HUD Housing Notice § 2012-11

          U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

                                       Office of Housing
                             Office of Public and Indian Housing



Special Attention of:                                      NOTICE: PIH 2012-28
Multifamily Hub Directors                                  NOTICE: H 2012-11
Multifamily Program Center Directors
Supervisory Housing Project Managers                       Issued: June 11, 2012
Project Managers                                           Expires: This notice remains in
Resident Management Corporations;                          effect until amended, superseded, or
Contract Administrators                                    rescinded
Owners and Management Agents Administering
Multifamily Housing Rental Assistance Programs
                                                           Supersedes: H 2009-11 and
Public Housing Agency Directors                            PIH 2009-35 (HA)
Section 8 and Public Housing Administrators
HUD Directors of Public Housing
PIH Program Center Coordinators
Public Housing Division Directors

SUBJECT:      State Registered Lifetime Sex Offenders in Federally Assisted Housing

I.     PURPOSE

       This guidance reiterates owners’ and agents’ (O/As) and Public Housing Agencies’
       (PHAs) statutory- and regulatory-based responsibilities to prohibit admission to
       individuals subject to a lifetime registration requirement under a State sex offender
       registration program. If a participant who is subject to such a lifetime registration
       requirement was erroneously admitted into a federal housing program identified under
       Section II, below, and is found to be receiving housing assistance, O/As and PHAs must
       pursue eviction or termination of assistance for these participants. In addition, this
       Notice clarifies regulations concerning admissions and strongly recommends additional
       steps to prevent individuals subject to a lifetime registration requirement under a State
       sex offender registration program from receiving federal housing assistance.

II.    APPLICABILITY

       Screening requirements for state registered lifetime sex offenders apply to O/As and
       PHAs administering the following rental assistance programs:

             Section 202 Project Rental Assistance Contracts (PRAC)
             Section 811 PRAC
             Section 811 Project Rental Assistance (PRA) demonstration

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               Section 202/162 Project Assistance Contract (PAC)
               Section 202/8
               Section 202 Senior Preservation Rental Assistance Contracts (SPRACs)
               Section 8 Project-based
               Section 236
               Section 236 Rental Assistance Payment (RAP)
               Section 221(d)(3) Below Market Interest Rate (BMIR)
               Section 101 Rent Supplement
               Public Housing
               Tenant-based Housing Choice Voucher
               Project-based Certificate and Housing Choice Voucher
               Moderate Rehabilitation

III.   BACKGROUND

       The Office of Inspector General (OIG) conducted an audit of the Department of Housing
       and Urban Development’s requirement prohibiting lifetime registered sex offenders from
       admission to HUD-subsidized housing. The result of this audit estimated that 2,094 to
       3,046 assisted households included a lifetime registered sex offender as a household
       member. A copy of the Audit Report 2009-KC-0001, dated August 14, 2009, is located
       at: www.hudoig.gov/pdf/Internal/2009/ig0970001.pdf.

       Although this estimate is small in relation to the total number of households assisted
       through HUD programs, the potential public safety concern remains paramount. It is
       critical to ensure that HUD-assisted housing comply with the law barring admission of
       lifetime registered sex offenders in order to maximize resident safety.

IV.    STATUTORY AND REGULATORY CLARIFICATIONS

       A.       Mandatory Prohibition for Lifetime Sex Offenders- HUD regulations at
                 24 CFR § 5.856, § 960.204(a)(4), and § 982.553(a)(2) prohibit admission after
                June 25, 2001, if any member of a household is subject to a State lifetime sex
                offender registration requirement. This regulation reflects a statutory prohibition.
                A household receiving assistance with such a member is receiving assistance in
                violation of federal law.

