.
Section 811 and Other HUD Housing
Programs for Persons with Disabilities
Libby Perl
Specialist in Housing Policy
November 18, 2010January 28, 2013
Congressional Research Service
7-5700
www.crs.gov
RL34728
CRS Report for Congress
Prepared for Members and Committees of Congress
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
Summary
The ability of persons with disabilities to live independently in affordable, accessible housing
became a prominent issue starting in 1999 as the result of a Supreme Court decision, Olmstead v.
L.C. The court held that institutionalization of persons with mental disabilities in lieu of
community-based care may constitute discrimination. Shortly after the Olmstead decision, on
February 1, 2001, the PresidentPresident George W. Bush announced the New Freedom Initiative, an effort
through multiple
federal agencies to ensure full participation in society of persons with
disabilities. Part of the New
Freedom Initiative was Executive Order 13217, which implemented
the Olmstead decision by
ensuring (among other things) that all people with disabilities, not just
those with mental illness,
benefit from community-based treatment.
In order to ensure that persons with disabilities may live in community settings rather than in
institutions, affordable and accessible housing is necessary. The Department of Housing and
Urban Development (HUD) operates a number of programs that provide housing for persons with
disabilities in various ways. The Section 811 Supportive Housing for Persons with Disabilities
program providesis authorized to provide capital grants and project rental assistance to nonprofit
developers of housing
targeted specifically to persons with disabilities. Prior to creation of
Section 811, persons with
disabilities lived together with elderly residents (defined by HUD as
households with one or more
adults age 62 or older) in developments funded through the Section
202 Supportive Housing for
the Elderly program.
The project-based Section 8 and Public Housing programs give project
owners the option of
dedicating facilities to elderly residents, residents with disabilities, or both
populations together. Both
Over the years, both the Section 811 and the tenant-based Section 8 programs have set aside
housing vouchers for
persons with disabilities. And two HUD block grant programs—HOME and
the Community
Development Block Grant—may be used by states and communities to construct
or rehabilitate
housing for persons with disabilities.
In addition to these HUD programs, the Low
Income Housing Tax Credit (LIHTC), administered
by the Internal Revenue Service, may be used
by states to target housing to special needs
populations, including persons with disabilities. The
LIHTC may be used in conjunction with
HUD grants, including capital grants through the Section 811 program. The Housing and
Economic Recovery Act of 2008 (P.L. 110-289) made it possible for developers of Section 811
housing to qualify for a higher tax credit rate, which could potentially make these mixed
financing developments more feasible.
In the 111th Congress, two similar bills to make changes to the Section 811 program, both called
the Frank Melville Supportive Housing Investment Act, were introduced in the House (H.R.
1675) and Senate (S. 1481). On July 22, 2009, the House passed H.R. 1675 under suspension of
the rules, and on September 30, 2010, the Senate Banking Committee ordered S. 1481 to be
reported. Among the changes proposed by the two bills are turning over funding of Section 811
vouchers to the Section 8 program; creating a demonstration program in which Section 811 rental
assistance would be used in conjunction with other sources of financing, including the LIHTC
and HOME program; reducing the concentration of housing units for persons with disabilities by
limiting the units in multifamily housing dedicated to persons with disabilities to 25% of the total;
and delegating the processing of mixed finance developments to state housing finance agencies.
This report will be updated as warranted.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
Contents
Introduction
Section 811 program.
In FY2012, Section 811 rental assistance funds were made available to be used in conjunction
with capital funding from other sources (such as LIHTCs and HOME funds). This new use of
rental assistance was authorized as part of the Frank Melville Supportive Housing Investment Act
(P.L. 111-374), and is referred to by HUD as the Project Rental Assistance Demonstration. HUD
released a Notice of Funding Availability for the rental assistance in May 2012. P.L. 111-374
instituted other changes to the Section 811 program: authorizing that the source of funding for
Section 811 tenant-based rental assistance be converted to the Section 8 program; decreasing the
concentration of housing units for persons with disabilities by limiting the units in multifamily
housing dedicated to persons with disabilities to 25% of the total; and delegating the processing
of mixed finance developments to state housing finance agencies.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
Contents
Introduction...................................................................................................................................... 1
Housing for Persons with Disabilities and the Fair Housing Act .................................................... 2
Reasonable Modifications ................................................................................................... 3
Reasonable Accommodations ............................................................................................4
Section 811 Supportive Housing for Persons with Disabilities Program . 4
Definition of Person with Disabilities in HUD Housing Programs ........................................4
Evolution of the......... 4
The Section 811 Program Definition .......................................................................................5
Section 202 Housing for the Elderly or Handicapped.. 5
The Definition in Other HUD Programs .............................................................................5
Section 202 Set Aside for Non-elderly Handicapped Households...... 6
Section 811 Supportive Housing for Persons with Disabilities Program.....................................6
Creation.... 7
Evolution of the Section 811 Program ...................................................................................8
Definition of Person with Disabilities in HUD Housing Programs.... 8
Section 202 Housing for the Elderly or Handicapped .........................................9
The Section 811 Program Definition ................................ 8
Section 202 Set-Aside for Non-elderly Handicapped Households ..................................... 9
Creation of the Section 811 Program ..........................9
The Definition in Other HUD Programs ...................................................... 11
Changes as Part of the Frank Melville Supportive Housing Investment Act .................... 1012
Capital Grants and Project Rental Assistance....................................................................... 11
Eligible Facilities ..... 12
Eligible Developments ........................................................................................................ 12
Rental Assistance 13
Project Rental Assistance Contracts (PRAC) ...................................................................... 15
Supportive Services .................................... 13
Supportive Services ....................................................................... 15
Project Rental Assistance Demonstration Program ............................... 13
Tenant-Based Vouchers .................................. 16
Tenant-Based Rental Assistance for Persons with Disabilities ...................................................... 17
Section 811 Mainstream Vouchers......................... 14
Section 811 Mainstream Vouchers ................................................................................. 14
Other HUD Housing Designated18
Section 8 Vouchers for Persons with Disabilities ......................................................... 16
Public Housing ...................................... 19
Section 8 Vouchers and the Money Follows the Person Demonstration ........................... 20
Other HUD Housing Designated for Persons with Disabilities ..................................................... 22
Public Housing ................................... 17
Project-Based Section 8 Rental Assistance ..................................................................................... 18
Section 8 Vouchers for Persons with Disabilities 22
Project-Based Section 8 Rental Assistance ......................................................................... 19.... 24
Housing Financed by Low-Income Housing Tax Credits and HUD Block Grants ...................... 20. 24
The Low-Income Housing Tax Credit ..................................................................................... 2025
The HOME Investment Partnerships Program ........................................................................ 26 22
