Table of Contents
Introduction
State and local Public Housing Authorities (PHAs) administer two of the largest federal rental assistance programs – the Department of Housing and Urban Development (HUD) Housing Choice Voucher and Public Housing programs – and can help expand affordable housing access for formerly incarcerated older adults.[1] Older adults who are re-entering the community face especially high risks of homelessness, often due to housing barriers such as the inability to afford rent, as well as discrimination against people with criminal records.
Federal rental assistance can be a crucial source of support for these older adults who may otherwise lack access to affordable housing. However, one of the most common criteria PHAs use to determine whether to deny housing assistance is prior criminal activity. In a 2012 study, at least 85% of surveyed PHAs reported conducting criminal background checks as part of their screening process.[2]
PHAs have broad discretionary authority to shape their admissions policies so that federal rental assistance programs are more inclusive of people with conviction histories. Advocacy with PHAs can help ensure that PHAs adopt more equitable policies on criminal record screenings. HUD attempted to require PHAs to implement more equitable criminal history policies through its 2024 proposed rule, “Reducing Barriers to HUD-Assisted Housing.” While that proposed rule was never finalized, it still offers useful examples of reasonable policy reforms for PHAs.
Using HUD’s 2024 proposed rule as a guide, this issue brief identifies policy recommendations that advocates can pursue with PHAs on behalf of formerly incarcerated older adults. It also outlines how advocates can engage with PHAs through the PHA planning process.
Background on Withdrawn 2024 Proposed HUD Rule
Under the Biden Administration in 2024, HUD released a proposed rule on reducing barriers to HUD-assisted housing for people with arrest or conviction histories. Among other reforms, this proposed rule would have required HUD-assisted housing providers, including PHAs, to implement policies around admissions and criminal records screening to reduce discriminatory denials of housing.
The proposed rule would have promoted compliance with the federal Fair Housing Act, a growing body of case law, and the latest research, evidence, and best practices on effective applicant screening. HUD, however, never finalized the proposed rule, withdrawing it in 2025 in light of the change in federal administration.[3]
Note about HUD Guidance and Disparate Impact
The reasoning in HUD’s 2024 proposed rule and this issue brief are based in part on HUD’s prior fair housing guidance on housing providers’ consideration of criminal records in housing decisions. This guidance explains how certain screening practices may violate the federal Fair Housing Act, including by having an adverse disparate impact on the Fair Housing Act’s protected classes, such as people of color.
Earlier this year, the Trump Administration issued an executive order seeking to end the use of disparate impact liability under federal anti-discrimination laws. The executive order merely reflects the Administration’s policy stance against disparate impact liability – it is not a response to a change in disparate impact law. Among other directives, however, this order instructs federal agencies to take steps to amend or repeal any regulations and guidance incorporating disparate impact liability.[4]
As of early September 2025, HUD is expected to try to amend its regulations on disparate impact liability in the coming months. This change may also lead to HUD rescinding or revising its fair housing guidance on criminal records. If HUD rescinds its prior guidance, advocates may want to avoid citing to it in their advocacy. However, much of the legal rationale underlying this guidance – which included HUD’s review of relevant case law – will still be valid and a helpful reference for advocates.
Regardless of any changes in HUD guidance or regulations, disparate impact liability remains a longstanding legal theory upheld by courts in various contexts, including the Fair Housing Act, and is part of federal law. In the 2015 case Texas Department of Housing and Community Affairs vs. Inclusive Communities Project, the U.S. Supreme Court held that disparate impact claims are cognizable under the Fair Housing Act.[5]
Moreover, PHAs must comply not only with federal law, but with state fair housing laws as well. Disparate impact claims are widely enforceable under state fair housing laws, some of which may even explicitly include provisions on disparate impact liability.[6] Accordingly, PHAs should be motivated to reform their criminal history policies to better adhere to both federal and state fair housing laws.
PHAs’ Broad Discretionary Authority
Even though HUD did not finalize its 2024 proposed rule, PHAs can still voluntarily adopt important policies that are as strong or even stronger than what HUD would have required. Some of HUD’s proposals, in fact, were based on policies successfully implemented by some PHAs.[7] PHAs generally have broad discretion in admitting applicants for HUD housing programs and screening for criminal records. Federal law mandates that PHAs exclude applicants based on criminal history only in very limited cases.[8] Advocates can therefore urge their local PHAs to exercise their discretion by instituting improved screening policies regarding criminal history.
