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R&C attorneys are committed to providing information and support during these challenging times.  Below is a compilation of relevant Coronavirus (COVID-19) resources for owners and operators of multifamily housing developments. Updates will be posted as necessary. To receive additional COVID-19 news, register for our weekly newsletter by emailing inquiry@renocavanaugh.com. 
 
CDC Infectious Disease Resources 
 
The CDC continues to monitor COVID-19 closely and issue recommendations. HUD suggests that housing providers review the guidance for communities, business and schools. On March 20, the CDC issued interim guidance for retirement communities and independent living facilities, including public housing and other federally assisted senior housing. Housing providers who operate facilities for the elderly and/or disabled may also wish to review resources for clinics and healthcare facilities. 
 
 
HUD Resources
 
HUD’s COVID-19 information and resources webpage informs residents, PHAs and other housing providers about steps to take to prevent and reduce the spread of COVID-19.  HUD has committed to update the website regularly as information and resources become available.
 
 
PIH Notice 2020-13 (HA), REV-1; Attachment 1 and Appendix on COVID-19 Statutory and Regulatory Waivers and Alternative Requirements for the Public Housing, HCV, Indian Housing Block Grant and Indian CDBG Programs, Suspension of PHAS and Section 8 MAP, Revision 1 (published 07-02-2020)
 
 
 
 
 
 
Mortgagee Letter 2020-09 – Implementation of CARES Act Forbearance

Mortgagee Letter 2020-11 – Section 223(f) Underwriting Mitigants for MFH Projects Due to COVID-19

PIH Notice 2020-05: COVID-19 Statutory and Regulatory Waivers for Public Housing, HCV, Indian Housing programs, and suspension of PHAS and SEMAP (issued 04-10-2020) – topics covered include income verifications, HQS, amendments to ACOP and other administrative requirements. PHAs that elect to implement waivers must notify affected residents and project owners, document implementation, and utilize alternative requirements in some cases. This notice was revised and is superseded by PIH Notice 2020-13 (HA), REV-1 published 07-02-2020, see above.

 
 
Other HUD updates include:
Fair Housing Considerations
 
It is important to implement COVID-19 practices uniformly in a non-discriminatory manner. For example, do not impose more stringent social distancing requirements on certain nationalities. It may also be necessary to issue reasonable accommodations to persons with disabilities who require additional assistance with activities of daily living. For example, a disabled individual may need the continued assistance of a caregiver or meal delivery services, and housing providers may need to make exceptions to restricted visitor policies to accommodate these needs. Note that contracting the COVID-19 disease does not necessarily qualify an individual as disabled. See HUD FHEO’s Statement on Fair Housing and COVID-19.
 
Legislation
 
 
Enacted 03-19-2020 – Provides supplemental appropriations for emergency food and nutrition relief, directs OSHA to issue emergency temporary standards to protect health care workers, requires employers to provide paid sick leave, expands unemployment benefits, provides for free COVID-19 testing, and temporarily increases the Medicaid federal medical assistance percentage among other things.

H.R. 748 – Coronavirus Aid, Relief and Economic Security Act (“CARES Act”)
 

On 03-27-2020, Congress passed and the President signed a historic stimulus package in response to the COVID-19 outbreak. The legislation provides supplemental appropriations for HUD assisted housing and other programs to address additional expenses, lost rental revenue, and disruptions caused by COVID-19, including:
 
  • $1.25B for tenant based rental assistance, of which $400B is for voucher renewals and $850B is for administrative fees and other new eligible expenses defined by HUD  
  • $685M for public housing operating funds, which may be combined with prior year operating and capital funds and used for any eligible operating or capital fund purposes
  • $1B for Section 8 PBRA assistance to owners and sponsors for normal operations and other necessary actions
  • $50M for Section 202 Elderly Housing, including $10M for resident coordinator services
  • $4B for homelessness assistance for normal operations and other necessary actions
  • $5B in CDBG funds for various purposes to prepare for, and respond to coronavirus
 
In addition, the relief package includes broad statutory and regulatory waiver authority for the HUD Secretary as “necessary for the safe and effective administration” of the supplemental funds. It also includes a 120-day moratorium on evictions for non-payment against tenants in properties assisted, insured, guaranteed or supplemented by HUD, Fannie Mae, Freddie Mac, or receiving Rural Housing vouchers or VAWA assistance. Owners of multifamily properties with FHA-insured or Freddie or Fannie Mae-backed loans could also receive up to 90 days of mortgage forbearance due to financial hardship, provided that no tenants in such housing are evicted.

Regulations

Inadmissibility on Public Charge Grounds Final Rule – On March 27, the U.S. Citizenship and Immigration Services issued the following in response to COVID-19:  “To address the possibility that some aliens impacted by COVID-19 may be hesitant to seek necessary medical treatment or preventive services, USCIS will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge inadmissibility determination, nor as related to the public benefit condition applicable to certain nonimmigrants seeking an extension of stay or change of status, even if such treatment is provided or paid for by one or more public benefits, as defined in the rule (e.g. federally funded Medicaid).”