The Community Development Block Grant Program ........................................................... 23
Issues and Trends .. 27
Issues...................................................................................................................... 23
Using Section 811 Funds with Low-Income Housing Tax Credits........................ 28
Funding for the Section 811 Program ................................ 23
Housing Need for Persons with Disabilities......................................................................... 25
Homeless Persons with Disabilities28
Using Section 811 Capital Grants with Low-Income Housing Tax Credits ............................ 30
Housing Need for Persons with Disabilities ......................................................... 27
Section 8 Vouchers and the Money Follows the Person Demonstration ................................ 28
Legislation ................................................... 32
Homeless Persons with Disabilities.......................................................................................... 30
The Frank Melville Supportive Housing Investment Act (H.R. 1675 and S. 1481) ......... 30
HUD Draft Legislation... 33
Tables
Table 1. Funding for Section 811 Capital Grants, Rental Assistance, and Vouchers,
FY2003-FY2012 and FY2013 Proposal ............................................................................................... 31
Tables
Table 1. Section 811 Funding Levels, FY2003 to FY2011 ......................................................... 16 29
Table A-1. Definitions of Disability Applicable to HUD Housing Programs ................................ 3335
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
Appendixes
Appendix. Definitions of Disability Applicable to HUD Housing Programs ................................ 3335
Contacts
Author Contact Information ........................................................................................................... 3436
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
Introduction
Persons with physical disabilities, intellectual or developmental disabilities, or mental illnesses frequently face
may face difficulty in finding suitable housing, together with supportive services (often referred
to as
person-directed or consumer-directed services), in which they can live as active members of their
their community. For those individuals with physical disabilities, it may be difficult to find rental units
that are accessible, and some prospective residents with disabilities may face discrimination in
their search for housing.1 Zoning laws may also prevent the construction of homes where persons
with disabilities live together.2 In addition, the affordability of housing and services may be an
issue. Individuals with disabilities may have low incomes due to the inability to work, the need
for additional education and training to find suitable employment, or employer discrimination.3
Insufficient income can put the due to lower participation in the workforce and lower incomes. Individuals with disabilities
have lower employment rates than those without disabilities, which may be the result of factors
like employer attitudes and insufficient or improper job training.3 Insufficient income can put the
costs of in-home care and supportive services out of reach, and
services are not always available in all states through programs such as Medicare and Medicaid.4
state funding of home and
community-based services through Medicaid varies by state.4 As a result of these limitations,
among other causes, persons with disabilities may be
institutionalized inhave difficulty finding housing, and may live
in restricted settings such as nursing homes, psychiatric hospitals, or similar facilities rather board and care homes rather
than living
independently.5 Those individualsIndividuals with disabilities not in such facilities may still live in
group homes or small
multifamily housing developments dedicated to persons with disabilities
instead of on their own in the community.6
However, national recognition of the need for appropriate housing for persons with disabilities
gained support after the 1999 Supreme Court decision in the case of Olmstead v. L.C. In that case,
two women who had spent years in a psychiatric hospital argued that their institutionalization
constituted discrimination under the Americans with Disabilities Act. The Supreme Court agreed,
finding that “[s]tates are required to provide community-based treatment for persons with mental
disabilities when the State’s treatment professionals determine that such placement is appropriate,
and the placement can be reasonably accommodated ... .”7 Shortly after the ruling in Olmstead, on
February 1, 2001, President Bush announced the “New Freedom Initiative,” an effort through
multiple federal agencies, in cooperation with the states, to ensure full participation in society of
persons with disabilities. Part of the New Freedom Initiative was an Executive Order
implementing the Olmstead decision to ensure that all people with disabilities, not just those with
mental illnesses, benefit from community-based treatment.8 However, for many states and
1
See, for example, Margery Austin Turner, Carla Herbig, Deborah Kaye, Julie Fenderson, and Diane Levy,
Discrimination Against Persons with Disabilities: Barriers at Every Step, U.S. Department of Housing and Urban
Development, May 2005, pp. 2-4, http://www.huduser.org/Publications/pdf/DDS_Barriers.pdf.
2
Claudia Center et al., “The Garrett History Brief,” Journal of Disability Policy Studies 12, no. 2 (2001): 72-73
(hereafter “The Garrett History Brief”).
3
See, for example, O’Day, Bonnie, and Marcie Goldstein. “Advocacy Issues and Strategies for the 21st Century: Key
Informant Interviews.” Journal of Disability Policy Studies 15, no. 4 (January 1, 2005): 244.
4
Laurie E. Powers, Jo-Ann Sowers, and George H. S. Singer, “A Cross-Disability Analysis of Person-Directed, LongTerm Services,” Journal of Disability Policy Studies 17, no. 2 (January 1, 2006): 72.
5
The Garrett History Brief, pp. 71-721
According to the National Fair Housing Alliance, a consortium of nonprofit fair housing organizations, state and local
civil rights agencies, and individuals, in 2011, 44% of the discrimination complaints filed by fair housing agencies were
from persons with disabilities. National Fair Housing Alliance, Fair Housing in a Changing Nation, 2012 Fair Housing
Trends Report, April 30, 2012, p. 3.
2
For example, laws may limit the number or proximity of group homes, or they may limit the number of units in a
multifamily development dedicated to persons with disabilities. See, for example, Daniel R. Mandelker, “Housing
Quotas for People with Disabilities: Legislating Exclusion,” Urban Lawyer, vol. 43, no. 4 (Fall 2011), pp. 915-947.
3
See, for example, Fong Chan, David Strauser, and Patrick Maher, et al., “Demand-Side Factors Related to
Employment of People with Disabilities: A Survey of Employers in the Midwest Region of the United States,” Journal
of Occupational Rehabilitation, vol. 20, no. 4 (December 2010), pp. 412-419.
4
Ari Houser, Wendy Fox-Grage, and Kathleen Ujvari, Across the States: Profiles of Long-Term Services and Supports,
9th Edition, AARP Public Policy Institute, 2012, http://www.aarp.org/content/dam/aarp/research/
public_policy_institute/ltc/2012/across-the-states-2012-full-report-AARP-ppi-ltc.pdf.
5
See, for example, National Council on Disability, The State of Housing in America in the 21st Century: A Disability
Perspective, January 19, 2010, http://www.ncd.gov/rawmedia_repository/cdd1f2d8_ae1e_44ed_b016_938405e73a26?
document.pdf.
6
See, for example, Ann O’Hara, “HR 5772—The Frank Melville Supportive Housing Investment Act of 2008—
Promotes Community Integration for People with Disabilities,” Opening Doors, a Publication of the Technical
Assistance Collaborative and the Consortium for Citizens with Disabilities Housing Task Force, May 2008,
http://www.tacinc.org/downloads/OD/ODIssue31media/13665/New%20Section%20811%20Legislation%2031.pdf.
7
Olmstead v. L.C., 527 U.S. 581, 607 (1999).
8
Executive Order 13217, “Community-Based Alternatives for Individuals with Disabilities,” Federal Register, vol. 66,
no. 120, June 21, 2001, p. 33155.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
multiple federal agencies, in cooperation with the states, to ensure full participation in society of
persons with disabilities. Part of the New Freedom Initiative was an executive order
implementing the Olmstead decision to ensure that all people with disabilities, not just those with
mental illnesses, benefit from community-based treatment.8 However, for many states and
communities, it may be difficult to achieve the goal of treatment in a community environment
without the availability of accessible and affordable housing. 9
The federal government makes available fundsfunds available to finance subsidized rental housing for persons
with disabilities primarily through the Department of Housing and Urban Development (HUD).
