LeadingAge submitted comments in July urging HUD to withdraw its May 10 proposed “Verification of Eligible Status” rule – a seven-page document published in the Federal Register – summarized below. 

As discussed in LeadingAge’s May 17 article entitled “Proposed HUD Rule Could Force Older Adults out of Affordable Housing”, LeadingAge is concerned that the proposed rule would require noncitizens who are 62 years old and older, who currently are only required to provide a signed declaration of eligible immigration status and a proof of age document, to submit immigration documentation and prove that they have eligible immigration status. It would also require citizens over age 62 to provide proof of citizenship documents, if they have not already done so.

LeadingAge’s comments urge HUD to withdraw the proposed rule in its entirety because it creates substantial risk that thousands of older people could lose their housing and become homeless at a time when homelessness among older adults is already on the steep rise as, in every year for the last 10 years, the percentage of those experiencing homelessness who were 62 or older increased, almost doubling from 4.1 to 8% between 2007 and 2017.  In our letter, we are articulate more full the following four major concerns:

• The housing of “mixed status” families would be threatened.
• “Mixed status” households could be split up, potentially depriving senior housing residents of informal family caregivers on whom they rely for daily help to remain independent in the community.
• The proposed rule would impose burdensome new citizenship documentation requirements on all owners, residents and applicants.
• It is unacceptable that “the number and quality of public housing units likely could decline,” as contemplated by HUD’s analysis in the RIA.

Summary:

HUD is currently reviewing the numerous comments received, most of which strongly oppose the proposed changes which would, if implemented, eliminate the continuation of prorated assistance to “mixed-status families” and require at least one document evidencing citizenship or eligible immigration status for all current residents and applicants to receive assistance, even for persons over age 62.

This change in eligibility documentation requirements for everyone would end the eligibility for assistance related to immigration status for mixed-status families, effectively requiring existing households to remove members who cannot prove eligibility or lose assistance for the entire family/household in covered Section 8 programs (but would not change anything in PRAC programs, as citizenship is not required).

As described in the proposal: “HUD believes that an individual without verified eligible status living in a mixed household receiving long-term prorated assistance is benefiting from HUD financial assistance in a way that is prohibited by Section 214.” Likewise, HUD asserts that “prorated assistance of unlimited duration is inconsistent with statutory intent.”

Analysis of Impact on Residents:

Upon implementation of the proposed policy, and at the time of next annual certification, a continuation of prorated assistance would be prohibited, and no family would be eligible for assistance unless every member of the household residing in the unit is determined to have eligible status.

This means that all household members who, regardless of age, do not already have verified eligibility status would need to either produce documentary evidence of citizenship or eligible immigration status, or risk termination of assistance for the entire household.

While it is common practice for housing providers to obtain copies of birth certificates already as proof of age status, something that must be collected to verify eligibility in senior housing, I am less clear which of these proposed documents will be readily available to current residents: “(i) A U.S. birth certificate; (ii) A naturalization certificate; (iii) A Consular Report of Birth Abroad (FS–240); (iv) A valid unexpired U.S. passport; (v) A certificate of citizenship; or (vi) “Other appropriate documentation, as specified in HUD guidance” [which is nowhere defined in the proposed rule]. Italics ours.

Similarly, in mixed-status households, individuals currently not contending eligible immigration status would be required to provide verifiable documentation of eligible status, or the household would lose all assistance and be required to pay the market (unassisted) rent in the unit or leave.

Issues to Consider:

Where any citizen cannot provide the required documentation or any mixed family cannot prove eligible status for all family members, rental assistance subsidy must be denied or terminated.  By HUD’s own analysis, this change in policy is expected to result in the voluntary move-out of mixed families or the family’s eviction over time for non-payment of the full (unassisted) rent.

Additionally, all current residents (and future applicants) claiming citizenship can no longer simply provide a signed declaration of citizenship, but must provide (according to the proposed rule) at least one of the following: i) A U.S. birth certificate; (ii) A naturalization certificate; (iii) A Consular Report of Birth Abroad (FS–240); (iv) A valid unexpired U.S. passport; (v) A certificate of citizenship; or (vi) “Other appropriate documentation, as specified in HUD guidance.” If one of these is already in every resident file, then things are good. If not, at the next annual certification, any resident lacking the acceptable proof must provide a qualifying document to add to their file. If they cannot provide the documentation, then they will lose assistance.

Members should consider carefully the types of documentation they may have encountered/used to meet prior requirement to verify age and/or citizenship.  Where needed to verify age, HUD currently accepts Birth Certificate, Baptismal Certificate, Military Discharge papers, Valid passport, Census document showing age, Naturalization certificate, or a Social Security Administration Benefits printout. So, current residents may well already have one of the proposed proof of citizenship documents on file collected for other reasons, or be able to produce one of them now.

But what about those who cannot??

In the past, LeadingAge has expressed significant concern for seniors (particularly in nursing homes) who may not have been able to produce a birth certificate or obtain a valid passport – due to the lack of consistent methods across the country for generating birth certificates (particularly in rural areas); loss of original records/certificates due to fire or other reason; mental/physical incapacity to find, secure or procure the necessary documents. In senior housing, this led to the current exclusion to produce documentation to verify an SSN for tenants age 62 or older as of January 31, 2010 whose initial determination of eligibility was begun before January 31, 2010 (see 4350.3, 3-31).

The Bottom Line:

If the proposed rule goes into effect, where any citizen cannot provide the required documentation, or any mixed family cannot prove eligible status for all family members, rental assistance subsidy may have to be denied or terminated at the next annual certification.

Currently, however, both statute and regulation allow mixed-status families – households that include both members who are eligible and ineligible (or have not provided documentation to verify their eligible status) for housing assistance based on their immigration status – to live together in Section 8 subsidized housing even if one family member is ineligible so long as the housing subsidy is decreased (or prorated) to exclude the ineligible person from the assistance.