How to Conduct Remote Informal Hearings

HUD has finally issued guidance on how to handle hearings and briefings that were typically held face-to-face before the pandemic. On Nov. 20, HUD released Notice PIH 2020-32, “Guidance for PHAs on the Allowability of Remote Hearings and Remote Briefings.”

Under this notice, “remote hearings” in public housing refers to:

• The informal hearing for a denial of admission;
• The informal settlement of a grievance for a participant; and
• Grievance hearings.

In the Housing Choice Voucher (HCV) context, a remote hearing refers to:

• The informal hearing for a participant;
• The informal review for denial of assistance; and
• The oral briefing PHAs must provide to every new HCV program applicant.

We’ll go over the requirements that must be met by the technology platform that’s used to conduct these activities remotely. And we’ll share the best practices both for determining if barriers exist to conducting a remote hearing and for resolving them. Note that HUD says the notice doesn’t have the force and effect of law and isn’t meant to bind the public in any way. The guidance is intended only to provide clarity regarding existing requirements under the law or agency policies.

Meeting the Needs of Persons with Disabilities

Under the Americans With Disabilities Act (ADA) and Section 504 of the Rehabilitation Act, PHAs are obligated to take appropriate steps to ensure effective communication with applicants, participants, members of the public, and companions with disabilities through the use of appropriate auxiliary aids and services. In addition, under these laws, PHAs must make reasonable accommodations in policies, practices, and procedures to ensure persons with disabilities have equal opportunity to participate in all the PHA’s privileges, benefits, and services.

For a remote hearing or remote briefing, steps for an accessible platform include ensuring any information, websites, emails, digital notifications, and platforms are accessible for persons with vision, hearing, and other disabilities. Disabilities are individualized, and the appropriate auxiliary aid or service necessary or reasonable accommodation depends on the specific circumstances and requirements to ensure the individual with a disability has equal opportunity to participate in and benefit from the remote hearing or briefing.

For example, individuals with cognitive or learning disabilities may require assistance from an advocate who may not be in the same location as that individual. Individuals with vision disabilities may request documents in different formats in order to increase the font size or to use with assistive technologies. Some persons who are deaf and don’t use sign language may request captioning, which must be professionally prepared and not auto-generated by the hearing platform, since that would not result in effective communication.

It’s important to note that PHAs may never request or require that individuals with disabilities provide their own auxiliary aids or services, even for remote hearings or briefings. PHAs may not rely on an adult or minor child accompanying a person with a disability to interpret or facilitate communication for that person, except:

• In an emergency involving an imminent threat to the safety or welfare of an individual or the public and there’s no interpreter available; or
• Where the individual with a disability specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances.

Meeting the Needs of LEP Residents or Applicants

For residents or applicants with Limited English Proficiency (LEP), PHAs must take reasonable steps to ensure they have full and meaningful access to the remote hearing or remote briefing consistent with their obligations under Title VI of the Civil Rights Act of 1964. For these participants, the PHA will generally need to coordinate with a remote language interpretation service before the remote hearing or briefing. Conferencing technology may provide for remote interpretation. If video technology is available, remote interpretation using video is generally preferred over voice-only because of the additional visual cues. Importantly, PHAs can’t rely on minors to interpret.

For written materials, the notice says PHAs should engage with a language translation service. All written materials related to the remote hearing or briefing, whether paper or electronic, and whether provided before, during, or after the hearing, may need to be provided in translated format.

Identifying Technology Barriers

The lack of technology or inability to use technology for a remote hearing can present a disadvantage for individuals or families that may not be apparent to the PHA. HUD says the PHA should determine if barriers exist prior to scheduling the remote hearing or briefing. And if the participant doesn’t have proper technology access that would allow him or her to fully participate, then the remote hearing or briefing should be postponed or an in-person alternative must be provided. This includes if an individual’s witness for the remote hearing is unable to participate due to a lack of access to technology.

If the remote hearing or briefing must be postponed because a participant lacks proper technology access, the PHA may not hold against the individual his or her inability to participate in the remote hearing or briefing. For use of videos or telephones, all materials to be presented during the remote hearing or briefing, whether paper or electronic, must be provided to the individual or family prior to the remote hearing or briefing, and the participant must be provided with an accessible means to transmit his or her own evidence, such as through email or text.