Note About State and Local Fair Housing Protections
State and local fair housing laws may provide stronger or additional protections for people with criminal records than the proposals outlined in this issue brief. For example, some jurisdictions now have “fair chance” ordinances with specific rules limiting landlords’ use of criminal records when screening prospective tenants.[9] Advocates should make sure that PHAs are complying with any applicable state and local laws on criminal records screening.
Areas of Advocacy for Older Adults
Formerly incarcerated older adults experience many challenges when seeking housing and applying for federal rental assistance. In addition to previously mentioned issues such as housing discrimination, older adults re-entering the community face high rates of disability and chronic illness, which make searching for housing even more difficult.[10]
Below are suggestions for specific areas of advocacy with PHAs to address some of these issues. These recommendations are based on Justice in Aging’s analysis of HUD’s 2024 proposed rule, including ways that proposed rule could have been improved for older adults.[11] Later sections of this issue brief will also review how advocates can advance policy recommendations through the PHA planning process, which PHAs use to make changes to their programs.
Written Notice About Criminal Records Before Denying Admission
When PHAs decide to deny admission due to an applicant’s criminal record, HUD regulations require PHAs to notify the applicant about the proposed denial. PHAs must then provide the applicant with a copy of the record and an opportunity to dispute its accuracy and relevance before the PHA formally issues a denial notice.[12] (PHAs must also provide applicants with the opportunity for an informal hearing or review after a denial.) [13]
HUD’s 2024 proposed rule would have strengthened this procedural requirement, mandating that PHAs provide notification about record issues at least 15 days before denying admission (current regulations do not require a minimum notice period). The proposed rule would have also specified that applicants could submit mitigating information (see the below section on individualized assessments) as part of contesting the relevance of a criminal record.
Advocates can urge PHAs to provide this notification on a similar timeline to the 15 days in the proposed HUD rule. Advocates may even want to suggest that PHAs adopt a longer notice period, such as 30 days. A notice of 15 days is likely inadequate for many older adults and people with disabilities, who often have more difficulties with navigating paperwork and may need help from caregivers, case managers, and others to respond to notices. Providing information about criminal history can also be particularly confusing because many people, including those with intellectual or cognitive disabilities, do not always understand the details and dispositions of their criminal cases.
Further, applicants usually spend years on waiting lists for the chance to receive HUD housing assistance. After such lengthy waiting periods, applicants should have more than 15 days to provide evidence challenging a potential denial based on criminal history. Advocates should also ensure that PHAs have clear policies allowing applicants to submit such information during the post-denial appeals process.
Additionally, advocates should encourage PHAs to provide the above notification in writing and with information on how people with disabilities can request reasonable accommodations, which PHAs must provide under federal civil rights laws. Older adults and people with disabilities may, for example, need more time to contest the potential denial. They may also need to request a reasonable accommodation for disability-related criminal records, which is discussed more later in this issue brief.
Limiting Lookback Periods
PHAs often have lengthy or even lifetime lookback periods when screening applicants’ criminal histories; denials may be based on criminal activity from years ago that is no longer relevant. HUD’s 2024 proposed rule would have created a default maximum lookback period of three years, with a period of longer than three years deemed “presumptively unreasonable.” PHAs would have only been able to impose longer lookback periods for certain criminal activity when justified by empirical evidence.
Advocates should also propose that PHAs limit lookback periods to three years or less. Doing so can help many formerly incarcerated older adults, some of whom are leaving prisons after serving decades-long sentences. A U.S. Department of Justice study found that the oldest groups of people released from state prisons in 2013 had the highest percentages of people who had served sentences of 10 years or more, with 28% of those 65 or older having been incarcerated for at least 10 years. Among those released who were 55 and older, over 37% had served sentences of three years or more.[14] Shorter PHA lookback periods can thus benefit a significant number of older adults who are seeking subsidized housing after incarceration.
Limiting the Types of Convictions Considered
In addition to limiting lookback periods, HUD’s 2024 proposed rule would have limited the types of criminal activity PHAs could rely on to deny admission. While federal law does direct PHAs to exclude certain applicants based on very specific types of criminal activity, PHAs often screen out applicants more broadly than required by considering a wide range of arrests and convictions.