                O/As and PHAs must follow the guidelines outlined in paragraphs B and C below
                in order to ensure that no lifetime sex offenders are admitted into federally
                assisted housing. Furthermore, if an O/A or PHA discovers that a household
                member was erroneously admitted (the household member was subject to a
                lifetime registration requirement at admission and was admitted after
                June 25, 2001), the O/A or PHA must immediately pursue eviction or termination
                of assistance for the household member. Regulations for hearings for the Public
                Housing (PH) and Housing Choice Voucher (HCV) programs, at 24 CFR § 966
                Subpart B and § 982.555, respectively, continue to apply.


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                  If an O/A or PHA erroneously admitted a lifetime sex offender, the O/A or PHA
                  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 PHA or O/A must terminate assistance for the household.

                  For admissions before June 25, 2001, there is currently no HUD statutory or
                  regulatory basis to evict or terminate the assistance of the household solely on the
                  basis of a household member’s sex offender registration status.

         B.       Applicant Residential History – Pursuant to 24 C.F.R. § 5.856 and § 5.905,
                  O/As and PHAs must perform criminal background checks during the application
                  stage to determine if an applicant, or a member of an applicant’s household, is
                  subject to a lifetime registration requirement under any State sex offender
                  registration program. Criminal background checks must be performed in the state
                  in which the housing is located and for states where the applicant and members of
                  the applicant’s household may have resided. As such, applicants for admission
                  into the applicable HUD-assisted housing programs must provide a complete
                  list of all states in which any household member has resided.1 Failure to
                  accurately respond to any question during the application process is cause to deny
                  the family admission. Additionally, PHAs and O/As must ask whether the
                  applicant, or any member of the applicant’s household, is subject to a
                  lifetime sex offender registration requirement in any state. PHAs and O/As
                  are reminded of their obligations with respect to Limited English Proficiency
                  when processing applications of families for admission and at recertification.
                  HUD’s Final Guidance to Federal Financial Assistance Recipients: Title VI
                  Prohibition Against National Origin Discrimination Affecting Limited English
                  Proficient Persons (LEP Guidance) can be found in the Federal Register at
                  72 FR 2732 (January 22, 2007).

                  O/As and PHAs determine, in accordance with their screening standards, whether
                  the applicant and the applicant’s household members meet the screening criteria.
                  If the processes described above reveal an applicant’s household includes an
                  individual subject to State lifetime sex offender registration, the O/As and PHAs
                  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 PHAs and O/As must deny admission to the family.

                  Before a PHA can deny admission to an applicant for PHA-administered
                  programs covered in this Notice, the applicant must be notified of the right to
                  dispute the accuracy and relevance of the criminal background check information
                  (see § 960.204(c) and § 982.553(d)).

                  For other programs covered in this Notice, an O/A must provide a rejected

1
 Alternatively, if a PHA has access to a national database covering sex offender registries in all states, the PHA may
use this in lieu of asking for a complete list of states on the application. The chosen method must be indicated in the
PHA admissions and occupancy and/or administrative plans. This option is not available for O/As.

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            applicant with a written rejection notice in accordance with the requirements at
            Paragraph 4-9.C of Handbook 4350.3 REV-1, Occupancy Requirements of
            Subsidized Multifamily Housing Programs.

     C.     Criminal Background Check Record Retention – PHAs must destroy the
            results of a criminal background check in accordance with the records
            management requirements in 24 C.F.R. §5.905(c); however, a record of the
            screening, including the type of screening and the date performed, must be
            retained.

            O/As must retain the results of the search, along with the application, in
            accordance with the requirements at Paragraph 4-22 of Handbook 4350.3 REV-1,
            Occupancy Requirements of Subsidized Multifamily Housing Programs.

V.   RECOMMENDED PROCEDURES

     In addition to the above regulatory requirements, HUD recommends that O/As and PHAs
     adopt new procedures at admission and at annual recertification/reexamination to prevent
     lifetime registered sex offenders from receiving federal housing assistance.

     A.     Admission – O/As and PHAs should verify the criminal history information,
            provided by the applicant. For example, PHAs and O/As are encouraged to use
            the Dru Sjodin National Sex Offender Database, an online, searchable database
            hosted by the Department of Justice, which combines the data from individual
            state sex offender registries and/or other available national, state, or local
            resources. The Dru Sjodin National Sex Offender database is available at:
            http://www.nsopw.gov. O/As and PHAs should also explore the use of other
            available databases through their local law enforcement agencies.