Once you’ve surveyed a family’s technology resources to determine if there are any barriers to conduct a remote hearing or briefing, you can work on resolving any barriers uncovered and proceed with scheduling the remote hearing or briefing. During a survey, you could ask:

• Does the resident have a computer, phone, tablet, or laptop that has a camera?
• Does the resident have Internet access, or can the resident go to a place with sufficient privacy and Internet access such as a family, friend, or neighbor’s home, or can technology be borrowed?

During such surveys, PHAs must still meet their obligations under Section 504 and the ADA to effectively communicate to persons with disabilities, and, under Title VI of the Civil Rights Act of 1964, to provide meaningful access to individuals with LEP.

Removing Tech Barriers

Here are some best practices that PHAs could consider when resolving a technology barrier.

PHA-supplied devices or private PHA office space. For the public housing program, PHAs can use traditional operating funds to establish community rooms with computers and Internet service to conduct the remote hearing or remote briefing. PHAs could also give the individual or family temporary access to the site’s password-protected Wi-Fi or provide a mobile hotspot that can be accessed from the parking lot or in the building. PHAs could also consider using a portion of the CARES Act funds (Notice PIH-2020-07) to purchase one or multiple devices that could be delivered or otherwise made available at the participants’ residences. Finally, PHAs could offer a private room in the PHA office building.

Smartphone apps. Many video conferencing platforms have smartphone apps that can be used when the individual or family doesn’t have access to computers. In addition, smartphone apps can operate on Wi-Fi, and this may be a better option for individuals with restricted data plans.

Community resources. There may be local resources that your residents and applicants can utilize, such as broadband Internet providers that offer free or low-cost Internet access. Local charities or other resources may also provide free or low-cost phones or computers, or a PHA could offer an individual or family temporary access to the site’s password-protected Wi-Fi or provide a mobile hotspot.

Personal resources. A PHA can assess personal resources for technology access, such as supportive services, family members, mentors, or friends who could lend the individual or family a phone or computer.

Voice-only telephone option. Most people have, or can use, a telephone. However, conducting a remote hearing or remote briefing by telephone is the least preferred option due to the challenges of not being able to view documents being presented at the hearing or identify who’s speaking during a phone call with multiple attendees. In addition, the participant shouldn’t feel pressured to conduct a remote hearing or briefing by telephone.

However, if the PHA and participant choose to proceed with a telephone hearing or briefing, the PHA should provide the resident with a consent form that meets the accessibility requirements for persons with disabilities and persons with LEP, so the resident has complete knowledge of his or her rights, as well as the risks and benefits of conducting the hearing or briefing by phone. To obtain valid consent, it may be necessary to inform a participant orally of the content of the consent form prior to signing, or to get consent from the participant’s appointed representative or guardian.

HUD says the PHA should also consider that some residents may have restricted data plans or a limited number of minutes, so a PHA could use voice-only participation through a toll-free phone number. Further, some cell phone carriers charge differently for incoming and outgoing calls. The PHA should consider calling the resident to minimize cost.

Providing Documents Beforehand

If a video or telephone conference is used for the remote hearing or briefing, all materials being presented, whether paper or electronic, must be provided to the individual or family prior to the hearing. Individuals or families may prefer paper printouts over electronic documents if they lack access to printers, have difficulty viewing detailed documents on a cell phone, or have difficulty viewing screen sharing on an app. Any materials made available to the individual or family must meet the requirements for accessibility for persons with disabilities and persons with LEP.

For documents that contain personally identifiable information (PII), the PHA is responsible for minimizing the risk of exposure or misuse of the data collected, used, and shared. PII is information that can be used to distinguish or trace an individual's identity, either alone or when combined with other personal or identifying information directly linked or linkable to a specific individual. Examples of PII include name, Social Security number, biometric records, date and place of birth, and mother's maiden name. PHAs shouldn’t transmit sensitive PII via an unsecured information system such as email, Internet, or electronic bulletin board without first encrypting the information.