HUD PIH Notice § 2017-03

                                 U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
                                                   WASHINGTON, DC 20410-5000


OFFICE OF PUBLIC AND INDIAN HOUSING




SPECIAL ATTENTION OF:                                      Notice PIH-2017-03

 Regional Directors; State and Area                         Issued: February 15, 2017
 Coordinators; Public Housing Hub Directors;
 Program Center Coordinators; Troubled                      This Notice remains in effect until
 Agency Recovery Center Directors; Special                  amended, superseded or rescinded
 Applications Center Director; Administrators;
 Resident Management Corporations; Public
 Housing Agencies; Healthy Homes
 Representatives
                                                            Cross Reference:

SUBJECT: HUD Guidance on Instituting and Enforcing Smoke-Free Public Housing Policies
A. Purpose

     This Notice provides guidance for “Instituting Smoke-Free Public Housing” (FR-5597-F-03)
(the “Smoke-Free Rule” or “Rule”). The Rule is intended to improve indoor air quality, benefit
the health of public housing residents and PHA staff, reduce the risk of fires, and lower overall
maintenance costs. The Rule becomes effective 60 days after publication in the Federal
Register. Once effective, PHAs will have 18 months to implement their smoke-free policies.
PHAs must design and implement a policy barring the use of prohibited tobacco products in
all public housing living units, interior common areas and outdoor areas within 25 feet from
public housing and administrative office buildings (collectively, “restricted areas”). The Rule
does not prohibit smoking by residents; rather, it requires that residents who smoke do so at
least 25 feet away from the buildings.

        Prohibited tobacco products are defined as items that involve the ignition and burning
         of tobacco leaves, such as: cigarettes, cigars, pipes and water pipes1 (also known as
         hookahs)
        Interior common areas include but are not limited to: hallways, rental and
         administrative offices, community centers, day care centers, laundry centers, and similar
         structures

PHAs should begin the process of implementing smoke-free policies as soon as possible. PHAs
are strongly encouraged to work with resident councils, provide residents with information on
cessation assistance, post notices, and distribute information to residents about the smoke-free


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     Water pipes (hookahs) are smoking devices that use coal or charcoal to heat tobacco, and then draw the smoke
    through water and a hose to the user. Both the heating source and burning of tobacco are sources of contaminant
    emissions.
policy. Waiver requests of Rule requirements will be considered with appropriate
justification, pursuant to 24 CFR 5.110.

B. Applicability

     The Smoke-Free Rule applies to all public housing units other than dwelling units in mixed-
finance buildings. Under this Rule, “public housing” means low-income housing, such as,
community facilities, public housing offices, day care centers, and laundry rooms assisted under
the U.S. Housing Act of 1937 (the 1937 Act), other than assistance under section 8 of the 1937
Act.

C. Implementation

1. Amendments to PHA Plans

    PHAs are required to:

       obtain board approval when creating their individual smoke-free policies and
        document their smoke-free policies in their PHA plans, and

       determine whether an adoption of their smoke-free policies constitutes a significant
        amendment or modification to the PHA Plan. If it is determined to be a significant
        amendment, the PHA must conduct public meetings according to standard
        amendment procedures.

2. Lease Amendments

    PHAs are required to:

       amend individual resident leases; all residents must sign the lease amendment as a
        condition of their continuing occupancy,

       incorporate the requirement that residents in public housing, members of a resident's
        household, resident’s guest, or other person under the resident’s control must not
        engage in any smoking of specified prohibited tobacco products in restricted areas, or in
        other outdoor areas that the PHA has designated as smoke-free, and

       notify a resident of a written revision to an existing lease at least 60 days before the
        lease revision is to take place, and give residents a reasonable amount of time for the
        resident to accept the revision

    Additionally, PHAs may provide a specific date that the policy will take effect. Lease
    amendments may be processed anytime during the 18-month required timeframe; lease
    amendments should note the availability and location of any designated smoking areas
    (DSAs).

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  PHAs will have flexibility as to how the lease amendment process occurs doing the 18-month
  implementation period after the Rule’s effective date.

3. PHA Flexibility

  The Smoke-Free Rule allows PHAs the flexibility to implement their smoke-free policies.
  PHAs are encouraged to utilize their flexibility as appropriate; however, they should be
  aware that adoption of stricter smoke-free policies may expose them to legal risk under State
  or local law. The following list, while not exhaustive, contains some examples of PHA
  flexibilities:

         Prohibition on Electronic Nicotine Delivery Systems (ENDS)

         Limitation on smoking to Designated Smoking Areas (DSAs) only

         Requirement of a smoke-free perimeter greater than 25 feet

         Requirement for an entire campus to be smoke-free

4. Signage

  PHAs are strongly encouraged to post signs that reference the new smoke-free policy. These
  signs must be accessible to all residents and visitors (including persons with disabilities), and
  must be posted in multiple languages consistent with the Department’s current guidance on
  Limited English Proficiency, issued in accordance with Executive Order 13166 (Improving
  Access to Services for Persons with Limited English Proficiency, signed August 11, 2000,
  and published in the Federal Register on August 16, 2000, at 65 FR 50121) (24 CFR
  5.2005(a)(3)). PHAs are also encouraged to use various communication methods (e.g.,
  letters, flyers, seminars, etc.) to share this information.

