§ 26-173Introduction.
§ 26-174Complaints to WHA.
§ 26-175Preference denials.
§ 26-176Informal review procedures for applicants. [24 CFR 982.54(d)(12),
982.554]
§ 26-177Informal hearing procedures. [24 CFR 982.555(a-f), 982.54(d)(13)]
§ 26-178Hearing and appeal provisions for "restrictions on assistance
to noncitizens." [24 CFR Part 5, subpart E]
§ 26-179Mitigating circumstances for applicants/participants with disabilities.
[24 CFR 982.204, 982.552(c)]
The informal hearing requirements defined in HUD regulations are applicable to participating families who disagree with an action, decision, or inaction of the WHA. This article describes the policies, procedures and standards to be used when families disagree with a WHA decision. The procedures and requirements are explained for preference denial meetings, informal reviews and hearings. It is the policy of the WHA to ensure that all families have the benefit of all protections due to them under the law.
The WHA will respond promptly to complaints from families, owners, employees, and members of the public. All complaints will be documented. The WHA may require that complaints other than HQS violations be put in writing. HQS complaints may be reported by telephone. The WHA hearing procedures will be provided to families in the briefing packet.
Categories of complaints.
Complaints from families, if a family disagrees with an action or inaction of the WHA or owner: Complaints from families will be referred to the Housing Choice Voucher Program Coordinator. If a complaint is not resolved, it will be referred to the Executive Director.
Complaints from owners, if an owner disagrees with an action or inaction of the WHA or a family: Complaints from owners will be referred to the Housing Choice Voucher Program Coordinator.
Complaints from staff. If a staff person reports an owner or family either violating or not complying with program rules, the complaint will be referred to the Housing Choice Voucher Program Coordinator.
Complaints from the general public. Complaints or referrals from persons in the community in regard to the WHA, a family or an owner. Complaints from the general public will be referred to the Housing Choice Voucher Program Coordinator. If a complaint is not resolved, it will be referred to the Executive Director.
When the WHA denies a preference to an applicant, the family will be notified in writing of the specific reason for the denial and offered the opportunity for a meeting with WHA staff to discuss the reasons for the denial and to dispute the WHA's decision.
The person who conducts the meeting will be the Service Center Manager or his/her designee.
Reviews are provided for applicants who are denied assistance before the effective date of the HAP contract. The exception is that, when an applicant is denied assistance for citizenship or eligible immigrant status, the applicant is entitled to an informal hearing.
When the WHA determines that an applicant is ineligible for the program, the family must be notified of its ineligibility in writing. The notice must contain:
When denying admission for criminal activity as shown by a criminal record, the WHA will provide the subject of the record and the applicant with a copy of the criminal record upon which the decision to deny was based.
Informal reviews are not required for established policies and procedures and WHA determinations, such as:
Discretionary administrative determinations by the WHA;
General policy issues or class grievances;
A determination of the family unit size under the WHA subsidy standards;
Refusal to extend or suspend a voucher;
A WHA determination not to grant approval of the tenancy;
Determination that a unit is not in compliance with HQS; and
Determination that unit is not in accordance with HQS due to family size or composition.
Procedure for review.
A request for an informal review must be received in writing by the close of the business day, no later than 10 days from the date of the WHA's notification of denial of assistance. The informal review will be scheduled within 15 days from the date the request is received.
The informal review may not be conducted by the person who made or approved the decision under review, nor a subordinate of such person.
The applicant will be given the option of presenting oral or written objections to the decision. Both the WHA and the family may present evidence and witnesses. The family may use an attorney or other representative to assist it at its own expense.
A notice of the review findings will be provided in writing to the applicant within 10 days after the review. It shall include the decision of the review officer and an explanation of the reasons for the decision.
All requests for a review, supporting documentation, and a copy of the final decision will be retained in the family's file.
When the WHA makes a decision regarding the eligibility and/or the amount of assistance, applicants and participants must be notified in writing. The WHA will give the family prompt notice of such determinations, which will include:
The proposed action or decision of the WHA.
The date the proposed action or decision will take place.
The family's right to an explanation of the basis for the WHA's decision.
The procedures for requesting a hearing if the family disputes the action or decision.
The time limit for requesting the hearing.
To whom the hearing request should be addressed.
A copy of the WHA's hearing procedures.
When terminating assistance for criminal activity as shown by a criminal record, the WHA will provide the subject of the record and the tenant/participant with a copy of the criminal record upon which the decision to terminate was based.
The WHA must provide participants with the opportunity for an informal hearing for decisions related to any of the following WHA determinations:
Determination of the family's annual or adjusted income and the computation of the housing assistance payment.
Appropriate utility allowance used from schedule.
Family unit size determination under WHA subsidy standards.
Determination to terminate assistance for any reason.
Determination to terminate a family's FSS contract, withhold supportive services, or propose forfeiture of the family's escrow account.
The WHA must always provide the opportunity for an informal hearing before termination of assistance.
Informal hearings are not required for established policies and procedures and WHA determinations, such as:
Discretionary administrative determinations by the WHA.
General policy issues or class grievances.
Establishment of the WHA schedule of utility allowances for families in the program.
A WHA determination not to approve an extension or suspension of a voucher term.
A WHA determination not to approve a unit or lease.
A WHA determination that an assisted unit is not in compliance with HQS. (WHA must provide a hearing for family breach of HQS because that is a family obligation determination.)
A WHA determination that the unit is not in accordance with HQS because of the family size.
A WHA determination to exercise or not exercise any right or remedy against the owner under a HAP contract.
Notification of hearing.
