Under the Demonstration, HUD has the authority to waive or specify alternative public housing requirements, or to establish requirements for converted assistance under the demonstration. Additionally, the RAD Statute imposes certain unique requirements. To facilitate the conversion of assistance, HUD is waiving or imposing the following alternative and other public housing program requirements for public housing projects converting assistance (Sections 1.6 and 1.7 list the waivers and alternative and other requirements of programs into which assistance is being converted):
- Use of Public Housing Program Funds to Support Conversion. PHAs are permitted under the Demonstration to use available public housing funding, including Operating Reserves, Capital Funds, and Replacement Housing Factor (RHF) funds, and Demolition and Disposition Transitional Funding (DDTF), as a source of capital in the development budget to support conversion, whether for rehabilitation or new construction, as well as to increase initial contract rents. Eligible conversion-related uses for these funds include pre- development, development, or rehabilitation costs of the Covered Project, establishment of a capital replacement reserve or operating reserve, payment of Capital Fund Financing Program (CFFP), Operating Fund Financing Program (OFFP), or Energy Performance Contract (EPC) debt, and increase of the initial contract rent pursuant to Sections 1.6.B.5.iii and 1.7.A.5.iv. In order to use such funds on a Covered Project, these funds must be identified in the Financing Plan and RCC. See also 1.4.B.2.
If the PHA requests, in accordance with section 9(j)(2)(A)(ii) of the Act and the relevant HUD Appropriation Acts, HUD will extend the PHA’s obligation end date for Capital Funds used in the conversion for up to five years from the point when Capital Funds became available to the PHA for obligation. By extending the obligation end dates, the expenditure end dates will be correspondingly extended. Any such extensions must remain within the boundaries of the account closing law, including preserving sufficient time for administrative close-outs. Such extensions will prevent PHAs from otherwise losing their unobligated Capital Funds prior to conversion.
Prior to the approval of a Financing Plan, a PHA may expend up to $100,000 in public housing program funds on pre-development conversion costs per CHAP without HUD approval. Predevelopment assistance may be used to pay for materials and services related to proposed rehabilitation or development and may also be used for preliminary development work. Public housing program funds spent prior to the RAD conversion or construction or rehabilitation closing relating to a Covered Project as contemplated in the RCC are subject to public housing procurement rules.
Issuance of the RCC constitutes approval to use public housing funds as referenced in the Sources and Uses upon the RAD conversion or construction or rehabilitation closing relating to a Covered Project.
In the case of a PHA that is converting all of its ACC units, there is no restriction on the amount of public housing funds that may be contributed to the Covered Project(s); the PHA may convey all program funds to the Covered Project(s). In order to cover the cost of administrative activities required to terminate the ACC, once it no longer has units under ACC and has no plans to develop additional public housing, the PHA may:
- designate that a reserve associated with the Covered Project be available to fund any public housing closeout costs (such as an operating deficit reserve or a specific PHA close-out reserve). Any funds not needed for public housing closeout costs would remain in such reserve or may be transferred to another reserve associated with the Covered Project (such as the replacement reserve). Thereafter, these funds may be used at the Covered Project pursuant to the authorized use of the applicable reserve, or
- retain funds under the public housing program for this purpose. However, HUD will recapture any public housing funds that a PHA does not expend for closeout costs.
In the case where the PHA will continue to maintain other units in its inventory under public housing ACC, a contribution of Operating Funds to the Covered Project that exceeds the average amount the project has held in Operating Reserves over the past three years will trigger a subsidy layering review under 24 CFR § 4.13. Similarly, any contribution of Capital Funds, including RHF or DDTF, will trigger a subsidy layering review. Notwithstanding the subsidy layering review, PHAs should be mindful of how the Capital Funds or Operating Reserves used in the financing of its RAD properties may impact the physical and financial health of properties that will remain in its public housing inventory.
In addition, following execution of the HAP Contract, PHAs are authorized to use Operating and Capital Funds to make HAP payments for the remainder of the first calendar year in which the HAP Contract is effective (See Section 1.13). Otherwise, a PHA may not contribute public housing program funds to the Covered Project unless such funding has been identified in the approved Financing Plan and included in the approved Sources and Uses attached to the RCC.
