May 10, 2016 Regulations Division Office of General Counsel ...

May 10, 2016 Regulations Division Office of General Counsel Department of Housing and Urban Development 451 7th Street SW Room 10276 Washington, DC 20410-0500 Via regulations.gov Re: Docket No. FR-5173-N-08 Affirmatively Furthering Fair Housing Assessment Tool for States and Insular Areas: Solicitation of Comment—60-Day Notice Under Paperwork Reduction Act of 1995

The National Low Income Housing Coalition (NLIHC) is an organization whose members include state and local housing coalitions, residents of public and assisted housing, nonprofit housing providers, homeless service providers, fair housing organizations, researchers, faith-based organizations, public housing agencies, private developers and property owners, local and state government agencies, and concerned citizens. While our members include the spectrum of housing interests, we do not represent any segment of the housing industry. Rather, we focus on what is in the best interests of people who receive and those who are in need of federal housing assistance, especially extremely low income people and people who are homeless. NLIHC enthusiastically endorsed the final affirmatively furthering fair housing (AFFH) rule, and pledges to help realize successful implementation in the coming years. The Assessment Tool should have as much detail as possible because it will be the working template and ultimate document that program participants, advocates, and residents will be working with on a frequent, operational basis. The final rule, along with any additional guidance HUD proposes to provide, is important to realize the goal of affirmatively furthering fair housing choice, but on a day-to-day working basis, these documents will eventually be less prominent than the Assessment Tool itself. An Assessment Tool with detailed guidance providing direction echoing the final rule will minimize the need for stakeholders to toggle between the final rule, any subsequent guidance, and the Assessment Tool. In short, the Assessment Tool is as important as the final rule. Therefore, NLIHC offers the following suggestions.

States Must Use Sub-State Areas The instructions indicate that it “may” be helpful for states to consider undertaking the fair housing analysis by assessing smaller, sub-state areas. NLIHC recommends that the instructions and questions require use of sub-state areas because a host of factors can have resulted in vastly different fair housing contributing factors from area to area within a state. Community Participation Process It is important for the instructions and questions to remind states that the Assessment of Fair Housing (AFH) applies to the entire state, not just the non-entitlement portions that do not automatically receive CDBG and HOME funds. Most state planners are accustomed to preparing Consolidated Plans only for the non-entitlement portions of their state, so it would be easy for them or their colleagues tasked to undertake an AFH to inadvertently fail to consider the need to provide for and encourage participation by stakeholders in entitlement jurisdictions that are also affected by statewide laws, policies, and practices. Low Income Housing Tax Credits NLIHC welcomes the set of questions pertaining to the Low Income Housing Tax Credit (LIHTC) program. We offer several suggestions to improve the instructions and questions:  The instructions say that it “may be useful” to refer to data maintained by a housing finance agency (HFA). NLIHC recommends the instructions require the state to seek additional data from the HFA because not all HFAs consistently report their data to HUD, although required by law to do so. In addition, some HFAs could have supplemental data or information instructive to a fair housing analysis. At a minimum, states should obtain data about the demographics of people occupying LIHTC-assisted units; and, if occupancy data is available at the project level that could assist in assessing fair housing issues on a sub-state level.  The instructions say that it “may be useful” to distinguish between new construction and rehabilitation, or between 9% and 4% credits. NLIHC recommends that the instructions require such distinctions. Rehabilitation/4% LIHTC projects generally preserve existing affordable housing – an outcome that most existing tenants greatly value. New construction/9% LIHTC projects could be welcome by residents of R/ECAPs because they contribute to revitalization or help to minimize the effects of gentrification; alternatively, they could either indicate unduly concentrating LIHTC projects in R/ECAPs, or siting affordable housing in areas of opportunity. In order to assess any fair housing implications it is essential to require distinctions between 4% and 9% credits.  Question C.1.c.i. asks the state to consider how QAP provisions may affect families with children, individuals with disabilities, or the elderly differently. NLIHC recommends the question add racial and ethnic minorities. It is curious that the question includes elderly because age is not a protected class; although elderly might serve as a proxy for identifying use of federal resources in ways that avoid meeting the needs of families with children.  NLIHC suggests adding a question requiring the state to describe the extent to which the state is ensuring that LIHTC-assisted properties are complying with the protections provided under the Violence Against Women Reauthorization Act of 2013. 2

