Slide Number #1 © Copyright 2008 Nan McKay & Associates Cara Gillette How to Handle Hearings PH and HCV © Copyright 2008 Nan McKay & Associates

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© Copyright 2008 Nan McKay & Associates

Cara Gillette

How to Handle HearingsHow to Handle Hearings

PH and HCVPH and HCV


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What We’ll CoverWhat We’ll Cover

The grievance process – doing it right Your PHA grievance policies Conducting the informal review Educating your hearing officers Coordinating hearings Conducting orderly hearings Making and writing hearing decisions What happens after a hearing

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Attachment 1Attachment 1

You have the regulations as attachments HCV

§ 982.554 Applicants § 982.555 Participants

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You have the regulations as attachments Public housing

§ 960.208 Applicants § 982.555 Participants

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Federal Register notice Proposed rule

published August 5, 2008

Streamlining Public Housing Programs

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Proposed rule published August 5, 2008 If finalized, PHAs would be permitted to

establish their own procedures for informally settling grievances, obtaining a hearing, and preparing and distributing decisions of hearing officer or panel

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Proposed rule published August 5, 2008 PHAs would now have flexibility to establish

grievance procedures addressing: Failure to request a hearing and requiring

escrow deposits Matters related to scheduling and location

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Proposed rule published August 5, 2008 Regulations describing procedures

governing the hearing and decision of hearing officer would be revised Transcripts, copies, and how the hearing is

conducted would be left to the PHA

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Purpose of the Grievance ProcessPurpose of the Grievance Process

What is the purpose of the grievance process?

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Purpose of the Grievance ProcessPurpose of the Grievance Process

Purpose of PHA’s policies and process: Required by HUD Protects the agency and the family

Proof of good faith that family was heard Opportunity for PHA to examine and reverse

Documents a fair process if challenged

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Conducting the Informal ReviewConducting the Informal Review

The HCV term for applicants is “informal review” and the PH term is “informal hearing” We’ll call it the informal

review

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The informal review process for rejected applicants isn’t the same as the hearing provided for participants (HCV) and tenants (PH) Exception is for denial for noncitizen rule

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Some policy decisions to consider: Will the PHA offer informal reviews for

reasons other than those required by regs? How many days does an applicant family

have to request a review, and within how many days must the PHA schedule it?

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Some policy decisions to consider: Who will conduct the review and how will it

be conducted? No PH regulations here For HCV, conducted by person other than

the one who made the decision, or subordinate of this person

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Explain the process at the beginning: For example:

The PHA states its case The family states their case The PHA rebuts The family responds or rebuts The informal review ends

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Factors to consider: The final decision is made by the PHA, not

solely by the person conducting the review The regulation states (for HCV): 982.554[b][3]:

“The PHA must notify the applicant of the PHA final decision after the informal review”

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Factors to consider: Whether or not the grounds for denial or

termination were stated factually in notice Validity of grounds for denial or termination

If grounds aren’t specified in the regulations and PHA policy, the decision will be overturned

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Factors to consider: Validity of the evidence

If there is preponderance of the evidence and denial is required by HUD, PHA will uphold the decision

If there is preponderance and the denial or termination is discretionary, PHA will consider the recommendation

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Writing the decision: Do it timely Write it, and then think about it and edit Find someone who is a good editor to edit It doesn’t have to be long – it has to make sense and

be fair You may make some mistakes and you have to be

willing to assume that level of responsibility

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Remember, you always have to take into reasonable accommodations requirements for persons with disabilities

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Grievance ProceduresGrievance Procedures

Grievance policies are essential to guide and educate hearing officers, and to conducting orderly hearings

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Some policy decisions to consider: Will the PHA offer participants (tenants)

opportunity for a hearing for any reasons other than those required by regulations?

How many days does the family have to request a hearing, and in how many days must the PHA schedule it?

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Some policy decisions to consider: Under what circumstances can the family

request to have a hearing rescheduled, and how must the request be made?

Will the PHA reschedule a hearing if family doesn’t appear and hasn’t made previous arrangements?

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Some policy decisions to consider: How much will the PHA charge the family for

copies of documents related to the hearing, and what is the deadline for the family to request discovery of the documents?

Will the PHA request copies of all documents the family intends to present at the hearing, and what is the deadline for PHA to request?

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Some policy decisions to consider: Who will PHA designate as hearing officers for

HCV? How will the hearing officers or hearing panel

get appointed or elected in PH?

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You will be facing advocates across the hearing room and the courtroom Work with them when you revise

your grievance procedures and other policies!

We’re serving the same people!

