News

HOTMA Makes Significant Changes to the Handling of Interim Reexaminations at HUD Properties

Introduction The U.S. Department of Housing and Urban Development (HUD) has released Notice H 2013-10, which expands upon the Final Rule for implementing the Housing Opportunity Through Modernization Act (HOTMA). This final rule makes significant changes to the way managers of HUD-assisted housing will process interim reexaminations. Basics of the Rule Change A family may request an interim determination of family income or composition because of any changes since the last determination. Project owners must conduct interims within a reasonable period of time after the family request or when the Owner becomes aware of a change in the family s adjusted income that must be processed in accordance with the final rule. While owners have some discretion in determining a "reasonable time," interim reexaminations should generally be conducted no more than 30 days after the owner becomes aware of the changes. Decreases in Adjusted Income A family may request an interim determination of income for any change in income or family composition. However, the owner may decline to conduct an interim if the owner estimates that the adjusted income will decrease by less than 10 percent of the annual adjusted income. If owners select a threshold lower than 10 percent, the lower percentage threshold must be included in the ACOP, Administrative Plan, or Tenant Selection Plan, as applicable. HUD has made some exceptions to the 10 percent threshold and applies a zero percent threshold in certain circumstances: (1) If there is a decrease in family size due to the death or permanent move-out from the assisted unit of a family member during the period since the family s last reexamination that results in a decrease in adjusted income of any amount. If there is no change in adjusted income as a result of the decrease in family size, then a non-interim transaction is processed instead of an interim reexamination. This zero percent threshold applies only to decreases in adjusted income due to a decrease in family size. If the move-out of the family member results in an increase in annual adjusted income, the owner will process the removal of the member as a non-interim transaction without making changes to the family s annual adjusted income. Owners are not permitted to establish a dollar-figure threshold amount instead of a percentage threshold. Owners may establish policies to round calculated percentage decreases up or down to the nearest unit (e.g., a calculated decrease of 9.5% may be rounded up to 10%). Increases in Adjusted Income Owners must conduct an interim reexamination of family income when the family s adjusted income increases by 10 percent or more, with the following exceptions: (1) owners may not consider any increases in earned income when determining whether to conduct an interim unless the family has previously received an interim reduction during the same reexamination cycle, and (2) owners may choose not to conduct an interim reexamination during the last three months of a certification period if a family reports an increase in income with three months of the next annual reexamination effective date. Note: Families who delay reporting income increases until the last three months of their certification period may be subject to retroactive rent increases. Owners may not establish a policy of conducting interim reexaminations for increases in annual adjusted income of less than 10 percent. When a family previously received an interim reexamination for a decrease in annual adjusted income during the same annual cycle, an owner has the discretion to consider or ignore a subsequent increase in earned income for the purpose of conducting an interim reexamination. When an increase in income of any size is reported by a family, it is a recommended best practice for the owner to note the reported increase in the tenant file. If a series of smaller reported increases in adjusted income result in a cumulative increase of 10 percent or more, an interim reexamination is required. Bottom Line Project owners must process interim reexaminations of family income or composition if there's a significant change since the last check. The interim should be done within 30 days of becoming aware of the change. Decreases in income warrant an interim if over 10%, with certain exceptions allowing a 0% threshold. For increases, an interim is required for a 10% rise in adjusted income unless a reduction has occurred in the same cycle. Owners should document all reported income changes, and cumulatively, a 10% increase triggers an interim reexamination.

A. J. Johnson to Host Live Webinar on Interviewing Skills for Affordable Housing Managers

A. J. Johnson will be conducting a webinar on December 6, 2023, on Interviewing Skills for Affordable Housing Managers.  The Webinar will be held from 1:00 PM to 4:00 PM Eastern time. One of the most important skills any affordable housing manager can possess is the ability to interview applicants and residents and obtain the information required to determine eligibility - this is also one of the greatest weaknesses of most affordable housing managers. This training has been developed to address that weakness. This three-hour session focuses on the interview process and provides concepts and tools that will aid managers as they conduct their interviews. Techniques apply to all interview settings including initial eligibility interviews, interim certifications, and annual recertifications. The primary emphasis is on the initial eligibility interview since it is so critical to the housing process. The skills taught during this session will also assist managers in detecting fraud and dealing with third parties when resolving discrepancies. Those interested in participating in the Webinar may register on the A. J. Johnson Consulting Services website (www.ajjcs.net) under "Training Schedule."