Disparities in Access to Opportunity Reference to disparities in access to employment should refer to people with limited English proficiency, as do each of the other topics in the Disparities in Access to Opportunity section. HUD specifically requests comment on the two approaches to broaching questions regarding disparities in access to opportunity. Rather than the option of a general approach, NLIHC urges that the Assessment Tool contain the other option – targeted questions that guide program participants through the required analysis, thereby reducing omission of key points. NLIHC supports adding targeted questions regarding the five topics offered by HUD when discussing disparities in access to opportunity: disparities related to emergency management and preparedness; re-entry opportunities; public health services, public safety, and housing and financial opportunities.  For re-entry the Assessment Tool should also ask about existing laws, policies, and practices that help or hinder successful re-entry of members of protected classes to housing, employment, education, counseling, or other opportunities.  For emergency management and preparedness, the Assessment Tool should add a question focused on emergency preparedness and response for people with limited English proficiency.  For public safety, the Assessment Tool should refer to access to housing and services for women and children encountering or threatened with domestic violence.  For public health, the Assessment Tool should refer to lack of access to quality, affordable food. Publicly Supported Housing Analysis The instructions pertaining to publicly supported housing repeatedly read, “Relevant information may also include housing converted through RAD, which may be analyzed as part of Housing Choice Vouchers.” Because public housing units may be converted to Section 8 project-based rental assistance (PBRA) as well as Project Based Vouchers (a form of HCVs), the instructions should be corrected to require the state to determine whether RAD units should be treated as either project-based Section 8 or HCV. In general, RAD conversions seem to be roughly half and half. Disability and Access Analysis NLIHC urges HUD to address the comments submitted by the Consortium for Citizens with Disabilities (CCD) Housing Task Force. Among the recommendations provided by CCD we highlight:  As NLIHC has noted elsewhere in these comments, the instructions for the draft Assessment Tool too often uses the expression, “Local data and local knowledge may be particularly useful…” As CCD comments, HUD should require states to seek out and use sub-state data and knowledge. The Assessment Tool should also require states to use national data available on people with disabilities experiencing homelessness from HUD’s Homeless Management Information System, and data from the Money Follows the Person program available from the Center for Medicare and Medicaid Services. 3

 

Housing Accessibility question 2.a should have the language suggested by CCD regarding state actions to ensure comply with federal and state accessibility requirements. Housing Accessibility question 3 should, as suggested by CCD, have the added language at a new “h” requiring a description of pending or settled Olmstead-relate law suits, settlements, or other agreements.

The Assessment Tool Must Provide for a More Balanced Analysis and Assessment The draft Assessment Tool understandably highlights racial and ethnic concentrations of poverty and disparities in access to community assets. However, only discussing such fair housing issues could be misconstrued to suggest, contrary to the final AFFH rule, a prohibition on the use of resources in communities that have such concentrations or lack certain assets, even though those communities have assets not mentioned in the Assessment Tool. Comment Positive assets that should be listed in the Assessment Tool, perhaps in each subsection about “Additional Information,” should include community-based development organizations and affordable housing preservation organizations that have long worked with residents to improve publicly supported housing and/or community living conditions. Fair housing choice must include residents’ ability to choose to remain in their homes and the communities where they have long lived and where they have deep social, community, cultural, and language ties, even if those communities are racially or ethnically areas of concentrated poverty. The Assessment Tool should provide guidance that takes these assets into consideration.

Augmented Guidance Regarding Sub-State Knowledge Needed in Tool to Achieve Balance In addition to requiring program participants to use the HUD-provided data and maps, the AFFH rule requires them to use local data and knowledge. The rule also requires program participants to consider information provided during the required community participation and organization consultation processes. Comments To a significant extent, the balance that should be reflected in the Assessment Tool can be achieved by guiding program participants in a robust gathering and presentation of local (sub-state) knowledge. Program participants should be required to describe efforts to identify supplemental data and local knowledge from sources such as universities, advocacy organizations, service providers, planning bodies, transportation departments, school districts, healthcare departments, employment services, unions, and business organizations. Program participants should summarize sub-state knowledge gained through the consultation and community participation processes, and report what sub-state knowledge it chose to use or not use and why. 4