It is the WHA's objective to resolve disputes at the lowest level possible and to make every effort to avoid the most severe remedies. However, if this is not possible, the WHA will ensure that applicants and participants will receive all of the protections and rights afforded by the law and the regulations.
When the WHA receives a request for an informal hearing, a hearing shall be scheduled within 30 days. The notification of hearing will contain:
The date and time of the hearing.
The location where the hearing will be held.
The family's right to bring evidence, witnesses, legal or other representation at the family's expense.
The right to view any documents or evidence in the possession of the WHA upon which the WHA based the proposed action and, at the family's expense, to obtain a copy of such documents prior to the hearing. Requests for such documents or evidence must be received no later than two days before the hearing date.
A notice to the family that the WHA will request a copy of any documents or evidence the family will use at the hearing.
The WHA's hearing procedures.
After a hearing date is agreed to, the family may request to reschedule only upon showing "good cause," which is defined as an unavoidable conflict which seriously affects the health, safety or welfare of the family.
If a family does not appear at a scheduled hearing and has not rescheduled the hearing in advance, the family must contact the WHA within 72 hours, excluding weekends and holidays. The WHA will reschedule the hearing only if the family can show good cause for the failure to appear.
Families have the right to:
Present written or oral objections to the WHA's determination;
Examine the documents in the file which are the basis for the WHA's action, and all documents submitted to the hearing officer;
Copy any relevant documents at their expense;
Present any information or witnesses pertinent to the issue of the hearing;
Request that WHA staff be available or present at the hearing to answer questions pertinent to the case; and
Be represented by legal counsel, advocate, or other designated representative at their own expense.
If the family requests copies of documents relevant to the hearing, the WHA will make the copies for the family and assess a charge of $0.25 per copy. In no case will the family be allowed to remove the file from the WHA's office.
In addition to other rights contained in this article, the WHA has a right to:
Present evidence and any information pertinent to the issue of the hearing;
Be notified if the family intends to be represented by legal counsel, advocate, or another party;
Examine and copy any documents to be used by the family prior to the hearing;
Have its attorney present; and
Have staff persons and other witnesses familiar with the case present.
The informal hearing shall be conducted by the hearing officer appointed by the WHA, who is neither the person who made or approved the decision, nor a subordinate of that person. The WHA appoints hearing officers who are WHA management.
The hearing shall concern only the issues for which the family has received the opportunity for hearing. Evidence presented at the hearing may be considered without regard to admissibility under the rules of evidence applicable to judicial proceedings.
No documents may be presented which have not been provided to the other party before the hearing if requested by the other party. "Documents" includes records and regulations.
The hearing officer may ask the family for additional information and/or might adjourn the hearing in order to reconvene at a later date, before reaching a decision.
The hearing officer will determine whether the action, inaction or decision of the WHA is legal in accordance with HUD regulations and this article, based upon the evidence and testimony provided at the hearing. Factual determinations relating to the individual circumstances of the family will be based on a preponderance of the evidence presented at the hearing.
The WHA is not bound by hearing decisions:
Which concern matters in which the WHA is not required to provide an opportunity for a hearing;
Which conflict with or contradict HUD regulations or requirements;
Which conflict with or contradict federal, state or local laws; or
Which exceed the authority of the person conducting the hearing.
The WHA shall send a letter to the participant if it determines the WHA is not bound by the hearing officer's determination within 15 days. The letter shall include the WHA's reasons for the decision.
All requests for a hearing, supporting documentation, and a copy of the final decision will be retained in the family's file.
Assistance to the family may not be delayed, denied or terminated on the basis of immigration status at any time prior to the receipt of the decision on the INS appeal. Assistance to a family may not be terminated or denied while the WHA hearing is pending but assistance to an applicant may be delayed pending the WHA hearing.
INS determination of ineligibility.
If a family member claims to be an eligible immigrant and the INS SAVE system and manual search do not verify the claim, the WHA notifies the applicant or participant within 10 days of his/her right to appeal to the INS within 30 days or to request an informal hearing with the WHA either in lieu of or subsequent to the INS appeal.
If the family appeals to the INS, it must give the WHA a copy of the appeal and proof of mailing or the WHA may proceed to deny or terminate. The time period to request an appeal may be extended by the WHA for good cause.
The request for a WHA hearing must be made within 14 days of receipt of the notice offering the hearing or, if an appeal was made to the INS, within 14 days of receipt of that notice.
After receipt of a request for an informal hearing, the hearing is conducted as described in this article for both applicants and participants. If the hearing officer decides that the individual is not eligible, and there are no other eligible family members, the WHA will:
If there are eligible members in the family, the WHA will offer to prorate assistance or give the family the option to remove the ineligible members.
All other complaints related to eligible citizen/immigrant status:
If any family member fails to provide documentation or certification as required by the regulation, that member is treated as ineligible. If all family members fail to provide, the family will be denied or terminated for failure to provide.
Participants whose termination is carried out after temporary deferral may not request a hearing since they had an opportunity for a hearing prior to the termination.
Participants whose assistance is prorated (either based on their statement that some members are ineligible or due to failure to verify eligible immigration status for some members after exercising their appeal and hearing rights described above) are entitled to a hearing based on the right to a hearing regarding determinations of tenant rent and total tenant payment.
Families denied or terminated for fraud in connection with the Noncitizens Rule are entitled to a review or hearing in the same way as terminations for any other type of fraud.
When applicants are denied placement on the waiting list or the WHA is terminating assistance, the family will be informed that presence of a disability may be considered as a mitigating circumstance during the informal review process.
