2016-22727. Eligibility of Independent Students for Assisted Housing Under Section 8 of the U.S. Housing Act of 1937; Additional Supplementary Guidance

AGENCY:

Office of the Assistant Secretary for Housing-Federal Housing Commissioner, and Office of the Assistant Secretary for Public and Indian Housing, HUD.

ACTION:

Notice.

SUMMARY:

On December 30, 2005, HUD published a final rule (FR-5036-F-01), “Eligibility of Students for Assisted Housing under Section 8 of the U.S. Housing Act of 1937”, implementing section 327 of the agency's Fiscal Year 2006 appropriations, Title III of Public Law 109-115, 119 Stat. 2936, approved November 30, 2005 (2006 HUD Appropriations Act). Section 327 requires that if an individual is enrolled at an institution of higher education (i.e., student) is under the age of 24, is not a veteran, is unmarried and does not have a dependent child, is individually ineligible for assistance under section 8 of the United States Housing Act of 1937 (section 8 assistance), or the student's parents are, individually or jointly, ineligible for assistance, no section 8 assistance can be provided to the student.

On April 10, 2006, HUD published supplemental guidance to assist providers in implementing the final rule. That supplemental guidance provided a list of items that Public Housing Agencies, Owners, and Managers are required to verify when determining whether a student's income alone should be used to determine section 8 eligibility, and this notice updates that list of items to remain consistent with the U.S. Department of Education's definition of “independent student,” and reduce barriers for vulnerable youth to receive assistance and continue their education.

FOR FURTHER INFORMATION CONTACT:

Rebecca L. Primeaux, Director, Housing Voucher Management and Operations Division, Office of Public and Indian Housing, Room 4214, U.S. Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410-8000, telephone [phone] (this is not a toll-free number), or Danielle D. Garcia, Branch Chief, Multifamily Housing, Assisted Housing Oversight Division, Room 6148, U.S. Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410-8000, telephone [phone] (this is not a toll-free number). Persons with hearing or speech impairments may access these numbers through TTY by calling the toll-free Federal Relay Service at [phone].

SUPPLEMENTARY INFORMATION

I. Background

Section 327 of HUD's Fiscal Year 2006 appropriations, Title III of Public Law 109-115, 119 Stat. 2936, approved November 30, 2005 (2006 HUD Appropriations Act), introduced new restrictions on providing housing assistance to students of higher education under section 8 of the United States Housing Act of 1937 (42 U.S.C. 1437f) (1937 Act). On December 30, 2005, at 70 FR 77742, HUD published a final rule implementing section 327 of the Act (Section 327) in accordance with the statutory requirement that HUD issue a final rule no later than 30 days following enactment of the 2006 HUD Appropriations Act. HUD's rule implementing the statute prohibits section 8 assistance to an individual who is enrolled at an institution of higher education (i.e., students), is under the age of 24, is not a veteran, is unmarried, does not have a dependent child, and is individually ineligible for section 8 assistance or has parents who are, individually or jointly, ineligible on the basis of income to receive assistance.

On April 10, 2006, at 71 FR 18146, HUD issued supplementary guidance to further assist Public Housing Agencies (PHAs) and multifamily project owners and management agents (Owners and Managers) with the implementation of the new eligibility restrictions (2006 supplementary guidance). HUD's 2006 supplementary guidance provided certain exceptions to the requirement that the eligibility of a student seeking section 8 assistance would be determined based on income eligibility for the assistance by both the student and the student's parents. HUD's 2006 supplementary guidance explained that a student, under the age of 24 who meets the additional criteria of Section 327, may still be income eligible for assistance in circumstances where the student can demonstrate independence from parents, where the student can demonstrate the absence of parents, or where an examination of the student's parents' income may not be relevant. The 2006 supplementary guidance instructs PHAs, Owners, and Managers to consider certain criteria, including but not limited to, whether:

(1) The individual is of legal contract age under state law.

(2) The individual has established a household separate from parents or legal guardians for at least one year prior to application for occupancy or the individual meets the U.S. Department of Education's definition of an “independent student.” Section 480(d) of the Higher Education Act of 1965, as amended (the HEA), 20 U.S.C. 1087vv(d).

(3) The individual is not claimed as a dependent by parents or legal guardians pursuant to IRS regulations.

(4) The individual obtains a certification of the amount of financial assistance that will be provided by parents, signed by the individual providing the support, even if no assistance will be provided.

The 2006 supplemental guidance also provided a list of items that PHAs, Owners, and Managers must verify to determine whether a student is independent for purposes of using the student's income alone for determining Section 8 eligibility (Student's Independence Verification Requirements). Those items include:

(1) Previous address information to determine evidence of a separate household, or verifying the student meets the U.S. Department of Education's definition of “independent student”;

(2) prior year income tax returns to verify if a parent or guardian has claimed the student as a dependent, except if the student meets the Department of Education definition of “independent student”; and

(3) written certification by a parent of the amount of financial support that parent provides to the student, or written certification that the parent provides no financial support to the student.

