Chapter XXVI: Informal Reviews, Mediations, Informal Hearings

Effective: May 2009

Introduction

Many decisions made that affect Housing Choice Voucher (HCV) eligibility or level of assistance require notification to assisted families of their right to an Informal Review or Hearing. Informal Reviews apply only to applicants including port-ins. Informal Hearings apply to participants. Decisions related to restrictions/terminations for applicant non-citizens require an Informal Hearing versus an Informal Review only if MSHDA denies assistance based on citizenship or ineligible immigrant status. (24 CFR Part 5). The purpose of an Informal Review or Hearing is to resolve applicant/participant disputes with MSHDA without legal action and, if applicable, to correct errors. Adverse actions cannot occur until a decision has been rendered through the informal hearing process.

Mediations are offered to participants who fail to report, or under-report their household income so the participant has an opportunity to review EIV and third party income verifications, and a Repayment Agreement can be negotiated to avoid loss of rental assistance.

Section A: Informal Reviews – Required (CFR 982.554)

Informal Reviews are offered to applicants and port-ins who are denied assistance before the effective date of the HAP contract. The applicant may request an Informal Review of the PHA decision denying assistance to the applicant in all circumstances other than those cited Section B below.

Section B: Informal Reviews – Not Required (24 CFR 982.554)

Do not offer Informal Reviews for established policies and procedures, determinations required by the U.S. Department of Housing and Urban Development (HUD) rules, or written MSHDA policies on discretionary administrative matters such as:

• A determination of family unit size under MSHDA subsidy standards.
• Refusal to extend or suspend a voucher term.
• Unit selected by the applicant is not in compliance with HQS.
• PHA determination that unit is not in compliance with HQS due to family size/composition.
• PHA determination not to grant approval of tenancy.
• Discretionary administrative determinations (i.e. refusal to accept an application to a closed waiting list, refusal to extend a voucher, household income exceeds MSHDA’s annual gross income limit).
• General policy issues or class grievances.
• Applicant does not meet eligibility criteria.

Section C: Informal Reviews Requests and Procedures

When an applicant or port-in family requests an Informal Review in writing within ten days of the date of the MSHDA 1634b, mail an Informal Review/Hearing Request form (MSHDA 97) to the applicant. The applicant must return the MSHDA 97 no later than ten days from the date of the MSHDA 97 to be granted an Informal Review. The Informal Review is conducted within 30 days from the receipt date of the MSHDA 97. The person who made or approved the decision under review, or a subordinate of such person, cannot conduct the Informal Review. Generally, a MSHDA Housing Choice Voucher Program staff person at the Resource Specialist level or above conducts the Informal Review (Reviewer).

The applicant and MSHDA are given the opportunity to present evidence and witnesses. The denied applicant may use an attorney or other representative to assist them at their own expense. The Reviewer should hold Informal Reviews in a face-to-face setting, but may conduct the Informal Review by mail and/or telephone if both parties accept this method.

The Reviewer has 30 days to provide a response in writing to the applicant after the Informal Review. The response includes the decision of the Reviewer and an explanation of the reasons for the decision.

All requests for an Informal Review, supporting documentation, and a copy of the final decision are retained in the applicant’s application file.

Section D: Mediations

Mediation will be offered to HCV participants when it is discovered that they have not reported or underreported their income, via a Notice of Income Discrepancy (MSHDA 523) or Notice of Intent to Terminate (MSHDA 522). The mediation session allows the participant an opportunity to dispute income discrepancy findings, and negotiate their Repayment Agreement.

If the participant enters into a Repayment Agreement following receipt of a Notice of Income Discrepancy, no further action is required.

If the participant does not return the offered Repayment Agreement or does not request mediation within ten days of the date of the Notice of Intent to Terminate and/or does not sign the Repayment Agreement offered at Mediation, terminate the HCV assistance following standard procedures. The Delinquency Accounts Coordinator (DAC) willl pursue collection of the debt. See Chapter XIV, Terminations.