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It’s important that the advocates have correct information Attachment 4 is grievance guidance issued by

a legal services nonprofit Cooperate with these folks when they ask for

discovery documents Show them revisions of your grievance

policies

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Educating Your Hearing OfficersEducating Your Hearing Officers

PHA staff as hearing officers Tend to know the regulations and PHA

policies Understand the stakes both for the family

and the PHA May not be seen as impartial by the judge May feel pressured to take PHA’s side

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Outside hearing officers Aren’t as knowledgeable about HUD regulations

and PHA policies You’ll need to put more effort into education

Annual education sessions Walking them through the process

Sometimes aren’t as committed to getting out decisions in a timely manner

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Outside hearing officers Are often high level professionals

Retired judges, attorneys, university ombudsmen, other community leaders

Shows the PHA’s commitment to working with community leaders

Decisions may carry more weight in court

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Whether in-house or outside: Hold educational briefings, meetings, or

retreats Keep hearing file

With confidential information blacked out Make sure hearing officers read important

hearing decisions and discuss

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For PH, will the PHA use a hearing officer or hearing panel? Residents may feel a panel is more impartial However, it may be easier to schedule a

hearing officer and the family, than a group of hearing panel

What will be the method used to appoint?

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Qualifications of a Hearing OfficerQualifications of a Hearing Officer

Some large PHAs have in-house hearing officers Directors, managers or

staff at PHAs can serve as hearing officers

Are there qualifications?

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Here are excerpts from a job announcement for a hearing officer posted by a large PHA: General description: Will also perform such

paralegal duties and training duties as may be directed by the Chief Administrative Officer

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Excerpts from job announcement: Duties & responsibilities: ·

Hears appeals by applicants for public housing and by applicants and participants from adverse decisions of the PHA regarding their eligibility, Section 8 certification and/or tenancies and drafting decisions after these hearings

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Hears appeals from decisions from the grievance panel

Issues written decisions for each hearing Assists with the coordination and the scheduling of

all appeal hearings Assists attorneys in the training of new grievance

panel members

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Engages in paralegal work including legal research as required by the CEO or designee

Reviews and makes determinations concerning requests for reasonable accommodations

Maintains databases as required Performs other duties as assigned

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Excerpts from job announcement: Minimum qualifications:

A Bachelor’s degree is required Excellent reasoning and writing skills sufficient

to properly draft hearing decisions is essential Ability to interpret regulations and policies Experience in government or affordable housing

preferred

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Coordinating HearingsCoordinating Hearings

The PHA needs to designate someone who has attention to detail to coordinate hearings In HCV, these will be in-house

staff In PH, hearings officers can be

from outside the PHA

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Coordinating HearingsCoordinating Hearings

The hearing coordinator has to: Keep everyone on schedule Make sure proper notification is sent Ensure proper setting for hearing Consider requests for reasonable

accommodation Tape and/or transcribe the hearing, if

applicable

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Conducting Orderly HearingsConducting Orderly Hearings

Choosing hearing officers carefully, educating them, and clear policies go a long way in conducting orderly hearings

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Conducting the HearingConducting the Hearing

Factors in making a good decision: You have to know the regulations and your

PHA policies You have to make a decision based on the

facts and evidence, not on your opinions or values

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Conducting Orderly HearingsConducting Orderly Hearings

Some policy decisions to consider: Who is authorized to attend hearings?

PHA representative and any witnesses for the PHA Participant and any witnesses for participant Participant’s counsel or other representative Any other person approved by PHA as a

reasonable accommodation for person with a disability

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Some policy decisions to consider: Who manages the conduct of the hearing and what

are the standards of conduct? Emphasizes the requirement for all hearing

participants to behave appropriately “Any person demonstrating disruptive, abusive or

otherwise inappropriate behavior will be excused from the hearing at the discretion of the hearing officer”…

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Some policy decisions to consider: Under what circumstances can a family request to

have a hearing rescheduled and how must the request be made? Example: May request to reschedule for good

cause, or it needed as reasonable accommodation Good cause defined as an unavoidable conflict

which seriously affects health, safety, or welfare of family

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Some policy decisions to consider: What if family wants to reschedule again?

An example policy would be if tenant doesn’t appear, and did not make previous arrangement to reschedule, PHA will reschedule if family contacts the PHA within 24 hours and tenant can show good cause What kind of documentation is required?

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Policy decision to consider: How late can the family (or PHA) be before the

hearing is waived? What’s the distinction between being late

and failing to appear? How late is too late? Is documentation required in order to

reschedule?

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Policy decision to consider: Under what circumstances will the hearing be

held open (further hearing conducted), and for what period of time? There may be circumstances where hearing

officer determines it’s necessary to allow the family to provide additional information, or to reconvene at a later date

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Policy decision to consider: Hearing be held open (further hearing

conducted)? Consider policy if hearing is to reconvene at

a later date, if family misses the appointment or deadline set by the hearing officer, the action of the PHA takes effect and another hearing won’t be granted

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Explain the ground rules No interrupting You will terminate the review if it’s not orderly, and

make your decision only on what has been presented

Explain that you never make a decision on the spot – you will review the facts and the family will receive your written decision within however many days are in your policies

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Factors to Consider Factors to Consider

How serious is the offense? Did family members try to get control of the

situation? If not life-threatening or serious fraud, can the

PHA document trying to work with or warn the family ?