HUD Provides Significant Clarification Regarding Income in HOTMA Final Rule

Introduction The U.S. Department of Housing and Urban Development (HUD) has released Notice H 2023-10, which expands upon the Final Rule for implementing the Housing Opportunity Through Modernization Act (HOTMA). This final rule provides clarification regarding how income is determined for purposes of HUD programs and other programs that must follow HUD rules relative to the determination of income. Annual Income Annual income includes all amounts received from all sources by each member of the family who is 18 years of age or older, the head of household, or spouse of the head of household, in addition to unearned income received by or on behalf of each dependent who is under 18 years of age. Annual income does not include amounts specifically excluded in 24 CFR 5.609. HUD clarifies that annual income includes "all amounts received," not the amount that a family may be legally entitled to receive but which they do not receive. For example, a family s child support or alimony income must be based on payments received, not the amounts to which a family is entitled by court or agency orders. For this reason, a copy of a court order or other written payment agreement alone may not be sufficient verification of amounts received by a family. Annual income also includes all actual anticipated income from assets even if the asset is excluded from net family assets but the income from the asset is not otherwise excluded. Imputed returns on net family assets are included in annual income only when net family assets exceed $50,000, and actual asset income cannot be calculated for all assets. Day Laborers A day laborer is defined as an individual hired and paid one day at a time without an agreement that the individual will be hired or work again in the future. Income earned as a day laborer is considered "earned" income and must be included in the determination of income unless specifically excluded by federal regulation (e.g., earnings of full-time students in excess of the dependent deduction). Independent Contractor An independent contractor is an individual who qualifies as an independent contractor instead of an employee in accordance with IRS regulations and whose earnings are subject to self-employment tax. In general, an individual is an independent contractor if they have the right to control or direct only the conduct of the work. For example, while instructions and route information are generally provided, third-party delivery and transportation service providers are considered independent contractors unless state law dictates otherwise. In addition, "gig workers," such as babysitters, landscapers, rideshare drivers, and house cleaners, typically fall into the category of independent contractors. Income earned as an independent contractor is considered "earned" income and must be included in the determination of income unless specifically excluded by federal regulation (e.g., earnings of full-time students in excess of the dependent deduction). Seasonal Worker A seasonal worker is defined as an individual who is: 1) hired into a short-term position (e.g., for which the customary employment period for the job is six months or less); and 2) the employment begins about the same time each year (such as summer or winter). Examples of seasonal work include employment limited to holidays or agricultural seasons. Seasonal work may include but is not limited to employment as a lifeguard, ballpark vendor, or snowplow driver. Income earned as a seasonal worker is considered "earned" income and must be included in the determination of income unless specifically excluded by federal regulation. In conclusion, Notice H 2023-10 and the Final Rule for the Housing Opportunity Through Modernization Act provide essential guidelines for determining income within HUD programs. These clarifications serve to ensure a fair and accurate assessment of income, capturing the complexities of modern work arrangements from day laborers to independent contractors and seasonal workers. By including actual received income and anticipating earnings from assets, HUD aims to streamline the process, promote transparency, and provide consistency across the board. This approach not only supports the equitable distribution of housing assistance but also reflects the evolving nature of income in a gig economy. As HUD continues to refine its policies, these measures are a step toward modernizing housing opportunities and upholding the fundamental principle that everyone deserves access to affordable housing.

