In the past, HUD guidance has indicated that family members of live-in aides could not reside with the aide in housing developments assisted under the HUD Multifamily Housing Division. This includes project-based rental assistance programs such as Section 8, as well as Section 811, Section 202 and other programs. However, this has been “guidance” only and there is no statutory provision against permitting the family members of live-in aides to reside in a unit with the aide. In fact, HUD guidance for the Housing Choice Voucher program was that it was up to a Public Housing Agency (PHA) whether or not to permit the children of aides to live in a unit, but if they did so, the PHA could not provide a separate bedroom for the child.
Recent guidance from HUD (July 2019) as part of the Section 811 Frequently Asked Questions (FAQ) section of the HUD website indicates that owners may in fact allow occupancy by family members of live-in aides. Here is the specific wording of the guidance:
Question: Can a live-in aide have one of his/her family members reside in the unit (such as children, etc.); or, is only the live-in aide allowed to reside in the unit with whom he/she is providing care?
Answer: Each individual property establishes its own occupancy standards which must be included in the Tenant Selection Plan. Although HUD provides some general guidelines, the decision is with the owner. There is no requirement that requires a live-in aide to have his/her own bedroom or room nor is there a restriction against a live-in aide having a child. When approving the live-in aide and/or live-in aide with a child, the property has to maintain compliance with the written occupancy standards of the property.
Based on this new guidance, HUD is leaving it up to property owners as to whether or not to permit occupancy by family members of live-in aides.
Background
Allowing a Live-in Aide for a disabled person is both a HUD and fair housing requirement.
The HUD definition of a live-in aide is a person who resides with one or more elderly persons, near-elderly persons, or persons with disabilities, and who:
1. Is determined to be essential to the care and well-being of the person(s);
2. is not obligated for the support of the person(s); and
3. would not be living in the unit except to provide the necessary supportive services.
Requirement #1 essentially means that in order to have a live-in aide, a resident would have to meet the Fair Housing Act (FHA) definition of handicapped or disabled; otherwise, the aide would not be essential to the care and well-being of the resident.
To qualify as a live-in aide:
1. The owner must verify the need for the live-in aide. Verification that the live-in aide is needed to provide the necessary supportive services essential to the care and well-being of the person must be obtained from the person’s physician, psychiatrist, or other medical practitioner or health care provider. The owner must approve a live-in aide if needed as a reasonable accommodation under fair housing law to make the program accessible to or usable by the family member with a disability. The owner may verify whether the live-in aide is necessary only to the extent necessary to document that applicants or tenants who have requested a live-in aide have a disability-related need for the requested accommodation. This may include verification from the person’s physician, psychiatrist, or other health care provider. The owner may not require applicants or tenants to provide access to confidential medical records or to submit to a physical examination. It should be noted that fair housing law prohibits verification of the need for a reasonable accommodation when both the disability and the need for the requested accommodation are obvious. If an owner/agent determines by observation that a resident is so clearly disabled as to require the services of an aide, the file should be clearly documented with regard to the reason why no professional verification was obtained.
2. Expenses for services provided by the Live-in Aide, such as nursing services (dispensing of medications or providing other medical needs) and personal care (such as bathing or dressing), that are unreimbursed out-of-pocket expenses for the tenant are considered eligible medical expenses for HUD purposes (this issue does not apply for purposes of the Low-Income Housing Tax Credit Program since there are no deductions from income). Homemaker services such as housekeeping and meal preparation are not eligible medical expenses.
3. The Live-in Aide qualifies for occupancy only as long as the disabled resident requires the aide’s services and remains a tenant. The Live-in Aide may not qualify for continuing occupancy as a remaining family member, and under no circumstance should a Live-in Aide be converted to a household member. Owners should use a lease addendum (HUD approved in the case of a HUD property) that denies occupancy of the unit to a Live-in Aide after the tenant, for whatever reason, is no longer living in the unit. The addendum should also give the owner the right to evict the Live-in Aide if they violate any house rules. This may also be done through the use of a “Live-in Aide Agreement.
4. Income of a Live-in Aide is excluded from household income.
5. In a HUD property, the Live-in Aide must disclose and provide verification of their Social Security Number (SSN).
6. Live-in Aides should also be required to meet the property’s screening criteria – other than credit and rent-paying history. The screening of Live-in Aides at initial occupancy and the screening of Live-in Aides to be added to an existing household should be the same. They should be screened based on the criminal screening procedures that the owner uses in screening applicants for housing. HUD properties should note that the EIV Existing Tenant Search is required for Live-in Aides.
A relative may be a Live-in Aide if they meet the requirements stated above – especially #3. This also applies to HUD Section 202 PRAC and Section 811 projects, where adult children are not eligible to move into a unit unless they are performing the functions of a Live-in Aide and are classified as a Live-in Aide for eligibility purposes.
Live-in Aides must be counted for the purpose of determining appropriate unit size, i.e., a Live-in Aide is entitled to their own bedroom. However, if a unit with a separate BR for the aide is not available, the aide should not be denied occupancy as long as permitting such occupancy does not overcrowd the unit under state or local law. If a larger unit becomes available and the tenant requests a transfer to such unit, the owner is obligated to permit the transfer as a reasonable accommodation. However, there is no obligation to charge only the rent that would be charged for the smaller unit.
In the case of HUD-assisted properties, a Live-in Aide may never be considered a dependent.
When permitting a Live-in aide to reside it a unit as a reasonable accommodation, owners and managers should be certain that the file clearly documents the status of the aide. It is also recommended that Live-in Aides be included on the Tenant Income Certification (TIC), but they should not be permitted to sign the TIC. Also, other than on the Live-in Aide addendum to the lease, an aide should never be listed on a lease – not even as an occupant.
Recommendations Relating to Family Members of Live-in Aides
If an owner decides to permit family members of live-in aides to reside in a unit with the aide, I recommend the following policies be added as part of the project occupancy policies:
- Do not prohibit occupancy by family members of live-in aides, but stipulate that the only family members that may reside in the unit with the aide are children of the aide or a current spouse of the aide;
- Children of the aide should be under age 18 unless they are a full-time student;
- HUD properties should only provide a bedroom for the aide – not for a child or spouse;
- Any spouse of an aide or full-time student child age 18 or over should sign the Live-in Aide Agreement, and the agreement should list all members of the Aide’s family that will live in the unit. The Agreement should specifically state that none of the family members of the Aide have a right to occupy the unit if the Aide is not living in the unit;
- Screen all family members of the aide that are age 18 or over in the same manner as applicants/residents are screened, except for credit and rent-payment history;
- List only the Live-in Aide on the Tenant Income Certification – no members of the Aide’s family should be shown (the Aide should not sign the TIC);
- Do not show the aide or any members of the aide’s family on the lease – even as an occupant;
- If the project is a senior property that does not rent to families with children, children of an Aide should not be permitted to live in the unit; and
- Do not exceed the property occupancy standards (e.g., two people plus one per bedroom).
Summary
While HUD does not prohibit an owner from not allowing family members of aides to reside in a unit, this guidance indicates that in the case of a fair housing challenge regarding such a policy, HUD policy may not be used as a defense. It is certainly predictable that a disabled resident in need of a live-in aide will request that a family member of the aide be permitted to reside in a unit as part of a reasonable accommodation request. Such a request may well have to be granted if the chosen aide has a child and cannot reasonably be expected to live apart from their child; the same could be said for a spouse. For this reason, I recommend a revision to any current occupancy policies that prohibit occupancy by family members of live-in aides.