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Most websites for housing providers and other businesses should be accessible to individuals with disabilities. But how is this enforced? On September 25, 2018, the U.S. Department of Justice issued a letter to a member of the U.S. House of Representatives in which it took the position that “noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.” The DOJ’s position, significantly, does not require conformance with the voluntary Web Content Accessibility Guidelines (WCAG) 2.0 to comply with the ADA in all instances. The DOJ expressly allows for flexibility in how individuals with disabilities are provided access to digital and online content, but does not provide guidance in the implementation of such flexibility.

The DOJ’s letter responds to a June 2018 inquiry from members of the House of Representatives from both parties, which asked the DOJ to “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles” absent clear guidance from the DOJ on website accessibility. In its response, the DOJ noted that for more than 20 years, the DOJ has interpreted the ADA to apply to websites of places of public accommodation. The DOJ’s response also clarified that the absence of a specific regulation does not mean that websites are not subject to the ADA’s accessibility requirements. The DOJ indicated in its letter a willingness to work with Congress on legislative action to address the increased website accessibility litigation risk faced by businesses.

The flexible approach to website accessibility expressed by the DOJ provides businesses with additional opportunities to review ADA accessibility compliance programs, as well as responses to increased litigation risk regarding the accessibility of websites.

Attorneys in Ballard Spahr’s Accessibility Group regularly assist housing providers and other clients in defending against website accessibility demand letters and litigation, and advise clients on ADA accessibility policies and procedures.

Please find below a memo issued last week by HUD’s Office of Recapitalization regarding the delayed submission of draft closing packages for RAD conversions. Please note that this gudiance applies to RCCs issued on or after May 1, 2018.

To: CHAP Awardees

From: Thomas R. Davis, Director, Office of Recapitalization

Date: April 27, 2018

Subject: Delayed Submission of Draft Closing Packages

This memo is to inform you of new guidelines for closing transactions after issuance of the RAD Conversion Commitment (RCC).  Paragraph 2.c. of the RCC requires that the RAD transaction close “within 90 days from the date executed by HUD…unless [the RCC is] extended by HUD in writing.”  When an RCC is issued, a RAD Closing Coordinator and HUD Counsel are assigned to review transaction documents and facilitate the approved closing.  At RCC issuance, the transaction should be ready to begin the closing process.  We have observed, however, that some teams do not submit their draft closing packages in a timely manner, unnecessarily diverting staff attention away from transactions that are ready to close.  Significant delays in closing may also require that a transaction be returned to the underwriting phase for an updated HUD review and issuance of a new RCC.  Recap is introducing a more standardized framework for processing transactions with a delayed submission of the draft closing package.

Recap expects a complete, generally acceptable, draft closing package to be submitted shortly after RCC issuance.  When a closing package has not been received within two months of the date the RCC was executed by HUD, the transaction will be placed in “Delayed Submission” status.  The transaction will be removed from the Closing Coordinator’s and Counsel’s workload so that HUD staff can concentrate on active RCCs.  During the period when an RCC is in Delayed Submission status, the outside parties must direct questions by email to RecapClosingTeam@HUD.gov.  This email address should also be used to notify HUD when a draft package is ready to be submitted.

After a transaction has been placed in “Delayed Submission” status, requests for extension of the RCC closing deadline will be reviewed more critically and, in the absence of evidence that the PHA is making progress towards closing the transaction, the RCC may be permitted to expire.  Any expired RCC is returned to the Financing Plan review stage.  Refreshing of any expired RCC involves, at a minimum, confirming or updating the Sources and Uses, the Pro-Forma, Financing Templates, relocation plans, and the Capital Needs Assessment (CNA).  Please note that all CNAs, including updates after an RCC has expired, must be submitted in the e-CNA format.  Expiration of the RCC and the requirement to update the underwriting does not affect the CHAP. Any changes to the CHAP or possible revocation of a CHAP will be handled separately by the Transaction Manager, consistent with Recap’s current practices.

The use of Delayed Submission status will begin with RCCs issued on or after May 1, 2018.  If you have an RCC issued prior to May 1, contact your assigned Closing Coordinator to discuss your progress towards closing and/or possible RCC expiration.

Thanks,

RAD Resource Desk

www.radresource.net

email: resourcedesk@radresource.net

In July 2016 HUD issued guidance on the use of Property Assessed Clean Energy (PACE) assessments for single family properties with FHA-insured mortgages. In January 2017, HUD followed with guidance on the use of PACE assessments for multifamily properties with certain types of FHA insurance, HUD-held debt and rental assistance.

With the issuance of Mortgagee Letter 2017-18, FHA announced that single family properties with PACE assessments will no longer be eligible for FHA-insured forward mortgages. It is unclear if HUD will extend this policy shift to multifamily properties in the future, and we will continue to monitor any action by the agency on this topic.

