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Policies > Section 8 Admin Plan Ch 6: Denial of Voucher & Applicant Appeals

Section 8 Admin Plan

Chapter 6:Denial of Voucher & Applicant Appeals

6.1 Denial of a Voucher 

6.1.1 Definitions

(a)        Denial means a BHA action which denies listing on the BHA waiting list, denying or withdrawing a Voucher, refusing to enter into a HAP Contract or approve a Lease or refusing to process or provide assistance under Portability procedures. 
(b)        Drug Related Criminal Activity means: 

(i)         The manufacture, sale, distribution, or use, or the possession with intent to manufacture, sell or distribute a controlled substance, as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802);
(ii)         The use or possession (other than with intent to manufacture, sell or distribute) of a controlled substance, except that such use or possession must have occurred within one year before the date that the PHA provides notice to an Applicant to deny Admission pursuant to 24 C.F.R. § 982.553.             

(c)        Violent Criminal Activity: means any criminal activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or to be reasonably likely to cause, serious bodily injury or property damage.
(d)        Denial Due to Domestic Violence.  The BHA will not deny the assistance of a Family solely for the reason of being a victim of Domestic Violence, Stalking, or Dating Violence, unless there is an actual or imminent threat to other tenants or those employed at or providing service to the property if that tenant is not denied the assistance.  See also section 1.2.5. 

6.1.2    Mandatory Denial 

The Family must be denied a Voucher, even if they are otherwise eligible:
(a)        If any Family Member fails to sign and submit Consent forms for obtaining information in accordance with this Administrative Plan and 24 C.F.R. part 5, subpart B and F.
(b)        If any Family Member fails to submit required evidence of citizenship or eligible immigration status (or non-contending forms) in accordance with 24 C.F.R. part 5, subpart F and Section 5.6 of this Administrative Plan.
(c)        If any Family Member has ever been convicted of drug-related criminal activity for manufacture or production of methamphetamine on the Premises of federally assisted housing, the BHA will permanently prohibit Admission to the Section 8 program.
(d)        If any Family Member is subject to a lifetime registration requirement under a State sex offender registration program in Massachusetts or any other State.
(e)        If any Family Member has been evicted from federally assisted housing within the last three years for Drug Related Criminal Activity. However, the BHA may admit the Family if the BHA determines:              

(1)        That the evicted Family Member who engaged in the drug-related criminal activity has successfully completed a supervised drug rehabilitation program.
(2)        That the circumstances for leading to eviction no longer exist (for example, the criminal Family Member has died or is serving a lengthy prison term).

(f)         If the Family member is currently engaged in illegal use of a drug.
(g)        If the BHA determines that there is reasonable cause to believe that a Family member’s illegal drug use or a pattern of illegal drug use may threaten the health, safety, or right to peaceful enjoyment of the Premises by other residents.
(h)        If the BHA determines that it has reasonable cause to believe that a Family member’s abuse or pattern of abuse of alcohol may threaten the health, safety, or right to peaceful enjoyment of the Premises by other residents. 

6.1.3    Discretionary Denial 

The BHA may deny a Family a Voucher, even if they are otherwise eligible, if any Family member:
(a)               Owes uncollected rent and/or miscellaneous charges, such as, court costs, constable fees, or other related fees arising during the Applicant’s receipt of benefits from any program administered by the BHA or Other Publicly Assisted Housing Program.
(b)               Has failed to reimburse the BHA or another PHA for rent or any other amount paid to an Owner under a contract or Lease provision;
(c)               Has committed fraud, bribery, or any other corrupt or criminal act in connection with any state or federal housing assistance program;
(d)               Has violated any Family obligation under the Section 8 Program as stated in 24 C.F.R. § 982.551 or listed in section 13.4.2;
(e)               Has breached an agreement to repay a debt to the BHA;
(f)                 Any Family member is currently engaged in, or has engaged in during a reasonable[1] time before the Admission: 

(1)        Drug Related Criminal Activity;           

(i)         The BHA may not deny assistance due to use or possession of a controlled substance by a Family member if the Family member can demonstrate that s/he has an addiction, has a record of an addiction, or is regarded as having an addiction to a controlled substance, and is recovering or has recovered from such addiction and does not currently use or possess a controlled substance. The BHA may require a Family member who has engaged in the illegal use of a controlled substance to submit evidence of participation in, or successful completion of, a treatment program as a condition to being allowed to reside in the Unit (see also section 6.1.5(c)). 

(2)        Violent Criminal Activity;
(3)        Other criminal activity which may threaten the health, safety, or right to peaceful enjoyment of the Premises by other residents or persons residing in the immediate vicinity; or
(4)        Other criminal activity which may threaten the health or safety of the Owner, property management staff, or  persons performing a contract administration function on  behalf of the BHA (including a BHA employee or a BHA contractor, subcontractor, or agent). 

(g)               Has engaged in or directed abusive, threatening or violent behavior toward BHA personnel;
(h)               Has been evicted from federally assisted housing in the last five years; or
(i)                  If a PHA has ever terminated assistance under the program for any member of the Family. 