 
Additional Tips/Best Practice Suggestions
 
  • Social Distancing/Protection – Follow CDC guidelines and post signs informing residents and staff of proper social distancing and recommended hygienic practices. Minimize tenant-to-tenant and staff-to-tenant contact as much as possible. Post signs reminding residents to maintain safe distances between themselves and others and to stay in their units if they are sick. Close community rooms and cancel all activities and meetings larger than the CDC recommended guidelines. Use technology to communicate with residents and perform basic management functions, such as rent collection, obtaining electronic signatures on documents. HUD cancelled REAC and MOR inspections until further notice, so consider cancelling all non-emergency unit inspections and restricting unit entry to emergency maintenance needs only. Provide protective gear to staff as needed. 
     
  • Cleaning – Follow CDC guidelines. Clean and disinfect hard surfaces regularly, especially frequently touched surfaces, such as door handles, light switches, handrails, elevator buttons, countertops, appliances, restrooms. Offer sanitizing wipes and hand gel in areas where residents and staff congregate. Encourage residents to adopt these practices in their units.
     
  • Fair Housing Considerations/Reasonable Accommodation Requests – Disabled individuals may require additional services or assistance to protect themselves from the effects of COVID-19, such as food or medicine deliveries, or the assistance of aides or health care workers. Respond to all oral requests for assistance and keep written records of the request and management’s response. Each tenant’s need is individualized, but be mindful of treating tenants as similarly as possible and avoid discriminatory practices. For example, do not impose additional social distancing requirements on particular classes of people (national origin, race, families, disabled, sex or religion).
     
  • Tenant Certifications – HUD permits housing providers to consider “extenuating circumstances” if tenants are unavailable to attend the certification interview, sign consent forms or the HUD-50059 form, which provides a 90-day extension of the recertification due date.  In these cases, the Total Tenant Payment/Tenant Rent and the HUD assistance payments are applied retroactively to the recertification anniversary date. Document the tenant file and prepare to collect all required signatures once normal operations resume. As of 04-02-2020, Multifamily Housing will allow assisted tenants who have lost income due to COVID-19 to self-certify for annual- or interim-certifications, and HUD will also accept alternative signature methods. PIH provided similar flexibility for PHAs via the COVID-19 Statutory and Regulatory Waivers notice issued 04-10-2020.
  • Late Rent Payments/Decreases in Tenant Income – Section 4024 of the CARES Act suspends all evictions for non-payment of rent in federally assisted or insured housing for a 120-day period, starting March 27, 2020 until July 25, 2020. Section 4023 of the CARES Act likewise forbids the imposition of late fees, penalties or any other charges due to late payment of rent.  The CARES Act also provides additional funding for project-based rental assistance and housing for the elderly and disabled to help make up the loss of tenant rental payments. Housing providers should process Interim Recertifications for any tenant loss of income that is expected to continue for more than 30 days.  HUD notes that stimulus payments up to $1,200 (the advance tax credit) and $600 per week in enhanced unemployment benefits should not be included in income calculations. 
  • Eviction and Mortgage Forbearance. On 03-23-2020, FHFA announced that Fannie Mae and Freddie Mac will offer mortgage forbearance relief to multifamily property owners who suspend all evictions for at least 60 days for renters unable to pay rent due to COVID-19. Fannie and Freddie are working with mortgage servicers to implement the program. See Mortgagee Letter 2020-09, issued 04-10-2020. Section 4024 of the CARES Act includes additional mortgage forbearance and tenant eviction relief for a period of 120 days, from March 27, 2020 to July 25, 2020. Additionally, housing providers should be mindful of state or local directives suspending evictions that may be more expansive than the Federal provisions. 
  • Owner Advances/Accessing Reserve for Replacements and/or Residual Receipts – Owners should communicate with their HUD Account Executive and obtain approval before making any financial advances to the property to ensure that such advances may be repaid promptly when program funds become available. Follow the guidelines in HUD Handbook 4350.1 regarding use of Residual Receipts and Reserve for Replacements and obtain the appropriate HUD approvals. 
  • Visitors – The CDC recommends visitor restrictions at long-term care facilities, and retirement/independent living communities – which includes federally-assisted housing for seniors. Visitor restriction recommendations include limiting to one non-essential visitor per resident per day. Visitors and/or volunteers with COVID-19 symptoms or who have traveled recently should not be permitted entry. HUD has suggested only restricting visitors at other properties if mandated by federal, state or local authorities to avoid infringing on residents’ civil rights. R&C recognizes that each property owner/housing provider will need to use their best judgement when it comes to balancing various interests impacting tenant safety, particularly if there are actual or suspected COVID-19 infection(s) on site. 
     
  • Access to Tenant Units – HUD recommends restricting occupied unit access to only emergency issues. HUD advises that maintenance and other staff should not inquire into the medical status of tenants, but may ask tenants “Is it safe to come inside? Has anyone been sick recently? Has anyone in your household traveled recently?” The staff/maintenance team member should make their own decision about whether they feel safe to enter the unit. Tenants may also refuse entry if they so choose. When showing units to prospective tenants, show only unoccupied units. 
     
  • Emergency Funds – Operating accounts may be used for reasonable and necessary COVID-19 expenses, including supplies and staff overtime, and advance HUD approval is not required. 
     
  • Rent Comp Studies/Comprehensive Needs Analysis – HUD RCS are suspended nationally as long as the emergency declaration exists. HUD will accept owner-provided RCS on a provisional basis up to 5% above current rent levels. For CNAs, the Office of Recap will extend milestones and deadlines as needed if these cannot be completed and submitted timely. 
 
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