National Housing Law Project Housing Law Bulletin

HUD Revises and Reorganizes Eligibility Definitions

HUD has revised and combined some of the definitions relating to both the Section 8 and public housing programs into a single new rule, located at 24 C.F.R. Part 5. These provisions, formerly found in subpart A of 24 C.F.R. Parts 812 and 912, cover general requirements related to the United States Housing Act of 1937, such as definitions and basic eligibility. HUD proposes to "reinvent" regulations by consolidating those that are virtually identical, although formerly administered by different offices within the Department, such as Section 8 and public housing.

In the preamble to this rule, HUD also advances yet another new approach to "reinventing" regulations — deleting the text of regulations that only repeats statutory language. HUD hopes that this will both reduce the volume of rules, as well as terminate the problems resulting from the regulations' failure to keep up with statutory amendments. What is not made clear, however, is how many of the beneficiaries and administrators of HUD programs, who generally do not resort to statutory sources, will be apprised of the content of statutory requirements. HUD does intend to continue using regulations to repeat related statutory language that must be assembled from a variety of sources, and that could benefit from being recited in a single place.

Various statutes and regulations have affected HUD's definition of "family" since 1990. At that time, Congress specified for the first time that the definition of family included "other single persons" who are not elderly, disabled, handicapped, displaced or remaining members of tenant families.² Prior to 1990, the number of these "other single persons" was restricted to a percentage of units administered by a public housing authority (PHA). In 1993, HUD published a final rule eliminating the old statutory restrictions on the admission of single persons.³ At that time, however, HUD did not implement the additional restriction contained in the 1990 Act prohibiting "other single persons" from receiving an assisted housing unit of two bedrooms or more, nor did HUD's 1993 rule implement a provision of the 1988 Fair Housing Amendments Acts which extended the protections afforded against discrimination on the basis of familial status to any person who is pregnant or in the process of securing legal custody of minors.⁴

Legislation in 1992 and 1994 also made technical or organizational changes to these definitions which to date have never been reflected in revised regulations.⁵

In this rulemaking, HUD's preamble clarifies that the statutory extension of eligibility to single persons does not constitute an admission ticket to every form of assisted housing. A single person must still meet all of the eligibility requirements for the particular project and program involved.⁶ All this rule does is extend the definition of family to include other single persons. According to HUD, PHAs and owners still have the discretion to make a determination of what constitutes a "`family' in accordance with their local laws and policies, including state and local fair housing laws, as long as such a determination does not conflict with the 1937 Act or the federal Fair Housing Act."⁷ Of course, case law has established that this discretion is not unlimited and, for example, a PHA cannot refuse assistance to unmarried cohabitants.⁸

HUD next addressed the effective preference given to elderly, disabled, handicapped and displaced persons over "other single persons" in the admissions process. HUD states that a PHA or private owner must give preference to applicants who are elderly, disabled or displaced families consisting of no more than two persons over applicants who are "other single persons," regardless of the latters' federal or local preferences. The 1937 Act provides for both federal preferences, local preferences, and the preference for these specific types of single persons (elderly, disabled, etc.) over "other single persons," but does not prescribe the order of these preferences.⁹ HUD is implementing this new preference relegating "other single persons" to inferior status for all public housing and Section 8 programs.

HUD's rulemaking also implements the 1990 statutory language limiting "other single persons" to units of zero and one bedroom. HUD notes, however, that for purposes of the certificate and voucher programs, the rule limits only the amount of subsidy paid on behalf of the single person, but does not prohibit a single person from residing in a larger unit so long as the amount of subsidy does not exceed the subsidy for a unit of zero or one-bedroom. Finally, HUD states that individuals who need a larger unit to accommodate medical equipment due to health needs would not be affected by this limitation because "it is likely that" such an individual could qualify as a person with disabilities not subject to the restriction.¹⁰

HUD's rulemaking also includes an appendix presenting in a single document statutory and regulatory definitions and other general requirements applicable to public, Indian and Section 8 housing under the 1937 Act. This one-source document set forth as an appendix to the rulemaking will not appear in the codified Code of Federal Regulations. It may be found at 61 Fed. Reg. 5,667.

1. 61 Fed. Reg. 5,662 (Feb. 23, 1996), adopting a new 24 C.F.R. Part 5, and revising 24 C.F.R. Parts 812, 912, 950 and 982.
2. Section 573(a) of the National Affordable Housing Act, Pub. L. No. 101-625 (Nov. 28, 1990), amending § 3(b)(3)(B) of the United States Housing Act of 1937.
3. 58 Fed. Reg. 39,658 (July 26, 1993).
4. See Pub. L. No. 100-430, § 5b (1988), codified at 42 U.S.C. § 3602(k).
5. See Pub. L. No. 102-550, § 621 (1992), and Pub. L. No. 102-233, § 301 (1994).
6. 61 Fed. Reg. 5,663 (Feb. 23, 1996).
7. Id. at 5,663-64.
8. Hann v. Housing Auth. of Easton, 709 F. Supp. 605 (E.D. Pa. 1989).
9. 61 Fed. Reg. at 5,664 (Feb. 23, 1996). Note that the use of the term "handicapped" in these definitions was eliminated by Pub. L. No. 102-550, § 621 (1992).
10. 61 Fed. Reg. at 5,664 (Feb. 23, 1996).