760 CMR 5: Eligibility and Selection Criteria

760 CMR 5: Eligibility and Selection Criteria

5.01: Effective Date
5.02: Applicability
5.03: Definitions
5.04: Marketing
5.05: Procedure Following Application
5.06: Income Eligibility
5.07: Eligibility of Handicapped Persons
5.08: Determination of Qualification for Placement
5.09: Selection Categories
5.10: Placements and Offers
5.11: Emergency Case Plan
5.12: Verification Procedures
5.13: Review of Denial of Eligibility or Qualification, Priority Status, or Preference Status
5.14: Update and Reclassification of Waiting List
5.15: Waiver Provision
5.16: Administration

5.01: Effective Date

760 CMR 5.00 became effective August 9, 1996 and superseded 760 CMR 4.00 and 760 CMR 5.00, as previously promulgated. Amendments to subsection 5.03 and 5.05 became effective June 12, 1998. Additional amendments to subsections: 5.03, 5.06, and 5.16, are effective August 29, 2003. Any waivers in effect on August 9, 1996 for a tenant selection plan at a local housing authority (LHA) shall remain in effect unless specifically revoked by the Department.

5.02: Applicability

(1) 760 CMR 5.00 applies to all persons residing in or applying for state-aided public housing, known as (St. 1948) c. 200, (St. 1966) c. 705, (St. 1954) c. 667 housing, with the exceptions noted in 760 CMR 5.02(2). It applies to applicants and participants in the Alternative Housing Voucher Program (AHVP). It governs the order of tenant selection of applicants to the Massachusetts Rental Voucher Program (MRVP).

(2) 760 CMR 5.00 does not govern the order of tenant selection for units in public housing known as (St. 1974) c. 689 or (St. 1954) c. 667 congregate housing or units financed by Mass Housing. It also does not govern the eligibility of applicants for units which receive a federal Section 8 subsidy.

5.03: Definitions

Affirmative action goals - the applicable percentages of an LHA’s units of family housing and elderly/handicapped housing as calculated pursuant to 760 CMR 5.08(3) prior to the 1996 amendment.
AHVP - Alternative Housing Voucher Program.

3. Appropriate unit size - the size of a unit is appropriate for a household if the unit meets all the following criteria:

(a) Household members of the opposite sex, excepting husband and wife (or those in a similar living arrangement), do not have to share a bedroom, provided that children of the opposite sex under the age of eight shall share a bedroom and provided that other household members of the opposite sex may elect to share a bedroom.

(b) Persons of the same sex shall share a bedroom, provided that a household member, age 21 or over, may elect not to share a bedroom with his or her child, grandchild, or legal ward and provided that a household member does not have to share a bedroom if a consequence of sharing is or would be a severe adverse impact on his or her mental or physical health and if the LHA receives reliable medical documentation as to such impact of sharing.

(c) Each bedroom shall contain at least 50 square feet of floor space for each occupant and a minimum of 70 square feet and shall meet all other applicable requirements of the State Sanitary Code (105 CMR 410.000) for a room occupied for sleeping purposes. No bedroom shall be shared by more persons than the number permissible under 760 CMR 5.03.

(d) Only bedrooms may be used for sleeping purposes by household members; the living room, kitchen, bathroom and hallways shall not be used for sleeping purposes by any household member.

4. Department - the Department of Housing and Community Development or successor agency.

5. Elderly persons of low income - persons having reached the age 60 or over who are income eligible for state-aided public housing. As used herein "elderly person" shall mean an elderly person of low income.

6. Elderly household - a household, residing in or applying for elderly/handicapped housing, containing at least one elderly person.

7. Elderly/handicapped housing - c. 667 housing managed pursuant to the provisions of M.G.L. c. 121B, §§ 39 and 40 for elderly persons of low income and handicapped persons of low income.

8. Family (Household) - a family or household consists of:

(a) two or more persons who live or will live regularly in a unit as their primary residence:

1. whose income and resources are available to meet the household’s needs; and

2. who are either related by blood, marriage, or operation of law, or who have otherwise evidenced a stable inter-dependent relationship.

(b) one person.

9. A household member shall be considered to be living regularly with a family if temporarily absent for reasons such as hospitalization, duty assignment, employment, or school attendance in another location. Upon receipt of notice from the Department of Social Services that one or more children will be reunified with a household member, such child or children, if eligible and qualified, shall be considered household members for purposes of securing a unit of appropriate unit size for the reunified family.

10. A full-time, live-in personal care attendant, as defined in the regulation prescribing rent determination, whether or not a household member for purposes of rent determination, if determined by the LHA to be qualified, shall be deemed a household member for purposes of determining the appropriate unit size in public housing.

11. In the event one or more household members, who have not signed the lease, cease living regularly with a family the remaining household members shall constitute the family.

