Know the Ins and Outs of Live-In Aides
From time to time, you may be asked by a resident to approve the addition of a “live-in aide” to his household. Reasons for the aide vary. The resident may have a disability and need help with day-to-day living. An elderly resident may need an aide for assistance and companionship to continue living independently. Federal law says that you are required to consider the request and, upon verification of the reason for the request, okay it as a “reasonable accommodation.”
It is important to verify both the need for the aide and the individual's qualifications for serving as the aide. The reason these are such vital steps is that certain rules apply to households with qualified live-in aides. First, they are eligible for and can insist upon a larger unit to accommodate the aide. Second, the income of the aide cannot be factored into the household's rent calculation.
Aide Must Meet Criteria
HUD has certain criteria live-in aides must meet to be considered legitimate and qualified. With the issuance of Change 3 to Handbook 4350.3 (Occupancy Requirements of Subsidized Multifamily Housing Programs) in June 2009, HUD expanded on its definition of and qualifications for live-in aides.
A live-in aide is defined as a person who resides with one or more elderly persons, near-elderly persons, or persons with disabilities, and who:
Is determined to be essential to the care and well-being of the person(s);
Is not obligated for the support of the person(s); and
Would not be living in the unit except to provide the necessary supportive services.
Housing consultant Liz Bramlet provides additional information about the changes. With regard to a live-in aide, the site owner or manager must:
Verify need for 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.
Approve live-in aide if needed as reasonable accommodation. In accordance with 24 CFR Part 8, an accommodation must be granted if needed to make the program accessible to and usable by the family member with a disability. You may verify whether the live-in aide is necessary only to the extent necessary to document that applicants or residents 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 medical practitioner or health care provider. You may not require applicants or residents to provide access to confidential medical records or to submit to a physical examination.
According to Bramlet, the live-in aide qualifies for occupancy only as long as the individual needing support services requires the aide's services and remains a resident. The live-in aide may not qualify for continued occupancy as a remaining family member. The income of a live-in aide is excluded from the annual income of the household.
You can use a lease addendum that denies occupancy of the unit to a live-in aide after the resident, for whatever reason, is no longer living in the unit, Bramlet says. The lease addendum should also give the owner the right to evict a live-in aide who violates any of the house rules. (See Use Lease Language to Control Live-In Aide Status.)
Finally, Bramlet notes, relatives may be considered to be live-in aides if they meet applicable requirements, especially the stipulation that they would not be living in the unit except to provide the necessary supportive services.
Verify Carefully and Courteously
When it comes to verifying the need for a live-in aide, you need to get it in writing. Often managers simply request a letter from the resident's doctor or other health care professional. The problem with that approach is that the health care professional may not know what information HUD and federal laws say you need to make the decision about a live-in aide. The health care professional could give you more information than is appropriate or leave out essential information you need.
Therefore, Bramlet recommends developing a form for verification purposes. “It should be a standard form the owner creates and sends to an applicant's or resident's physician asking about his need for a live-in aide,” she says.
A standard form, like our Model Form: Send Provider Form to Verify Need for Live-In Aide, helps to ensure that you treat each request for a live-in aide the same and that you get exactly the information you need for verification. When a resident makes the request for a live-in aide, you can explain that you need to verify specific information with his or her health care professional and that this is something you do with all such requests.
Ask the resident for the professional's name, practice name (if applicable), address, and phone number. Fill in this information on the form and have the resident sign the release allowing his information to be provided to you. Let the resident know when you will be sending the verification form.
Elizabeth Bramlet: Liz Bramlet Consulting, 4740 Connecticut Ave. NW, #203, Washington, DC 20008; 1-800-784-1009; Liz@LizBramletConsulting.com.
Use Lease Language to Control Live-In Aide Status
A good way to head off a situation in which a live-in aide tries to shift his or her status to resident after your elderly resident moves out or dies is to have language in your lease to address the issue. Here's what such a lease clause should cover:
The resident agrees not to permit an aide to live in the unit without your prior approval;
You will not permit a live-in aide without verification of need from the resident's health care professional;
You will not approve a request for a live-in aide until you are satisfied that the aide meets the HUD definition and criteria for live-in aides; and
Both resident and aide must agree in writing that the aide will not attempt to become a resident no matter the length of time the aide remains in the live-in situation with the resident. This shall apply as well if the resident moves out or dies.
Be sure to have your attorney approve any such language for your lease.
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