The Section 811 Supportive Housing for Persons with Disabilities program is the only federal
program that funds supportive housing exclusively for persons with disabilities. However, the
Section 811 program is not the only source of funds to provide housing units for persons with
disabilities. Over the years, a number of other HUD programs have been used to fund housing
units dedicated to persons with disabilities, and many of those units are still in service. These
programs include the Section 202 Supportive Housing for the Elderly program, Public Housing,
the project-based Section 8 rental assistance program, and the Section 8 voucher program. In
recent years, federal
Federal block grant programs—the Community Development Block Grant and
HOME HOME
Investment Partnerships program—have also been a source of funds used by states and local
communities to develop and rehabilitate housing for persons with disabilities. Another source of
funds is the Low Income Housing Tax Credit, administered by the Internal Revenue Service,
through which state governments have the discretion to prioritize housing for persons with
disabilities.
This report describes how federal funds are used to develop housing designated for persons with
disabilities. It also discusses recent funding for the Section 811 program and current issues
current issues surrounding housing for persons with disabilities,
including mixed financing arrangements, worst
case housing needs, and persons with disabilities who
are homeless, and legislation in the 110th Congress are homeless.
Housing for Persons with Disabilities
and and
the Fair Housing Act
This report discusses federal programs that provide funds to develop affordable rental housing
units specifically for persons with disabilities. Individuals with disabilities may also live in
housing that has not been specifically designed for their needs, however. The Fair Housing Act
(FHA), enacted as part of the Civil Rights Act of 1968, contains provisions that are meant to
ensure that persons with disabilities may obtain accessible rental housing even in facilities not
specifically designed for them.
The FHA was created to prevent discrimination in the provision of housing based on “race, color,
religion, and national origin.”10 In 1988, the Fair Housing Amendments Act (P.L. 100-430)
amended the FHA to prevent discrimination based on “handicap.” The Fair Housing Act defines a
“handicap” as (1) having a physical or mental impairment that substantially limits one or more
major life activities, (2) having a record of such impairment, or (3) being perceived as having
8
Executive Order 13217, “Community-Based Alternatives for Individuals with Disabilities,” Federal Register, vol. 66,
no. 120, June 21, 2001, p. 33155.
9
See, for example, Linda Velgouse and Molly Dworken, Olmstead Update, Presentation for the American Association
of Homes and Services for the Aging Annual Meeting, October 2002.
10
The Fair Housing Act is codified at Title 42, Chapter 45 of the United States Code. See sections 3601-3619. For
more information about the Fair Housing Act, see CRS Report 95-710, The Fair Housing Act (FHA): A Legal
Overview, by Todd GarveyJody Feder.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
amended the FHA to prevent discrimination based on “handicap.” The Fair Housing Act defines a
“handicap” as (1) having a physical or mental impairment that substantially limits one or more
major life activities, (2) having a record of such impairment, or (3) being perceived as having
such impairment.11 In addition to prohibiting discrimination against persons based on handicap,
the FHA imposes affirmative duties on housing providers.
Under the Fair Housing Amendments Act of 1988, if a landlord fails to follow certain
requirements to make housing accessible to persons with disabilities, it is considered
discrimination. In the area of new construction, beginning 30 months after implementation of P.L.
100-430 (in 1988), it became unlawful for multifamily housing developers to design and
construct housing of four or more units that fails to (1) have common areas that are accessible and
useable by persons with disabilities, (2) have doors wide enough to accommodate wheelchairs,
and (3) include units with accessible routes through the unit; bathrooms and kitchens that are
wheelchair accessible; electrical outlets, light switches and thermostats that are accessible;
bathrooms with reinforcements where grab bars may be installed; and kitchens and baths that may
be maneuvered through with a wheelchair.12
For units in older facilities, or in units not covered by the FHA, the Fair Housing Amendments
Act recognized that modifications to units may be necessary to make them accessible to persons
with disabilities. Under the law, it is discriminatory for landlords to refuse to allow tenants to
make physical changes to the premises—referred to as “reasonable modifications”—where
changes are necessary to afford tenants full enjoyment of the premises.13 In addition, the law
gives tenants the right to ask their landlords for “reasonable accommodations” in the rules,
policies, practices, or services that ordinarily apply to tenants living in rental property. It is
considered discrimination under the FHA for a landlord to refuse to make a reasonable
accommodation where it is necessary to give residents with disabilities an equal opportunity to
use and enjoy their dwelling unit.14 Reasonable modifications and reasonable accommodations
are described below.
Reasonable Modifications
While the FHA may require landlords to permit tenants to make reasonable modifications to the
rental premises, the statute neither defines the term “reasonable modification,” nor the
circumstances under which modifications might be required to ensure a tenant’s enjoyment of the
premises. However, HUD and the Department of Justice (DOJ) have published joint guidance
describing reasonable modifications.15 They may include changes to a rental unit such as
widening doorways, installing a ramp or grab bars, or lowering cabinets.16 The HUD/DOJ
guidance requires that there be an identifiable relationship between the tenant’s disability and the
modification; if there is not, a landlord may refuse to allow the alteration.17 Landlords are not
required to pay for modifications, and, if the modifications would prevent a future tenant’s
enjoyment of the premises, the landlord may require tenants to restore the unit to its original state
when moving out. In order to ensure that this occurs, a landlord may require tenants to deposit
11
42 U.S.C. § 11
42 U.S.C. §3602(h).
42 U.S.C. § 3604(f)(3)(C).
13
42 U.S.C. § 3604(f)(3)(A).
14
42 U.S.C. § 3604(f)(3)(B).
15
Examples of reasonable modifications are also in regulation. See 24 C.F.R. § 100.203.
12
16
16
See Reasonable Modifications Under the Fair Housing Act, Joint Statement of The Department of Housing and
Urban Development and the Department of Justice, March 5, 2008, p. 4, http://www.hud.gov/offices/fheo/disabilities/
reasonable_modifications_mar08.pdf.
17
Ibid., p. 3.
12
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
required to pay for modifications, and, if the modifications would prevent a future tenant’s
enjoyment of the premises, the landlord may require tenants to restore the unit to its original state
when moving out. In order to ensure that this occurs, a landlord may require tenants to deposit
funds into an escrow account to pay for restoration.18 However, landlords cannot require tenants
to pay a higher security deposit because of modifications to the property.
While no federal program exists specifically to help tenants with disabilities pay for home
modifications, funding may be available at the state or local level. For example, some states make
funds available through their Medicaid waiver programs to allow persons with disabilities to
make modifications.19 States may also set up grant or loan programs using state, local, or federal
funds to assist with home modifications. Sources of federal funds that could be used for this
purpose include the HOME Investment Partnerships block grant and the Community
Development Block Grant (these programs are described later in this report).
