Q & A | Spouses Qualify as Live-In Aides Now?

Question from a Blog Reader

"I just heard from my boss that spouses qualify as live-in aides now. Is that true?"

Answer

Summary: Probably not any more than they used to, but approach this with caution. A live-in aide must only be in a unit to provide necessary supportive services to a person with a disability. This may often, but not always, exclude spouses. The Court simply refined how we look at existing HUD guidance and the Fair Housing Act. Here is where the facts of the case matter a great deal. If the fact pattern establishes that the spouses are only living together for the specific purpose of one being a live-in aide (for instance they otherwise have established long-standing separate households while being married), they may qualify as a live-in assistant for their spouse. It is vital to examine the facts of a specific situation carefully when examining any accommodation request, including one for a live-in aide!

The Details...

What your boss is referring to is probably the recent case Johnson v. Guardian Management, which was decided in April 2021. In that case, the owner of an apartment complex and their management company had a request denied by the Court to dismiss a discrimination suit when they denied a person at a HUD-funded property their spouse as a live-in aide. If that seems contrary to your understanding of HUD policy, HUD would have agreed. The HUD department of Fair Housing Equal Opportunity (FHEO) had found in favor of the defendants first. The Court did not accept HUD's conclusion. The details of the case matter a great deal before you figure out how to apply the case to your operation, so we have presented a summary below.

What happened?

July 22, 2015 | Approximately ten weeks after moving into an apartment, Mr. Johnson completed the management company's Reasonable Accommodation / Modification Request and Verification Form ("Accommodation Request"). He requested an accommodation for a live-in aide because of increased health problems associated with falls, memory issues, seizures, and other concerns resulting from his spinal stenosis disabilities. To complete the management companies’ Accommodation Request form, a medical provider must sign the form and verify whether the requestor is a person with a disability, whether the request for a live-in aide is related to the requestor’s disability, and whether the accommodation is necessary to afford the requestor equal use and enjoyment of his rental. A certified state caregiver signed the Accommodation Request form but did not state whether she considered Mr. Johnson's disabled or whether she considered his requested accommodation necessary for him to fully enjoy his rental unit. 

April 2016 | Mr. Johnson married Mrs. Johnson. At the time of their marriage, he lived in Oregon and Mrs. Johnson lived in the Philippines. He intended to join his wife in the Philippines sometime in the future, but his health prevented such a move at the time they were married. Mr. and Mrs. Johnson continued to live apart for the next two years while his health deteriorated. During those two years, Mrs. Johnson continued to live and maintain her own home in the Philippines, where she worked as a teacher. She had no intention of coming to live in the United States. 

August 8, 2016 | Mr. Johnson submitted a follow-up to his accommodation request, stating that he had submitted his request on July 22, 2015, but had received no response. He requested an “expedited response so I can plan and prepare.” The managers did not respond to either request submitted by Mr. Johnson. After two years of marriage, Mrs. Johnson offered to move to the United States to take care of her husband because of his declining health issues.

September 13, 2018 | Mr. Johnson completed a second Accommodation Request form for a live-in aide based on his disability. Another certified medical assistant wrote another letter of support for Mr. Johnson's third Accommodation Request that verified his disability and his disability-related need for a live-in caregiver. At about the same time, Mr. Johnson told the property manager that Mrs. Johnson would be moving in and would be his live-in caregiver. The manager told him that a spouse is considered to be a member of the household, must be added to the lease, and does not qualify as a live-in aide. 

November 5, 2018 | Mrs. Johnson took a leave of absence from her job in the Philippines and moved in with her husband. She was certified as his live-in aide under the Medicaid Independent Choice Program on that same day. This program paid Mrs. Johnson for the services she provided to her husband as his live-in aide.

November 13, 2018 | Mr. Johnson submitted to management a Change Report,  notifying management that Mrs. Johnson had moved in as his caregiver because of his
health needs. In support, he submitted a Verification for a Reasonable Accommodation / Modification by Qualified Individual form ("Verification Form"). Another health care provider signed this form, once again verifying that Mr. Johnson was disabled and that his need for a live-in aide was related to his disability and necessary for him to have equal enjoyment of his rental unit. 

February 4, 2019 | Mr. Johnson submitted a Change Report form, requesting a “difficulty of care” exemption for spouse and family member. In support, he submitted a Verification Form signed by a professional from the county health department health clinic, which conveyed that Mr. johnson is disabled and in need of the services of a live-in aide to have the same opportunity as a non-disabled individual to use and enjoy his rental unit. It appears that Mr. Johnson was requesting, in the alternative, that if management was not going to accept Mrs. Johnson as a traditional live-in aide, they should still not count or consider her income for purposes of his qualifications under Section 8.

