In Johnson v. Guardian Management, April 2021, a court ruled that a current spouse may be a live-in aide for a resident at a HUD Section 8 project.
Facts of the Case
- A Section 8 resident requested an accommodation for a live-in aide because of increased health problems associated with falls, memory issues, seizures, and other issues resulting from his disabilities.
- The resident submitted the required verification form from a healthcare provider verifying that he was disabled and his need for a live-in aide was related to his disability and necessary for him to have equal enjoyment of his apartment.
- Management denied his request because he asked that his wife be considered as the live-in aide.
- The resident filed a complaint with HUD’s Office of Fair Housing & Equal Opportunity (FHEO) and filed suit in federal court.
- The FHEO determined that the wife did not qualify as a live-in aide, explaining that “while a relative may be considered a live-in caregiver,” HUD’s “applicable rules and regulations” don’t allow a spouse to be a live-in aide.
- The FHEO’s Letter of Findings quoted HUD Handbook 4350.3’s three requirements to be a live-in aide: (1) the aide must be essential to the care and well-being of the resident; (2) the aide may not be obligated for the support of the disabled person; and (3) the aide would not be living in the unit except to provide the necessary supportive services.
The court ruled that spouses are not automatically excluded from serving as live-in aides and that HUD’s interpretation of its own regulations was wrong.
- The judge pointed out that the HUD Handbook specifically states that a relative may be a live-in aide if they meet all the requirements.
- In fact, the judge noted that when the HUD regulation defining live-in aides was established, the agency intentionally deleted proposed text that would have prevented spouses and family members from serving as live-in aides specifically to encourage such persons to serve as live-in aides.
- The circumstances of this case showed sufficient evidence to support the resident’s claim that the spouse would not be living with the resident except to provide supportive services.
- At the time of their marriage, the resident lived in Oregon and his wife lived in the Philippines.
- The resident and his wife continued to live apart for the next two years.
- During those two years, the wife continued to live and maintain her own home in the Philippines, where she worked as a teacher and showed no intention of moving to the United States.
- After two years of marriage, she offered to move to the United States to care for the resident because of his disability.
- The wife took a leave of absence from her job in the Philippines and was certified as the resident’s live-in aide under the Medicaid Independent Choice Program.
- According to the court, the fact that the wife did not move to the United States for two years after marrying the resident until his health deteriorated further, is adequate evidence to support the resident’s claim that his wife lives with him solely for the purpose of providing supportive services.
Why This Case Matters
A separated spouse – even if not legally separated – can be a live-in aide. The facts and circumstances will dictate whether the HUD requirements as outlined in 4350.3 are met.
In this case – and all cases where a spouse is proposed as a live-in aide – the key is to show that were it not for the needs of the disabled resident, the spouse would not be living in the unit. As a best practice, you should be able to verify that the spouse has established their own residence, apart from your resident, for a long enough period of time to show that their intention is to live apart.
And finally, remember that since the Low-Income Housing Tax Credit Program follows HUD rules in the determination of household membership, this same requirement applies to LIHTC properties.