Reasonable Accommodations
In addition to permitting tenants to make reasonable modifications to their units under the FHA,
landlords may be required to make “reasonable accommodations” to ensure that tenants with
disabilities may use and enjoy their dwelling. Reasonable accommodations may involve altering
or making an exception to rules, policies, practices, or services that would otherwise apply to
tenants, but when applied to an individual with a disability may prevent them from maintaining
their tenancy or fully enjoying use of the facility. 20 As with reasonable modifications, there must
be a relationship between the disability and the requested accommodation. However, unlike
reasonable modifications, a tenant may request an accommodation that will involve a cost to the
housing provider, although the requested accommodation cannot pose an undue financial or
administrative burden, and cannot fundamentally alter the provider’s operations.21 If the requested
accommodation is reasonable, tenants cannot be charged an extra fee or be required to make a
deposit into an escrow account. Examples of reasonable accommodations include changing the
manner of rental payment for a tenant with a mental illness so that he or she need not leave the
apartment or allowing assistance animals in a building that does not otherwise allow pets.
Section 811 Supportive Housing for Persons
with Disabilities Program
The Section 811 Supportive Housing for Persons with Disabilities program is administered by
HUD and funds permanent supportive housing for very low-income persons with disabilities
(those with household income at or below 50% of area median income). The program primarily
provides capital grants and project rental assistance to nonprofit housing developers. Section 811
capital grants can be used for construction, rehabilitation, or acquisition of buildings to be used as
housing for persons with disabilities. 22 Nonprofit developers need not repay the capital grants as
18
24 CFR § Definition of Person with
Disabilities in HUD Housing Programs
This report discusses several HUD housing programs that designate housing units for persons
with disabilities. These are the Section 811 Supportive Housing for Persons with Disabilities
program, Public Housing, and the tenant- and project-based Section 8 programs. In addition, prior
to creation of the Section 811 program, the Section 202 Supportive Housing for the Elderly
18
24 CFR §100.203(a).
Terry Moore and Beth O’Connell, Compendium of Home Modification and Assistive Technology Policy and Practice
Across the States, Abt Associates, prepared for the U.S. Department of Health and Human Services, October 27, 2006,
http://www.hcbs.org/files/138/6854/assistive_tech_final_report.pdf.
20
See Reasonable Accommodations Under the Fair Housing Act, Joint Statement of the Department of Housing and
Urban Development and the Department of Justice, May 17, 2004, http://www.nhl.gov/offices/fheo/library/
huddojstatement.pdf.
21
Ibid., pp. 8-9.
22
42 U.S.C. § 8013(b).
19
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
long as the housing is available and affordable for at least 40 years to very low-income persons
with disabilities. The Section 811 program also distributes tenant-based vouchers—sometimes
referred to as “mainstream vouchers”—that can be used by eligible tenants to rent housing in the
private market.19
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
program set aside units for persons with disabilities. Each of the programs defines “person with
disabilities,” and while the definitions are similar, there are some differences among them.
This section of the report uses the Section 811 program definition as the baseline with which to
compare the definitions in the other three programs (Section 8, Public Housing, and Section 202).
For a table comparing the definitions, see the Appendix.
The Section 811 Program Definition
To qualify for Section 811 housing, residents must be a person with a disability who is 18 years or
older but younger than age 62.22 Families of persons with disabilities are included in the
definition so that households composed of one or more persons, at least one of whom is an adult
with a disability, may be served by the program.23
Under the Section 811 statute, a person with disabilities is defined as an individual having a
physical, mental, or emotional impairment (1) that is expected to be of long-continued and
indefinite duration, (2) that substantially impedes his or her ability to live independently, and (3)
is of such a nature that the ability to live independently could be improved by more suitable
housing conditions.24 In addition, under the Section 811 statute, persons with developmental
disabilities as defined under the Developmental Disabilities Assistance and Bill of Rights Act
(P.L. 106-402) qualify for Section 811 housing.25
The regulations governing Section 811 elaborate further on the definition of “person with
disabilities.”26 First, the regulation details what it means to be “developmentally disabled”
(described in the section below) and specifies that a person with a “chronic mental illness” that
seriously limits his or her ability to live independently and whose impairment could be improved
by suitable housing meets the Section 811 definition of person with disabilities. The regulation
goes on to state that persons with acquired immunodeficiency virus (HIV), alcoholism, or drug
addiction may be considered disabled if they also have a disability as defined by the Section 811
statute. According to the regulation, “a person whose sole impairment is a diagnosis of HIV
positive or alcoholism or drug addiction (i.e., does not meet the qualifying criteria in [the statute])
will not be eligible for occupancy in a section 811 project.”27
Developmental Disability
According to Section 811 regulations—which mirror the Developmental Disabilities and Bill of
Rights Act—a person has a developmental disability if he or she has a severe, chronic disability
that (1) is attributable to a physical or mental impairment (or combination of physical and mental
22
The portion of the law specifying age was added to the Section 811 statute as part of the Frank Melville Supportive
Housing Investment Act (P.L. 111-374).
23
42 U.S.C. §8013(k)(2).
24
Ibid.
25
42 U.S.C. §15002(8).
26
24 C.F.R. §891.305.
27
HUD funds housing specifically for persons living with HIV/AIDS through the Housing Opportunities for Persons
with AIDS (HOPWA) program. For more information about HOPWA, see CRS Report RL34318, Housing for Persons
Living with HIV/AIDS, by Libby Perl.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
impairments), (2) manifests before age 22, (3) is likely to continue indefinitely, and (4) results in
substantial functional limitations in at least three major life activities. Life activities are defined
as
•
self care,
•
receptive and expressive language,
•
learning,
•
mobility,
•
self direction,
•
capacity for independent living, and
•
economic self-sufficiency.
A fifth component of the definition is that the developmental disability reflects the need for
individually planned and coordinated care, treatment, or other services for a lifetime or an
extended duration.
The Definition in Other HUD Programs
The definition of the term “person with disabilities” in the Section 811 program differs somewhat
from the definition for both the tenant- and project-based Section 8 programs (referred to here by
the blanket term “Section 8”) and the Public Housing program, which are defined together in the
same statute and regulation,28 and properties developed under the Section 202 loan program,
which is found in regulation.29
While the Section 8/Public Housing definition of person with disabilities includes the Section 811
statutory definition—a physical, mental, or emotional impairment and developmental
disabilities—it also adds to the definition persons who are considered disabled under Title II of
the Social Security Act.30 Neither the Section 811 statute nor the regulations governing the
program include the Social Security definition of disability. Under the Social Security definition,
a person is considered disabled if he or she is unable to work (“engage in any substantial gainful
activity”) due to a medically determinable physical or mental impairment that is expected to last
at least 12 months or to result in death. A person may also be considered disabled under the Social
Security Act definition if he or she is age 55 or older, is blind, and is unable to engage in
substantial gainful activity.31
The statute governing disability under Section 8 and Public Housing further specifies that the
term person with disabilities “shall not exclude” those living with acquired immunodeficiency
syndrome (AIDS) or conditions arising from its etiologic agent. Unlike the Section 811
28
The definition of person with disabilities for the Section 8 and Public Housing programs is at 42 U.S.C. §1437a(b)(3)
and 24 C.F.R. §5.403.
29
24 C.F.R. §891.505.
30
See 42 U.S.C. §423(d).
