760 CMR 38.00:		DEPARTMENT OF MENTAL HEALTH RENTAL SUBSIDY PROGRAM

Section

38.01:   Scope and Purpose
38.02:   Definitions
38.03:   Eligible Housing Unit
38.04:   Eligible Property
38.05:   Eligible Client
38.06:   Selection of Clients; Continued Occupancy
38.07:   Contract Rent; Occupancy Charge
38.08:   Operating Documents
38.09:   Responsibilities of the Local Housing Agency
38.10:   Waiver

38.01:   Scope and Purpose

(1)   760 CMR 38.00 is promulgated to establish standards and procedures for the provision of rental assistance under the Department of Mental Health Rental Subsidy Program.

(2)   The following additional regulations are applicable:  760 CMR 5.00:  Eligibility and Selection Criteria and 760 CMR 6.00:  Occupancy Standards and Tenant Participation for State Aided Housing.

38.02:   Definitions

Client. A person who, pursuant to 104 CMR 29.00, Application for DMH Services, Referral, Service Planning and Appeals, is: (1) enrolled either in a DMH operated or contracted service having residential support services or DMH case management; and (2) approved to participate in the Department of Mental Health Rental Subsidy Program either with the person’s service provider serving as Tenant (760 CMR 38.06(1)) or with the person him or herself serving as Client/Tenant (760 CMR 38.06(2)). 

Client/Tenant. A Client who enters into a lease directly with an owner of a Unit.

Contract Rent. The total monthly rent specified in the Department of Mental Health Rental Subsidy Program lease or other contract governing the use of the Unit to house Clients to be paid to the property owner.  The Contract Rent includes the Client’s Occupancy Charge and the subsidy amount paid by the LHA.  The Contract Rent will be determined in part on whether the owner or Tenant pays utility costs for heat, hot water, cooking fuel, and/or electricity.

Department of Mental Health (DMH). A Department within the Executive Office of Health and Human Services for the Commonwealth of Massachusetts.   DMH is responsible for selecting Service Providers, for allocating rental assistance subsidy funds and for performing inspections of Units.

Department of Mental Health Rental Subsidy Program (DMH Rental Subsidy Program). A program to assist low-income Clients to live in a residential community setting through the provision of supportive residential services or case management and a rental subsidy.  DHCD provides a rental subsidy and DMH provides case management or supportive residential services either directly or through contractors.

DHCD. The Massachusetts Department of Housing and Community Development.

Eligible Property. A building; development; rooming, lodging, or boarding house; or private residence, which meets the requirements of 760 CMR 38.04.

Household. A Client who resides as a single individual, or resides regularly with one or more persons and whose income and resources are available to meet their mutual needs.

Immediate Family. The spouse, child, parent, grandparent, aunt, uncle, niece, nephew, brother, sister, or brother or sister-in-law of an owner of an Eligible Property.

Local Housing Agency (LHA). A local housing authority established under M.G.L. c. 121B, § 3 or comparable special act, or a non-profit corporation under contract to DHCD to administer the DMH Rental Subsidy Program.

Maximum Allowable Rent. The maximum rent which may be paid to the owner of a Unit according to applicable DHCD policies and guidelines.

Occupancy Charge. The portion of the monthly Contract Rent that is charged to the Household of a Client selected by the Service Provider or DMH to occupy a Unit pursuant to 760 CMR 38.07. In the case of a Client/Tenant, the Occupancy Charge is the share of the rent paid by that Client/Tenant.

Rental Assistance. The subsidy program authorized by M.G.L. c. 121B, §§ 42 through 44A, and St. 1991, c. 138, § 2, Line Item 5046-1000, and as thereafter amended.

Service Provider. An entity under contract to DMH, or DMH, if it exercises the right to act as Service Provider, which provides services to Clients, and that may enter into a lease or other contract directly with an owner for use of a Unit by Client(s).  

State Sanitary Code. 105 CMR 410.00:  Minimum Standards of Fitness for Human Habitation.

Tenant. A Client or Service Provider who enters into a lease agreement with the owner of a Unit.

Unit. A Unit of eligible housing pursuant to 760 CMR 38.03.

38.03:   Eligible Housing Unit

An eligible housing Unit is one or more rooms or an apartment which:

(1)   is located in an Eligible Property pursuant to 760 CMR 38.04;

(2)   is leased for occupancy by an eligible Client’s Household pursuant to 760 CMR 38.05; and

(3)   is in compliance with the requirements of the State Sanitary Code and any other applicable state statute, regulations, code or local ordinance.