5. Funding

  Costs of implementing smoke-free policies may be covered through operating reserves and
  eligible capital fund activities. All PHAs may request insurance premium allowances from
  their insurance providers after implementing smoke-free policies due to decreased fire risk.
  Budget flexibility is also permitted to the extent provided under arrangements such as the
  Moving to Work program.

6. ENDS

  The use of ENDS in public housing is not prohibited. However, research on ENDS is
  emerging and evidence has revealed that the aerosol exhaled by ENDS users contain nicotine
  and potentially harmful ingredients but generally at much lower levels than tobacco smoke.
  PHAs have the flexibility to prohibit ENDS in their individual smoke-free policies as they
  deem appropriate. For example, PHAs may prohibit ENDS in all developments and common

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   areas or PHAs may allow the use of ENDS, within the unit, but prohibit ENDS in common
   areas or campus-wide. Residents should always be considered prior to adopting stricter
   smoke-free policies than the standards in the Rule. PHAs that choose to prohibit ENDS
   must amend all individual resident leases as mentioned in section C.2. of this notice.

7. DSAs

   PHAs may provide DSAs to accommodate smoking residents. All DSAs must be outside of
   restricted areas, and may include partially enclosed structures. DSAs should include suitable
   wellness and safety features, such as appropriate seating and shade and must be accessible for
   persons with disabilities, in accordance with section 504 of the Rehabilitation Act of 1973
   (and HUD’s implementing regulations at 24 CFR part 8), Title II of the Americans with
   Disabilities Act, and the Fair Housing Act. This may include a flat or paved pathway, ramp,
   and adequate lighting. DSAs are not required under the Rule, however if provided, PHAs are
   encouraged to include DSA funding in future capital needs planning. PHAs without sufficient
   space may work with their local municipalities to identify nearby public areas where
   residents may smoke safely. If available, PHAs may provide smoking residents the option to
   move to an alternate site with greater access to outdoor smoking.

D. Enforcement and Monitoring Tools

    Lease and appropriate PHA Plan amendment(s) are the primary policy enforcement
mechanisms. PHAs must enforce smoke-free policies when a resident is violating the policy.
When enforcing the lease, PHAs must provide due process and allow residents to exercise right
to an informal settlement process and a formal hearing, pursuant 24 CFR § 966 Subpart B. PHAs
may not evict for a single incident of smoking, in violation of a smoke-free policy.

1. Graduated Enforcement Approach and Monitoring Tools

   PHAs are encouraged to adopt a graduated enforcement framework that includes escalating
   warnings with documentation to the tenant file. Under this approach PHAs would take
   specific, progressive monitoring and enforcement actions, while educating tenants and
   providing smoking cessation resources or referrals, prior to pursuing tenant eviction for
   smoke-free policy violations. A graduated enforcement framework may include the
   following:

       lease amendment by the PHA that identifies the actions that constitute a policy
        “violation”

       agreement between the PHA and Resident Council that quantifies the number of
        documented, verified violations that warrant enforcement action

       pursuit by PHA of one or more monitoring and enforcement actions in combination or
        in sequence that allows the tenant time to address violation

       documentation of noncompliance if there are repeated violations, persistent non-
        responsiveness, or non-compliance with disciplinary actions. The PHA Plan should note

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     how many non-compliances with the Smoke Free policy would constitute a violation of
     the lease.

     eviction proceedings initiated by the PHA, though tenancy termination and eviction
     should only be pursued as a last resort.

   PHAs have the discretion to employ a range of techniques and tools to monitor and
enforce compliance with their smoke-free policies. The following monitoring and
enforcement tools appear below in the order of increasing severity.

     a. Intensified Compliance Monitoring

            Increased Inspection Frequency. Upon issuance of a written warning from
            the property manager and/or a documented complaint, the PHA may increase
            the frequency of unit inspections for a suspected policy violator.

            Violator Rehabilitation. To the extent a violation has been confirmed, the PHA
            may provide information and resources on smoking cessation. PHAs may
            consider a policy that automatically clears or resets the record of a resident if
            they do not have any new policy violations for a specified period of time.

     b. Lease Terminations/Transfers

            Termination of Tenancy. The PHA may terminate the tenancy at any time—
            including violations of the Lease Addenda and failure otherwise to fulfill
            household obligations if resident behaviors disturb other residents’ peaceful
            enjoyment of their accommodations and are not conducive to maintaining the
            property in a decent, safe and sanitary condition.