 6.1.4    Denial of Eligibility and Notice to Applicant  

 (a)       Opportunity to Mitigate criminal record prior to denial of eligibility. If the BHA would otherwise deny Admission based upon information contained in an accessed criminal record, the BHA will give the Applicant Family an opportunity to mitigate or dispute the accuracy and relevance of that record in accordance with 24 C.F.R. § 982.553(d). See also section 6.1.5. 
If the BHA obtains criminal record information showing that an Applicant Family member has been convicted of a crime relevant to eligibility, the BHA will notify the Applicant of the proposed denial and provide the subject of the record and the Applicant a copy of such information, and an opportunity to dispute the accuracy and relevance of the information. The BHA will send the Applicant a letter offering the Applicant the opportunity to provide information by mail to dispute, resolve, or mitigate the criminal record information. The BHA will also provide the Applicant and the subject of the criminal record with a copy of the criminal record and let the Applicant know which portion of the record appears to make the Family ineligible. Upon receipt of additional information from the Applicant, the BHA will review the information and inform the Applicant of the decision. (See also section 5.7 for more information on criminal record reports)
(b)        Notice of Denial to Applicant. When the BHA determines, based on a preponderance of the evidence, that an Applicant Family is ineligible for one of the reasons stated above, the BHA will notify the Applicant in writing that the BHA is denying assistance for the program. The BHA will notify the Applicant of the reason for the decision and the information relied upon in reaching the decision. The notice will include: 

(1)        The ground(s) for denial;
(2)        That the Applicant has  twenty (20) days, or thirty (30) days for action taken under HUD non-citizen rule cases, to request in writing an informal review with the BHA to review denial;
(3)        That the Applicant shall have a right at the informal review (see section 6.2) to review their file at the review or prior to the review, to present a defense to the adverse information, present evidence or information which might warrant an approval for Section 8 Assistance;
(4)        That if an Applicant believes the adverse information is incorrect and wishes to pursue modification or correction of the criminal record, (s)he can request that the BHA keep the Applicant’s application open for 90 days for such purpose;
(5)        That the Applicant has a right to request that the BHA consider a Reasonable Accommodation in evaluating said Applicant’s eligibility if (s)he is disabled or handicapped as defined in 29 U.S.C. § 706(8)(B) or other applicable law. 

(c)        Withdrawal. If an Applicant is deemed ineligible for the Section 8 Program, they will be withdrawn from all Section 8 waiting lists.  

6.1.5    Consideration in Certain Denials 

(a)        Consideration of circumstances generally. The BHA has the discretion to consider all of the circumstances in each case including, but not limited to, the seriousness of the offense, the extent of the criminal history, the extent of participation by Family members, and the effects that denial will have on Family members not involved in the alleged activity.  
(b)        Reasonable Accommodation. The BHA shall consider a request for Reasonable Accommodation by an Applicant who has a disability or handicap, has a record of a disability or handicap, or is perceived as having a disability or handicap. The BHA will follow its Reasonable Accommodation Policy to determine whether or not an Accommodation should be made for an Applicant who is a Disabled Person.
(c)        Mitigating Circumstances. The BHA shall consider mitigating circumstances such as active participation in, or completion of, a supervised drug treatment program.
(d)        Admission of a portion of the Family. The BHA may, in its discretion, admit only a portion or certain members of the Family to the HCVP, if there is sufficient evidence that the Family member who engaged in the alleged activity will not reside in the Unit or if the Head of Household certifies that the Family Member who engaged in the alleged activity will not reside in the Unit.
(e)        Project based vs. tenant-based assistance. The BHA may consider whether the Applicant is to receive project based assistance, which has as one of its components supportive services that may be appropriate for the Applicant.
(f)         Domestic Violence.  The BHA may consider an incident or incidents directly related to Domestic Violence, Dating Violence, or Stalking as mitigating circumstances when the incident or incidents of Domestic Violence, Dating Violence, or Stalking is directly related to the reason for denial.  

6.2       Informal Reviews for Applicants 

6.2.1    Right to an Informal Review 

Applicants who are determined Ineligible for Admission, issued a Notice of Withdrawal, or denied Priority status or Preference(s) by the BHA will be sent a notice that:
(a)        Informs the Applicant of the reason(s) for Ineligibility, withdrawal or denial of Priority status or Preference(s);
(b)        Advises the Applicant of his/her right to contest the decision in an informal review provided a written request for a hearing is received within twenty (20) calendar days of the date the Notice of Denial is issued. The request must be in writing and must state clearly the basis for requesting the informal hearing and be sent to the address provided on the notice;
(c)        Advises the Applicant of his/her right to contest the CORI information in accordance with Federal and/or State law if that is the basis for determination of Ineligibility;
(d)        Advises the Applicant that if s/he has a disability, not previously disclosed, that the disclosure of such condition would lead to the consideration of Mitigating Circumstances and/or a Reasonable Accommodation, if related to the disability. Advises the Applicant that if s/he requests a Reasonable Accommodation at the time of or after requesting an informal hearing, the hearing officer will make the decision regarding the accommodation;
(e)        Advises the Applicant that if s/he has been the victim of Domestic Violence, Dating Violence, or Stalking, that such situations could be considered as Mitigating Circumstances if they are directly related to the negative information. Advises the Applicant that if s/he requests consideration of Mitigating Circumstances at the time of or after requesting an informal hearing, the hearing officer will make the decision regarding the circumstances;
(f)         Provides a description of BHA's informal review process and advises Applicants that they have the right to be represented by an attorney or other individual at the informal review, review the contents of their file in advance of the hearing, and the right to submit additional documents and evidence and to testify at the review;
(g)        The hearing officer may consider mitigating circumstances or a reasonable accommodation presented at the hearing when determining whether or not to deny the assistance of an applicant.  

