When you are considering an appeal. . . .
A State Office AN set management fee terms and amounts approvable by the Agency. Servicing offices, then rejected Management Agreements because the terms and fees didn’t meet the requirements of the AN.
The AN set fees on the basis of such criteria as:
— project accounts not established or underfunded
— payables greater than 30 days past due
— tenant certifications/project worksheets received late
or typically with errors
— vacancy/collection loss greater than 10% of gross
rent potential
— maintenance not adequate or timely
— no 504 self evaluation/transition plan
— project sign/AFHMP/posters missing or outdated
— O&M actual costs exceed 10% of
forecasted estimates.
We appealed the denials of the Management Agreements. We pointed out that:
1. The State Director didn’t have the authority to issue the AN.
2. The AN was inconsistent with the Instructions.
The decision of the NAD Hearing Officer was that the Agency couldn’t reject the fees on the basis of the AN. The Agency then appealed that decision to the National Appeals Division Director. The NAD Director stated:
The Notice sets management fee amounts and vitiates the meaning of guidelines as contemplated in applicable regulations. Substantial evidence supports the Hearing Officer’s determination that Notice exceeded the Agency’s authority and was more restrictive than applicable regulations. That is, the Notice deviates from the plain meaning of applicable regulatory language by pre-establishing fees to the detriment of the Appellant.
I am expecting the client to proceed under the Equal Access to Justice Act and request that the Agency pay the costs of the appeal.