February 13, 2019 | Mr. Johnson submitted a handwritten third request for an accommodation for management to consider Mrs. Johnson as his live-in aide. About this same time, The site manager asked the management company's HUD Lead Compliance Specialist if a spouse could be considered as a live-in aide. The Specialist told the manager that a live-in aide needs to be a person who does not live in the unit for any other reason and whose finances are not tied together as a family unit. The manager then informed Plaintiff that a spouse cannot be added to the lease as a live-in aide and that HUD regulations required Defendants to consider Mrs. Johnson as a household member whose income and assets must be included when management reported the Johnson household income to HUD in calculating their Section 8 housing subsidy. When the manager asked Mr. and Mrs. Johnson to fill out paperwork to add her name to the household lease and complete the recertification process for Section 8 housing, Mr. Johnson became upset and responded that Mrs. Johnson could not be added because of the Independent Choices Program. 

April 2019 | Mr. Johnson filed a lawsuit with the courts. He alleged that the Defendants refused to make a reasonable accommodation, in violation of the Fair Housing Act, by denying his request for Mrs. Johnson to be his live-in aide. The Defendants responded, arguing that Mr. Johnson's requested accommodation was unreasonable because it was not legally permissible under HUD regulations. They also later asserted that Mrs. Johnson does not qualify as a live-in aide and that the Court should defer to the FHEO’s determination on this point (as discussed below). Alternatively, they argued that the request was unreasonable because she does not meet the requirements of the regulation even if spouses are not categorically excluded. 

Mr. Johnson responded that the HUD regulations do not categorically exclude a spouse from being considered a live-in aide and that the Court should not defer to the FHEO’s determination that Mrs. Johnson cannot qualify as a live-in aide. He also argued that Mrs. Johnson meets the definition in the governing Fair Housing regulations.

September of 2019 | Mr. Johnson also filed a complaint with the HUD's Department of Fair Housing Equal Opportunity (FHEO). 

What did HUD say?

In his HUD complaint, Mr. Johnson, among other things, that management violated the Fair Housing Act, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act when they refused his reasonable accommodation request for Mrs. Johnson to be his live-in aide. 

September 8, 2020 | The FHEO issued the Letter of Findings on The Letter of Findings
addressed, among other things, Mr. Johnson’s complaint that management discriminated against him by refusing the requested accommodation that Mrs. Johnson should be considered a live-in aide whose income does not count for purposes of Section 8. The Letter of Findings stated that although Mr. Johnson proved the five elements of discrimination under the FHA, his request was not a reasonable accommodation. The FHEO concluded that his request was not a reasonable accommodation, because it created an undue financial and administrative burden on management because it requested “a fundamental alteration to management's operation as a housing provider of HUD assisted housing.” The FHEO explained that “[w]hile a relative may be considered a live-in caregiver,” HUD’s “applicable rules and regulations” do not allow a spouse to be a live-in aide. The Letter of Findings quoted the HUD Handbook 4350.3 Rev. 1 ("HUD Handbook"), which mirrors the HUD regulations in setting out the three requirements for a live-in aide. It does not mention spouses. Because the FHEO concluded that Mrs. Johnson could not qualify as a live-in aide, the FHEO determined that management did not unlawfully deny a reasonable accommodation request from Mr. Johnson on this issue.

After Mr. Johnson received FHEO’s Letter of Findings, he submitted a request for review of the finding to the Regional Director of the FHEO. The Director of Compliance and Disability Rights for the FHEO reviewed the decision and confirmed the Letter of Findings. The review cited the Office of Public and Indian Housing Notice PIH 2014-25 ("PIH Notice") as the authority for the determination that a spouse may not be a live-in aide. The Letter of Determination stated that the PIH Notice “provides clarification on the definition of live-in aides found in the HUD regulation. The PIH Notice applies to all properties in the Housing Choice Voucher (HCV) program, including [the subject apartment complex]. According to the [PIH] Notice, ‘in accordance with this definition, a live-in aide is not a member of the assisted family and is not entitled to the HCV as the remaining member of the tenant family."

The Court Responds to HUD's Findings

As for the FHEO response, the Court stated that, when an agency is interpreting its own regulations, courts have traditionally accepted the agency’s reading unless it is “plainly erroneous or inconsistent with the regulation.” The Court noted that the FHEO stated that Plaintiff’s requested accommodation was an undue financial and administrative burden, but provided no explanation or analysis. 