- Conversion is a Significant Amendment to Annual/Five Year Plan. Conversion of assistance under the Demonstration is considered a significant action by the PHA. If not fully discussed in a PHA’s Five-Year Plan, Annual Plan or MTW Plan, the conversion of assistance must be presented in an amendment to the PHA’s Five-Year Plan for qualified and non-qualified PHAs, a significant amendment to the Annual Plan for non-qualified PHAs, and an amendment to the MTW Plan for MTW PHAs. As such, qualified and non-qualified PHAs, as well as MTW PHAs, are subject to the Consolidated Plan requirements and the public notice and Resident Advisory Board consultation requirements outlined in 24 CFR part 903. MTW PHAs are also subject to the Consolidated Plan requirements; however, they must follow the MTW Plan Amendment and public process requirements outlined in the Standard MTW Agreement in lieu of the requirements in 24 CFR part 903. If the conversion will require changes to the PHA’s Admissions and Continued Occupancy Policy (ACOP) and/or Section 8 Administrative Plan, these changes must also be addressed in the PHA Five- Year Plan, Annual Plan, or MTW Plan, or submitted with the significant amendment to the PHA Plan or amendment to the MTW Plan. In addition to the information already required by 24 CFR part 903 for PHA Plan amendments, all PHAs must provide the information listed in Attachment 1D. A PHA may fulfill this requirement by including the RAD-related provisions in their Five-Year Plan, Annual Plan, MTW Plan, or Significant Amendment (as applicable), or provide the information in any successor forms produced by HUD.
The Financing Plan must include a letter from HUD approving the Five-Year Plan, Annual Plan, MTW Plan or Significant Amendment.
In addition, any substantial change to the conversion plan is required to undergo the significant amendment process or other HUD review if the substantial changes involve a transfer of assistance, a change in the number of assisted units, or a change in eligibility or preferences for new applicants.
- Accessibility Requirements. Federal accessibility requirements apply to all conversions – whether they entail new construction, alterations, or existing facilities. The laws that most typically apply include Section 504 of the Rehabilitation Act of 1973 (Section 504), the Fair Housing Act (FHAct) and the Americans with Disabilities Act (ADA). Although the requirements of each of these laws are somewhat different, PHAs must comply with each law that applies. All three laws typically apply to new construction. Section 504 and the ADA also apply to substantial alterations and other alterations as defined in 24 CFR § 8.23 and to existing, unaltered facilities (24 CFR § 8.24). See also 28 CFR § 35.151(b) and 28 CFR part 36.
When a project’s rehabilitation meets the definition of a “substantial alteration” under 24 CFR § 8.23, a PHA must comply with all applicable accessibility requirements under Section 504. For some projects, “other alterations,” as defined in Section 504, are made over time. If other alterations, considered together, amount to an alteration of an entire dwelling unit, the entire dwelling unit shall be made accessible.
Where a PHA is planning to use RAD conversion in conjunction with new construction, the project must comply with all applicable accessibility requirements for new construction. The specific requirements are set out in regulations at 24 CFR part 8, 28 CFR part 35 and 36, and 24 CFR part 100, subpart D. Information on the design and construction requirements of the Fair Housing Act that are applicable to new construction is found at www.fairhousingfirst.org.
PHAs are encouraged to use universal design principles, visitability principles, and active design guidelines in planning retrofit and new construction work, wherever feasible. However, adherence to universal design principles does not replace compliance with the accessibility requirements of Section 504, the ADA, and the Fair Housing Act.
ROSS Service Coordinator GrantMy PHA is the recipient of a ROSS Service Coordinator Grant and plans to submit a RAD Application. Will we be permitted to continue assisting families (who, because of the RAD conversion) will be residing in non-public housing units) after the conversion?
Yes. Section 1.5H of the Notice provides that residents who are currently participating in ROSS may continue to participate after the RAD conversion for the term of ROSS grant. Also, with the PBRA HAP, the converted properties will be eligible to apply for the Multifamily Housing Service Coordinator Grants which are available to subsidized properties. These competitive grants are offered through a Notification of Funding Availability to serve properties designated as elderly and/or disabled. [Revised 7.17.14]
RAD PRACHow does the switch to a RAD HAP Contract affect the PHA's Admissions and Continued Occupancy Policy?
A project that converts under RAD will no longer be under the public housing program. Therefore, the ACOP will not apply. The owner must establish admissions and occupancy policy consistent with the program to which the project is applying. For conversions to PBV, these policies can be found in CFR 24 Part 983. For conversions to PBRA, these policies can be found in Handbook 4350.3
TDC/HCC Cost LimitsDo the TDC/HCC cost limits established by HUD apply to the RAD program?
No. During conversion the TDC/HCC cost limits do not apply. Post-conversion, a RAD project is not public housing, so public housing rules do not apply.
Inclusion of Excess Personal Property in RAD ConversionIf a PHA owns excess personal property (i.e., vehicles) not currently considered part of any one AMP, may it include the property in its RAD conversion?
