under 24 CFR 5, Subpart J, as the basis of a denial, a copy of the record must precede the notice to deny, with an opportunity for the applicant to dispute the accuracy and relevance of the information before the PHA can move to deny the application. In addition, a copy of the record must be provided to the subject of the record [24 CFR 5.903(f) and 5.905(d)]. The PHA must give the family an opportunity to dispute the accuracy and relevance of that record, in the informal review process in accordance with program requirements [24 CFR 982.553(d)].
GFHA Policy If based on a criminal record or sex offender registration information, an applicant family appears to be ineligible the GFHA will notify the family in writing of the proposed denial and provide a copy of the record to the applicant and to the subject of the record. The family will be given 10 business days to dispute the accuracy and relevance of the information. If the family does not contact the GFHA to dispute the information within that 10-day period, GFHA will proceed with issuing the notice of denial of admission. A family that does not exercise their right to dispute the accuracy of the information prior to issuance of the official denial letter will still be given the opportunity to do so as part of the informal review process. Notice requirements related to denying assistance to noncitizens are contained in Section 3-II.B.
Notice policies related to denying admission to applicants who may be victims of domestic violence, dating violence, sexual assault or stalking are contained in Section 3-III.G.
3-III.G. PROHIBITION AGAINST DENIAL OF ASSISTANCE TO VICTIMS OF DOMESTIC VIOLENCE, DATING VIOLENCE, SEXUAL ASSAULT, AND STALKING The Violence against Women Act of 2013 (VAWA) and the HUD regulation at 24 CFR 5.2005(b) prohibit PHAs from denying an applicant admission to the HCV program on the basis or as a direct result of the fact that the applicant is or has been a victim of domestic violence, dating violence, sexual assault or stalking, if the applicant otherwise qualifies for assistance or admission.
Definitions of key terms used in VAWA are provided in section 16-IX of this plan, where general VAWA requirements and policies pertaining to notification, documentation, and confidentiality are also located.
Notification VAWA 2013 expanded notification requirements to include the obligation for PHAs to provide applicants who are denied assistance with a VAWA Notice of Occupancy Rights (form HUD–5380) and a domestic violence certification form (HUD-5382) at the time the applicant is denied.
GFHA Policy The GFHA acknowledges that a victim of domestic violence, dating violence, sexual assault, or stalking may have an unfavorable history (e.g., a poor credit history, poor rental history, a record of previous damage to an apartment, a prior arrest record) due to adverse factors that would warrant denial under the GFHA’s policies.
While the GFHA is not required to identify whether adverse factors that resulted in the applicant’s denial are a result of domestic violence, dating violence, sexual assault, or stalking, the applicant may inform the GFHA that their status as a victim is directly related to the grounds for the denial. The GFHA will request that the applicant provide enough information to the GFHA to allow the GFHA to make an objectively reasonable determination, based on all circumstances, whether the adverse factor is a direct result of their status as a victim.
The GFHA will include in its notice of denial the VAWA information described in section 16-IX.C of this plan as well as including a copy of the form HUD-5382. The GFHA will request in writing that an applicant wishing to claim protection under VAWA notify the GFHA within 14 business days.
Documentation Victim Documentation [24 CFR 5.2007] GFHA Policy If an applicant claims the protection against denial of assistance that VAWA provides to victims of domestic violence, dating violence, sexual assault or stalking, the GFHA will request in writing that the applicant provide documentation supporting the claim in accordance with section 16-IX.D of this plan.
Perpetrator Documentation GFHA Policy If the perpetrator of the abuse is a member of the applicant family, the applicant must provide additional documentation consisting of one of the following:
A signed statement (1) requesting that the perpetrator be removed from the application and (2) certifying that the perpetrator will not be permitted to visit or to stay as a guest in the assisted unit
Documentation that the perpetrator has successfully completed, or is successfully undergoing, rehabilitation or treatment. The documentation must be signed by an employee or agent of a domestic violence service provider or by a medical or other knowledgeable professional from whom the perpetrator has sought or is receiving assistance in addressing the abuse. The signer must attest under penalty of perjury to his or her belief that the rehabilitation was successfully completed or is progressing successfully. The victim and perpetrator must also sign or attest to the documentation
