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Notice #: 0001303292-01
Public Hearings


Notice is hereby given of proposed rule amendment, rulemaking, and public hearing by DCS to consider the amendment of
Title 8, Department of Community Services, Chapter 10, Section 8 Tenant Based Rental Assistance and Moderate Rehabilitation Program (“proposed rules”); and
Title 8, Department of Community Services, Chapter 13, Section 8 Project-Based Rental Assistance Program ("proposed rules").

DCS will hold a public hearing to receive testimony on proposed amendments to its current rules relating to Section 8 Tenant Based Rental Assistance and Section 8 Project Based Rental Assistance. The proposed rules add new definitions, clarify existing requirements and establish new guidelines governing program options and requirements.

The proposed amendments to rules are summarized as follows:
Chapter 10 – Tenant Based Rental Assistance and Moderate Rehabilitation Program

Section 8-10-2, Definitions, is amended by
Adding a definition for complainant as an applicant, participant or participant family who has requested a review or hearing in writing due to dissatisfaction with the Agency’s action or inaction and includes a court appointed guardian.
Adding a definition for days to be used in computing any period of time as allowed by these rules.
Section 8-10-6, Family Income, is amended by adding a statement that every third year, third party verification of assets is required.
Section 8-10-10, Issuance of Voucher, is amended as follows:
Adding a preference in the issuance of vouchers for an assisted family under the Moderate Rehabilitation Program who wishes to move due to conversion to another program or termination of the Moderate Rehabilitation Program funding, provided the family is on the waiting list.
Deleting provision for special waiting lists and selection policies to be established as allowed under the project based voucher program rules and policies and instead allowing them as needed when newly funded programs become available as verified by HUD award notices.
Adding a requirement to provide VAWA information to applicants who are issued or denied vouchers, rather than to those approved for admission.
Section 8-10-11, Certification of Family Participation, is amended by modifying the 60 day expiration of voucher provision and the time extension provision by the qualifier that funding must be available.
Section 8-10-12 Subsidy Standards/Occupancy Standards, is amended by clarifying that minor children and college students who are away at school are those within the state.
Section 8-10-14, Portability of Housing Vouchers, is amended by:
Adding a requirement that the Initial PHA must provide a portability briefing to program participants which covers the benefits of living in low-poverty areas.
Adding a statement that the Family is allowed to choose the Receiving PHA.
Adding a requirement that the voucher issued by the Receiving PHA may not expire before 30 days from the expiration date of the Initial PHA’s Voucher.
Section 8-10-15, Request for Tenancy Approval, is amended by
Adding clarification that four no-shows of inspection appointments in a 3 year period, rather than more than 3 may trigger a participant’s ineligibility.
Deleting the modifier that after the initial inspection, future inspections are as required by HUD thereafter. HUD required inspections are covered by the subsequent rule language “and at such other times as may be necessary…”
Section 8-10-16, Rents, is amended by
Adding a provision that in the event of a decrease in payment standard due to a reduction in the published Fair Market Rent, the agency will use the existing payment standard for the subsidy calculation as long as the family continues to receive voucher assistance in that unit.
Amending from 5 to 10 percent the decrease in Fair Market Rent in effect 60 days before the Family’s HAP contract anniversary date that would require a rent reasonableness test.
Clarifying that the family may request an informal review rather than hearing under Section 8-10-25.
Section 8-10-17, Housing Assistance Payments, is amended by deleting the provision for an owner to retain the payment for the month in which a family moves.
Section 8-10-23, Denial or Termination of Assistance, is amended by
Deleting reference to the certificate program in one of the grounds for denial or termination of assistance.
Adding an exception in termination of assistance due to insufficient funding for special purpose funded vouchers; and clarifying that families whose assistance is terminated may reapply when the waiting list is open.
Clarifying the applicant or family is entitled to an informal review rather than a hearing under Section 8-10-25.
Section 8-10-24, Disqualification from Participation, is amended by clarifying that at the time of disqualification, the family or owner is entitled to an informal review rather than a hearing.
