Verifying the Need for a Live-in Aide in Low-Income Housing Tax Credit Properties
Most housing managers are aware that due to the requirements of fair housing law, properties must at times allow someone to live with a disabled resident in order to provide necessary services to that resident. The may be the case even when the person providing the supportive services would not normally be qualified to live at the property (e.g., a 25-year old living in a senior property). In the industry, such as person is often referred to as a “live-in aide,” or “live-n caregiver.”
Both federal and state law governs the process of reviewing and approving reasonable accommodation requests. The request to have a live-in aide is a reasonable accommodation request. It is important to note that when verifying the need for an accommodation, managers may not require an applicant or residents medical records. A simple statement of need by a medical professional is what may be requested; the medical professional should not provide any information relative to the medical condition of the resident.
Fair housing law also states that the need for a reasonable accommodation cannot be required if the person’s disability is obvious or otherwise known to the housing provider. So, how far can an owner of a housing complex go in determining and verifying the need for a live-in aide?
One type of disability discrimination prohibited by the Fair Housing Act (FHA) is the refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling. This requirement is outlined in 42 U.S.C. §3604(f)(3)(B).
The FHA defines a person with a disability to include (1) individuals with a physical or mental impairment that substantially limits one or more major life activities; (2) individuals who are regarded as having such an impairment; and (3) individuals with a record of such an impairment.
The term “physical or mental impairment” includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV, mental retardation, emotional illness, drug addition (other than addiction caused by current, illegal use of a controlled substance) and alcoholism.
The term “substantially limits” suggests that the limitation is “significant” or “to a large degree.”
The term “major life activity” means those activities that are of central importance to daily life, such as seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning and speaking. [The Supreme Court has questioned but has not yet ruled on whether “working” is considered to be a major life activity. If it is a major life activity, the Court noted that a claimant would be required to show an inability to work in a “broad range of jobs” rather than a specific job].
For purposes of the FHA, a “reasonable accommodation” is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces. Since rules, policies, practices, and services may have a different effect on persons with disabilities than on other persons, treating persons with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy a dwelling.
In the case of the issue of Live-in Aides, the affected rule or policy is the HUD rule (which governs income eligibility for Low-Income Housing Tax Credit [LIHTC] projects,) that requires the counting of all members of a household for purposes of income when determining the eligibility of a household. Since a live-in aide is not considered a household member for eligibility purposes under the LIHTC program, their ability to reside in a unit is dependent on the granting of a reasonable accommodation to a disabled resident. I will cover the specific HUD requirements relative to documentation of a live-in aide below.
A housing provider may deny a request for a reasonable accommodation if the request is not made by or on behalf of a person with a disability or if there is no disability-related need for the accommodation. A request for a reasonable accommodation may also be denied if providing the accommodation is not reasonable – i.e., it would impose an undue financial and administrative burden on the housing provider or it would fundamentally alter the nature of the provider’s operations.
When may a housing provider require verification of the need for an accommodation? A housing provider is entitled to obtain information that is necessary to evaluate if a requested reasonable accommodation may be necessary because of a disability. If a person’s disability is obvious, or otherwise known to the provider, and if the need for the requested accommodation is also readily apparent or known, then the provider may not request any additional information about the requester’s disability or the disability-related need for the accommodation.
If the requester’s disability is known or readily apparent to the provider, but the need for the accommodation is not readily apparent or known, the provider may request only information that is necessary to evaluate the disability-related need for the accommodation. An example was provided in the “Joint Statement of the Department of Housing & Urban Development and the Department of Justice – Reasonable Accommodations Under the Fair Housing Act.” The example states, “A rental applicant who uses a wheelchair advises a housing provider that he wishes to keep an assistance dog in the unit even though the housing provider has a “no pets” policy. The applicant’s disability is readily apparent but the need for an assistance animal is not obvious to the provider. The housing provider may ask the applicant to provide information about the disability-related need for the dog.” This is a relevant example with regard to the need for a live-in aide, since while a resident may be clearly disabled, housing providers are rarely qualified to determine whether a live-in aide is needed in order for the resident to have full use and enjoyment of the premises.
The HUD and DOJ position regarding the information a housing provider may request in support of a requested accommodation is that while a housing provider may not ordinarily inquire as to the nature and severity of an individual’s disability, the provider may request reliable disability-related information that (1) is necessary to verify that the person meets the Act’s definition of disability, (2) describes the needed accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation. Depending on the individual’s circumstances, information verifying that the person meets the Act’s definition of disability can usually be provided by the individual himself or herself (e.g., proof that an individual under 65 years of age receives SSI or Social Security Disability Insurance benefits or a credible statement by the individual). A doctor or other medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the individual’s disability may also provide verification of a disability. In most cases, an individual’s medical records or detailed information about the nature of a disability is not necessary for the inquiry.
Once a housing provider has established that a person meets the Act’s definition of a disability, the provider’s request for documentation should seek only the information that is necessary to evaluate if the reasonable accommodation is needed because of a disability. Such information must be kept confidential and must not be shared with other persons unless they need the information to make or assess a decision to grant or deny a reasonable accommodation request or unless disclosure is required by law.
HUD Handbook 4350.3, Chg. 4, §3-6.E.3.a outlines the HUD definition of and requirements for the approval of a live-in aide. Based on HUD regulation, (which must be followed when determining who to count for income eligibility purposes for LIHTC properties), 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 persons(s); and (3) would not be living in the unit except to provide the necessary supportive services.
To qualify as a live-in aide, 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 in accordance with 24 CFR Part 8 to make the housing accessible to and 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. The owner may not require applicants or tenants to provide access to confidential medical records or to submit to a physical examination.
A live-in aide qualifies for occupancy only as long as the individual needing supportive services requires the aide’s services and remains a tenant. The live-in aide may not qualify for continued occupancy as a remaining family member.
Income of a live-in aide is excluded from annual income.
As noted above, HUD regulations require that verification of the need for a live-in aide be obtained from a medical professional in order to not count the aide as a household member for eligibility purposes. Since this is an issue that impacts the income eligibility of a household, and LIHTC properties are required to determine income in accordance with HUD requirements, owners should obtain verification of the need for a live-in aide. Some owners may take the position that if it is clear that the applicant/resident needs a live-in aide, verification by a medical professional cannot be required. This is correct, but care should be taken in this area. The primary weakness with this position is that few housing managers are qualified to provide an opinion of need relative to a live-in aide. A person who appears to have very a debilitating disability may well be able to care for themselves, while a person with no apparent disability may need a live-in aide. For this reason, I recommend that except in very unusual cases, a medical professional’s verification of the need for a live-in aide be obtained for LIHTC properties.