31
For a more detailed discussion of the Social Security Act definition of “disability,” see CRS Report RL32279,
Primer on Disability Benefits: Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI), by
Umar Moulta-Ali.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
regulation, the Section 8/Public Housing definition does not exclude persons whose only
diagnosis is that of HIV positive. However, the Section 8/Public Housing regulation is similar to
the Section 811 regulation in stating that an individual shall not be considered a person with
disabilities based solely on drug or alcohol dependence.
The term “handicapped person or individual” for purposes of facilities developed with Section
202 loans32—which contain units for persons with disabilities—is defined in regulation. The
Section 202 program definition is very similar to the Section 811 definition, and differs only in
the way in which it describes a person who is living with HIV/AIDS. According to the regulation,
those who are infected with HIV, and who are disabled as a result of the infection, are eligible for
housing built through the Section 202 loan program. The type of housing for which those
individuals would be eligible, according to the regulation, depends upon the nature of the person’s
disability—that is, housing that is designed for persons with physical disabilities, developmental
disabilities, or chronic mental illnesses. Finally, like the law and regulations governing Section
811, Section 8, and Public Housing, Section 202 regulations make ineligible any person whose
“sole impairment” is alcoholism or drug addiction.
Section 811 Supportive Housing for Persons
with Disabilities Program
The Section 811 Supportive Housing for Persons with Disabilities program is administered by
HUD and funds permanent supportive housing for very low-income persons with disabilities
(those with family income at or below 50% of area median income). Over the years, since its
inception in 1990, the program has provided assistance in several ways.
32
33
•
Until 2011, Section 811 primarily provided capital grants and project rental
assistance to nonprofit housing developers. Section 811 capital grants were used
for construction, rehabilitation, or acquisition of buildings to be used as housing
for persons with disabilities.33 Nonprofit developers that obtained the grants need
not repay them as long as the housing remains available and affordable for at
least 40 years to very low-income persons with disabilities.
•
Until 2011, the Section 811 program also funded tenant-based vouchers—
sometimes referred to as “mainstream vouchers”—that are used by eligible
tenants to rent housing in the private market. However, the Section 811 program
has not funded new vouchers since FY2006, and the funding for existing
vouchers was fully absorbed by the Section 8 tenant-based voucher account in
FY2012.
•
Beginning with the FY2012 appropriation, the Section 811 model of assistance
has become one of “rental assistance only,” whereby Section 811 funds are used
to subsidize units developed with capital funding from sources other than Section
811.
Non-elderly persons with disabilities do not reside in Section 202 developments funded through capital grants.
42 U.S.C. §8013(b).
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
This section of the report describes the evolution of the Section 811 program and how it currently
operates.
Evolution of the Section 811 Program
The Section 811 Supportive Housing for Persons with Disabilities program was created as part of
the Cranston-Gonzalez Affordable Housing Act of 1990 (P.L. 101-625). Until enactment of
Cranston-Gonzalez, HUD had funded housing units for persons with disabilities largely through
the Section 202 Supportive Housing for the Elderly program, created in 1959. Over the years, the
individuals with disabilities who were eligible for Section 202 housing expanded from persons
with physical disabilities to those with developmental disabilities and eventually to individuals
with chronic mental illnesses. Over time, Congress also began to implement a split between
housing for elderly residents23residents34 and those with disabilities, ultimately resulting in creation of the
Section 811 program. However, units for persons with disabilities that were created as part of the
Section 202 program continue to be financed through that program and governed by its rules, so
the history of their development continues to be important.2435
Section 202 Housing for the Elderly or Handicapped
The Section 202 program was created as part of the Housing Act of 1959 (P.L. 86-372) and
provided low-interest loans to non-profit developers to construct multifamily housing for families
where one or more person is age 62 or older. Section 202 did not initially provide housing for
persons with disabilities. Five years after the creation of the Section 202 program, the Housing
Act of 1964 (P.L. 88-560) added non-elderly “handicapped” individuals and families to the
definition of “elderly families” under the Section 202 program. At the time, “handicapped” was
defined by P.L. 88-560 as a physical impairment (1) expected to be of long-continued or
indefinite duration, (2) that substantially impedes the ability to live independently, and (3) is of
such a nature that the ability to live independently could be improved by more suitable housing
conditions. A mentalMental, intellectual, or developmental disability wasdisabilities were not included in the definition.
The Housing
Act of 1964 also changed the name of the Section 202 program to “Housing for the
Elderly or
Handicapped.” However, the law did not require that a certain number of units be set
aside for
tenants with disabilities or direct that units be made accessible. Very few tenants who were
were considered non-elderly handicapped participated in the Section 202 program between 1964 and
and 1974. Although data were not collected, HUD estimated that through 1977, less than 1% of
Section 202 tenants were non-elderly handicapped, 2536 and that “the vast majority of Section 202
projects [were] not designed to serve the handicapped.”26
23
37
The Housing and Community Development Act of 1974 (P.L. 93-383) removed the word
“physical” from the term “physical impairment” in the definition of handicap and also expanded
34
Although other terms may be preferred, this report uses the term “elderly” to refer to those individuals eligible for
HUD-assisted housing for persons age 62 or older because it is the term used by HUD.
2435
For more information about the Section 202 program, see CRS Report RL33508, Section 202 and Other HUD Rental
Housing Programs for Low-Income Elderly Residents, by Libby Perl.
2536
U.S. Department of Housing and Urban Development, Housing for the Elderly and Handicapped: The Experience of
the Section 202 Program from 1959 to 1977, January 1979, p. 36 (hereafterhereinafter Housing for the Elderly and
Handicapped).
2637
Ibid., p. 67.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
The Housing and Community Development Act of 1974 (P.L. 93-383) removed the word
“physical” from the term “physical impairment” in the definition of handicap and also expanded
the definition of handicap to include developmental disabilities. 2738 The removal of the word
“physical” was meant to make persons with mental illnesses eligible for Section 202 housing.2839
However, the development of housing for this population did not occur immediately. In 1978, in
the Conference Reportconference report accompanying the Housing and Community Development Amendments
(P.L. 95-557), Congress acknowledged that “there has been some confusion over whether
chronically mentally ill persons are eligible for section 202 housing,” and that it was “never the
intent of Congress to exclude chronically mentally ill persons from participating in the section
202 program.”2940 The report went on to direct HUD to develop criteria and standards for providing
housing for this population. In 1978, HUD undertook a demonstration program together with the
Department of Health and Human Services (then the Department of Health, Education, and
Welfare), “to better understand the housing needs of the mentally ill.”3041 In FY1982, the Section
202 program funded housing for chronically mentally ill individuals for the first time, making
funds available for group homes and independent living facilities. 3142
Section 202 Set -Aside for Non-elderly Handicapped Households
In 1978, the Housing and Community Development Amendments (P.L. 95-557) required that,
beginning in FY1979, at least $50 million of the amounts available for loans under the Section
202 program be devoted to housing for non-elderly “handicapped” individuals.3243 The new
requirement was meant to “meet special needs [of the handicapped] which have not been
adequately addressed in Section 202 projects.”3344 Until enactment of the Housing and Community
Development Amendments of 1978, a small number of accessible units in larger Section 202
developments designed primarily for elderly residents had been dedicated to persons with
disabilities (about 1% of units). These Section 202 developments tended to be large multifamily
rental buildings—the average number of units in Section 202 developments built prior to
enactment of the Housing and Community Development Act of 1974 was 135.3445 HUD suggested
that one of the reasons for the low number of units designed for persons with disabilities through
27
the Section 202 program was the additional cost of making units accessible, putting project
sponsors at a disadvantage in applying for funds.46 The set-aside was meant to address this issue.
