HUD Seeks Comments on Rulemaking for Over-Income Public Housing Households

HUD recently issued an Advance Notice of Proposed Rulemaking (ANPR) in the Federal Register to seek comments on how HUD can structure policies to ensure that individuals and families residing in public housing are in need of continued assistance from HUD.

An ANPR is a request for input and is not a formal stage in the rulemaking process. According to HUD’s recent ANPR, HUD is “considering rulemaking” on over-income families and individuals as a result of a 2015 report from HUD’s Office of Inspector General that found that as many as 25,226 of the approximately 1.1 million households living in public housing had incomes greater than the maximum (80 percent AMI) allowed to qualify for initial admission to public housing.

The current rule governing over-income families was published in 2004. This rule gives public housing agencies (PHAs) discretion to implement policies related to terminating assistance or evicting over-income families. The statute does not require or prohibit eviction of over-income families. With this ANPR, HUD is seeking input on whether to change the 2004 rule to require PHAs to terminate assistance and evict families with incomes that “significantly” exceed the income limits for a “sustained” period of time. Any such changes to the 2004 rule would be promulgated through a formal rulemaking process.

In anticipation of a proposed rulemaking, HUD specifically solicits comment on the following issues:

• How should HUD define income that “significantly” exceeds the income limit for public housing residency? Should such higher amount be determined by dollar amount, by a percentage, or as a function of the current income limit, and what should the amount be?
• Should area cost of living and family finances be taken into consideration when determining whether an individual or family no longer needs public housing assistance? Are there limits to the circumstances in which said data should be requested and applied in a determination?
• What period of time in which an individual or family has had income that significantly exceeds the income limits should be determined as indicative that the individual or family no longer needs public housing assistance?
• How should local housing market conditions or housing authority wait list data be considered?
• What period of time should be allowed for an individual or family to find alternative housing?
• Are there exceptions to eviction or termination of tenancy that HUD should consider beyond those listed in HUD’s regulation?
• Should HUD allow over-income individuals or families to remain in public housing while paying unsubsidized or fair market rent? How would such a provision impact PHA operations and finances?
• Should HUD require a local appeals process for individuals or families deemed over-income?
• Where over-income policies have been implemented, what were the results to public housing residents and PHAs? What were the specific positive and negative impacts?
• What financial impact would over-income policies have on PHA operations, and how can any negative impacts be mitigated?
• What are the potential costs and benefits to public housing residents and PHAs that could result from the forcible eviction of public housing tenants?
• What evidence currently exists in favor of or against the adoption of this type of policy?

Comments on the ANPR are due March 4 and can be made electronically through the Federal eRulemaking Portal at www.regulations.gov.