38.04:   Eligible Property

An Eligible Property shall:

(1)   be inspected and approved by DMH licensing, in accordance with 104 CMR 28.14, Licensing and Operational Standards for Community Programs, and DMH guidelines, at initial occupancy and annually thereafter;

(2)   have one or more eligible Units;

(3)  be in compliance with local zoning requirements or be exempt from such requirements; and

(4)    not be owned by the LHA.

38.05:   Eligible Client

To be eligible for the DMH Rental Subsidy Program, a Client must:

(1)   be financially eligible pursuant to 760 CMR 5.06(1) (Eligibility and Selection Criteria), as determined by the LHA;

(2)   participate in DMH operated or contracted supportive residential services or case management as determined by or pursuant to 104 CMR 29.00; and

(3)   not be the owner or manager of the Eligible Property, or a member of the owner’s Immediate Family.

A Client will remain eligible until such time as the Client’s net Household income, as determined by the LHA in accordance with 760 CMR 38.07(3), exceeds the limits specified in 760 CMR 5.06(1) or the Client ceases to participate in DMH supportive residential services or case management, as applicable, pursuant to 104 CMR 29.00.

38.06   Selection of Clients; Occupancy 

Service Provider as Tenant. 

(a) If the Service Provider holds the lease for a Unit, the Service Provider is responsible for the selection of the Client for that Unit in accordance with applicable DMH regulations and guidelines.

(b)   Continued occupancy by the Client in a Unit for which the Service Provider is the Tenant shall be determined by the Service Provider, pursuant to applicable laws, 104 CMR 29.00, and applicable DMH guidelines, policies, and procedures.

(c)  The Service Provider shall promptly notify the LHA in writing any time there will be a change in occupancy. 

(d)  The Service Provider shall promptly notify the LHA in writing any time the Client is no longer eligible for the DMH Rental Subsidy Program. 

(2)  Client as Tenant.  

(a)	A Client who has been approved by DMH for participation in the DMH Rental Subsidy Program as a Tenant may apply for tenancy in a Unit.

(b)	The LHA shall determine the Client’s qualification for tenancy in a Unit and may deny the Client’s application as set forth in 760 CMR 38.06(2)(d)-(f) and guidelines issued by DMH and by DHCD.  

(c) In determining qualification of a Client for tenancy in a Unit, the LHA shall check Criminal Offender Record Information (CORI) and Sex Offender Registry Information (SORI) in accordance with applicable state and federal law. 

(d) The LHA may disqualify a Client for tenancy in a Unit under 760 CMR 38.06(2) if the Client:

1.   owes back rent, damages or vacancy loss payments  to an LHA for which he/she has not entered into a repayment agreement, or has failed to stay current with a repayment agreement; 
2.   misrepresented or falsified any information required to be submitted as part of the Client/Tenant’s application and the Client fails to establish that the misrepresentation or falsification was unintentional;
3.   has a judgment for possession of premises leased from an LHA or from an Owner under a State funded housing program entered against him/her by a court for good cause; 
4.    has engaged in criminal activity which, if repeated by the Client, would interfere with or threaten the rights of others to be secure in their persons or in their property or the rights of other tenants to peaceful enjoyment of their units and the common areas;
5.    has failed to comply with the terms of a Client/Tenant Voucher or lease documents; 
6.    has directed abusive or threatening behavior which was unreasonable and unwarranted towards an LHA employee during the application process or any prior application process within three (3) years; 
7.    has failed to provide information reasonably necessary for the LHA to process the Client’s application; 
8.   intends to live somewhere other than the Eligible Housing Unit as his/her primary residence; or
9.   is a current illegal user of one or more controlled substances as defined in M.G.L. c. 94C, § 1. A person’s illegal use of a controlled substance within the preceding 12 months shall create a presumption that such person is a current illegal user of a controlled substance, but the presumption may be overcome by a convincing showing that the person has permanently ceased all illegal use of controlled substances. This disqualification of current illegal users of controlled substances shall not apply to applicants for Units provided through a treatment program for illegal users of controlled substances.
(e)   Prior to disqualifying a Client as a Tenant under 760 CMR 38.06(2), the LHA shall permit the Client to show mitigating circumstances, which may include rehabilitation or rehabilitating efforts, sufficient so that when the potentially disqualifying behavior is weighed against the mitigating circumstances, the LHA is reasonably certain that the Client will not engage in any similar conduct in the future. The LHA shall also permit the Client to demonstrate the availability of a reasonable accommodation that would be available to the Client in private, non-supportive housing.  In making this determination, the LHA shall consider all relevant circumstances including: 
1.	the accuracy of the CORI and SORI; 
2.	the severity of the potentially disqualifying conduct; 
3.   the amount of time which has elapsed since the occurrence of such conduct; 
4.   the degree of danger, if any, to the health, safety and security of others or to the security of the property of others; 
5.   the disruption and inconvenience which a reoccurrence would cause; 
6. the likelihood that the applicant’s behavior in the future will be substantially improved, including the degree to which prior disqualifying conduct was related to a mental or physical disability and the extent by which intervening treatment or medication has eliminated a significant risk of substantial harm to persons or property, based on assurances by DMH that the Client will receive appropriate counseling, medication monitoring, or other support so that he or she will not pose a direct threat during his or her tenancy;
7. in the case of use of an illegal substance, whether the Client is participating in or has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully; and 
8.  available reasonable accommodations.
The greater the degree of danger, if any, to the health, safety and security of others or to the security of property of others or to the physical condition of the housing, the greater must be the strength of the showing that a reoccurrence of behavior which would have been disqualifying will not occur in the future.

