Art by Robin Mead
Letter by Wendy R. Chavez
HUD has an obscure policy about homecare payments for people with developmental disabilities. Some families are able to use this rule to get income excluded from IHSS or other Medicaid and Medi-cal homecare programs.
What’s a Developmental Disability?
HUD does not define what qualifies as “developmental disabilities” for this policy. If you have a doctor’s letter or medical record stating “developmental disability” this should qualify. Examples of diagnosis that may be classified as “developmental disabilities” in some cases:
- Behavior disorders.
- Brain injury.
- Cerebral palsy.
- Down syndrome.
- Fetal alcohol syndrome.
- Intellectual disability.
- Spina Bifida.
Will my Housing program exclude my income?
If the housing program decides that your family qualifies under this policy, any income from IHSS or Medicaid Waivers or Medicaid or Medi-cal homecare will be excluded.
A few Housing Authorities already know about this policy and automatically give this exclusion to families. However, most housing authorities have never heard of this policy. You can show them. A sample letter is below.
Unfortunately, a request for this kind of exclusion is not always successful. It has been taken to court several times and has not always won. However, some of our readers have made the request anyway, and sometimes it works!
There was a recent court case in California where the person successfully got income excluded this way. Here’s the outcome: Kerrie Reilly Vs Marin Housing
California: Based on this court case, advocates in California expect that it will now be possible to exclude IHSS and Medi-cal Waiver income throughout California. If you run into difficulties, some of our readers had success contacting Disability Rights California for help.
Other states: There have also been unsuccessful court cases of this type in other states. In other states, it is not clear if you will be able to get this type of income excluded. However, you can certainly try!
“My Housing Worker Said It’s Not Possible”
Most housing workers have never have heard of this rule and may tell you that it’s not possible. If this happens, don’t worry. Submit your documentation IN WRITING. Ignore anything you are told verbally. If you are not given a verbal response, request a WRITTEN approval or denial on your request. An informal email does not count as a written decision. Request a formal, signed letter approving or denying your request.
Is This The Same As Being a Live In Aide?
No a live in aide is a completely different process.
Live in Aide: If you are eligible to be added as a live in aide, all income will be excluded (if you work another job or have other income this will be excluded as well). Live in aides status can be used for all disabilities. Not everyone qualifies to be a live in aide. If you are already listed on a voucher as a family member, the housing authority will not allow you to switch status and become a live in aide.
Developmental Disability Rule: This rule is only for developmental disabilities, and only excludes Medicaid or Medi-cal income.
Wendy R. Chavez helped prepare this letter to make a request for her disabled child. She was kind enough to share a copy to help others:
Dear (Housing worker’s name),
I am requesting that my income from homecare payments for a person with developmental disabilities be excluded in accordance with HUD policy 24 CFR § 5.609(16). As verification I am enclosing:
1. Copy of HUD policy 24 CFR § 5.609(16) which states:
“Annual Income does not include the following: Amounts paid by a State agency to a family with a member who has a developmental disability and is living at home to offset the cost of services and equipment needed to keep the developmentally disabled family member at home”
2. Copy of medical record or doctor’s letter verifying that my child has developmental disabilities
3. Verification that this income is from a State agency to a family with a member who has a developmental disability and is living at home to offset the cost of services and equipment needed to keep the developmentally disabled family member at home
4. Copy of the 17388 Federal Register / Vol. 60, No. 65, which includes more detail on the implementation of this policy.
“This exclusion exempts amounts paid by a State agency to families that have developmentally disabled children or adult family members living at home. States that provide families with homecare payments do so to offset the cost of services and equipment needed to keep a developmentally disabled family member at home, rather than placing the family member in an institution. Since families that strive to avoid institutionalization should be encouraged, and not punished, the Department is adding this additional exclusion to income.”
5. As an example of how other Housing Authorities are treating this income: A copy of the administrative plan from San Diego Housing Authority to verify that other Housing Authorities are following 24 CFR § 5.609(16). Excluded income policy:
“Examples of 100% excluded income are earnings from minors, amounts paid by a State agency to the family for the care of a family member with a developmental disability, and food stamps.”
6. A court case that finds in favor of excluding income received by parents of children with developmental disabilities. The opinion of the court states: “We conclude a parent’s IHSS (In Home Support Services) compensation to provide care to keep a developmentally disabled child at home is excluded from income under 24 Code of Federal Regulations part 5.609(c)(16) (2020).”
6. In addition, I have included verification that this income is excluded from taxes under Internal Revenue Service issued Notice 2014-7
- Attachment: https://www.law.cornell.edu/cfr/text/24/5.403
- Attachment: Medical records or doctor’s letter
- Attachment: Letter from your case worker, or any paperwork you already have confirming that this is income from a state agency and specifically for the care of the disabled person.
- Attachment: HUD Federal Register Income Exclusion
- Attachment: page 58: https://www.sdhc.org/wp-content/uploads/2018/07/FY-2019-S8-Admin-Plan-Final.pdf
- Attachment: https://www.irs.gov/individuals/certain-medicaid-waiver-payments-may-be-excludable-from-income
- Attachment: Any proof you have that your income was excluded from tax payment (tax return, payroll agency paperwork, etc)
- Attachment: Kerrie Reilly Vs Marin Housing and/or article about IHSS case
In California, there are several housing agencies that already have policies in place to exclude IHSS income if the person is disabled. However, most housing agencies do not recognize IHSS and falling under this regulation. Some readers report that they received assistance in getting income excluded by contacting Disability Rights California.
🌸 This page is part of the online guide: Epic Master List of Disability Accommodation Letters
🌸 Facebook Group: HUD and Section 8 Disabled Residents & Family Members
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