Section 8-10-25, Informal Settlement of Disputes, is amended
By adding a statement that an informal review is not to be confused with the administrative proceeding under section 8-10-26 which affords an aggrieved Participant the opportunity to present an appeal before an impartial departmental representative for decision.
By adding a statement that the agency shall acknowledge receipt of the written complaint, and that the discussion will be conducted by a staff member other than a person who made or approved the decision under review or subordinate.
By clarifying the agency shall prepare a written summary of the discussion within a reasonable time rather than 15 days after the discussion.
By clarifying the written summary shall state the decision and brief statement of the reasons therefor, instead of the proposed resolution.
By stating matters for which an informal review is not required pursuant to federal regulation.
By adding rights of the complainant including opportunity to examine the case record and all documents and records to be used at the review, present the case alone or with another person including legal counsel at the party’s expense; advance arguments without undue interference; question or refute testimony or evidence; and request an interpreter.
Section 8-10-26, Hearing on a Dispute, is amended as follows:
Providing that for a hearing, a complainant is a participant complainant as provided in 24 CFR 982.555 and deleting the provisions for applicants as provided in 24 CFR 982.554. Deleting the types of grievances for which hearings are not required under 24 CFR 982.554.
Deleting requirement that a request for a hearing state the specific statutory provision, rule, decision or order in question together with a statement of the dispute involved, and a memorandum of the points and authorities containing a full discussion of reasons or legal authorities in support of complainant’s position.
Adds provisions for conduct of the hearing:
1. All relevant oral or documentary evidence shall be admitted; hearings officer shall have powers to hold hearings and issue notices, administer oaths; subpoena and examine witnesses; issue subpoenas; receive evidence and exclude evidence and restrict lines of questioning or testimony; regulate the conduct of the hearing; remove disruptive individuals; dispose of procedural matters; and examine all relevant evidence.
2. Adding a requirement that the complainant appear in person unless Agency received and accepted a request for a representative; adds provision for complainant to appear remotely if permitted by the Agency for health and safety reasons.
3. Adding a limit on attendance, unless agreed to by complainant and agency, to complainant or authorized representative, or both, interpreter if any, and legal counsel; agency representatives, and hearing officer and staff.
4. Adding a provision requiring the family to have an opportunity to examine before the hearing any documents relevant to the hearing and allowing copying at family’s expense; barring use of documents at hearing if not made available to family; requiring any relevant family held documents to be made available to the agency at least 48 hours prior to hearing and allowing copying; barring use of documents at hearing if not made available to agency.
5. Adding provisions that hearing shall not be granted if family has withdrawn the request in writing or abandoned the request by failing to appear at the scheduled hearing without good cause.
6. Adding a requirement that the hearing officer shall send the family a letter stating the appeal is considered abandoned and may continue only if family presents within 10 days of the notice good cause for failure to appear, by reason of death in the family, personal injury or illness or sudden and unexpected emergencies.
7. Adding a statement that the burden of proof shall be on the party initiating the proceeding, with proof to be by preponderance of evidence.
8. Adding statement that when a request for hearing is denied or dismissed, the agency shall notify the family within 90 calendar days of the hearing request stating the reasons for denial or dismissal and also stating the family may no longer appeal the issue.
9. Adding statement that unless otherwise provided, every decision and order shall be in writing or stated in the record; where the case has been contested and the decision is adverse to any party, the decision shall be accompanied by findings of fact and conclusions of law; the hearings officer shall transmit a copy of the decision to each party within a reasonable time; and providing that any party aggrieved by a final decision or order in a contested case is entitled to judicial review in conformance with section 91-14, HRS.
Section 8-10-29, Special Housing Types, is amended by adding homeownership option as a permitted type.