A. J. Johnson Partners with Mid-Atlantic AHMA for December Training on Affordable Housing

During the month of December 2023, A. J. Johnson will be partnering with the MidAtlantic Affordable Housing Management Association for two live webinar training sessions intended for real estate professionals, particularly those in the affordable multifamily housing field. Following the webinars, AJ will be providing a review of testable areas and in-person administration of the Housing Credit Certified Professional (HCCP ) exam.  The following sessions will be presented: December 12: Intermediate LIHTC Compliance - Designed for more experienced managers, supervisory personnel, investment asset managers, and compliance specialists, this program expands on the information covered in the Basics of Tax Credit Site Management. A more in-depth discussion of income verification issues is included as well as a discussion of minimum set-aside issues (including the Average Income Minimum Set-Aside), optional fees, and use of common areas. The Available Unit Rule is covered in great detail, as are the requirements for units occupied by students. Attendees will also learn the requirements relating to setting rents at a tax-credit property. This course contains some practice problems but is more discussion-oriented than the Basic course. A calculator is required for this course. December 13: Advanced LIHTC Compliance - This full-day training is intended for senior management staff, developers, corporate finance officers, and others involved in decision-making with regard to how LIHTC deals are structured. This training covers complex issues such as eligible and qualified basis, applicable fraction, credit calculation (including first-year calculation), placed-in-service issues, rehab projects, tax-exempt bonds, projects with HOME funds, Next Available Unit Rule, employee units, mixed-income properties, the Average Income Minimum Set-Aside, vacant unit rule, and dealing effectively with State Agencies. Individuals who take both two days of training will be provided with study materials and a practice exam to assist in preparation for the HCCP exam, to be administered on December 15. December 14: Review of testable areas and administration of the Housing Credit Certified Professional (HCCP ) exam (In-person exam in Richmond, VA). Following the two days of intensive and comprehensive LIHTC training, AJ will provide a review of program requirements and will administer the HCCP exam in person. These sessions are part of the year-long collaboration between A. J. Johnson and MidAtlantic AHMA that is designed to provide affordable housing professionals with the knowledge needed to effectively manage the complex requirements of the various agencies overseeing these programs. Persons interested in any (or all) of these training sessions may register by visiting either www.ajjcs.net or https://www.mid-atlanticahma.org.

HOTMA Makes Important Changes to the Definition of a "Family"

Introduction The U.S. Department of Housing and Urban Development (HUD) has released Notice H 2013-10, which expands upon the Final Rule for implementing the Housing Opportunity Through Modernization Act (HOTMA). This final rule revises the definition of "family" to also include a single person who: Is an otherwise eligible youth who has attained at least 18 years of age and not more than 24 years of age; Has left foster care, or will leave foster care within 90 days, in accordance with a transition plan that complies with the requirements of the Social Security Act; and Is homeless or at risk of becoming homeless at age 16 or older. New Explanations of Foster Adult and Foster Child Under the new rule, a foster adult is defined as a member of the household (but not a family member) who is 18 years or older and meets the definition of a foster adult under state law. State-level agencies define who is considered a foster adult/child, so the classification may vary from state to state. A foster child is defined as a member of the household (but not a family member) who meets the definition of a foster child under state law. Foster adults/children are not considered family members and must not be included in calculations of income for eligibility or rent determination purposes. However, foster adults/children are considered household members and must be included when determining unit size or subsidy standards. The definition of "dependent" has been revised to explicitly exclude foster adults/children. No dependent deduction is permitted for foster adults/children. Also, income earned by foster household members, payments received for the care of foster members, and expenses incurred related to foster members are not considered to be family income or expenses used in the determination of annual income. However, unreimbursed childcare expenses for foster children under 13 years of age may be deducted from annual income if those expenses are needed to enable a member of the family to work, look for work, or further their education. When a member of an assisted family is temporarily placed in foster care (as confirmed by the child welfare agency), the member is still counted as a family member in the unit from which they were removed. This means that a foster child or adult could be considered an assisted family member in one household while also being a foster member of another household and receiving consideration in both families voucher size and/or unit size. In essence, beginning in January 2024, foster adults and foster children will be treated the same as live-in aides for purposes of HUD housing and programs that must follow HUD rules in the determination of annual income.