(f) A LHA must disqualify a Client for tenancy under 760 CMR 38.06(2) if the Client’s CORI or SORI shows a conviction for the one of the following crimes and the Client is unable to provide evidence proving that the CORI and/or SORI is inaccurate in its listing of convictions:

1.   the applicant has been convicted for drug-related criminal activity for the manufacture or production of methamphetamine; or
2.  the applicant is a sex offender subject to lifetime registration in Massachusetts. 
(g) Prior to disqualifying a Client for tenancy under 760 CMR 38.06(2) due to information found on a CORI and/or SORI, the LHA must schedule a conference with the Client to review the information, even if the CORI or SORI shows conviction for a crime that would lead to a mandatory rejection under 760 CMR 38.06(2)(f).  At the conference, the Client must be given a copy of the CORI and/or SORI to review and given time to submit evidence of mitigating circumstances (except in the case of a crime that would lead to a mandatory rejection under 760 CMR 38.06(2)(f)), or evidence proving that the CORI and/or SORI is inaccurate in its listing of convictions.   

(h) A Client determined qualified for tenancy under 760 CMR 38.06(2) remains qualified for as long as the Client meets the applicable requirements of 760 CMR 38.05 and 38.06(2), the terms of the executed Voucher document, and any lease or other program documents.

(i) A determination that a Client is not qualified for tenancy under 760 CMR 38.06(2) shall not in itself make a Client ineligible for the DMH Rental Subsidy Program under 760 CMR 38.06(1).

(j) DMH shall promptly notify the LHA and DHCD in writing any time the Client/Tenant is no longer eligible for the DMH Rental Subsidy Program, pursuant to 760 CMR 38.05.

(k) The terms of a Client/Tenant’s lease agreement shall be established in accordance with guidelines issued by DHCD.  A Client/Tenant’s continued occupancy of a Unit as Tenant shall be determined in accordance with the Client/Tenant’s lease agreement. Loss of eligibility for the DMH Rental Subsidy Program under 760 CMR 38.05 alone shall not be a basis for the termination of a Client/Tenant’s lease. 

38.07:   Contract Rent; Occupancy Charge

(1)   The LHA shall determine and authorize the amount of the Contract Rent for the Unit.  The Contract Rent may include the cost of utilities (except telephone) and shall not exceed the Maximum Allowable Rent for a Unit.

(2)   The Contract Rent is exclusive of:
(a)   any charge for meals, laundry, or other services provided by the Service Provider or the owner; and
(b)   any charge for residential services, counseling, training, therapy or treatment provided to the Client.

(3)   A Client’s net Household income shall be determined in the manner provided in 760 CMR 6.05(2), (3) and (4). Each Client shall pay an Occupancy Charge, which shall be 30% of the Client’s net Household income if the Client must pay for any or all of the following utilities: electricity and any other fuel for heat, hot water or cooking; or which shall be 35% of the Client’s net Household income if the Client is not required to pay for any of those utilities.  

