From: Access Living – Kenneth M. Walden, Managing Attorney;
Adam Ballard, Housing Policy/Organizer; Colleen
Date: July 28, 2014
Re: Comments Concering Proposed Chicago Housing Authority
Thank you for the opportunity to submit comments concerning the Chicago Housing Authority’s proposed Administrative Plan for the Housing Choice Voucher (HCV) Program, the proposed FY 2014 Admissions and Continued Occupancy Policy (ACOP), and the proposed FY 2014 Residential Lease Agreement.
Access Living is the primary fair housing organization in Chicago for people with disabilities and the only one run primarily by people with disabilities. No other fair housing organization in Chicago: focuses on or handles such a high volume of disability-based fair housing cases; is considered the “go to” organization for disability-based testing; is as consistently consulted with on broad housing policy issues; matches its involvement in deinstitutionalization issues that are so critically linked to fair housing; or champions, on a systemic scale, the housing needs of people with disabilities in subsidized housing.
For people with disabilities, who are largely low-income and unemployed, CHA housing and CHA-issued housing choice vouchers are critical to obtaining or maintaining independence. It is no exaggeration to state that CHA housing opportunities keep people with disabilities out of institutions and from falling into homelessness. The importance of CHA housing options for people with disabilities is now even more paramount in the wake of Olmstead v. L.C., 527 U.S. 581 (1999), in which the Supreme
Court held that the unnecessary institutionalization of people with disabilities is a form of discrimination. As a result of three federal class actions brought in Illinois by a team of disability advocates, including Access Living, to compel our state to fulfill its Olmstead obligations, people with disabilities are transitioning out of institutions in Chicago at a high rate, and most will need the type of affordable housing offered by the CHA. Only with such housing will the promise of Olmstead move forward in Illinois.
Over the years, Access Living has worked in partnership with the CHA to advance the housing opportunities of people with disabilities and ensure the protection of their fair housing rights. Indeed, on many occasions, our organizations have worked through difficult disability-related issues and resolved them in a manner favorable to the CHA and our constituents. We are proud of this track record. Accordingly, we were quite surprised (and, frankly, stunned) to review certain proposed changes to the Administrative Plan for the Housing Choice Voucher (HCV) Program, the proposed FY 2014 Admissions and Continued Occupancy Policy (ACOP), and the proposed FY 2014 Residential Lease Agreement. We have serious concerns that specific changes, additions, and deletions will negatively affect the housing options and fair housing rights of people with disabilities, and undermine the CHA’s obligation to affirmatively further fair housing under the federal Fair Housing Act.
The most pressing amendments eliminate the HCV program selection preference for people with HCBS waivers, end the distribution of civil rights-related documents with all lease documents, eliminate language requiring the CHA to conduct outreach to people with disabilities and other underserved populations for the HCV program, eliminate language encouraging the CHA to form partnerships with agencies serving people with disabilities, change the guest policy, and implement an overly strict medical marijuana policy. Because these changes will hurt people with disabilities and keep our community segregated in institutions or at risk for homelessness, the CHA should reverse/strike these amendments.
II. Selection Preference, Voucher, and Waiting List Changes
Housing choice vouchers are critical for people with disabilities to be able to live in the community rather than in institutional settings. Currently, the CHA offers a selection preference for the HCV program to a “[f]amily that includes a person with disabilities who has Medicaid Home and Community-Based Services Waivers under Section 1515(c) of the Social Security Act.” (Administrative Plan 4-12). The HCBS waivers allow people who require institutional-level care to live integrated lives in their communities rather than being warehoused in institutions such as nursing homes. The proposed changes to the Administrative Plan would eliminate this selection preference for HCBS waiver recipients, which will adversely affect low-income people with disabilities who need these waivers to remain in the community and avoid institutionalization. Because removal of this preference will force people with disabilities to live in an institution to get their needs met, the preference should be maintained. Regarding this preference, it bears mentioning that the CHA currently gives Access Living a certain amount of vouchers each year from its turn-over pool to distribute to consumers transitioning out of
institutions or living in the community. These are called “Access Living Family Vouchers.” We worry that elimination of the HCBS preference includes these family vouchers. If so, this is a grave concern because these vouchers certainly enable people with disabilities to become or remain independent.