HOTMA Changes to Deductions and Expenses for HUD Properties

Introduction The U.S. Department of Housing and Urban Development (HUD) has released Notice H 2013-10, which expands upon the Final Rule for implementing the Housing Opportunity Through Modernization Act (HOTMA). The publication of this guidance in September 2023 outlined a number of changes to the rules relating to HUD-permitted deductions and expenses. Owners of HUD-assisted projects that determine rent based on adjusted income must consider mandatory deductions when determining a family s annual adjusted income. Public Housing Agencies (PHAs) may also consider additional deductions to a family s annual income if established by a written policy in the PHA s Admissions or Continued Occupancy Policy (ACOP) or Administrative Plan. Dependent Deduction Effective January 1, 2024, the dependent deduction amount is - as it has been - $480. This amount will be adjusted annually, beginning in 2025, and applies to a family s next annual or interim reexamination after the annual adjustment, whichever is sooner. Not later than September 1 of each year, HUD will publish an adjusted dependent deduction on its website. PHAs and owners will be required to implement the adjusted dependent deduction for all income reexaminations that are effective January 1 or later. Elderly/Disabled Family Deduction Effective January 1, 2024, the elderly/disabled family deduction increases from $400 to $525 and applies to a family s next annual or interim reexamination, whichever is sooner. This deduction will also be adjusted annually based on an inflation factor. Health & Medical/Disability Related Expenses In one of the most controversial changes to the current rules, the HOTMA final rule establishes that the sum of unreimbursed health and medical care and reasonable attendant care and auxiliary expenses that exceed 10 percent of the family s annual income can be deducted from annual income. The current threshold is 3 percent of annual income. This rule applies only to elderly or disabled families. In order to claim the deduction for disability-related costs, the family must include a person with a disability, and the expenses must enable any member of the family (including the disabled member) to be employed. Hardship Exemptions for Medical and Disability-Related Expenses HUD received many comments on the proposed rule relating to hardship exemptions for unreimbursed health and medical care, attendant care, auxiliary apparatus expenses, and childcare expenses. The final rule has been revised to provide clarity to these exemptions and ease burdens on families experiencing financial hardship. Medical/Disability Expenses Current regulations permit the deduction of medical expenses from annual income for elderly households if the expenses (1) will not be reimbursed by insurance or another source; and (2) when combined with any disability assistance expenses are in excess of three percent of annual income. The new regulation does not permit the deduction until the medical expenses exceed 10 percent of gross income. This will clearly have a negative impact on many elderly/disabled households. To help ease this burden, the final rule provides two types of hardship exemptions to the ten percent threshold for health and medical care expenses (for elderly and disabled families) and reasonable attendant care and auxiliary apparatus expenses (for families that include a person with disabilities). The first category ("phased in relief") is for families eligible for and taking the unreimbursed health and medical care expenses and reasonable attendant care and auxiliary apparatus expenses deduction in effect prior to this rule (i.e., the 3% rule). The second category ("general relief") is for families that can demonstrate that the family s health and medical care expenses or reasonable attendant care and auxiliary apparatus expenses increased, or the family s financial hardship is a result of a change in circumstances that would not otherwise trigger an interim reexamination.HUD is adding this second category in the final rule in recognition that the change from the three percent threshold to the new ten percent threshold for unreimbursed health and medical care expenses or reasonable attendant care and auxiliary apparatus expenses may result in financial hardship for families, including those families who were not receiving the deduction or may not even have been receiving housing assistance at the time the final rule goes into effect. These families may receive temporary hardship relief if their health and medical care expenses or reasonable attendant care and auxiliary apparatus expenses exceed five percent of the family s income. Under the first category (families taking the deduction based on the three percent rule), owners must deduct eligible expenses exceeding five percent of the family s income for the first year, 7.5% for the second year, and 10% for the third year. It should be noted that the term "year" refers to the certification year - not the calendar year. Under the second category, a family may qualify for hardship exemptions for health and medical care expenses or reasonable attendant care and auxiliary apparatus expenses if the family can demonstrate that the expenses increased, or the family s financial hardship is a result of a change in circumstances (as determined by the project owner). For these families, the deduction will be for expenses in excess of five percent of family income for up to 90 days. This may be extended for additional 90-day periods at the discretion of the owner, based on