Can a Public Housing Authority (PHA) access my drug treatment records, and if so, under what circumstances?

The law is still unclear for most government-assisted housing programs. The short answer is that a PHA can get limited access to your drug/alcohol treatment records if you are applying to or currently living as a tenant in the Public Housing program (which is a specific type of government-assisted housing program ). There are no similar rules for the other government-assisted housing programs (like “Section 8” Housing Choice Vouchers or the Section 8 Moderate Rehabilitation Program).[1300] Therefore, unless you are applying to the Public Housing program, it is still unclear if PHAs can legally request or obtain information about you from drug/alcohol treatment facilities. This rule is further explained below.

I am an applicant or tenant for the Public Housing program. What information can a Public Housing Authority (PHA) get about me from a drug/alcohol treatment facility?

If you are applying to the Public Housing program, the local PHA is allowed to request and get information about you from drug treatment facilities,[1301] but the PHA is limited to asking only one question relating to your eligibility for the housing, which is:

“Does the drug abuse treatment facility have reasonable cause to believe that the household member is currently engaging in illegal drug use?”[1302]

That is the only question that can be asked and the PHA cannot seek any additional information from the drug treatment facility!

What is the process that a Public Housing Authority (PHA) must follow when requesting information about me from a drug treatment facility?

When requesting information from a drug treatment facility about an applicant or tenant for the public housing program, The PHA must:

    Get your signature on a release form (also called a written consent form) before asking the drug treatment facility about you.[1303] The release automatically expires right after the PHA makes a final decision to approve or deny your application to the government-assisted housing program.[1304]
    Have a system to protect your confidentiality (your privacy).[1305] When a PHA or landlord collects information in credit and tenant screening reports, it cannot use the information it collects for any purpose other than to decide whether or not to admit you into the housing unit. The PHA and owner must keep this information confidential, even when throwing it out.[1306]
    Have and follow a nondiscriminatory policy (a document that outlines a policy in regards to discrimination and management practices) that applies equally to anyone applying to public housing.[1307] This policy must be written down in the PHA’s official plans and policies.
  1. 1300

    The argument against such adoption of those rules (for other federally-assisted housing programs, not including public housing, which already has these rules in place) is that Congress intentionally limited the applicability of the statutory provision to public housing and did not extend it to the other programs. However, if a PHA, for the voucher program, or an owner, for other programs, adopts a policy that seeks to obtain records from drug treatment facilities, it should also be argued that the public housing statutory protections or their equivalent must be incorporated, as the statute is designed to avoid a violation of fair housing laws and claims of discrimination based upon disability. ↑

  2. 1301

    42 U.S.C. § 1437d(t); 24 C.F.R. § 960.205. ↑

  3. 1302

    42 U.S.C. § 1437d(t); 24 C.F.R. § 960.205; cf. Campbell v. Minneapolis Pub. Hous. Auth., 175 F.R.D. 531 (D. Minn. 1997), vacated and remanded, 168 F.3d 1069 (8th Cir. 1999). Campbell involved an interpretation of 42 U.S.C. §§ 1437n(e)(1), (2), which have been repealed. The court allowed the PHA to seek information regarding drug use and rehabilitation efforts from drug treatment facility, but remanded the case to the PHA to determine eligibility because the administrative record was incomplete. The PHA conceded that it would have to change its policy based upon the repeal and amendments to the statute. ↑

  4. 1303

    42 U.S.C. § 1437d(t)(2); 24 C.F.R. § 960.205(c)(1); cf. Campbell v. Minneapolis Pub. Hous. Auth., 175 F.R.D. 531 (D. Minn. 1997), vacated and remanded, 168 F.3d 1069 (8th Cir. 1999). ↑

  5. 1304

    42 U.S.C. § 1437d(t)(2)(C); 24 C.F.R. § 960.205(c)(2). ↑

  6. 1305

    42 U.S.C. § 1437d(t)(2)(B); 24 C.F.R. § 960.205(f). ↑

  7. 1306

    15 U.S.C. § 1681 et seq. ↑

  8. 1307

    24 C.F.R. § 960.205(e). ↑