6.2.2    Time to Request an Informal Review 

The time to request an informal review shall be twenty (20) days from the date of notice of withdrawal, denial of assistance to the Family, denial of Priority and/or Preference, denial of a place on the appropriate waiting list, or denial of issuance of a Voucher, except in Non-Citizen Rule cases where the time period shall be thirty (30) days from the date of the notice of denial of assistance for any Family member. The BHA will grant a request for a hearing when an Applicant submits a late request, but submits evidence of compelling circumstances, such as a health condition or Domestic Violence, Dating Violence, or Stalking, that prevented the Applicant from requesting a hearing within twenty (20) days.   

6.2.3    Scheduling the Informal Review 

When the BHA receives the Applicant's written request the Department of Grievances and Appeals (“DGA”) will schedule an informal review.
(a)        Notice of Informal Review. The DGA will notify the Applicant in writing of the date, time and place of the review. The BHA will send the notice to the Applicant’s address of record. The notice shall also restate the Applicant’s rights to present evidence and testify, review their file, request a Reasonable Accommodation or interpreter and right to be represented by an attorney or other individual at the hearing. The review shall be held at a convenient time and at an accessible location for the Applicant and the BHA. If an Applicant requests a Reasonable Accommodation at the time of or after requesting an informal review, the hearing officer will make the decision regarding the accommodation.
(b)        Default.  The BHA will withdraw an Applicant from the waiting list if the Applicant does not attend the informal review and did not attempt to reschedule twenty-four (24) hours prior to the review. The BHA will reschedule an informal review when a Participant submits evidence of compelling circumstances that prevented the Participant attending the hearing on the scheduled date. 

6.2.4    Applicant Rights during the Informal Review 

During the hearing, the BHA will put forth its evidence in support of a determination of Ineligibility, Withdrawal, or denial of Priority status or Preference(s). The Applicant will have an opportunity to present evidence and testimony rebutting the basis for the BHA’s determination. 

6.2.5    Due Process Requirements 

The informal review will conform to the following due process requirements:
(a)        An employee of the BHA who did not participate in the original decision must conduct the review.
(b)        The hearing officer must base the decision solely on evidence presented at the hearing as well as any evidence previously received by the BHA. All evidence submitted at the hearing shall be considered de novo, and the matter shall not be remanded to the Leased Housing Division or Occupancy Department for reconsideration due to submission of new evidence.
(c)        The Applicant and/or his/her representative has a right to inspect the file prior to the review, provided the Applicant provides BHA with written authorizations permitting the representative to have access to the contents of the Applicant's file and/or CORI.
(d)        Either the Applicant or the BHA may request after close of the review that the record remain open for a reasonable time for submission of new evidence. At the discretion of the hearing officer, the date may be only extended for good cause (such as the inability of the Applicant for reasons outside his/her control to provide a particular document by the requested date). Written notice of the record being held open, the cause for an extension if any, and the date the record will close will be given to the Applicant and kept in the BHA case file. 

6.2.6    Informal Review Decisions 

After the informal review, all Applicants will be sent an “Informal Review Decision” from the BHA hearing officer. This notice shall:
(a)        Provide a summary of the review;
(b)        Provide the decision of the hearing officer, together with findings and determination;
(c)        Provide an explanation of the regulations and/or other applicable provisions utilized in making the decision; 

6.2.7    Reversal of BHA's Determination of Ineligibility 

If the BHA reverses the determination to deny the Applicant assistance or Priority or Preference status, the application will return to its appropriate place on the waiting list(s) for all programs previously selected by the Applicant.  The BHA will restore the status or position in accordance with the determination. 

6.2.8    Confirmation of the BHA's Determination of Ineligibility

(a)        If the decision or an appeal upholds the determination of Ineligibility the Applicant may submit a new application for admission at a time when a waiting list is open but no earlier than eighteen (18) months after the decision of Ineligibility is confirmed.  This period of time may permit the Applicant and/or Household Member to correct the behavior or situation that resulted in rejection.  A shorter period, as determined by the Authority, to be appropriate under the circumstances of the rejection, or any new Application, may be allowed.
(b)        Applicants who are withdrawn may submit a new Application at any time provided a waiting list is open.
(c)        Applicants denied Priority Status, Preference(s), or Reasonable Accommodation may re-apply for the same or a different Priority or Preference at any time provided a waiting list is open except as provided for in this policy.

[1] For the purposes of this provision, reasonable will depend on the individual circumstances.