The Letter of Findings from FHEO also quoted the HUD Handbook, which sets forth three requirements for a live-in aide that mirror the requirements in the HUD regulation (HUD Handbook 4350.3 Rev. 1, paragraph 3-10). These requirements are that the caregiver “(1) Is determined to be essential to the care and well-being of the persons; (2) Is not obligated for the support of the persons; and (3) Would not be living in the unit except to provide the necessary supportive services.” The Court noted that the Letter of Findings concluded, without explanation or authority, that “while a relative may be considered a live-in caregiver, HUD Multi Family Housing (MFH) who oversees properties funded through the Housing Assistance Program, does not allow a spouse to be considered a live-in caregiver (for purposes of calculating rent) per the applicable rules and regulations.”

Despite the FHEO determination, the Court concluded that HUD regulation defining live-in aides does not exclude a spouse or family member from acting as a live-in aide. The Court also referred to the history of the development of the regulations and noted that, when the definition was established, HUD intentionally deleted proposed text that would have precluded spouses and family members from serving as live-in aides specifically to encourage such persons to serve as live-in aides. The Court commented that the PIH Notice cited by FHEO also did not explicitly exclude spouses. 

In the final analysis, the Court established that the FHEO’s interpretation of the PIH Notice and HUD’s other rules and regulations as categorically requiring that spouses may not serve as live-in aides was "plainly erroneous and inconsistent with the regulation." The Court further stated that the cited text from the PIH Notice would mean that all family members could not serve as live-in aides, and the FHEO cited that text for the proposition that family members except spouses could serve as live-in aides. Thus, the Court stated that the FHEO’s own analysis was internally inconsistent. It also conflicts with the written guidance provided by HUD in the HUD Handbook and other PIH guidance. For example, the HUD Handbook specifically states that a relative may be a live-in aide if they meet the requirements of the HUD regulations (HUD Handbook 4350.3 Rev. 1, paragraph 3-10).

The FHEO’s interpretation that spouses cannot qualify as live-in aides was determined by the Court to be "plainly erroneous" and in conflicts with the regulatory definition of live-in aide codified in HUD regulation at 24 C.F.R. § 5.403, the HUD guidance in the HUD Handbook, case law discussing family members serving as live-in aides, and the legislative history of the definition of a live-in aide. Thus, the Court did not accept, or give the FHEO’s interpretation any deference, in their final decision.

The Court's Final Ruling 

According to the Court, it was undisputed that Mr. Johnson had a disability, that the Defendants knew about that disability, and that they denied the request for the accommodation. It was similarly undisputed that the Defendants must comply with the Fair Housing Act. The only issue the Court needed to resolve was whether the case should be dismissed because Mr. Johnson's requested accommodation was unreasonable, when the Defendants argued that because Mrs. Johnson does not qualify as a live-in aide, the Johnsons' request was unreasonable. 

The Court cited precedent, noting that under the Fair Housing Act “[t]he reasonable accommodation inquiry is highly fact-specific, requiring case-by-case determination.” The Court rejected the Defendants’ argument that spouses categorically are excluded from serving as live-in aides, for the reasons the Court declined to defer to the FHEO (as explained above). Thus, to qualify as a live-in aide, Mrs. Johnson must meet the three elements in 24 C.F.R. § 5.403 (also listed above). The parties did not dispute the first two elements. The only dispute concerns the third element, that Mrs. Johnson would not be living with Mr. Johnson except to provide the necessary supportive services.

The Defendants argued that because Mr. Johnson intended to move to the Philippines to live with his wife when they married in 2016, then Mr. and Mrs. Johnson must be living together for reasons other than simply allowing Mrs. Johnson to provide supportive services. The Defendants also argued that Plaintiff had produced no evidence showing that Mrs. Johnson moved in with Plaintiff solely to provide supportive services to Mr. Johnson and that such a claim is “contrary to the idea of marriage.” Mr. Johnson's declaration, however, stated that Mrs. Johnson would not have moved in with Mr. Johnson and would not continue to reside with him were it not for his serious health issues that require the services of a live-in aide. Mrs. Johnson’s declaration states that the reason she moved in with her husband in the United States away from her home was to provide caregiving services and that she would not have moved in with him if he did not need caregiving services. She unequivocally stated: “The only reason I am living in his apartment is to provide him with these supportive services.” The Court believed that the fact that Mrs. Johnson did not move to the United States for two years after marrying Mr. Johnson until his health deteriorated is further evidence supporting the Johnsons' contention that Mrs. Johnson resides with Plaintiff solely to provide Plaintiff with caregiving. 

This ruling allows the case to move forward. There may be future specific developments if the case proceeds in the Courts. Regardless, it is clear that the Court has established that a spouse should not be automatically denied the status of a live-in aide. Rather HUD's regulations should be followed as written in the regulation and the HUD Handbook 4350.3, and each case examined in light of the fact pattern. 

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