(4)   The Occupancy Charge shall be determined, re-determined and verified as follows:

(a)   At least once in every twelve (12) month period, the LHA shall redetermine the Client’s household income and monthly Occupancy Charge.  If the Service Provider is the Tenant, the Service Provider shall provide the LHA with reliable third-party verification of all the necessary information about income within the time period required by the LHA.  The LHA shall then determine whether the Client’s Occupancy Charge should be adjusted, and notify the Service Provider accordingly.

(b)   If the Service Provider is the Tenant, the Service Provider shall inform the LHA of all increases in the Client’s monthly household income of 30% or more within thirty (30) days of such increase, and any resulting increase in the Client’s Occupancy Charge shall be effective on the first payment date of the second month following the report to the LHA and verification of the new income information.

(c) If the Service Provider is the Tenant, the Service Provider shall inform the LHA of any decreases in the Client’s monthly household income of 30% or more within thirty (30) days of such decrease, and any resulting decrease in the Client’s Occupancy Charge shall be effective on the first payment date following report to the LHA and verification of the lower income.

(d) If the Client is the Tenant, the Client/Tenant shall provide the LHA with the verification specified in 760 CMR 38.07(4)(a) above and shall inform the LHA of the changes in household income described in 760 CMR 38.07(4)(b) and 760 CMR 38.07(4)(c). Any resulting corresponding increase or decrease in the Client/Tenant’s Occupancy Charge shall be effective on the first payment date following report to the LHA and verification of the new income information.  When the LHA determines that the Client/Tenant’s Occupancy Charge should be adjusted, the LHA shall notify the Client/Tenant and DMH accordingly.

(5)   The Occupancy Charge shall be paid monthly, to the Service Provider when the Service Provider is the Tenant, and to the owner when the Client is the Tenant.  When the Occupancy Charge is paid to the Service Provider, the Service Provider shall promptly forward it to the owner.   The LHA will pay the subsidy portion of the rent (Contract Rent minus Occupancy Charge) directly to the owner.

38.08:   Operating Documents

(1)	The documentation for Units with Service Provider Tenants shall consist of a written lease or other contract executed by the Service Provider, the LHA and the owner of the Unit, including any addendum, all in the form prescribed by DHCD, which shall include all applicable provisions governing the use of the Unit to house Clients and provisions for financial assistance for the Unit.

(2)	Documents for Units with Client/Tenants shall include:

 a written Lease and any addendum, executed by the Client/Tenant and the owner of a.	the Unit in the form prescribed by DHCD;

b.	a voucher payment contract executed by the owner of the Unit and the LHA, in the form prescribed by DHCD, which shall provide the terms and conditions for the subsidy payments by the LHA to the owner on the Client/Tenant’s behalf;

c.	a voucher executed between the Client/Tenant and the LHA in the form prescribed by DHCD, which shall provide that in the event of the Client/Tenant’s loss of eligibility for the DMH Rental Subsidy Program, the subsidy payments authorized by the voucher shall terminate and the Client/Tenant shall be responsible for the full rent under the Lease; and 

d.	a participant agreement executed by the Client/Tenant and DMH.

(3)    DMH shall authorize a request for lease approval, on a form prescribed by DHCD, which shall include the address of the proposed Unit, the number of bedrooms, the party responsible for utilities, the name and address of the owner or owner’s agent, the name of the Tenant and the proposed Contract Rent.  All authorized requests for lease approval will be submitted to DHCD for final approval.

38.09:   Responsibilities of the Local Housing Agency

The LHA shall:

(1)   enter into a lease or other contract governing use of the Unit to house Clients;

(2)   ensure that the Eligible Property and Unit satisfy the requirements of 760 CMR 38.04; 

(3)   determine the financial eligibility of Clients in accordance with 760 CMR 5.00, and determine Occupancy Charges in accordance with 760 CMR 38.07(3) and (4); and 

(4)   determine the appropriate Contract Rent for the Unit, in accordance with policies and guidelines issued by DHCD;

(5)   confirm annual inspections of the Unit by DMH.

38.10:   Waiver

DHCD may waive the provisions of 760 CMR 38.00, in whole or in part, when in the judgment of DHCD strict compliance with such provision will be inconsistent with the public interest and with the purposes of M.G.L. c. 121B. No waiver shall be made if it conflicts with any mandatory provision of any statute.

REGULATORY AUTHORITY

760 CMR 38.00:  M.G.L. c.121B, §§ 42-44A; c. 23B, § 6; St. 1991, c. 138, § 2, Line Item 5046-1000, as thereafter renewed.