Section 8 housing rules for live-in caregivers

Did you know that if a person with physical or cognitive disabilities resides in section 8 funded HUD housing, the law requires the Public Housing Agency (PHA) to allow a necessary home health aide to reside with the tenant? The concept is that the PHA is required to make a reasonable accommodation for the tenant’s needs pursuant to the Americans with Disabilities Act, to enable the participating tenant to reap full benefit from this federal housing program to enable them to dwell in the community and avoid nursing home placement. The regulation is in surprisingly plain English:

             “24 USC § 982.316 Live-in aide. (a) A family that consists of one or more elderly, near-elderly or disabled persons may request that the PHA approve a live-in aide to reside in the unit and provide necessary supportive services for a family member who is a person with disabilities. The PHA must approve a live-in aide if needed as a reasonable accommodation in accordance with 24 CFR part 8 to make the program accessible to and usable by the family member with a disability. (See § 982.402(b)(6) concerning effect of live-in aide on family unit size.)”

Normally, the income of other occupants of the apartment will be counted in the household income calculation for Section 8. However, if the person resides there because s/he serves as the live-in aide, his/her income is not counted. The criteria for exclusion of that person’s income are in the federal regulations and are basically that (1) the aide’s services are essential to the care and well being of the person(s); (2) the aide is not under a legal obligation to support the person(s) with the disabilities, and (3) the aide would not be living in the unit except to provide the necessary supportive services. The tenant needs to formally request the accommodation by submitting an application to the PHA. The tenant who is applying for this special accommodation would need to provide relevant and necessary medical proofs as to the disability and need for a live-in aide, including physicians’; opinion reports, and evidence concerning the identity of the aide and services to be provided. A sample detailed explanation of the requirements for this application are here, from the Georgia Department of Community Affairs.

The person being proposed as the live-in aide must still be eligible to reside in HUD housing based on other federal criteria, but that is a different topic.

Senior care planning involves looking at the opportunities to enable a person to age in place in his or her preferred environment. There are a wide array of legal questions that are relevant to that planning, including the public benefits that might be available.

Call us for advice about planning for senior care …. 732-382-6070


Section 8 housing eligibility terminated due to Intentional falsification of income data

Tenants who reside in Section 8 housing must certify to their household income every year, because the rent is based on the income. A recent case addressed a termination of eligibility for Section 8 due to willful misrepresentation on the application, coupled with the defense that the misrepresentation was due to the tenant’s severe depression and thus required an accommodation under the Americans with Disabilities Act (ADA).  In the recent non-precedential Appellate Division decision of T.A. v. Dept. of Community Affairs, the termination of Section 8 eligibility was affirmed.

Ms. T.A. held a Section 8 rental assistance voucher, and her 2 adult daughters lived with her. In her annual recertification, both she and the daughters falsely certified that there was no household income when, in fact, both daughters were employed.  Federal law requires the agency to do appropriate cross-matches to verify the income information which is submitted. It was then learned that the household had earned income. Accordingly, T.A. received a termination notice. She requested a Fair Hearing before an Administrative law judge. The false statements were conceded. However, she claimed she was entitled to an “accommodation” for her debilitating depression. The Judge found that T.A. was well aware that her daughters were working and the statements were willfully false. As a fact matter, the ALJ found that T.A. had never given notice to the Agency that she required any accommodation based on her depression, and further, the ALJ found that such depression was not a valid justification for failure to report the income. The Appellate Division affirmed.

Call us for advice on elder and disability law, senior care planning, benefits and Medicaid appeals …. 732-382-6070