Yes, provided that either: (A) the PHA is converting its entire public housing portfolio; or (B) there is a sufficient nexus between the property and the proposed conversion (i.e., the vehicle will serve the project).
Closing Out Projects in FASS-PHIf a public housing-only PHA converts its entire inventory to RAD, does it need to submit one last FASS-PH report (for that last partial or full year)?
Yes. Because it received Federal funds for a portion of that fiscal year, the PHA will need to submit a close-out FDS.
Transfer of FSS Escrow Accounts for PBRA ConversionsHow do FSS escrow accounts get transferred to deals that are converting to PBRA? We understand that they are transferred in PBV and that HUD continues to fund the rents at the initial HAP level, so that the FSS escrow accounts can funded by resident payments as their incomes rise. Will this also happen with PBRA?
Public Housing residents that are current FSS participants will continue to be eligible for FSS once their housing is converted under RAD, and PHAs will be allowed to use any remaining PH FSSfunds, to serve those FSS participants who live in units converted by RAD. Due to the program merger between PH FSS and HCV FSS that took place pursuant to the FY14 Appropriations Act (and was continued in the FY15 Appropriations Act), no special provisions are required to continue serving FSS participants that live in public housing units converting to PBV under RAD. However, PHAs should note that there are certain FSS requirements (e.g. escrow calculation and escrow forfeitures) that apply differently depending on whether the FSS participant is a participant under the HCV program or a public housing resident, and PHAs must follow such requirements accordingly. All PHAs will be required to administer the FSS program in accordance with FSS regulations at 24 CFR Part 984, the participants’ contracts of participation, and the alternative requirements established in the “Waivers and Alternative Requirements for the FSS Program” Federal Register notice, published on December 29, 2014, at 79 FR 78100. 25 Further, upon conversion to PBV, already escrowed funds for FSS participants shall be transferred into the HCV escrow account and be considered TBRA funds, thus reverting to the HAP account if forfeited by the FSS participant. An owner is permitted to obtain the escrow amount by creating monthly Owner/Agent Request (OARQ) adjustments on the property’s HAP voucher and then must deposit the money in the corresponding escrow account. In order for HUD to identify information relating to FSS, and until future updates can be made to TRACS, all FSS OARQ adjustments must indicate the Unit Number, Head of Household’s Last Name, and the words “FSS Participant” in the comments section. The owner shall deposit the FSS account funds of all participating families into a single depository account.
Eligibility for ROSS After CHAP IssuanceAs it relates to the 2015 ROSS NOFA, are you eligible if you sign the final RAD contract before the awards for ROSS are made, or are you ineligible once the CHAP is received?
The RAD units are ineligible once the CHAP is received. See the ROSS NOFA Section IIIlA: "RAD Provision. Units that have been approved for RAD conversion or units that have already converted are not eligible to be served under the ROSS-SC NOFA. PHAs that are submitting RAD applications for some or all of their units, but that have not received approval during the ROSS application period, must withdraw their request for a ROSS grant as soon as they receive a RAD Commitment to enter into a Housing Assistance Payment (CHAP)."
New Resident Eligibility for Family Self Sufficiency (FSS) Program After ConversionAre new tenants who come under lease post-RAD conversion eligible for the Family Self Sufficiency (FSS) program?
For PBV conversions, new residents would be eligible for FSS as long as the PHA administers an FSS program. For PBRA conversions, FSS funds awarded in FY14 and prior FSS funds may be used only to continue to serve FSS participants living in units converted under RAD to PBRA. Pursuant to FY 2015 Appropriations Act, any FSS funds awarded in FY 2015 (and forward if the provision is extended), may be used to also serve any other PBRA resident, affected by RAD or not.
Phase-In for EID HouseholdsCan RAD households who are currently receiving an Earned Income Disregard (EID), receive a rent phase-in at conversion if the household’s monthly rent increases by more than the greater of 10% or $25 purely as a result of the conversion? Section 1.7.B.7 of the RAD Notice states “tenants whose EID ceases or expires after conversion shall not be subject to the rent phase-in provision, as described in Section 1.7.B.3; instead, the rent will automatically be adjusted to the appropriate rent level based upon tenant income at that time.
Yes, RAD households who are currently receiving an EID are eligible to receive a rent phase-in at conversion if the household’s monthly rent increases by more than the greater of 10% or $25 purely as a result of the conversion. Section 1.7.B.7 of the RAD Notice refers to the point in time when the EID ceases or expires. The result is the inclusion of income that was previously disregarded and an increased monthly rent. This increase in monthly rent, which occurs because of the inclusion of the previously disregarded income, is not subject to phase-in and any phase-in that was in effect ceases.