12. In the event that a household member, who has signed the lease, ceases to occupy the unit, one or more remaining household members may be given permission for continued occupancy of the unit, provided that:

1. the departing household member is not relocating to public or assisted housing elsewhere and is current in his or her financial obligations to the LHA and is not subject to eviction proceedings;

2. the remaining household members are eligible and qualified for public housing and (excepting newborns) have resided in the unit for at least one year, and;

3. at least one adult household member (or emancipated minor) applies for and signs a new lease with the LHA. In the event of divorce or separation between spouses who are both household members, or entry of a protective order, a Massachusetts court with jurisdiction may determine which spouse and family members shall be entitled to continued occupancy.

13. In the event that a household member, who has signed the lease, applies for the addition of a person, who meets the criteria in 760 CMR 5.03: Family (Household)(a), as an additional household member, the LHA shall determine whether the person is qualified and whether the augmented family is eligible. If so, the LHA shall approve addition of the household member to the family if the unit is of appropriate unit size or, if the unit is too small, upon transfer of the family to a unit of appropriate unit size.

14. Family housing - c. 200 or c. 705 housing managed pursuant to the provisions of M.G.L. c. 121B, § 34.

15. Handicapped persons of low income - the definition of "handicapped persons of low income" is set out in M.G.L. c. 121B, § 1. As used herein "handicapped person" shall mean a handicapped person of low income.

16. Handicapped household - a household, residing in or applying for elderly/handicapped housing, consisting of at least one handicapped person and no elderly person.

17. Homeless applicant - an applicant who:

(a) is without a place to live or is in a living situation in which there is a significant, immediate and direct threat to the life or safety of the applicant or a household member which situation would be alleviated by placement in a unit of appropriate unit size;

(b) has made reasonable efforts to locate alternative housing;

(d) has pursued available ways to prevent or avoid the safety-threatening or life-threatening situation by seeking assistance through the courts or appropriate administrative or enforcement agencies.

18. Local housing authority (LHA) - a public body politic and corporate created pursuant to M.G.L. c. 121B, § 3 or similar provisions of earlier general laws or of special laws. The definition of local housing authority shall include a regional non-profit corporation or other entity under contract to the Department to administer the MRVP or AHVP.

19. Local Resident - a person who has a principal residence or a place of employment in a city or town at the time of application to an LHA in that city or town and at the time of final determination of eligibility and qualification. Temporary residence with relatives or friends in the city or town is not sufficient unless the person's last residence and domicile was in the city or town. In the case of an applicant determined by the LHA to be homeless, the applicant may select one community for local preference, either the community from which he or she was displaced through no fault of his or her own, or the community in which he or she is temporarily housed.

20. Minority - "minority" shall mean:

(a) Asian American - with origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands;

(b) Black - with origins in any of the black racial groups of Africa;

(d) North American Indian - with origins in any of the original peoples of North America, with cultural identification through tribal affiliation.

20. MRVP - Massachusetts Rental Voucher Program.

21. Primary residence - principal home (domicile) occupied by all members of a household not less than nine months of the year.

22. Transfer for administrative reasons - transfer of a household from one unit to another at the discretion of the executive director of an LHA at any time for a sound administrative reason such as: fire in or condemnation of an occupied unit; harassment or abuse of a tenant or household member; or change in the number of persons in the household so that the unit is no longer of appropriate unit size for the household. A transfer for administrative reasons may be made between units in elderly/handicapped housing and family housing in the event that transfer cannot be made to a unit of appropriate unit size in the same type of housing, provided that the household is eligible for the housing to which the transfer is made.

23. Transfer for good cause - transfer of a household from one unit to another because the unit is no longer of appropriate unit size, or there is a compelling and documented medical impairment which could be substantially improved by transfer to another available unit. A transfer for good cause may be made between units in elderly/handicapped housing and family housing in the event that transfer cannot be made to a unit of appropriate unit size in the same type of housing. In the absence of mitigating circumstances deemed sufficient by the LHA, a transfer for good cause shall not be made unless the applicant:

(a) has filed a transfer application complete with all supporting documentation;

(b) is current in rent, charges and fees owed to the LHA; and

(c) has not committed and household members have not committed any serious violations of the lease for at least two years, and the applicant is not subject to eviction proceedings or to the terms of an agreement for judgment in a prior eviction proceeding.

24. Transfer to the AHVP - transfer of a household from elderly/handicapped housing to the AHVP pursuant to the provisions of 760 CMR 53.00.

Unit - a rental housing unit in state-aided public housing. Where the context involves the MRVP or AHVP, "unit" shall mean a rental housing unit for which the rent is subsidized under either program.

Veteran - the definition of "veteran" is set out in M.G.L. c. 121B, § 1.

5.04: Marketing

Each LHA has a continuing responsibility to ensure that households in its region of the state are aware of any availability of units and have an opportunity to apply. The LHA shall undertake a marketing effort whenever its waiting list for units is less than the number of applicants anticipated to be placed in the next 12 months. The LHA shall undertake appropriate affirmative fair marketing efforts whenever the number of its minority tenant households and minority households on the waiting list for either family housing or elderly/handicapped housing is less than the number of households meeting its affirmative action goal for the respective program.