To learn more about the use of PACE assessments in affordable housing development, please visit www.ballardspahr.com/PACEwebinar.

HUD issued a Notice of Extensions for PHAs in Presidentially Declared Disaster Areas.  Pursuant to the Notice, HUD is authorized, on a case-by-case basis, to grant public housing authorities located in Presidentially-declared disaster areas extensions to certain Rental Demonstration Assistance (RAD) Application submission deadlines.  These extensions may be granted to PHAs that have:  1) submitted a letter of intent to reserve their position on the RAD waiting list and subsequently been notified by HUD that they are eligible for an award following submission of a completed RAD application, portfolio award proposal, or multiphase award application; or 2) received a portfolio award and been provided 365 days from issuance of the portfolio award to submit acceptable RAD Applications for the remaining projects including in the portfolio award.  The Notice does not impose any time limitations with respect to qualifying disaster area designations.  PHAs interested in applying for an extension may either contact their RAD transaction manager directly or email RADapplications@hud.gov.

On August 9, HUD issued to Congress its 16th report on worst case housing needs in the United States, based on 2015 data.  Households with “worst case needs” are those that are very low income, do not receive government housing assistance and either pay more than 1/2 of their income for rent or live in severely inadequate conditions, or both.  Findings include:

  • Severe housing problems are increasing despite a decent economy.
  • In 2015, 8.30 million households had worst case needs. This is an increase from 7.72 million in 2013.  The record high for worst case needs is 8.48 million in 2011.
  • Worst case needs affect all types of households, whether examined by age and ethnicity, household structure, or location
    within metropolitan areas or region.

The report identifies a shift from homeownership to renting as the biggest cause of the increase in worst case needs.  For those of us who work with assisted housing or low-income families, its findings are unfortunately not a big surprise.  However, it underscores the significant unmet needs of so many low-income families.

In a new audit report, HUD’s Office of Inspector General (OIG) questioned certain costs paid by a public housing authority (PHA) for travel by the PHA’s commissioners.  The OIG alleges violations of uniform cost principals at 2 CFR Part 200, state open meeting laws, as well as the PHA’s own policies.  The report is a reminder to:

  • Remember that not all costs incurred while on official PHA business/educational travel are eligible for reimbursement with federal funds.  For example, PHAs should not reimburse commissioners or staff for alcoholic beverages purchased while on official business, even if other aspects of a meal are reimbursable. Although not addressed in this audit, many entertainment and social activity costs are also unallowable, though there are exceptions, such as situations in which such costs have a programmatic purpose.
  • Be mindful of a PHA’s internal policies pertaining to travel and reimbursements. The OIG and others will often look to internal policies to address situations that may be otherwise allowable under federal requirements.
  • Pay attention to potential conflict-of-interest situations. A PHA’s ACCs with HUD as well as procurement regulations and some state laws prohibit certain types of financial arrangements involving a PHA and its staff or commissioners. The ACCs in particular will prohibit these arrangements during and for one year after a commissioner’s tenure.

The U.S. Department of Housing and Urban Development (“HUD”) released the Fiscal Year 2017 Housing Trust Fund (HTF) allocation amounts on June 20, 2017, setting forth the amounts awarded to each state or territory under the HTF.  The total HTF allocation for Fiscal Year 2017 is $219,168,373.94, including $12,702,747.00 in unallocated funds from Fiscal Year 2016. The formula HUD uses to allocate funds is enumerated at 24 CFR Part 93; and based foremost on the ratio of the shortage of standard rental units both affordable and available to extremely low-income renter households in the state or territory to the aggregate shortage of standard rental units both affordable and available to extremely low-income renter households in the United States, with each recipient granted a minimum annual award of $3,000,000.00.

 

Specific allocation amounts are can be found at FR Doc. 2017–13180 (https://www.gpo.gov/fdsys/pkg/FR-2017-06-23/pdf/2017-13180.pdf).

At the National Housing Conference 2017 Annual Policy Symposium on June 9, 2017, HUD Secretary Ben Carson delivered the keynote address and participated in a Q&A session with Chris Estes, President and CEO of NHC.  While much of the keynote address focused on homeownership issues, remarks made during the Q&A included such topics as the Rental Assistance Demonstration (RAD) program, Housing First, veterans housing, rural housing, fair housing, and the Federal Housing Administration. 

With respect to RAD, the Secretary called it the “perfect example” to leverage funds to provide more affordable units through public private partnerships.  He called for the lifting of the RAD cap on units (currently 225,000 units), as he described the program as a “win win situation” in the context of spreading funds further in light of fiscal constraints.  In emphasizing “enhancing public private partnerships,” the Secretary specifically mentioned the use of low-income housing tax credits.   

A recording of the Secretary’s remarks can be found here.  Remarks relating to RAD can be found beginning at time stamp 12:42 and also at 21:47.