38
See Section 210 of P.L. 93-383. “A person shall also be considered handicapped if such person is a developmentally
disabled individual as defined in section 102(5) of the Developmental Disabilities Services and Facilities Construction
Amendments of 1950.”
2839
See discussion in U.S. Department of Housing and Urban Development, Standards and Criteria for Housing for the
Chronically Mentally Ill in the Section 202/8 Direct Loan Program, April 1983, pp. 1-3 (hereafterhereinafter Standards and
Criteria for Housing for the Chronically Mentally Ill).
2940
Conference Report to accompany S. 3084, The Housing and Community Development Amendments of 1978, 95th
Cong., 2nd sess., H.Rept. 95-1792.
3041
Standards and Criteria for Housing for the Chronically Mentally Ill, p. 2.
3142
See U.S. Department of Housing and Urban Development, “Section 202 Loans for Housing for the Elderly or
Handicapped; Announcement of Fund Availability, FY1982,” Federal Register, vol. 47, no. 76, April 20, 1982, pp.
16892-16894.
3243
Housing provided for persons with disabilities through the Section 202 program is sometimes referred to as “Section
202(h)” housing, referring to the subparagraph that was added to the Section 202 statute by P.L. 95-557.
3344
See Senate Committee on Banking, Housing, and Urban Affairs, S.Rept. 95-871, Senate report to accompany S.
3084, the Housing and Community Development Act of 1977, 95th Cong., 2nd sess., May 15, 1978. The Senate bill
became the Housing and Community Development Amendments of 1978 (P.L. 95-557).
3445
Housing for the Elderly and Handicapped, pp. 16-17.
46
U.S. Department of Housing and Urban Development, FY1980 Budget Justifications, p. K-3.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
the Section 202 program was the additional cost of making units accessible, putting project
sponsors at a disadvantage in applying for funds.35 The set-aside was meant to address this issue.
In addition, P.L. 95-557 specified that non-profit sponsors of Section 202 housing were expected
to develop innovative ways of providing housing for persons with disabilities, including group
homes and independent living complexes integrated into the surrounding community, together
with supportive services tailored to resident needs. 3647 After enactment of the Housing and
Community Development Amendments of 1978 with its set-aside for housing for persons with
disabilities, the number of developments built specifically for these households (versus elderly
households) increased.3748 HUD estimates that by the end of the 1980s, approximately 10% of units
funded through the Section 202 program were in facilities designed for persons with disabilities.3849
Nearly ten10 years after enactment of the Housing and Community Development Amendments,
another law made changes to the way in which persons with disabilities were served under the
Section 202 program. The Housing and Community Development Act of 1987 (P.L. 100-242)
amended the law to require that 15% of the total amount available for Section 202 loans be set
aside for persons with disabilities rather than the $50 million established in the 1978 Act (P.L. 95557). In appropriations acts from FY1988 through FY1991, Congress went beyond the statutory
set -aside, however, and required that 25% of Section 202 loan authority be used for housing for
persons with disabilities.3950
Another change made by P.L. 100-242 involved rental subsidies for those Section 202 units for
persons with disabilities. Since the enactment of the Housing and Community Development Act
of 1974, Section 202 units for both elderly and disabled residents had been subsidized through the
project-based Section 8 rental assistance program. However, there was a growing
acknowledgment that Section 8 rental assistance was not sufficient to support units for persons
with disabilities because it did not take account of the higher cost of providing housing in smaller
developments such as group homes. 4051 P.L. 100-242 specified that rental assistance in projects for
persons with disabilities should be provided through a separate subsidy program based on the
“total actual and necessary reasonable costs of developing and operating the project,” not
including, however, the costs of supportive services.4152 The FY1989 HUD Appropriations Act
(P.L. 100-404) provided rental assistance funds for housing for persons with disabilities
separately from those for elderly residents. This separate rental assistance was the means of
35
U.S. Department of Housing and Urban Development, FY1980 Budget Justifications, p. K-3.
36
subsidizing Section 202 units for persons with disabilities until the creation of the Section 811
program.53
47
See H.Rept. 95-1161, House Committee on Banking, Finance, and Urban Affairs Report to accompany H.R. 12433,
The Housing and Community Development Amendments of 1978, 95th Cong., 2nd sess. Portions of H.R. 12433 were
inserted in the Senate version of the Housing and Community Development Amendments (S. 3084) which was enacted
as P.L. 95-557.
3748
House Committee on Aging, Subcommittee on Housing and Consumer Interests, The 1988 National Survey of
Section 202 Housing for the Elderly and Handicapped, 101st Cong., 1st sess., December 1, 1989, p. 99.
3849
U.S. Department of Housing and Urban Development, Evaluation of Supportive Housing Programs for Persons with
Disabilities, July 1995, p. 8, http://www.huduser.org/Publications/pdf/suphous1.pdf.
3950
See H.Rept. 100-498, Conference Report to accompany H.J.Res. 395, a joint resolution making continuing
appropriations for FY1988; P.L. 100-404, the FY1989 HUD Appropriations Act; P.L. 101-144, the FY1990 HUD
Appropriations Act; and P.L. 101-507, the FY1991 HUD Appropriations Act.
4051
House Committee on Banking, Finance, and Urban Affairs, H.Rept. 100-122, to accompany H.R. 4, the Housing,
Community Development, and Homeless Prevention Act of 1987, 110th Cong., 1st sess., June 2, 1987.
41
See Section 162 of P.L. 100-242.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
subsidizing Section 202 units for persons with disabilities until the creation of the Section 811
program. 4252
See Section 162 of P.L. 100-242.
53
The Section 202 units funded with this new rental assistance are sometimes called “Section 202/162 PACs,” referring
to the section of the Housing and Community Development Act of 1987, as well as the new “project assistance
contracts” created by P.L. 100-242.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
Creation of the Section 811 Program
The incremental separation of housing for persons with disabilities from housing for elderly
residents that began in 1978 with a set -aside in the Section 202 program and continued with
separate rental assistance in 1987 was made permanent in the Cranston-Gonzalez National
Affordable Housing Act of 1990 (P.L. 101-625). Congress completely separated housing for
persons with disabilities from the Section 202 program by creating the Section 811 Supportive
Housing for Persons with Disabilities program.
Not only did P.L. 101-625 separate the housing for persons with disabilities program from the
housing for the elderly program, it also changed the way in which units would be financed under
both the Section 202 and Section 811 programs. Until the enactment of P.L. 101-625, units
created through the Section 202 program had been financed with a combination of loans and
project-based Section 8 rental assistance contracts. P.L. 101-625 instituted a method of financing
in which Section 202 and Section 811 developments would be financed through capital grants
rather than loans. As long as units remain affordable to very low-income residents for at least 40
years, project owners need not repay the capital grants. The law also created a new form of rental
assistance similar to Section 8, called PRAC, or project rental assistance contracts. In addition,
the law instituted a new way of determining development cost limitations for both Section 202
and Section 811 facilities. The new method was to take account of special design features for
persons with disabilities and congregate space for supportive services, among other factors.