            “Other good cause” Termination. Repeated violations of the Smoke Free Rule
            could rise to the level of other good cause for termination of tenancy pursuant to
            24 CFR § 966.4(l)(2)(iii). For instance, the PHA might determine that it is in the
            best interest of all the parties to offer a resident other assistance under the PHA’s
            control (e.g., section 8) and allow the resident to move from the property.

     c. Eviction

            Eviction. The PHA may pursue resident eviction after unsuccessfully pursuing
            resident compliance with the policy over a reasonable period of time, and
            subject to grievance procedures.

2.   Reasonable Accommodation Requests

   Addiction to nicotine or smoking is not a disability. A PHA must still provide reasonable
accommodations to persons with disabilities who smoke that are in compliance with the
requirements of the PHA’s smoke-free policies. Under section 504 of the Rehabilitation Act

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   of 1973 (and HUD’s implementing regulations at 24 CFR part 8), Title II of the Americans
   with Disabilities Act, and the Fair Housing Act, PHAs are prohibited from discriminating,
   excluding from participation in a program, or denying the benefits of a program on the basis
   of disability and must make reasonable accommodations in their rules, policies, practices,
   and services. A reasonable accommodation is a change, adaptation or modification to a
   policy, rule, program, service, practice, or workplace which will allow a qualified person
   with a disability to participate fully in a program, take advantage of a service, or perform a
   job. In order to show that a requested accommodation may be necessary, there must be an
   identifiable relationship, between the requested accommodation and the individual's
   disability. This relationship must be determined on a case-by-case basis by the PHA.

       When a reasonable accommodation is requested, the PHA must make the accommodation
   unless the PHA can demonstrate that doing so would result in a fundamental alteration in the
   nature of its program or an undue financial and administrative burden. For example, an
   individual with a mobility disability may request a reasonable accommodation in order to
   move to a floor which provides close proximity to the door. This would allow the resident
   easier access to a smoking area as required by the rule. Such a request would need to be
   evaluated on a case-by-case basis in order to make a determination. However, a PHA may
   not permit continued smoking in restricted areas.

       General guidance on the reasonable accommodation process can be found at
   http://go.usa.gov/cJBBC. The Department also issued reasonable accommodation guidance
   entitled, “Joint Statement of the Department of Housing and Urban Development and the
   Department of Justice on Reasonable Accommodations under the Fair Housing Act,” which
   can be found at
   http://www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf. The
   Department’s guidance, “Change is in the Air,” (see Resources below), provides examples of
   how PHAs have approached and managed smoke-free policies for residents with disabilities.
   For instance, PHAs have allowed residents to move to the first floor or closer to an exit door,
   and provided designated smoking areas with an accessible walkway, cover, lighting, and
   seating. The Smoke-Free Rule does not require that reasonable accommodation language be
   contained in the lease amendment, but HUD encourages PHAs to include this information.
   Public housing residents who suspect they are victims of housing discrimination can call
   (800) 669-9777. Smokers with certain health conditions (e.g., cognitive impairment) may
   require special attention to ensure they understand the policy and available cessation
   resources, as well as reasonable accommodation request procedures; however, these residents
   must comply with the policy.

E. Community Building

    PHAs are strongly encouraged to engage residents early in the development of smoke-free
policies. Best practices have indicated that resident engagement in policy development,
implementation, and enforcement are less likely to result in evictions. The Resources section
(below) provides best practices and examples on resident engagement.




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F. Resources

   1. Best Practices

    Change is in the Air can be found at
     http://portal.hud.gov/hudportal/documents/huddoc?id=smokefreeactionguide.pdf

    Toolkits for Owners/Management Agents and Residents can be found at
     http://portal.hud.gov/hudportal/HUD?src=/smokefreetoolkits1

   2. Smoking Cessation

      PHAs are encouraged to partner with outside organizations for cessation support.
   Medicaid recipients may be eligible to receive financial assistance for cessation services and
   prescription cessation medications depending on the state Medicaid program. Cessation
   resources are currently available at http://www.cdc.gov/tobacco/quit_smoking/index.htm.
   Residents and PHAs may also contact national quit lines (1-800-QUIT-NOW) and
   community health centers to ask what services are available through them.

   3. PHA and Resident Training

      Training resources on Smoke-Free Rule strategies and effective enforcement of smoke-
   free policies are available in the form of video- and print-based materials, as well as in-
   person training for select PHAs. PHAs are responsible for providing resident training.

G. Further Information

      PHAs that have questions regarding smoke-free public housing can email those
      questions to SmokeFreePublicHousing@hud.gov. PHAs are also reminded that, with
      good cause, they may request waivers. For further information about this Notice,
      please contact Leroy Ferguson, Housing Program Specialist, Office of Public Housing
      Programs, Management and Occupancy Division, 202-402-2411.




                                            ____________/s/ ___________
                                            Jemine A. Bryon
                                            General Deputy Assistant Secretary
                                            for Public and Indian Housing




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