family circumstances. Owners may also terminate the hardship exemption if it is determined that the family no longer needs the exemption. Examples of circumstances constituting a financial hardship may include the following situations: The family is awaiting an eligibility determination for a federal, state, or local assistance program, such as a determination for unemployment compensation or disability benefits; The family s income decreased because of a loss of employment, the death of a family member, or due to a natural or federal/state-declared disaster; or Other circumstances as determined by the PHA/MFH Owner. In some circumstances, families receiving the deduction under the first category may request relief under the second category of hardship relief. During the second year of transition, the owner deducts expenses exceeding 7.5 percent of family income if relief is being obtained under the first category. If the family can demonstrate that the health and medical care expenses or reasonable attendant care and auxiliary apparatus expenses increased or the family s financial hardship is a result of a change in circumstances, and not just due to the transition to the 7.5% threshold, the family may be granted relief under the second category. In this case, expenses exceeding five percent of the family income will be deducted (instead of 7.5%). However, this relief will last only for 90 days (unless extended by the owner), and the family is no longer eligible for relief under the first category. In other words, at the end of the relief period for the second category, the family will be subject to the regular health and medical care expenses or reasonable attendant care and auxiliary apparatus expenses deduction threshold of ten percent, regardless of whether they fully transitioned to the ten percent threshold under the first category. Child Care Expense Deduction HUD regulations permit the deduction from annual income of any reasonable child-care expenses necessary to enable a family member to work or further their education. The expenses must be unreimbursed and must be for the care of a child age 12 and younger. Childcare Deduction Hardship Relief Under the final rule, property owners may extend a deduction for unreimbursed childcare expenses for 90 days, with extensions for additional 90-day periods if the family can demonstrate that they are unable to pay their rent due to loss of the childcare expense deduction, and the childcare expense is still necessary even though the family member is no longer employed or furthering his or her education. The following example illustrates how this relief could work: A family that was claiming the childcare deduction no longer qualifies because the care is no longer necessary to enable a family member to work or go to school. The family member who was employed had to leave their job in order to provide uncompensated care to an elderly friend who is very ill and lives across town. The family may continue to claim the childcare deduction for 90 days, with 90-day extensions as approved by the owner. Hardship Policy Requirements Owners must establish policies on how they define what constitutes a hardship. Some factors to consider when determining if a family is unable to pay rent may include a determination that the rent, utility payment, and applicable expenses (child care or health/disability expenses) are more than 45 percent (for example) of the family s adjusted income, or verifying whether the family has experienced unexpected expenses, such as large medical bills, that have impacted their ability to pay rent. Owners are required to notify families of either approval or denial of hardship exemptions. Notices of hardship exemption approval must inform the family of the dates that the exemption will begin and expire and the requirement for the family to report if the circumstances that made the family eligible for relief are no longer applicable. Owners of hardship exemption denial must state the reason for the denial. The 90-Day Extensions Owners may extend hardship relief for as many 90-day periods as the hardship continues to affect the family. Policies for extensions of relief must be included in PHA Administrative Plans and Owner Tenant Selection Plans. Owners must obtain third-party verification of the family s inability to pay rent or must document in the file the reason that third-party verification was not available. Owners must attempt to obtain third-party verification prior to the end of the 90-day period. In conclusion, the adjustments to HUD regulations as delineated in Notice H 2013-10 reflect a concerted effort to modernize and improve the process of determining adjusted income for HUD-assisted families. While the increase in the threshold for medical and disability deductions may initially pose challenges for elderly and disabled households, the provision of phased and general hardship exemptions showcases HUD's commitment to a compassionate transition. The annual adjustments to dependent and elderly/disabled family deductions, along with the specific provisions for hardship exemptions, are designed to ensure that the most vulnerable populations continue to receive the support they need. By establishing clear guidelines and relief procedures, HUD aims to provide equitable opportunities for housing while addressing the complexities of financial hardship. As these changes roll out, it will be crucial for public housing agencies, owners, and families to stay informed and engaged with the evolving landscape of housing assistance to navigate these changes successfully.