The provisions creating the Section 811 program originated in the Senate version of the bill (S.
566) that would become the Cranston-Gonzalez National Affordable Housing Act. The Senate
Banking Committee, in its report regardingaccompanying the bill, described the reasons behind creating a
program separate from Section 202:
The Committee believes that separation of the programs for elderly and persons with
disabilities would further the goal of developing a program that meets the housing and
related needs of nonelderly persons with disabilities. A separate program would spur the
development of a bureaucracy knowledgeable about and sensitive to the special needs of
tenants with disabilities, needs which can differ from those of many elderly residents. ... A
separate program would also create an institutional voice for housing concerns that are
particular to this constituency.4354
The report also stressed the importance of changing the terminology used to refer to persons
served through the Section 811 program, replacing “handicapped persons” with “persons with
disabilities.”4455 Community integration was another important goal of the new Section 811
program. In the years leading up to the enactment of P.L. 101-625, group homes and other
facilities dedicated only to those persons with disabilities had been the focus of housing funded
42
The Section 202 units funded with this new rental assistance are sometimes called “Section 202/162 PACs,” referring
to the section of the Housing and Community Development Act of 1987, as well as the new “project assistance
contracts” created by P.L. 100-242.
43
through
the Section 202 set aside. Under the Section 811 program, however, the HUD Secretary was to
look to a variety of housing options, including scattered units in multifamily housing
developments, condominiums, and cooperative housing.
Cranston-Gonzalez authorized capital grants for the new Section 811 program at $271 million for
FY1992 and project rental assistance at $246 million. In FY1992, Congress funded the new
54
S.Rept. 101-316, Report of the Senate Committee on Banking, Housing, and Urban Affairs, to accompany S. 566, the
National Affordable Housing Act, 101st Cong., 2nd sess., June 8, 1990, p. 148.
4455
Ibid.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
through the Section 202 set aside. Under the Section 811 program, however, the HUD Secretary
was to look to a variety of housing options, including scattered units in multifamily housing
developments, condominiums, and cooperative housing.
Cranston-Gonzalez authorized capital grants for the new Section 811 program at $271 million for
FY1992 and project rental assistance at $246 million. In FY1992, Congress funded the new
Section 811 program by appropriating $103 million for capital grants and $100 million for new
project rental assistance contracts (P.L. 102-139). The Section 811 program was last authorized
from FY2001 through FY2003 at “such sums as necessary” as part of the American
Homeownership and Economic Opportunity Act of 2000 (P.L. 106-569). (For recent Section 811
funding levels, see Table 1 at the end of this section.)
Definition of Person with Disabilities in HUD Housing Programs
Resident eligibility for Section 811 housing is based on both income and disability status. The
population served by the program, according to the statute, are very low-income persons with
disabilities (those with incomes at or below 50% of area median income). Families of persons
with disabilities are included in the definition, so that households composed of one or more
persons, at least one of whom is an adult with a disability, may be served by the program.45 The
way in which the Section 811 program defines “person with disabilities” differs in some ways
from the way HUD defines “person with disabilities” in other programs. This section describes
the definition in the Section 811 program, the Section 8 and Public Housing programs, and the
Section 202 program. For a table comparing the definitions, see the Appendix.
The Section 811 Program Definition
Under the Section 811 statute, a person with disabilities is defined as an individual having a
physical, mental, or emotional impairment: (1) that is expected to be of long-continued and
indefinite duration, (2) that substantially impedes his or her ability to live independently, and (3)
is of such a nature that the ability to live independently could be improved by more suitable
housing conditions.46 In addition, under the Section 811 statute, persons with developmental
disabilities as defined under the Developmental Disabilities Assistance and Bill of Rights Act
(P.L. 106-402) qualify for Section 811 housing. 47
The regulations governing Section 811 elaborate further on the definition of “person with
disabilities.”48 First, the regulation details what it means to be “developmentally disabled”
(described in the section below) and specifies that a person with a “chronic mental illness” that
seriously limits his or her ability to live independently and whose impairment could be improved
by suitable housing meets the Section 811 definition of person with disabilities. The regulation
goes on to state that persons with acquired immunodeficiency virus (HIV), alcoholism, or drug
addiction may be considered disabled if they also have a disability as defined by the Section 811
statute. According to the regulation, “a person whose sole impairment is a diagnosis of HIV
45
42 U.S.C. § 8013(k)(2).
Ibid.
47
42 U.S.C. § 15002(8).
48
24 C.F.R. § 891.305.
46
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
positive or alcoholism or drug addiction (i.e., does not meet the qualifying criteria in [the statute])
will not be eligible for occupancy in a section 811 project.”49
Developmental Disability
According to Section 811 regulations—which mirror the Developmental Disabilities and Bill of
Rights Act—a person has a developmental disability if he or she has a severe, chronic disability
that (1) is attributable to a physical or mental impairment (or combination of physical and mental
impairments); (2) manifests before age 22; (3) is likely to continue indefinitely, and (4) results in
substantial functional limitations in at least three major life activities. Life activities are defined
as
•
self care,
•
receptive and expressive language,
•
learning,
•
mobility,
•
self direction,
•
capacity for independent living, and
•
economic self-sufficiency.
A fifth component of the definition is that the developmental disability reflects the need for
individually planned and coordinated care, treatment, or other services for a lifetime or an
extended duration.
The Definition in Other HUD Programs
The definition of the term “person with disabilities” in the Section 811 program differs somewhat
from the definition for both the Section 8 and Public Housing programs, which are defined
together in the same statute and regulation, 50 and properties developed under the Section 202 loan
program, which is found in regulation.51
While the Section 8/Public Housing definition of person with disabilities includes the Section 811
statutory definition—a physical, mental, or emotional impairment and developmental
disabilities—it also adds to the definition persons who are considered disabled under Title II of
the Social Security Act.52 Neither the Section 811 statute nor the regulations governing the
program include the Social Security definition of disability. Under the Social Security definition,
a person is considered disabled if he or she is unable to work (“engage in any substantial gainful
activity”) due to a medically determinable physical or mental impairment that is expected to last
49
HUD funds housing specifically for persons living with HIV/AIDS through the Housing Opportunities for Persons
with AIDS (HOPWA) program. For more information about HOPWA, see CRS Report RL34318, Housing for Persons
Living with HIV/AIDS, by Libby Perl.
50
The definition of person with disabilities for the Section 8 and Public Housing programs is at 42 U.S.C. §
1437a(b)(3) and 24 C.F.R. § 5.403.
51
24 C.F.R. § 891.505.
52
See 42 U.S.C. § 423(d).
