Section 38.06 - Selection of Client-residents and Client-tenants; Continued Occupancy or Participation(1)Client-residents.(a) If the Service Provider holds the lease for a Housing Unit, the Service Provider is responsible for the selection of the Client-resident(s) for the Residence Unit(s) within that Housing Unit in accordance with DMH guidance. The Client must meet the eligibility standards set forth in 760 CMR 38.05.(b) Continued occupancy by a Client-resident in a Residence Unit for which the Service Provider is the Tenant shall be determined by the Service Provider, pursuant to applicable DMH guidance.(c) The Service Provider shall promptly notify the AA in writing any time there will be a change in occupancy of a Residence Unit by a Client-resident.(d) The AA shall notify DHCD and DMH in writing any time the AA has determined a Client-resident to be ineligible for the DMH Rental Subsidy Program.(e) The Service Provider shall promptly notify the AA, DMH and DHCD in writing any time the Service Provider has determined a Client-resident to be ineligible for the DMH Rental Subsidy Program.(2)Client-tenants. (a) A Client who meets the eligibility standards set forth in 760 CMR 38.05 as determined by the AA and who has been approved by DMH for participation in the DMH Rental Subsidy Program as a Tenant may apply for tenancy in a Housing Unit.(b) The AA shall determine the Client's eligibility for tenancy in a Housing Unit and may deny the Client's application as set forth in 760 CMR 38.06(2)(d) through (g) and DHCD guidance.(c) In determining eligibility of a Client for tenancy in a Housing Unit, the AA shall check Criminal Offender Record Information (CORI) and Sex Offender Registry Information (SORI) of the Client and their Household members who are 18 years of age or older in accordance with applicable state and federal law.(d) The AA may disqualify a Client for tenancy in a Housing Unit under 760 CMR 38.06(2) at initial application and thereafter if the Client:1. owes back rent, damages or vacancy loss payments to an AA for which he or 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 AA or from an Owner under a state funded housing program entered against them 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 AA employee during the application process or any prior application process within one year;7. has failed to provide information reasonably necessary for the AA to process the Client's application;8. intends to live somewhere other than the eligible Housing Unit as their primary residence; or9. 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 Housing 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 AA 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 AA is reasonably certain that the Client or their Household member will not engage in any similar conduct in the future. The AA 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 AA 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, and the extent and nature of DMH support services the Client is expected to receive 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; and8. 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) An AA must disqualify a Client for tenancy under 760 CMR 38.06(2) at initial application or thereafter if CORI or SORI of the Client or a Household member 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; or2. the applicant is a sex offender subject to lifetime registration in Massachusetts.(g) Prior to disqualifying a Client as a Client-tenant under 760 CMR 38.06(2) due to information found on a CORI or SORI, the AA 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 eligible for tenancy under 760 CMR 38.06(2) remains eligible for as long as the Client meets the applicable requirements of 760 CMR 38.05(2) and 38.06(2), the terms of the Voucher, and any lease or other program documents.(i) The AA shall notify DHCD and DMH in writing any time the AA has determined the Client-tenant to be ineligible for the DMH Rental Subsidy Program.(j) DMH shall promptly notify the AA and DHCD in writing any time DMH has determined a Client-tenant to be ineligible for the DMH Rental Subsidy Program.(k) The terms of a Client-tenant's lease agreement shall be established in accordance with DHCD guidance. A Client-tenant's continued occupancy of a Housing 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. Notices and procedures regarding termination of a Client-tenant's lease shall comply with the lease provisions and DHCD guidance.(l) A Client-tenant may apply for and utilize other applicable housing subsidies. A Client-tenant who applies for and receives another housing subsidy, such as a voucher issued pursuant to 760 CMR 49.00: Massachusetts Rental Voucher Program or Section 8 of the Housing Act of 1937, 24 CFR 982, and utilizes that voucher either at the same Housing Unit or at a different Housing Unit pursuant to a lease, is ineligible for the DMH Rental Subsidy Program while receiving that other subsidy, in accordance with DHCD guidance, (m) A determination that a Client is not eligible for tenancy as a Client-tenant under 760 CMR 38.06(2) shall not in itself make a Client ineligible as a Client-resident for the DMH Rental Subsidy Program under 760 CMR 38.06(1).Amended by Mass Register Issue 1377, eff. 11/2/2018.