5.05: Procedure Following Application

(1) Every applicant shall use application forms approved by the Department. The application forms shall be available at the LHA's central office or, upon request by mail. The LHA shall provide reasonable assistance to applicants in completing the application forms.

(2) Each application form received by the LHA shall be date and time stamped, and the applicant promptly provided with a receipt including the control number. After a completed application form is received, the LHA shall make a preliminary determination of eligibility based on information in the form and shall also determine whether an applicant appears to be entitled to any preference or priority status. The LHA may at this time, in its discretion, verify some or all information provided. The applicant shall be notified of the LHA’s preliminary determination and may request a private conference if found ineligible or not to be entitled to a priority or preference category requested.

(3) When an applicant approaches the top of the waiting list, the LHA shall make a final determination of the applicant's eligibility and qualification. The applicant shall update the application and provide any additional information or verification reasonably required by the LHA. An applicant determined to be ineligible or unqualified shall be sent written notification of:

(a) the determination;

(b) the reason(s) for the determination detailing the material facts; and

(4) When an application for a transfer for good cause is denied, when an application for addition of a household member is denied, or when the LHA orders an administrative transfer, a household member, who has signed the lease, may grieve the decision of the LHA under the grievance procedure, and this shall be the sole administrative remedy.

5.06: Income Eligibility

(1) Income limits for admission of an applicant to state-aided public housing and for participation in the AHVP shall be set at two year intervals. The income limits shall be the "Low Income Limits", set by the United States Department of Housing and Urban Development (HUD), then in effect, for a similarly sized household in the city or town in which the LHA is located. Household income shall be determined in the same manner as net household income for rent determination provided that income shall be imputed to assets which have been disposed of as provided by 24 CFR Part 5, Subpart F or successor regulatory provisions

(2) A household occupying a unit in elderly/handicapped housing shall remain eligible for continued occupancy until such time as 30% of its monthly net household income equals or exceeds the fair market rent (FMR) then in effect for the Section 8 Existing/Voucher Program for a unit of appropriate unit size in the area in which the LHA is located.

(3) A household occupying a unit in family housing shall remain eligible for continued occupancy until such time as 32% of its monthly net household income equals or exceeds the fair market rent (FMR) then in effect for the Section 8 Existing/Voucher Program for a unit of appropriate unit size in the area in which the LHA is located.

(4) An AHVP participant shall remain eligible for continued occupancy in a unit until such time as the participant’s rent share equals or exceeds the contract rent. The participant shall retain his or her AHVP voucher for 90 days from the date on which the LHA determines that the participant's share equals or exceeds the contract rent. At the end of that period, if the participant's share continues to equal or exceed the contract rent, the household will not be eligible for continued assistance under the AHVP.

5.07: Eligibility of Handicapped Persons

(1) The definition of handicapped persons of low income is set out in M.G.L. c. 121B, § 1. A handicapped person of low income, as so defined, may have one or more physical or mental impairments, which shall be considered in conjunction with each other if more than one exists.

(2) The LHA shall determine whether non-elderly applicants for elderly/handicapped housing are handicapped persons of low income. Upon request, the applicant shall provide documentation sufficient for the LHA to be able to make a determination of eligibility. Such documentation shall be subject to third party verification. As part of the determination process the following actions and findings are necessary.

(a) The applicant shall provide certification by a physician documenting a physical or mental impairment which is expected to be of long and continued duration but at least for more than six months;

(b) the LHA shall determine that either certain special architectural design features or low-rent housing are not available in the private market and that the applicant is faced with living in an institution or decadent, substandard housing, or paying excessive rents; and

(c) the LHA shall determine an applicant to be of low income if the applicant’s household income is within the income limits set for state-aided public housing.

(3) Examples of a person with a qualifying physical impairment which may substantially impede his or her ability to live independently in conventional housing shall include but shall not be limited to a person:

(a) who is confined to a wheelchair;

(b) who, because of the use of braces or crutches, or because of the loss of a foot or leg, or because of an arthritic, spastic, pulmonary or cardiac condition walks with significant difficulty or insecurity;

(d) who is blind within the definition of blindness set out in 111 CMR 5.06(4) or successor regulatory provision;

(e) who is deaf within the definition set out in M.G.L. 6, § 191; or

(f) who has a developmental disability which prevents the person from living totally independently and would benefit from the LHA’s specialized housing (such a person may include but is not limited to a person with cerebral palsy, mental retardation, or epilepsy).

5.08: Determination of Qualification for Placement

(1) In making its final determination the LHA shall determine if applicant and household members are qualified for public housing. An applicant and the applicant household shall be disqualified for public housing for any of the following reasons:

(a) The applicant or a household member has disturbed a neighbor or neighbors in a prior residence by behavior, which if repeated by a tenant in public housing, would substantially interfere with the rights of other tenants to peaceful enjoyment of their units or the rights of LHA employees to a safe and secure workplace.