If the participant requests mediation, the HA will:

• Arrange to meet with the tenant at a mutually-agreeable location and confirm the meeting via a Notice of Mediation (MSHDA 521). At the HA's discretion, and when circumstances warrant assistance, you may ask for the support of your Resource Specialist or the Compliance Enforcement Coordinator to be present at the mediation session. It is expected this would be a rare occurrence.
• Follow these procedures to conduct a mediation session:
  1. HA begins the mediation session with an opening statement that states the income discrepancy, explains how the program rules were violated, and consequences that result from failure to report income correctly.
  2. Show the participant the EIV printout, the TPV, and the tenant-supplied income information.
  3. Allow the participant an opportunity to dispute the findings.
  4. Continue to dialog with the participant and negotiate the repayment.
  5. Encourage the participant to sign the Repayment Agreement. Advise the participant that should they not agree to repay the debt by executing the Repayment Agreement, the case will be turned over to the Michigan Department of Treasury for collection and penalties will be assessed.
  6. If the participant refuses to sign the Repayment Agreement, inform them that the Mediation session is concluded, and HCV termination procedures will be followed.
  7. Provided the annual discrepancy is less than $10,000, the household is not at zero HAP, the tenant signs the Repayment Agreement and there are no additional program violations, the participant will be allowed to remain on the program.
  8. If the annual discrepancy is $10,000 or greater, the HA must contact the Compliance Enforcement Coordinator to determine the appropriate course of action.
• Follow up the mediation session with a letter to the participant confirming the results of the mediation.
• Proceed with cancellation or continuation in the Program as appropriate.

Section E: Informal Hearings - Required (24 CFR 982.555)

Make every effort to avoid Hearings through execution of Repayment Agreements, mediation, or other forms of dialog. If that fails, Informal Hearings are required when there are disputes regarding the:

1. Determination of the family’s annual or adjusted income, and application of such income to compute the TTP, Tenant Rent and HAP.
2. Determination of the appropriate utility allowance (if any).
3. Determination of the Voucher size.
4. Determination to terminate a family’s FSS contract, withhold supportive services, or propose forfeiture of the family’s escrow account.
5. Determination to deny the family’s request for a unit size exception.
6. Decision to terminate assistance for ANY reason including a determination to terminate assistance for a participant family because of the family's action or failure to act, or because the participant family has been absent from the assisted unit for longer than the maximum period permitted under MSHDA policy and HUD rules. Both the family and owner must receive 30-day written notice to actually terminate the HAP/Voucher Contract unless the owner is involved in fraud.
7. Refusal to issue a new voucher to move.

If an Informal Hearing is requested for items 1-4, the HA will proceed with the action, the Informal Hearing will be conducted and if the action is overruled at the Hearing, the HA will correct the action retroactively.

If an Informal Hearing is requested, for items 5-7, the hearing must be conducted and a decision rendered prior to actually terminating assistance.

Section F: Informal Hearings - NOT Required (24 CFR 982.555)

The purpose of an informal hearing is to resolve participant disputes with MSHDA without legal action and, if applicable, to correct errors. Informal Hearings are not required for:

• Discretionary administrative decisions by MSHDA (for example, the amount and effective date of Payment Standards).
• General policy issues or class grievances.
• Establishment of the Utility Allowance Schedule for families in the program.
• Determination not to approve an extension or suspension of the Voucher term (beyond 120 days).
• Determination not to approve a unit or tenancy.
• Determination that an assisted unit does not comply with HQS. Includes HQS violations due to family size. (Exception: the decision to terminate for tenant-caused HQS damages).
• Determination to exercise or not to exercise any right or remedy against the owner under a HAP/Voucher Contract.
• Determination that the Voucher issuance period expired.

Section G: Written Notice of Proposed MSHDA Denial or Termination Action

Written notification of all denials or terminations is required via the MSHDA 1634b. This form includes the necessary hearing language and procedures to follow to request an Informal Review/Hearing.

Complete the 1634b checking all applicable boxes including detailed explanation of program violations (using exact language from the HUD regulations) in the "other" box area. All the violations should be listed on the 1634b. Mail form first class via U.S. Mail. Also complete a MSHDA 95 allowing the landlord a 30-day Notice (unless the landlord is complicit in the program violation; in that case terminate effective immediately.)