Additionally, the proposed changes eliminate the use of a separate waiting list for the supportive housing program. (Administrative Plan 17-14). It is unclear what effect combining the wait lists would have on people who require supportive housing, which includes many people with disabilities. We presume that people who do not require supportive housing will not be placed in such housing after the waiting lists are combined. In any event, we urge the CHA to ensure that this change does not negatively affect the housing options of people with disabilities.
Currently, when CHA families are displaced due to rehabilitation of their public housing unit, they receive a HCV program voucher to allow the family to relocate; under the changes to the Administrative Plan, families would merely be added or moved to the top of the HCV program waiting list. (Administrative Plan 4-8-9). This change will likely cause people with disabilities temporarily to become homeless while their public housing units are rehabbed to accommodate their disabilities, depending on how long they remain on the waiting list. This is an untenable change and should be reversed.
III. Outreach to People with Disabilities
According to the proposed Lease Agreement, residents will no longer be given copies of the CHA Civil Rights Information Sheet or the CHA Reasonable Accommodation Policy and Procedure. (Lease Agreement 39). Why the CHA proposes to eliminate this practice is unclear. Although ending the practice of handing out these documents will not eliminate residents’ rights, continuing to hand them out will make residents, including people with disabilities, more aware of their rights and how to enforce
those rights. According to HUD’s Disability Discrimination Study, there is widespread discrimination in the Chicago housing market against people with disabilities. (U.S. Dep’t of Housing and Urban Development, Discrimination Against Persons With Disabilities: Barriers at Every Step 42 (2005)). Therefore, the CHA should continue to distribute the Civil Rights Information Sheet and the Reasonable Accommodation Policy and Procedure documents with every CHA lease agreement.
The proposed changes to the Housing Choice Voucher Program Administrative Plan also eliminate family outreach to ensure the CHA makes efforts to identify and target underserved populations, which may include people with disabilities, particularly certain subsets of people with disabilities. (Administrative Plan 4-6). The changes also remove language that encourages the CHA to develop partnerships with agencies that provide services for people with disabilities, such as Access Living. (Administrative Plan 4-6). Eliminating targeted outreach and removing the emphasis on developing partnerships with organizations serving people with disabilities could diminish access to the HCV
program and PH for people with disabilities (particularly subsets of people with disabilities such as people living in institutions). It is hard to understand why the CHA would endeavor to cut back on outreach to people with disabilities. Whatever the reason, doing so is a mistake and the CHA should maintain language that supports and encourages outreach and the development of partnerships with agencies providing services for people with disabilities.
IV. Guest Policy Changes
The proposed guest policy is that a guest can visit a family in an assisted unit for a total of 30 calendar days in a calendar year, with each visit not to exceed seven consecutive calendar days. The proposed changes eliminate the ability of families to request an exception to this policy for valid reasons, such as when “care of a relative recovering from a medical procedure is expected to last 40 consecutive days.” (Administrative Plan 3-7). Families should continue to be able to request an exception to this policy when residents with disabilities require temporary around-the-clock care from someone who does not qualify as a live-in aide. While people with disabilities presumably could request (and would be granted) a reasonable accommodation, eliminating the language regarding the exception will have a negative effect.
V. Medical Marijuana Classified as Illegal Drug, Not a Reasonable Accommodation
Many proposed additions to the three documents concern medical marijuana use by residents. The proposed Administrative Plan for the HCV Program notes several times that “[t]he CHA will not permit the use of medical marijuana as a reasonable accommodation.” (Administrative Plan 2-6). Additionally, current medical marijuana use, defined as the use of medical marijuana during the previous six months, is a reason for the CHA to mandatorily deny assistance. (Administrative Plan 3-22). CHA also will deny assistance to a family if any household member has engaged in medical marijuana use in the past five years. (Administrative Plan 3-23). Furthermore, the CHA Grievance Procedure will not be available to PH residents whose tenancy is being terminated because of medical marijuana use. (ACOP 76).