            In addition to screening adult members of the applicant’s household, HUD
            recommends that criminal background screening include juvenile members of the
            applicant’s household, to the extent allowed by state and local law.

     B.     Annual Recertification/Reexamination – HUD recommends that at annual
            recertification or reexamination, O/As and PHAs ask whether the tenant or any
            member of the tenant’s household is subject to a State lifetime sex offender
            registration program in any state. O/As and PHAs should verify this information
            using the Dru Sjodin National Sex Offender Database and/or other official
            federal, state, and local resources and document this information in the same
            manner as at admission.

            If the recertification screening reveals that the tenant has falsified information or
            otherwise failed to disclose criminal history on his/her application and/or
            recertification forms, the O/A or PHA should pursue eviction or termination of
            assistance, as described in section IV.a, above.



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              Notwithstanding the above, if the tenant or a member of the tenant’s household,
              regardless of the date of admission, engages in criminal activity (including sex
              offenses) while living in HUD-assisted housing, the O/A or PHA should pursue
              eviction or termination of assistance to the extent allowed by HUD requirements,
              the lease, and state or local law.

VI.   PAPERWORK REDUCTION ACT

      The information collection requirements contained in this document have been submitted
      to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of
      1955 (44 U.S.C. 3501-3520) and assigned OMB control numbers 2577-0169, 2577-0083,
      and 2502-0178. In accordance with the Paperwork Reduction Act, HUD may not
      conduct or sponsor, and a person is not required to respond to, a collection of information
      unless the collection displays a currently valid OMB control number.

VI.   ADDITIONAL INFORMATION

      Requirements for the prohibition of admission to applicants who are lifetime registered
      sex offenders and for obtaining criminal background checks are found at
      24 C.F.R. Part 5, Subparts I and J; § 960.204(a)(4); § 982.553(a)(2); and in HUD
      Handbook 4350.3 REV-1, Occupancy Requirements of Subsidized Multifamily Housing
      Programs.

      Questions regarding this Notice pertaining to the Office of Housing’s programs may be
      directed to Mr. Zeljko Jovanovic at 202-402-3157 or Zeljko.Jovanovic@hud.gov.
      Questions pertaining to the Office of Public and Indian Housing’s Housing Choice
      Voucher and Public Housing programs may be directed to Ms. Caroline Crouse at
      202-402-4595 or Caroline.P.Crouse@hud.gov. Persons with hearing or speech
      impairments may access this number via TTY by calling the Federal Information
      Relay Service at (800) 877-8339.




_________/s/________________________               ____________/s/_________________________
Carol J. Galante, Acting Assistant Secretary for   Sandra B. Henriquez, Assistant Secretary for
Housing-Federal Housing Commissioner               Public and Indian Housing




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                                                                                               Attachment


                    State Registered Lifetime Sex Offenders in
          the Housing Choice Voucher and Public Housing Programs FAQ

These FAQs are issued by HUD’s Office of Public and Indian Housing (“PIH”) to address questions raised
by Notice PIH 2012-28, which was issued on June 11, 2012. These FAQs are intended as a supplemental
resource to Notice PIH 2012-28.


   Do Adam Walsh Act (AWA) Tiers affect admissions into federally assisted housing?
    The AWA specifies registration requirement lengths for each tier of sex offense; Tier 1 requires
    registration for 15 years, Tier 2 requires registration for 25 years, and Tier 3 requires registration for
    life. However, it is important to note that many states have not fully implemented the AWA.
    Additionally, states may require registration time lengths longer than those outlined under the
    AWA. PHAs should consult state law to determine the length of time an applicant is required to
    register under state law and, if the applicant is subject to a lifetime registration requirement under
    state law, the applicant cannot be admitted to HUD assisted housing even if the applicant’s sex
    offense is a Tier 1 or Tier 2 offense.