Chapter 13 – Project Based Rental Assistance Program
Section 8-13-1, General Applicability, is amended by deleting April 1, 2012 as the date of the Code of Federal Regulations in effect upon adoption of these rules, to be replaced by December 1, 2020.
Section 8-13-3, General Project-Based Voucher Program, is amended by:
1. Amending the maximum assistance allowed from 20% of total funding available to 20% of authorized units, with an additional 10% allowed for units in census tracts with a poverty rate of 20% or less; units that house families that meet the definition of homeless or families with veterans; units that provide supportive housing to persons with disabilities or elderly persons; or units in areas where vouchers are difficult to use.
2. Adding exceptions to cap for Veterans Affairs Supportive Housing PBV set aside units, rental assistance demonstration units and units previously under certain federal rent restrictions or long term housing subsidies.
Section 8-13-4, Definitions, is amended by:
1. Adding a definition for “housing quality standards” as minimum quality standards for tenant based programs to insure that the unit is safe, decent and sanitary.
2. Adding a definition for “independent entity” as an entity that has no legal or financial connection that could cause any party to improperly be influenced by the other.
3. Amending the definition of “PHA-owned Unit” as a unit owned by the Agency, an entity wholly controlled by the Agency, or a limited liability company or limited partnership in which the Agency or an entity wholly controlled by the Agency holds a controlling interest in the managing member or general partner.
4. Adding a definition of “project” as a single building, multiple contiguous buildings, or multiple buildings on contiguous parcels of land, with contiguous in this definition including adjacent to, as well as touching along a boundary or point.
5. Adding a definition for “veteran” as a person who has served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable, and as may be further defined by HUD and related federal guidance.
6. Deleting the definition of “state certified appraiser.”
Section 8-13-5, Eligible, Ineligible, and PHA-owned units, is amended by:
1. Adding “Newly Constructed Units” to the title of a section of the Code of Federal Regulations; adding as a type of ineligible units “the homeownership option”; and deleting reference to the Agency’s authority to attach project based assistance to high rise elevator projects.
2. Adding to the tasks to be performed by a HUD-approved independent entity, determination of rent reasonableness, establish initial and renewal HAP contract term, establish initial and redetermined contract rents and conduct HQS inspections. Adding authority for a unit of local government to perform these tasks.
Section 8-13-6, Partially Assisted Building Requirement, is amended as follows:
1. Amending the maximum amount of project based assistance a project, rather than one building, may receive as the greater of 25 units or 25% of the units in a project.
2. Adding a cap of not more than the greater of 25 dwelling units or 40% of the dwelling units in any project may be assisted in areas where vouchers are difficult to use as determined by HUD or with respect to census tracts with a poverty rate of 20 % or less.
3. Adding that tenants qualifying for the project exception shall be offered supportive services but participation shall not be required as a condition of living in the excepted unit.
4. Amending supportive services to include housekeeping or personal assistance, education or employment services and deleting the minimum requirement of quarterly contacts with a case manager and annual reports.
5. Adding units previously subject to federally required rent restrictions or receiving other HUD project based assistance as not being counted toward the percentage limitation.
Section 8-13-9, Evaluation, Ranking Selection Criteria, is amended by:
1. Deleting from the criteria for rehabilitated housing and newly constructed housing, the criteria that projects with less than 25% of the units assisted will be rated higher than projects with 25% of the units assisted and the criteria for rating projects for the elderly, persons with disabilities or families needing other services.
2. Adding to the criteria for proposals from owners competitively selected under another federal, state, or local housing assistance program consideration for the extent to which services for special populations are provided and experience as an owner and compliance with owner’s obligations under the tenant based program or similar subsidy program recognized by the Agency.
Section 8-13-10, Rehabilitated and Newly Constructed Housing Requirements, is amended by replacing state certified appraiser with HUD approved independent entity as the entity to establish rents.
Section 8-13-11, Housing Assistance Payments Contract, is amended by adding provision that in a project selected to receive assistance, Agency may convert existing families from tenant based vouchers to project based assistance without the need to apply for a waiting list; providing for an initial HAP contract term of 20 rather than 10 years; adding authorization for a maximum of 20 years extension for a contract; deleting state certified appraiser and adding HUD approved independent entity as the one approving initial rent; adding provision that small area fair market rents shall not apply to projects; adding authorization that at any time during the term without being subject to additional competitive selection procedures, Agency may add additional units to receive assistance under a HAP contract.
Section 8-13-12, Tenant Selection, is amended by adding to the first preference for family receiving a HUD special funded voucher, “and the specific preferences established for the project” and requiring that a family must meet the requirements for the special funded assistance.
Adding a new section 8-13-12.1, Occupancy Standards, similar to the guidelines in tenant based assistance rules, providing minimum and maximum persons to occupy bedroom sizes 0 to 4, and other parameters. Qualifies minor children and college students who are away at school as within the state.
Section 8-13-13, Waiting List; Issuance of Voucher, is amended by deleting reference to waiting lists for each project in the program and inserting “PBA will be offered to applicants at the top of the waiting list as funding and units become available,” and adding “selection preference in accordance with Chapter 8-10.”
Section 8-13-14, Family Briefing, is amended by deleting duplicative requirement to provide effective communication for a family head or spouse with disabilities.
Section 8-13-15, Family Share and Housing Assistance Payment, is repealed.
Section 8-13-16, Maintenance, Operation and Inspection, is amended by adding that a sample of units in the project shall be inspected at least biennially instead of annually.
Section 8-13-17, Assisted Tenancy and Termination of Tenancy, is amended by:
1. Adding as an option for term of lease the remaining term of a special funded voucher.
2. Adding statement that a family occupying a unit that is special funded after the first year may move and retain housing assistance under the same program if funding is available and that the agency shall not provide tenant based assistance.
3. Adding requirement that the agency must take all cost saving measures before determining funding is insufficient; adding that agency will not terminate assistance unless instructed by HUD and if so, families will be terminated by most recent date of admission; adding that upon termination or expiration of the PBV contract, each family may elect to use its assistance to remain in the unit and pay its share of rent.