Section H: Procedures if an Informal Hearing is NOT Requested

If the family does NOT request an Informal Hearing Request ( MSHDA 97) within the previously mentioned 10-day period, proceed with the EOP.

Section I: Procedures if an Informal Hearing is Requested

If the HA receives a written request for an Informal Hearing Request (MSHDA 97) within ten days from the date of the notification of termination, OR the participant specifically requests an Informal Hearing in a written request within ten days from the date of the notification of termination, the HA immediately forwards an Informal Hearing Request form (MSHDA 97) to the family which includes the instructions for completion and return of the MSHDA 97 document. The MSHDA 97 includes all required HUD language regarding the family’s rights at an informal hearing. If the participant family fails to return the MSHDA 97 within 10 calendar days of the date of the form, HA proceeds with the EOP. If the MSHDA 97 is returned timely, the HA contacts the assigned Resource Specialist (RS) and forwards the request to them along with all pertinent documentation.

The RS forwards the hearing request to the MSHDA Office of Legal Affairs for a Hearing to be scheduled. The MSHDA Office of Legal Affairs assigns a hearing officer who is neither the person who made or approved the decision, nor a subordinate of that person.

The assigned Hearing Officer contacts the RS to schedule the hearing date/time/location. The hearing is held in the family’s county whenever possible at a place designated by MSHDA. Exeptions as to location are addressed on a case-by-case basis.

In cases where a participant's assistance is terminated by the Compliance Enforcement Coordinator (CEC), the CEC will act in place of the RS.

Section J: Notice of Informal Hearing

The Hearing Officer schedules the hearing within 30 days of receipt of the hearing request from the RS.  They forward the hearing appointment notice via first class mail to all parties not less than ten days before the informal hearing date.  The hearing notification contains:

• The date, time, and location of the hearing;
• The ’s right to bring evidence, witnesses, legal or other representation at the family’s expense;
• The right to view any documents or evidence in the possession of MSHDA upon which MSHDA based the proposed action and, at the family’s expense, to obtain a copy of such documents prior to the hearing. Advance requests for documents or evidence must be received no later than seven days before the hearing date;
• A notice to the family that MSHDA will request a copy of any documents or evidence the family will use at the hearing. Requests for documents or evidence must be received no later than seven days before the hearing date.

Section K: Withdrawal of Informal Hearing Request

The family or an authorized representative may withdraw a request for an informal hearing at any time. A signed statement withdrawing the request is preferred; however, a verbal request is accepted. The Hearing Officer forwards a letter to the family confirming the withdrawal of the request.

Section L: Preparation for Hearing by RS and HA

The RS or CEC will represent MSHDA at Informal Hearings (i.e. presents the evidence, etc.) In some cases, HA’s may be required to give evidence. The assigned HA and appropriate MSHDA staff must attend the hearing when required.

In cases where an Informal Hearing is the result of termination due to the under or non-reporting of income or other fraud, and the CEC has been involved, the RS will work with the CEC to prepare for the hearing.

Section M: General Requirements/Information Relative to Informal Hearings

A representative of the Office of Legal Affairs conducts all Informal Hearings. The representative is referred to as the Hearing Officer. The Hearing Officer provides for the taking of testimony by depositions if necessary and/or appropriate. The Hearing Officer regulates the course of the Hearing, sets the time and place for the Hearing and, if applicable, files briefs and other documents. An Informal Review is not an environment for children. The Hearing Officer may request that children be removed from the Hearing if their presence is being disruptive to the proceedings.

At the informal hearing, both MSHDA and the family have the opportunity to:

• Present a case with or without the aid of an authorized representative;
• Bring witnesses;
• Establish all pertinent facts and circumstances;
• Advance any relevant arguments without undue influence; and
• Question or refute any testimony or evidence.

The family has the right to legal counsel, advocate, or other designated/authorized representative at its own expense. The Head of Household must be present at the hearing regardless if he/she has apointed a representative.

The family and MSHDA have the right to examine documents that are directly relevant to the hearing. Both parties have the opportunity to examine all documents and records used at the hearing. This language is included in the notice to schedule the hearing forwarded by the Office of Legal Affairs. If requested, copies must be provided (at the requestor’s expense – a standardized cost will be determined).