The revised Assessment Tool requires an analysis of each of the four fair housing issues using the HUD-provided maps and data tables, supplemented by an “Additional Information” subsection to compensate for the limitations of the HUD-provided data. Comments In order to inject a more balanced consideration of fair housing issues, HUD should include directions in each of the “Additional Information” subsections to foster a more balanced assessment pertinent to the fair housing issue under consideration. For example, in the “Segregation/Integration” and “R/ECAPs” sections, the Additional Information subsection should include sub-state knowledge indicating that residents value the community in which they have long lived and where they have deep social, community, cultural, or language ties – even if those communities are segregated or are racially or ethnically areas of concentrated poverty. The “Disparities in Access to Opportunity” section only tallies the negative side of the community asset ledger. For balance, the Additional Information subsection should seek to tally positive community assets through the required consultation and public participation processes. The Assessment Tool should require program participants to request, gather, and present sub-state knowledge about assets such as responsive community-based organizations, community development corporations that have worked for years to help revitalize their community, efforts by nonprofits and local government to preserve publicly supported affordable housing, active tenant organizations, and other important social network and cultural support infrastructures, such as faith-based institutions, child care centers, recreational facilities and programs, and health care providers. For the “Disproportionate Housing Needs” section, the Additional Information subsection should require program participants to seek sub-state knowledge through the consultation and public participation processes that describes activities or plans to preserve or develop housing for families with children, including large families. In addition, program participants should be directed to obtain and present sub-state knowledge about communities where the disproportionate housing needs are being addressed by nonprofit and local government preservation efforts and/or community revitalization efforts by community-based development organizations and/or local governments. The draft Assessment Tool has a component that analyzes “Publicly Supported Housing.” Comments In the subsection analyzing project locations, the Assessment Tool should foster a more balanced analysis. The Assessment Tool should require program participants to ascertain and accommodate the wishes of residents of publicly supported housing projects in segregated or R/ECAP areas. Therefore, there should be an “Additional Information” subsection directing program participants to assess whether residents prefer their developments to be improved and preserved, or prefer assistance in moving to areas that may offer other opportunities. 5

An “Additional Information” subsection should require program participants to describe efforts made, underway, or planned to preserve Project-Based Section 8 developments at risk of opting out of the program or prepaying their mortgage and thereby exiting the program, or of other HUD Multifamily-assisted developments from leaving the affordable housing stock due to FHA mortgage maturity. Program participants should also describe efforts that have been made, are underway, or are planned to preserve LIHTC developments, including at Year 15 and beyond Year 30. The “Segregation/Integration” and “R/ECAPs” sections ask program participants to discuss changing patterns of segregation/integration or changes of R/ECAPs. Comment The Assessment Tool should be more specific, requiring program participants to identify areas where residents are suffering from or at risk of displacement due to gentrification. Stronger Link Needed Between AFH and Consolidated Plan The final part of the draft Assessment Tool requires a program participant to set priorities regarding each contributing factor the program participant identified for each of the fair housing issues, and then to set one or more goals for each fair housing issue with “significant” contributing factors. Each goal must have metrics for measuring success over an identified timeframe. Unfortunately, the final AFFH rule does not require a program participant to include strategies and actions to implement the goals and priorities that the Assessment Tool has established for the Assessment of Fair Housing (AFH). The final rule merely calls for strategies and actions to implement the fair housing goals and priorities to be included in a Five-Year Consolidated Plan or Five-Year Public Housing Agency Plan. The instructions for the draft Assessment Tool mirror this limitation. Comments The Assessment Tool should require program participants to go one step further and propose actions that could be taken toward achieving each fair housing goal. The entire AFH process leading up to the goals and priorities stage will have involved the program participant, those it consulted, and the communities that participated in the development of the AFH. It is this set of participants who are most likely to have ideas about actions that should be taken to achieve the identified fair housing goals. A set of proposed actions embedded in the AFH will facilitate the strategic thinking of those who later will embark on the Consolidated Plan process or Public Housing Agency Plan process. Most participants in the Consolidated Plan process have historically limited their thinking to utilizing the formula grant programs (CDBG, HOME, etc). Without recommended actions in the AFH, the Consolidated Plan participants would have to take an unfamiliar leap from the AFH goals and priorities to devise appropriate strategies and actions to incorporate into the Consolidated Plan. A set of recommended actions in the AFH would more firmly and realistically link the AFH to the Consolidated Plan. 6

NLIHC strongly supports the new AFFH rule and pledges to help contribute toward its successful implementation. A key component to the future success of the AFFH rule are Assessment Tools that provides clear, complete, and balanced guidance for the development of an Assessment of Fair Housing. NLIHC thanks HUD for issuing the draft state Assessment Tool as one more step in the process of implementing the AFFH regulations. If there are any questions about the comments offered in this letter, please contact Ed Gramlich at [email protected] or 202.662.1530 x 314. Sincerely,

Diane Yentel President and CEO

7