A public hearing will be held:

Date: December 17, 2020
Time: 10:00 a.m.
Place: Department of Community Services
51 Merchant Street, 1st Floor Conference Room
Honolulu, Hawaii 96813

Copies of the proposed rules are available for review at the address below starting today and ending five days prior to the day of the public hearing during normal business hours: Monday through Friday, except state holidays, from 7:45 a.m. to 4:30 p.m. A complete set of the current rules to be amended and proposed rules are available free of charge on the City’s internet page . Copies of the rules to be repealed and proposed rules can be mailed at no charge to any interested person who submits a written request to the address below.

Department of Community Services
51 Merchant Street, 2nd Floor
Honolulu, Hawaii 96813
Phone: (808) 768-7080
Fax: (808) 768-7095

The Department of Community Services is committed to allowing public testimony. All interested persons are invited to express their views on this matter.

Pursuant to the Ninth Supplementary Proclamation issued by Governor David Ige on June 10, 2020, and Mayor Kirk Caldwell’s Emergency Order No. 2020-18 dated July 2, 2020, relating to the COVID-19 pandemic, in order to allow public participation, the following procedures are in effect for oral testimony at the hearing: (1) masks are required, (2) in-person testifiers will not be allowed into the room until it is their turn to testify and must leave the room immediately after providing testimony, and (3) members of the public gathered outside the meeting room shall comply with Safe Practices and Social Distancing Requirements. If planning to attend in person, please notify us at least five business days in advance to allow arrangements to be made for adequate social distancing. Testimony will also be accepted through mail, fax, or email by 10:00 a.m. on December 17, 2020.

It is the policy of DCS to comply with all of the requirements of the Americans with Disabilities Act. The above facility is accessible. For sign language interpreters, assistive listening devices, or materials in accessible format, please call (808)768-7098 at least five days in advance.

Pamela A. Witty-Oakland, Director
Department of Community Services
City and County of Honolulu

(SA1303292 11/17/20)