HUD’s proposed rule would have helped curb this practice, only allowing discretionary denials based on criminal history if applicants had engaged in: 1) drug-related criminal activity; 2) violent criminal activity; 3) criminal activity that would threaten the health, safety, and right to peaceful enjoyment of the premises by other residents; or 4) criminal activity that would threaten the health or safety of the PHA or PHA employees.[15]
The proposed rule would have also prevented PHAs from using arrest records as the sole basis for determining that an individual had engaged in disqualifying criminal conduct. This prohibition would have affirmed HUD’s fair housing guidance warning that exclusions based on arrest records alone (without convictions) likely violate the Fair Housing Act.[16]
HUD explained in its 2024 proposed rule that these restrictions would create “[t]he general rule…that PHAs… cannot make decisions based on criminal history that research indicates is not predictive of future criminal activity; that is irrelevant to safety, health, or fitness for tenancy; or that is based on incomplete or unreliable evidence of criminal activity (e.g., a record for an arrest that has not resulted in a conviction).”
Advocates can recommend that PHAs adopt similar restrictions and only screen for a narrow set of convictions. PHAs should also clearly define any disqualifying convictions, avoiding ambiguities that may undercut efforts to limit grounds for exclusions. And given that research shows that criminal history overall does not predict housing success, one option is for PHAs to only screen for convictions that would result in mandatory exclusions under federal law.[17]
Individualized Assessments Before Denials
When evaluating applications and criminal records, PHAs are permitted but not required by HUD to conduct individualized assessments and consider mitigating factors.[18] As a result, many PHAs do not engage in individualized reviews and have blanket bans on people with arrest or conviction histories. These overly broad exclusions likely violate the Fair Housing Act, which is why HUD has explained in prior guidance that “individualized assessment of relevant mitigating information…is likely to have a less discriminatory effect than categorical exclusions..[19] Under its 2024 proposed rule, HUD attempted to require PHAs to conduct individualized reviews, including consideration of mitigating information, before denying applicants on the basis of criminal records.
Advocates can urge PHAs to develop written policies on individualized assessments, ensuring that PHAs account for mitigating factors before denying admission. Further, PHAs should outline examples of the types of mitigating factors they will consider, such as (but not limited to) the following:
Older Age: Advocates can encourage PHAs to consider older age at the time of conviction or release from incarceration as a mitigating factor. Research on tenants with criminal records in supportive housing has found that age at move-in is significantly associated with housing success, with older adults over age 50 more likely to maintain their housing.[20] Crime commission also drops sharply as a person ages, and older people are substantially less likely to recidivate and typically age out of criminal activity altogether. The older an individual is, the less likely they will be re-arrested after release from prison.[21] Studies show that arrest rates drop to about 2%vin people ages 50-65 and almost zero for people older than 65.[22] The Equal Employment Opportunity Commission (EEOC) has already recognized older adults’ low likelihood of engaging in criminal conduct, with the EEOC’s guidance on the use of criminal records in employment decisions incorporating older age as a mitigating factor. This guidance states that relevant individualized evidence includes “older age at the time of conviction, or release from prison.”[23] PHAs should similarly consider older age as a mitigating circumstance.
Reasonable Accommodations: In its list of mitigating factors for PHAs to consider, HUD’s 2024 proposed rule explicitly required PHAs to consider “whether further considerations must be made in order to comply with the obligation to consider and provide reasonable accommodations to persons with disabilities.” Advocates may want to recommend that PHAs adopt a similar policy. In cases where criminal conduct is connected to someone’s disability, civil rights laws may require PHAs to provide a reasonable accommodation in the form of modifying their policies or practices around criminal records.[24] Specific policies and language about reasonable accommodations can help reinforce these existing legal obligations.
Medical Conditions: HUD’s 2024 proposed rule would have required PHAs to consider mitigating circumstances related to a household member’s medical condition. While not clearly defined, this requirement would have likely been significantly broader than PHAs’ legal obligations to consider reasonable accommodations for people with disabilities.
