Over the course of the past two months, I’ve received an unusual number of questions via NCHM’s eHotline on the issue of extended absences from HUD assisted units. The most common source of these questions are senior properties.
There has only been one instance that I know of where HUD declared a formal policy on this question, and it did not come in the form of a handbook or regulatory change, or a formal notice (designated by the prefix H or PIH). It was a memorandum from the late Jack Kemp, who served as HUD Secretary from 1989 to 1992. Secretary Kemp’s memorandum established a period of 180 days as the maximum period of absence from a HUD-assisted unit permitted for medical reasons.
HUD currently has no policy on this issue, according to one of its “Frequently Asked Questions” sites. Instead, the Department “suggests” a policy of 60 days absence as a maximum for non-medical reasons. Suggestions, HUD points out, are not the same as “requirements,” and Owner/Agents are advised to establish their own policy on this question.
But there is a handbook provision that could impact policy considerations. HUD Handbook 4350.3, Rev. 1, Paragraph 9-12E, page 9-18 states, “Owners are entitled to an assistance payment only for the actual days during the month that the tenant occupied the unit.” This is a non-issue if the tenant who is absent has other family members occupying the unit.
If the tenant who is absent is the sole resident, however, this provision would seem to come into play. There is a lease requirement that the assisted unit be the resident’s “sole and primary residence.” And a relevant question, it seems to me, is how “occupancy” is defined. If “occupancy” is defined in strictly legalistic terms, a tenant who is under lease might be said to “occupy” the unit even if they’ve been absent for an extended period of time. If “occupancy” refers to physical presence (e.g., living in the unit), that could be another matter entirely. And I am aware of sole residents being in nursing home or rehabilitation facilities for one year or more where subsidy is being claimed on the unit and relatives (who do not live in the unit) have been signing recertifications and verification authorizations under a Power of Attorney.
When HUD “suggests” rather than “requires,” the onus is on Owner/Agents to develop written policy. And it is the Owner/Agent who will bear the responsibility for the impacts of this policy, including billing for subsidy on units where the sole resident has been absent for an extended period of time.