HUD also adopted in Appendix A of the 2006 supplementary guidance the U.S. Department of Education's (ED) definition of “independent student” from the HEA. ED's definition provided that an “independent student” is a student who meets one or more of the following criteria: (a) Is at least 24 years old by December 31 of the award year for which aid is sought; (b) is an orphan or a ward of the court through the age of 18; (c) is a veteran of the United States Armed Forces; (d) has legal dependents other than a spouse (for example, dependent children or an elderly dependent parent); (e) is a graduate or professional student; or, (f) is married.^[1]

In 2007, the HEA definition was amended and expanded in Section 604 of the College Cost Reduction and Access Act of 2007 (Public Law 110-84, 121 Stat. 784, approved September 27, 2006). The College Cost Reduction and Access Act added new criteria to the definition of “independent student” to include broadening the category of students who were orphans or wards of the court at age 18 to include those who were orphans, in foster care, or were wards of the court at any time when the individual was 13 years of age or older; it added those students who are or were emancipated or in legal guardianship; and added unaccompanied youths who are homeless or who are at risk of homelessness. This new definition was adopted by ED in guidance.

II. Definition of “Independent Student”

This notice brings HUD's guidance into conformity with the updated HEA definition and ED's definition of “independent student.” ED's definition of “independent student” is one of the criteria in HUD's 2006 supplementary guidance for PHAs, owners and managers to use in verifying whether a student is “independent.” Specifically, HUD is updating the definition of “independent student” to include the more expansive definition found in HEA, as amended by the College Cost Reduction and Access Act of 2007.

ED's definition of “independent student”, which now applies is:

a. The individual is 24 years of age or older by December 31 of the award year;

b. The individual is an orphan, in foster care, or a ward of the court or was an orphan, in foster care, or a ward of the court at any time when the individual was 13 years of age of older;

c. The individual is, or was immediately prior to attaining the age of majority, an emancipated minor or in legal guardianship as determined by a court of competent jurisdiction in the individual's State of legal residence;

d. The individual is a veteran of the Armed Forces of the United States (as defined in subsection (c)(1) of HEA) or is currently serving on active duty in the Armed Forces for other than training purposes;

e. The individual is a graduate or professional student;

f. The individual is a married individual;

g. The individual has legal dependents other than a spouse;

h. The individual has been verified during the school year in which the application is submitted as either an unaccompanied youth who is a homeless child or youth (as such terms are defined in section 725 of the McKinney-Vento Homeless Assistance Act) (42 U.S.C. 11431 et seq.), or as unaccompanied, at risk of homelessness, and self-supporting, by—

(i) a local educational agency homeless liaison, designated pursuant to section 722(g)(1)(J)(ii) of the McKinney-Vento Homeless Assistance Act;

(ii) the director of a program funded under the Runaway and Homeless Youth Act or a designee of the director;

(iii) the director of a program funded under subtitle B of title IV of the McKinney-Vento Homeless Assistance Act (relating to emergency shelter grants) or a designee of the director; or

(iv) a financial aid administrator; or

i. The individual is a student for whom a financial aid administrator makes a documented determination of independence by reason of other unusual circumstances.^[2]

III. Student's Independence Verification Requirements

HUD is also amending the Student's Independence Verification Requirements set out in the 2006 supplementary guidance. These requirements may create barriers for youth, and especially vulnerable youth (i.e., unaccompanied homeless youth, at risk of being homeless youth, and youth who have aged out of foster system), to receive assistance and continue their education, as many of these youth are not connected to their parents or caregivers to obtain the information necessary to show they are “independent” under HUD's current guidance. Therefore, HUD is clarifying that the tax return requirement only applies to providing the student's tax returns and not that of the student's parents.

HUD also provides through this guidance that an individual who meets ED's “independent student” definition in paragraph (b), (c), or (h), as adopted in Section II of this notice, are considered “vulnerable youth” for purposes of this guidance, and provides that when a PHA, owner or manager determines an individual is a “vulnerable youth” such determination is all that is necessary to determine a person is an “independent student” for purposes of using only the student's income for determining eligibility for section 8 assistance. The new Student's Independence Verification Requirements are as follows:

PHAs, Owners, and Managers of section 8 assistance will need to verify a student's independence from his or her parents to determine that the student's parents' income is not relevant for determining the student's eligibility for assistance by doing all of the following:

(1) Reviewing and verifying previous address information to determine evidence of a separate household or verifying the student meets the U.S. Department of Education's definition of “independent student”;

(2) Reviewing a student's prior year income tax returns to verify the student is independent or verifying the student meets the U.S. Department of Education's definition of “independent student”; and

(3) Verifying income provided by a parent by requiring a written certification from the individual providing the support. Certification is also required if the parent is providing no support to the student. Financial assistance that is provided by persons not living in the unit is part of annual income. (Except if the student meets the Department of Education's definition of “independent student” in paragraphs (b), (c) or (h) adopted in section II of this notice).

This guidance and HUD's rule focus on a student under the age of 24 who meets the additional requirements of section 327 and who is not residing in a section 8 assisted unit with his or her parents, but who is individually seeking to reside in a section 8 assisted unit. Neither the rule nor this guidance applies to students residing with their parents in a section 8 assisted unit or who reside with parents who are applying to receive section 8 assistance.

Dated: September 16, 2016.

Lourdes Castro Ramirez,

Principal Deputy Assistant Secretary for Public and Indian Housing.

Edward L. Golding,

Principal Deputy Assistant Secretary for Housing.

Footnotes

1.  The Higher Education Act of 1965. 20 U.S.C. 1087vv(d). See also Jeffrey R. Andrade, “Dear Colleague” Letter, U.S. Dep't of Educ. (May 2, 2003), https://ifap.ed.gov/​dpcletters/​GEN0307.html.

2.  These letters reflect the numbering used in the HEA definition of “independent” for use in this notice.