In 2011, the U.S. Department of Housing and Urban Development issued two memorandums regarding medical marijuana use in public housing and housing choice voucher programs. (Sandra B. Henriquez, U.S. Dep’t of Housing and Urban Development, Memorandum, Medical Marijuana Use In Public Housing and Housing Choice Voucher Programs (2011), available at http://portal.hud.gov/hudportal/documents/huddoc?id=med-marijuana.pdf, and Helen R. Kanovsky, U.S. Dep’t of Housing and Urban Development, Memorandum, Medical Use of Marijuana and Reasonable Accommodation in Federal Public and Assisted Housing (2011), available at http://www.nhlp.org/files/3.%20KanovskyMedicalMarijunanaReasAccomm(012011).pdf). According to the Quality Housing and Work Responsibility Act of 1998 (QHWRA), new admissions of medical marijuana users are not allowed in PH and HCV programs. For existing PH and HCV residents, QHWRA requires public housing authorities to establish occupancy standards and lease provisions that allow them to terminate assistance for use of a controlled substance, including medical marijuana. However, public housing authorities have discretion to determine, on a case-by-case basis, the appropriateness of program termination of existing residents who use medical marijuana. According to one of the HUD memos, “[t]he decision of whether or not to allow continued occupancy or assistance to medical marijuana users is the responsibility of PHAs, not of the Department.” (Sandra B. Henriquez, U.S. Dep’t of Housing and Urban Development, Memorandum, Medical Marijuana Use In Public Housing and Housing Choice Voucher Programs 2 (2011), available at
http://portal.hud.gov/hudportal/documents/huddoc?id=med-marijuana.pdf). This language is important because it gives the CHA the discretion to house current PH and HCV residents who use medical marijuana. Given that the use of medical marijuana in Illinois will soon be legal, the CHA should give itself the authority to individually determine whether to terminate current PH and HCV residents if they use medical marijuana, rather than make it an across-the-board policy.
Additionally, one of the HUD memos notes that synthetic marijuana drugs have been approved by the Food and Drug Administration (FDA) for medical uses and are therefore allowed in public housing and voucher programs. (Sandra B. Henriquez, U.S. Dep’t of Housing and Urban Development, Memorandum, Medical Marijuana Use In Public Housing and Housing Choice Voucher Programs (2011), available at http://portal.hud.gov/hudportal/documents/huddoc?id=med-marijuana.pdf).
Nowhere in the three documents up for review does the CHA define medical marijuana or note that these synthetic marijuana drugs are not medical marijuana. The CHA may wish to define medical marijuana to make it clear that it does not encompass FDA-approved synthetic marijuana drugs.
As noted above, many of the proposed amendments will have deleterious effects on the housing options of people with disabilities and arguably violate the CHA’s obligation to affirmatively further fair housing under the Fair Housing Act. Accordingly, we urge the CHA to:
• Continue to give HCV waiting list preference to people with
• Continue to give HCV vouchers to tenants displaced by
accessibility-required rehabilitation work;
• Ensure that elimination of the separate waiting list for
supportive housing does not negatively affect the housing
options of people with disabilities who need supportive
• Continue to distribute, with all lease agreements,
documents relating to tenants’ civil rights and the
reasonable accommodation policy;
• Maintain the language that encourages the CHA to form
partnerships with agencies that
provide services to people with disabilities;
• Maintain the current guest policy; and
• Grant itself the maximum discretion allowed by HUD and
adopt a policy of individually determining whether to
terminate PH and HCV residents who use medical
marijuana, as well as clarify that synthetic marijuana is not
a controlled substance.
Thank you for your consideration. If you have any questions or need further information, please do not hesitate to contact Adam Ballard at 312.640.2195