A. J. Johnson to Host Live Webinar on LIHTC Acquisition/Rehab Issues

A. J. Johnson will be conducting a 1.5-hour webinar on December 20, 2023, on Critical Issues Relating to the Acquisition and rehabilitation of LIHTC properties. The Webinar will be held at 1:00 PM Eastern Time. This 1.5-hour session focuses on the issues that are critical to the success of any LIHTC acquisition/rehab project. The training focuses on tenant qualification, unit qualification, and first-year credit delivery. There will be a full discussion of determining the first-year applicable fraction, differentiating between the acquisition credit and rehab credit, transferring households between units during rehab, temporary relocation, the timing of resident qualifications, the meaning of the "safe-harbor" rule, re-syndication and previously qualified households, and 8609 issues. Those interested in participating in the Webinar may register on the A. J. Johnson Consulting Services website (www.ajjcs.net) under "Training."

HUD Provides Additional Guidance on HOTMA Rules Regarding Calculation of Income

Introduction The U.S. Department of Housing and Urban Development (HUD) has released Notice H 2013-10, which expands upon the Final Rule for implementing the Housing Opportunity Through Modernization Act (HOTMA). The publication of this guidance in September 2023 seeks to clarify aspects concerning the calculation of income for the purposes of determining eligibility and continued occupancy in HUD-assisted housing. Clarifications for Income Calculations HUD's Notice introduces detailed procedures for income calculation during both new admissions and interim reexaminations. Public Housing Authorities (PHAs) and Multi-Family Housing (MFH) owners must calculate household income based on anticipated earnings over the next 12 months for these assessments, a method that aligns with pre-HOTMA practices. Revisions for Annual Recertifications The Final Rule incorporates significant changes to the process of annual income recertification. Property owners now have the flexibility to employ a "safe harbor" verification method, leveraging income determinations from other federal means-tested programs as a valid form of verification for gross annual income. When streamlined or safe harbor approaches are not utilized, the actual income from the prior 12 months will serve as the basis for recalculating tenant rental assistance. Any changes in income, regardless of their nature, must be taken into account. Three-Step Determination Process The procedure for establishing the previous year's income for recertification purposes involves: Determining the annual income: This involves reviewing the EIV Income Report, prior HUD forms, and family certifications to establish a baseline figure. Considering interim reexaminations: In instances where interim reexaminations have occurred, the resultant annual income figure from these should be used unless further changes in income necessitate a reevaluation. Adjusting for reported changes: If families report income changes not captured during the last reexamination, current income data should be employed. Documentation and Verification Hierarchy HUD outlines a verification hierarchy to establish accuracy in income reporting, with the Electronic Income Verification (EIV) system at its pinnacle. The hierarchy descends from written third-party verifications to self-certification, with a deep dive into acceptable verifications planned for a future article. Incorporation of Social Security COLA The HUD Notice requires that the Social Security Administration's annual cost-of-living adjustments (COLAs) be included in income calculations immediately after their announcement, affecting all reexaminations scheduled for January 1st or later of the following year. Handling De Minimis Errors The Notice also addresses minor, or de minimis, errors in income calculation, where discrepancies do not exceed $30 per month. Such minor inaccuracies will not lead to compliance findings against owners during reviews. However, owners are responsible for correcting even these small errors retroactively and adjusting tenant rent accordingly. Conclusion With this additional guidance, HUD has streamlined the process for calculating household income, thus simplifying compliance for PHAs and property owners. The Notice places a strong emphasis on accuracy and fairness in income determination, ensuring that families receive the correct level of assistance while minimizing errors and their subsequent impact.