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There are no Vacancies for Sexual Predators in Affordable Housing

There is no doubt about it, I am a “News Hound”.  I watch the news all of the time.  One of the most gripping headlines always includes how a woman or a child was assaulted by a sexual predator.  MSNBC has even created a long going documentary called “To Catch a Predator”.

I have been inspired to write this article as stark reminder that the safety of your affordable housing tenants needs to come first over the need to fill vacancies.  So let me begin by reiterating the current regulatory requirements and to strongly encourage the establishment of standards and processes with a zero tolerance approach to prevent convicted sex offenders from living in multifamily housing and receiving federal housing assistance.  The recommendations for new processes are to:

  • Inquire from each household member at each recertification/reexamination whether any family member is subject to a lifetime registration requirement under a state sex offender registration program.
  • Check the Dru Sjodin National Sex Offender Website to confirm that applicants and federal housing assistance recipients are (or are not) lifetime registered sex offenders.
  • Aggressively pursue termination of tenancy or assistance, as appropriate, for tenants subject to a State lifetime sex offender registration requirement to the extent currently allowed by law.

HUD is currently exploring regulatory and legislative changes to ensure that individuals subject to lifetime sex offender registration requirements do not continue to reside in federally assisted housing, but the strong recommendations in this article are vital to the ongoing effort to ensure the highest levels of public safety in federally assisted housing facilities.

Screening for lifetime sex offender registration applies to O/A’s and PHA’s administering the following rental assistance programs:

    • Section 202 Project Rental Assistance Contracts (PRAC)
    • Section 811 PRAC
    • Section 202/162 Project Assistance Contract (PAC)
    • Section 202/8
    • Section 8 Project-based
    • Section 236
    • Section 236 Rental Assistance Payment (RAP)
    • Section 221(d)(3) Below Market Interest Rate (BMIR)
    • Section 101 Rent Supplement
    • Public Housing
    • Tenant-based Housing Choice Voucher
    • Project-based Certificate and Housing Choice Voucher
    • Moderate Rehabilitation

The Office of Inspector General (OIG) recently conducted an audit of the U.S. Department of Housing and Urban Development’s (HUD’s) requirement prohibiting lifetime registered sex offenders from admission to HUD-subsidized housing.  The result of this audit estimated that 2,094 to 3,046 assisted households included a lifetime registered sex offender as a household member.  A copy of the Audit Report 2009-KC-0001, dated August 14, 2009, is located at:  http://www.hud.gov/offices/oig/reports/files/ig0970001.pdf.

Although the estimated number of assisted households that include a convicted registered sex offender as a household member is a relatively small percentage of the total assisted household population, from a public safety perspective this is not a question of numbers.  It is critical that all appropriate steps be taken to ensure that assisted housing facilities comply with the law barring convicted lifetime registered sex offenders, in order to help maximize the safety of other residents.   In order to exclude ineligible persons from residing in federally assisted housing to the greatest extent possible, the guidance below reiterates O/A’s and PHA’s statutory- and regulatory-based responsibilities and strongly recommends additional steps that can be taken to minimize the number of lifetime registered sex offenders receiving federal housing assistance.

Here are the current statutory and regulatory requirements:

In accordance with the regulations at 24 CFR 5.856 and 5.905, O/A’s and PHA’s must perform necessary criminal history background checks to determine if an applicant, or a member of an applicant’s household, is subject to a lifetime registration requirement under a State sex offender registration program. This check must be carried out with respect to the State in which the housing is located and with respect to States where the applicant and members of the applicant’s household are known to have resided.

O/A’s and PHA’s will make the determination, in accordance with their screening standards, whether the applicant and the applicant’s household members meet the screening criteria.  If these processes reveal that an applicant is a lifetime registered sex offender, or if the applicant withholds or falsifies information on the application, the O/A or PHA must deny admission to the program.  Before admission can be denied, the applicant must be notified of the right to dispute the accuracy and relevance of the background check information (24 CFR 5.905 (d) and 24 CFR 960.204 (c) for PHAs; Paragraph 8-14.C of Handbook 4350,3 REV-1, Occupancy Requirements of Subsidized Multifamily Housing Programs, for O/As.).