Advocates should similarly urge PHAs to broadly consider an applicants’ medical issues when conducting individualized assessments. For example, an older applicant with a prior, non-disability related conviction may have subsequently developed long-term care needs that make it highly unlikely that the person could re-engage in similar criminal conduct or harm the safety of other residents. Although the person likely would not be able to receive a reasonable accommodation for disability-related criminal conduct, PHAs could still consider the individual’s present medical conditions as a mitigating factor.
Information About Mitigating Factors in Notices: If PHAs develop policies on individualized assessments, PHAs should explain these policies and how they consider mitigating factors in pre-denial and denial notices. Information about what standards PHAs use in conducting individualized reviews will help applicants understand what type of evidence they may need to present about mitigating circumstances.
Additional Considerations Regarding Waitlists
As part of PHAs’ broad discretionary authority, PHAs can also establish waitlist preferences for the Public Housing and Housing Choice Voucher programs based on local housing needs and priorities.[25] In addition to advocating for policies that are more inclusive of people with conviction histories, advocates may want to ask PHAs to adopt waitlist preferences for older adults, people with disabilities, and people experiencing homelessness. All of these are standard types of preferences that could expand housing access for formerly incarcerated older adults.
The PHA Planning Process
A PHA’s admissions policies are outlined in its PHA Plan, the Administrative Plan, and the Admissions and Continued Occupancy Policy (ACOP) Plan. The PHA Plan, which is comprised of an Annual Plan and/or Five-Year Plan, includes information about how a PHA will meet local housing needs and goals through the programs it administers. More specific details about programs are found in the Administrative Plan, which describes a PHA’s policies for its Housing Choice Voucher program, as well as the ACOP that explains how a PHA manages its Public Housing program.[26]
PHAs must make these Plans publicly available, and PHAs must hold annual hearings on their PHA Plans and their goals and objectives.[27] PHAs usually use this process to discuss changes to their Administrative Plans and ACOPs as well. Federal regulations require PHAs to conduct outreach to encourage broad participation in these hearings, and PHAs must allow the public to submit written comments for at least 45 days before the hearing date.[28]
The annual PHA planning process is therefore a valuable opportunity to advocate with PHAs. Advocates can use this process to recommend that PHAs develop admissions policies similar to those described above to expand housing access for formerly incarcerated older adults. It is critical that PHAs understand how their policies may contribute to housing barriers for this population, as well as how they can remedy any problematic policies.
Finally, advocates may want to collaborate with Resident Advisory Boards (RABs), which advise PHAs about their PHA Plans. Each PHA must have a RAB reflecting the residents it serves, and PHAs must consider and address a RAB’s comments during the planning process.[29] Advocates can provide RABs with input about how PHAs can improve their policies and try to ensure that advocates’ proposals align with those of residents.
Conclusion
Advocacy with state and local PHAs can help expand access to federal rental assistance for formerly incarcerated older adults. PHAs can exercise their broad discretionary authority to minimize discrimination against people with criminal records when making admissions decisions. In their advocacy with PHAs, advocates may want to use HUD’s 2024 proposed rule on this issue as a template and starting point for policy recommendations. In doing so, advocates can urge PHAs to adopt more equitable admissions policies that will reduce housing barriers for older adults re-entering the community.