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Factors to Consider Factors to Consider

Did the family clearly understand the rule or policy that was violated?

Was the regulation or policy enforced consistently and fairly?

Did the family know that violation could lead to discipline?

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Factors to Consider – Evidence Factors to Consider – Evidence

The decision should be based on evidence Any evidence to be

considered must be presented at the time of the hearing

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Oral evidence – testimony of witnesses Documentary evidence – writing which is

relevant to the case – all forms of recorded communication including letters, words, pictures, sounds, videotapes, or combination Such as a letter to the PHA, a threatening note to

another tenant, a phone message

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Demonstrative evidence – evidence created specifically for the hearing and presented as a illustrative aid to assist the hearing officer Such as a model, chart, or other diagram

Real evidence – tangible item related directly to the case Such as paraphernalia

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Hearsay evidence is a statement made other than by a witness while testifying at the hearing offered to prove the truth of a matter Even though evidence, including hearsay, is

generally admissible, hearsay evidence alone can’t be used as the sole basis for the hearing officer’s decision

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Factors to Consider - PHFactors to Consider - PH

For PHAs in due process states, will the PHA bypass the grievance process if eviction is for criminal activity that threatens, felony conviction, or drug-related criminal activity on or off premises?

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Factors to Consider - PHFactors to Consider - PH

Under what circumstances will the PHA waive the escrow requirement for grievances involving rent? PHA must waive for imputed welfare income

and minimum rent hardship exemption Proposed rule could eliminate this

requirement

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Making the DecisionMaking the Decision

1. Is this a mandatory termination or eviction as required by HUD regulation or statute?

2. If there has been a request for reasonable accommodation, has it been considered?

3. What about VAWA?

4. What about LEP?

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5. Is this decision in the best interest of the client?

6. What is the intended result or desired outcome of the decision?

7. Are any staff's personal issues or likes and dislikes involved in the decision?

8. Is the decision consistent with the agency's values?

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9. How will the decision affect the integrity of the program?

10. How will the decision affect the safety of the staff or other residents?

11. Were program expectations clearly communicated to and understood by the resident?

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13. Have you given your honest opinion about what should be done in this decision?

14. If they are not meeting program expectations, has this been communicated to the resident? Has it been monitored, documented and

dated?

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15. Are there other people who need to be contacted to give input on this decision?

16. Do you have any hesitance in implementing this decision?

17. Are you willing to stand by this decision tomorrow?

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Writing the DecisionWriting the Decision

First of all, you must get out your decision in time Give yourself time to think about it Go through the hearing file if you’re new,

and see if there are similar cases The PHA should have a template

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Writing the DecisionWriting the Decision

Give yourself time to write your decision Then edit it Find someone else to help edit if need be Find a mentor – you don’t have to make the

decision alone – although the decision is your responsibility

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Template for hearing decision The template is very

helpful for hearing officers – and the family

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Effect of Decision - HCVEffect of Decision - HCV

CFR 982.555(f) The PHA is not bound by a hearing decision: Concerning matter for which PHA is not required

to provide an opportunity for an informal hearing, or that otherwise exceeds the authority of the person conducting the hearing under the PHA hearing procedures

Contrary to HUD regulations or requirements, or otherwise contrary to federal, State, or local law

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Effect of Decision - HCVEffect of Decision - HCV

HCV – CFR 982.555(f) If PHA determines that it is not

bound by a hearing decision, the PHA must promptly notify the family of the determination, and of the reasons for the determination

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Effect of Decision - PHEffect of Decision - PH

CFR 966.57 The decision of the hearing officer or panel

shall be binding on the PHA which shall take all actions, or refrain from any actions, necessary to carry out the decision unless the PHA Board of Commissioners determines, within a reasonable time, and promptly notifies the complainant of its determination, that…

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Effect of Decision - PHEffect of Decision - PH

CFR 966.57 The grievance does not concern PHA action or

failure to act in accordance with or involving the complainant’s lease on PHA regulations, which adversely affect the complainant’s rights, duties, welfare or status;

The decision of the hearing officer or hearing panel is contrary to applicable Federal, State or local law, HUD regulations or requirements of the annual contributions contract between HUD and the PHA

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What Happens After a HearingWhat Happens After a Hearing

Nothing waives a family’s right to go to court Your notices must

clearly state what the family’s next step is

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What Happens After a HearingWhat Happens After a Hearing

Your hearing decision may be an important piece of evidence in court Hearings can last longer and be more

thorough than the judicial proceedings

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SummarySummary

Thank you for attending!

Join us again

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2008 Upcoming Lunch ‘n’ Learns…2008 Upcoming Lunch ‘n’ Learns…

October 17 – Assets & Asset Income (HCV & PH programs)

October 24 – Managing the FSS Program (HCV & PH

programs) November 7 – The HAP Contract, the Lease, the RFTA

(HCV)

November 14 – Managing EIV (HCV & PH programs)