   If a state changes its sex offender registration laws/regulations so that persons who were on the
    Sex Offender Registry for a certain number of years (less than life) may be reclassified to Lifetime
    status, should PHAs terminate participants based on their new status on the Lifetime Sex Offender
    Registry?
    Current HUD regulations at 24 CFR §982.553(a)(2) and §960.204(a)(4) only require that persons
    subject to lifetime registration requirement under a State sex offender registration program be
    banned from admission, not be terminated. Residents who become sex offenders subject to
    lifetime registration after admission are already participants in the program. However, note that if
    the reclassification occurs prior to admission into federally assisted housing, the PHA would be
    required to deny admission to the person registered as a lifetime sex offender. As an administrative
    precaution, PHAs may choose to indicate in the files of any residents or participants that their
    offender status was reclassified after admission, provided that the PHA follow the rules for Records
    Management outlined at 24 CFR 5.905(c). See below for information about termination of
    assistance.

   Some states allow individuals subject to lifetime sex offender registration requirements to appeal
    the requirement and be reclassified after a certain number of years on the registry. Are applicants
    who are currently subject to lifetime sex offender registration, but who have the right to appeal
    this requirement still barred from federally assisted housing?
    Yes. A PHA must only consider the registration requirement at the time of application; if, at that
    time, the applicant is required to register for life, the PHA must deny the application. If an
    individual successfully appeals the lifetime registration requirement and reapplies following the
    successful appeal, the offender is not barred at the time of the reapplication because the individual
    is no longer subject to a lifetime registration requirement.
                    State Registered Lifetime Sex Offenders in
          the Housing Choice Voucher and Public Housing Programs FAQ


   Can a PHA create a policy that denies admission to applicants for the duration of their sex
    offender registration requirement, if the registration requirement is less than life?
    No. PHAs may only create policies that deny admission under categories identified in 24 CFR
    §982.552, §982.553 and §960.204. With the exception of the ban on admission for those individuals
    subject to a lifetime registration requirement, requirements to register as a sex offender do not fall
    under these regulations.

   What happens if someone commits a sexual crime after they are already a participant in the
    Housing Choice Voucher (HCV) or Public Housing programs and they are then required to register
    as a sex offender?
    A PHA may pursue termination of a sex offender (lifetime or otherwise) under current HCV
    regulations if the offender engaged in violent criminal activity or other criminal activity that
    threatens the health, safety, or right to peaceful enjoyment of other residents and persons residing
    in the immediate vicinity of the premises. PHAs may pursue termination of sex offenders based on a
    preponderance of evidence that a member of the household has engaged in one of the above
    activities, regardless of whether the member of the household has been arrested or convicted of the
    offense. However, as outlined in Notice PIH 2015-19, PHAs should not rely on an arrest record alone
    to pursue termination under this regulation.

    In general, PHAs may terminate assistance for anyone who threatens the health and safety of
    another resident or PHA staff. When the threat involves an individual with a disability, PHAs may
    terminate assistance if the individual poses a direct threat to the health or safety of others that
    cannot be mitigated by a reasonable accommodation. Please note that sex offender status is not a
    protected class under the Fair Housing Act. If any voucher holders or public housing tenants pose
    such a threat, the PHA may terminate their assistance (See 24 CFR §982.551(l); §982.553(b)(2) and
    §966.4(l)(5)).

   What happens if an applicant was a sex offender subject to a lifetime registration requirement,
    but the applicant was wrongfully admitted into the HCV or Public Housing program?
    If a PHA finds out that an applicant was wrongfully provided assistance under the HCV or Public
    Housing program, the PHA must pursue termination procedures against the sex offender, as that
    applicant is ineligible and could not have been provided any assistance but for an oversight of the
    PHA or a false representation by the applicant (see generally §982.201(a) and §966.4(l)(2)(iii)(B);
    Notice PIH 2012-28; 42 USC §13663(a)).