The hearing concerns only the issues for which the family has received the notification of termination.

Evidence is considered without regard to admissibility under the rules of evidence applicable in a judicial proceeding in a circuit court of this State. Evidence must be reasonable. Incompetent, irrelevant, immaterial, or unduly repetitious evidence may be excluded. Objections to offers of evidence may be made and will be noted in the record.

Factual determinations relating to the individual circumstances of the family are based on a preponderance of the evidence presented at the hearing and not guilt "beyond a reasonable doubt" (i.e. factual and legal basis for the decision to change/terminate assistance and the participant’s claim as to why assistance should be continued or increased).

The Hearing Officer may grant an adjournment or continuance for ‘good cause.’ Good cause includes, but is not limited to, the absence of a material witness or any relevant or necessary evidence. A hearing cannot be adjourned or continued more than once.

The Hearing Officer denies or dismisses a request for an Informal Hearing if:

• The request is withdrawn by a family or an authorized representative, in writing, prior to the signing of the opinion and recommendation for decision by the Hearing Officer; or
• The family or authorized representation fails to appear at the scheduled Informal Hearing. (Though a tenant may be represented at the hearing by counsel or other entity, that does not preclude the requirement that the tenant must be present at the hearing.)
• The family misses an appointment or deadline ordered by the Hearing Officer. In this case, the action by MSHDA takes effect and another hearing is not granted.

The record for the Informal Hearing consists of the transcript or recording of testimony and all exhibits presented. The record also includes any requests filed in the Informal Hearing and final opinion, recommendation, and decision of the Hearing Officer. The record is available to the family at a place accessible to the family or their authorized representative.

The Hearing Officer’s opinion and recommendation for a decision is based exclusively on the evidence and other materials or documents introduced at the Informal Review/Hearing.

MSHDA may order a rehearing on its own motion or at the request of another party.

A decision adverse to a family is not subject to rehearing upon the same issue unless newly discovered and relevant evidence is presented containing findings of fact, conclusions of law, and a recommendation as to the proper decision.

Decisions can be appealed to the appropriate State circuit or federal district court as provided by applicable governing statute.

Section N: Requests for Rescheduling an Informal Hearing

A hearing will be rescheduled if it is needed as a reasonable accommodation for a person with disabilities and the request is made at least 48 hours in advance of the scheduled hearing time.

A hearing will be rescheduled once due to extenuating circumstances (unexpected hospitalization, death in family, etc). The request must be made of the hearing officer at least 48 hours in advance of the scheduled hearing time and third party verification of the extenuating circumstances must be received by the hearing officer at the time of the request.

If the family misses an appointment or deadline ordered by the Hearing Officer, the action by MSHDA takes effect and another hearing is not granted.

Section O: Informal Hearing Decision Notification

Within 30 days of the hearing date, the Hearing Officer prepares a written recommendation to the Director of the MSHDA Office of Legal Affairs. Prior to forwarding the decision to the Director of the MSHDA Office of Legal Affairs, the assigned RS or CEC has five working days to review the recommendation and either accept the decision ‘as is’ or request a re-hearing with a different Hearing Officer. (It is assumed that a re-hearing will be extremely rare.) The MSHDA Office of Housing Voucher Programs (OHVP) is not bound by a hearing decision if it is contrary to HUD regulations or requirements, or otherwise contrary to federal, state, or local law. If OHVP determines it is not bound by a hearing decision, the OHVP staff must notify the Director of the MSHDA Office of Legal Affairs of the reasons it determined that the decision is not binding.

The Director of the Office of Legal Affairs approves/denies the recommendation and the Office of Legal Affairs provides written notification of the decision to all parties within 30 days. The notice includes a clear summary of the decision and the reasons for it. If the decision involves money owed, the amount owed and the date the decision goes into effect, is identified.

All requests for an Informal Hearing, supporting documentation, and a copy of the final decision are retained in the tenant file as non-purge documents.

If a Tenant Repayment Agreement (MSHDA 103) is necessary, the assigned HA must obtain an executed Agreement and forward it to the MSHDA OHVP Operations Division.

Section P: Applicable Forms List