Endnotes
PHAs most commonly administer HUD’s Housing Choice Voucher and/or Public Housing programs, although some also administer other types of federal and/or state rental assistance. ↑
Congressional Research Service, “The Use of Discretionary Authority in the Housing Choice Voucher Program: A CRS Study” (April 2012), available at https://www.everycrsreport.com/reports/R42481.html#_Toc322419348. ↑
Notice of Withdrawal of Proposed Rule, 90 Fed. Reg. 4686 (January 2025), available at https://www.federalregister.gov/documents/2025/01/16/2025-00996/reducing-barriers-to-hud-assisted-housing-withdrawal. ↑
Executive Order No. 14281, “Restoring Equality of Opportunity and Meritocracy” (April 2025), available at https://www.federalregister.gov/documents/2025/04/28/2025-07378/restoring-equality-of-opportunity-and-meritocracy. ↑
Texas Dep’t of Hous. & Cmty. Affs. v. Inclusive Communities Project, Inc., 576 U.S. 519, 135 S. Ct. 2507, 192 L. Ed. 2d 514 (2015). ↑
See, e.g., California’s Fair Employment and Housing Act, Cal. Code Regs. Tit. 2, § 12060. ↑
For more information and examples of PHA reforms, see the Vera Institute’s Opening Doors to Housing Initiative; Shriver Center on Poverty Law, “When Discretion Means Denial: A National Perspective on Criminal Records Barriers to Federally Subsidized Housing” (February 2015), available at https://www.povertylaw.org/article/when-discretion-means-denial/; and HUD, Notice PIH 2015-19 (Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions), available at https://www.hud.gov/sites/documents/15-19pihn.pdf. ↑
For more information on mandatory exclusions based on criminal history, see Marie Claire Tran-Leung and Lisa Sitkin, “Frequently Asked Questions: HUD-Subsidized Housing for Older Adults with Criminal Records,” National Center on Law and Elder Rights (June 2023), available at https://pfs2.acl.gov/strapib/assets/HUD_Subsidized_FAQ_b3713c30d7.pdf. ↑
For more information about fair chance ordinances, see the National Housing Law Project’s Fair Chance Ordinances: An Advocate’s Toolkit. ↑
Justice in Aging, “Promising Practices and Models for Older Adults Transitioning from Incarceration Back to the Community” (January 2025), available at https://justiceinaging.org/promising-practices-for-older-adults-transitioning-from-incarceration/. ↑
Advocates may want to urge PHAs to reform criminal history policies around terminations/evictions as well. HUD’s 2024 proposed rule also included proposed changes to termination/eviction policies. ↑
24 C.F.R. § 5.903(f); § 5.905(d); § 960.204(c); see also HUD, supra note 7. ↑
24 C.F.R. § 960.208(a); § 982.201(f). ↑
Bureau of Justice Statistics, “Aging of the State Prison Population, 1993-2013” (May 2016), available at https://bjs.ojp.gov/content/pub/pdf/aspp9313.pdf. ↑
Current HUD regulations (see, e.g., 24 C.F.R. § 5.855) already include a similar list of the types of criminal activity that PHAs may rely on to deny admission. However, the proposed HUD rule would have clarified that this list is exclusive. ↑
HUD, Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions (April 2016), available at https://www.fairhousingnc.org/wp-content/uploads/2016/04/HUD-Guidance-on-Criminal-Records-2016.pdf. ↑
See, e.g., Daniel K. Malone, “Assessing Criminal History as a Predictor of Future Housing Success for Homeless Adults with Behavioral Health Disorders” (February 2009), available at https://psychiatryonline.org/doi/full/10.1176/ps.2009.60.2.224. ↑
24 C.F.R. § 5.852(a); § 982.552(c)(2). ↑
HUD, supra note 16. ↑
Malone, supra note 17. ↑
Prison Policy Initiative, “The Aging Prison Population: Causes, Costs, and Consequences” (August 2023), available at https://www.prisonpolicy.org/blog/2023/08/02/aging/. ↑
Vera Institute of Justice, “Aging Out: Using Compassionate Release to Address the Growth of Aging and Infirm Prison Populations” (December 2017), available at https://www.vera.org/downloads/publications/Using-Compassionate-Release-to-Address-the-Growth-of-Aging-and-Infirm-Prison-Populations%E2%80%94Full-Report.pdf. ↑
U.S. Equal Employment Opportunity Commission, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act (April 2012), available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions. ↑
For more information on criminal history and reasonable accommodations, see Justice in Aging, “Fair Housing Protections for Formerly Incarcerated and Justice-Involved Older Adults” (November 2023), available at https://justiceinaging.org/fair-housing-protections-for-formerly-incarcerated-and-justice-involved-older-adults/. ↑
24 C.F.R. § 960.206; § 982.207. ↑
National Housing Law Project, “Public Housing Authority Local Policies” (November 2017), available at https://www.nhlp.org/resources/public-housing-authority-local-policies. ↑
HUD, Notice PIH 2025-18 (Automation of and Revisions to the Public Housing Agency (PHA) 5-Year Plan and Annual Plan Templates and Certification Forms)(June 2025), available at https://www.hud.gov/sites/default/files/OCHCO/documents/PIH_2025-18.pdf. ↑
24 C.F.R. § 903.17. ↑
24 C.F.R. § 903.13. ↑