So how do we accomplish compliance with these regulatory requirements above?  O/A’s and PHA’s need ask the seemingly awkward question and adopt several new procedures at admission and at the tenants Annual / Interim recertification to prevent convicted lifetime registered sex offenders from receiving federal housing assistance.

As the process starts with the tenant application process, the O/A’s and PHA’s application should include a question asking whether the applicant or any member of the applicant’s household is subject to a lifetime state sex offender registration program in any state.  Besides the necessity of  screening adult members of the household, it is also recommended that this screening include background checks (sadly) on juvenile household members to the extent allowed by state and local law.

In order to request information necessary to screen applicants for lifetime sex offender registration requirements, there should also be a notation that failure to respond to the question may jeopardize the approval of the application.  Any changes to admissions policies must be consistent with Fair Housing and Equal Opportunity regulations, your Tenant Selection Plan and as well as any other applicable legal requirements.  Your Affirmative Fair Housing Marketing Plan needs to be updated and approved by HUD.

O/A’s and PHA’s should verify the information provided by the applicant by searching the Dru Sjodin National Sex Offender Database.  The Dru Sjodin National Sex Offender Database is an online, searchable database, hosted by the Department of Justice (DOJ), which combines the data from individual state sex offender registries.  The website for the database is located at:  http://www.nsopw.gov.  For record keeping and retention, a record of this screening, including date performed, should be retained.  O/As must retain the results of the search, along with the application, for a period of three years if the applicant is denied housing or, if the applicant is admitted to the program, for the term of tenancy plus three years.  O/A’s and PHA’s must destroy the results of the search in accordance with 24 CFR 5.903 (g).

The inquiry doesn’t stop at the admission process, it continues at the tenants Annual or Interim recertification where again documents need to include a question asking whether the tenant or any member of the tenant’s household is subject to a lifetime state sex offender registration program in any state.  The O/A’s and PHA’s should verify this information using the Dru Sjodin National Sex Offender Database and document this information in the same method used at admission.

For any admissions after June 25, 2001 (the effective date of the Screening and Eviction for Drug Abuse and Other Criminal Activity final rule), if the recertification/reexamination screening reveals that the tenant or a member of the tenant’s household is subject to a lifetime sex offender registration requirement, or that the tenant has falsified information or otherwise failed to disclose his or her criminal history on their application and/or recertification/reexamination forms, the O/A or PHA should pursue eviction or termination of tenancy to the extent allowed by their lease and state or local law.

Notwithstanding the above, if the tenant or a member of the tenant’s household, regardless of when they were admitted, commits criminal activity while living in federally assisted housing, the O/A or PHA should pursue eviction or termination of tenancy to the extent allowed by their lease and state or local law.

The bottom line, would you want any of your family members living next door to a convicted sexual predator…I am guessing “NOT”.  Sure one could say well “They have paid for their crimes while in jail”…that “One” person can share their home with the predator.  I would rather not have my family members or friends be subject to those risks of the convicted sex offender from striking again.  We all make choices in life, hopefully more of them are the right choices and some choices are possibly made by defect.  No matter what the reason for the bad choices one makes, why should I or your tenants be subject of the negative consequences of those bad choices.

The requirements for prohibition of admission to applicants subject to a lifetime sex offender registration requirement and obtaining background checks can be found at 24 CFR Part 5, Subpart I – Preventing Crime in Federally Assisted Housing – Denying Admission and Terminating Tenancy for Criminal Activity and Alcohol Abuse; Subpart J – Access to Criminal Records and Information; and in HUD Handbook 4350.3 REV-1, HUD Occupancy Requirements of Subsidized Multifamily Housing Programs.