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
at least 12 months or to result in death. A person may also be considered disabled under the Social
Security Act definition if he or she is age 55 or older, is blind, and is unable to engage in
substantial gainful activity. 53
The statute governing disability under Section 8 and Public Housing further specifies that the
term person with disabilities “shall not exclude” those living with acquired immunodeficiency
syndrome (AIDS) or conditions arising from its etiologic agent. Unlike the Section 811
regulation, the Section 8/Public Housing definition does not exclude persons whose only
diagnosis is that of HIV positive. However, the Section 8/Public Housing regulation is similar to
the Section 811 regulation in stating that an individual shall not be considered a person with
disabilities based solely on drug or alcohol dependence.
The term “handicapped person or individual” for purposes of facilities developed with Section
202 loans54—which contain units for persons with disabilities—is defined in regulation. The
Section 202 program definition is very similar to the Section 811 definition, and differs only in
the way in which it describes a person who is infected with HIV/AIDS. According to the
regulation, those who are infected with HIV, and who are disabled as a result of the infection, are
eligible for housing built through the Section 202 loan program. The type of housing for which
those individuals would be eligible, according to the regulation, depends upon the nature of the
person’s disability—i.e. housing that is designed for persons with physical disabilities,
developmental disabilities, or chronic mental illnesses. Finally, like the law and regulations
governing Section 811, Section 8, and Public Housing, Section 202 regulations make ineligible
any person whose “sole impairment” is alcoholism or drug addiction.
Capital Grants and Project Rental Assistance
Most Section 811 funding is distributed as capital grants and project rental assistance to nonprofit
housing sponsors (the program also funds tenant-based vouchers, described in the next section).
With the capital grants, nonprofit grantees build or rehabilitate housing to be used for persons
with disabilities and their families. HUD distributes the Section 811 capital grants through a twostep process. First, a formula is used to allocate available funds to the 51 local HUD offices based
on the number of non-institutionalized persons within the jurisdiction of the local office who are
between 16 and 64 years of age and have a disability. 55 Each of the 51 jurisdictions is ensured
funding sufficient to support a minimum of ten Section 811 units. HUD then awards Section 811
grants through a competitive process in which nonprofit organizations submit applications, and
awards are limited by the amount allocated to the local office.
Grantees need not pay back the capital grants as long as the property remains affordable to very
low-income tenants with disabilities (those with incomes at or below 50% of area median
income) for at least 40 years.56 The project sponsors also receive rental assistance from HUD to
53
For a more detailed discussion of the Social Security Act definition of “disability” see CRS Report RL32279, Primer
on Disability Benefits: Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI), by Scott
Szymendera.
54
Non-elderly persons with disabilities do not reside in Section 202 developments funded through capital grants.
55
U.S. Department of Housing and Urban Development, Notice of Funding Availability (NOFA) for Fiscal Year (FY)
2009 Section 811 Housing for Persons with Disabilities, August 20, 2009, p. 7, http://www.hud.gov/library/
bookshelf12/supernofa/nofa09/sec811sec.pdf (hereinafter “FY2009 HUD NOFA”).
56
42 U.S.C. § 8013(e)(1).
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
make up the difference between the rent paid by residents and the costs of operating the housing
development. In addition, project sponsors must ensure that residents in Section 811 housing
receive appropriate supportive services. As of 2009, HUD reported that there were a total of
30,221 Section 811 units receiving rental assistance. 57 This section of the report describes these
components of the Section 811 program.
Eligible Facilities
The Section 811 statute governs the type of housing that may be provided through the program,
but in some cases, the statutory definitions have been further refined through HUD regulation and
policy. The physical design of Section 811 housing may take on several forms:58
•
Group Home: The Section 811 statute defines a group home as a single-family
residence designed for occupancy by not more than eight individuals with
disabilities. However, HUD’s annual Notice of Funding Availability (NOFA) that
guides applicants for Section 811 funds specifies that no more than six
individuals with disabilities may live in a group home. 59 Bedrooms may be single
or double occupancy, but in the latter case, only when requested by the
residents.60 There must be at least one bathroom for every four residents, 61 and an
additional bedroom may be provided for a staff person. 62 Project sponsors may
not place more than one group home on a single site or on a site adjacent to
another group home. 63
•
Independent Living Facility: According to the Section 811 statute, an
independent living facility has individual dwelling units with separate bedrooms,
kitchens, and baths for each resident, with a maximum occupancy of 24 persons
with disabilities per development (higher numbers may be allowed with approval
from HUD). 64 However, the Section 811 NOFA further restricts the maximum
number of persons in an independent living facility to 14 with some exceptions
allowed. 65 The independent living units may be located on scattered sites, and a
unit may be provided for a staff person. 66
•
Condominium Projects: Condominium units are similar to independent living
facilities, with separate bedrooms, baths and kitchens for each resident. Standards
for condominium units under the Section 811 program are not provided in statute
or regulation, but are outlined in the annual HUD NOFA. The maximum number
57
U.S. Department of Housing and Urban Development, FY2009 Performance and Accountability Report, November
16, 2009, p. 349, http://hud.gov/offices/cfo/reports/hudfy2009par.pdf.
58
42 U.S.C. § 8013(c)(1).
59
FY2009 HUD NOFA, p. 21.
60
Ibid., p. 22.
61
24 C.F.R. § 891.310.
62
FY2009 HUD NOFA, p. 22.
63
42 U.S.C. § 8013(k)(1).
64
42 U.S.C. § 8013(k)(4).
65
FY2009 HUD NOFA, p. 22. Project sponsors may request an exception to the project size limitation if they can show
site control.
66
Ibid.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
of units allowed on a site or scattered sites is 14.67 Unlike independent living
facilities, a unit may not be used by a staff person.
Project sponsors may choose to serve residents that fall within one of three major disability
categories—physical disability, developmental disability, and chronic mental illness—or any
combination of the three. 68 In addition, with HUD approval, project sponsors may further restrict
residency to a subcategory of disability that falls within one of these three categories. For
example, a group house dedicated to individuals with developmental disabilities could choose
specifically to serve those persons with autism (with HUD’s consent). However, if HUD approves
the restriction, a project sponsor cannot deny occupancy to an otherwise qualified applicant who
meets the definition of the broader disability category.69 For example, in the case of a group home
for persons with autism, the owners could not deny a qualified application from a person with
another developmental disability, but could deny a qualified application from a person with a
physical disability. In order to qualify to restrict residency by categories of disability, applicants
for Section 811 funds must explain why it is necessary to restrict residency, and why it is not
possible to serve residents in a more integrated setting.70
Rental Assistance
Nonprofit organizations that are awarded capital grants to build or rehabilitate Section 811
housing facilities also enter into contracts with HUD to receive project rental assistance (referred
to as PRAC). The rental assistance is paid to project sponsors by HUD in order to make up the
difference between the rent paid by tenants and the cost of operating the Section 811 housing
facility.71 Residents in Section 811 housing must be “very low income” (with income at or below
50% of area median income), 72 and they pay the higher of 30% of their adjusted income or 10%
of their gross income toward rent.73 The initial term of PRAC contracts is three years, and they
are renewable on an annual basis subject to appropriations.11
Section 811 and Other HUD Housing Programs for Persons with Disabilities
Section 811 program by appropriating $103 million for capital grants and $100 million for new
project rental assistance contracts (P.L. 102-139).
Changes as Part of the Frank Melville Supportive Housing Investment Act
The most recent substantive changes to the Section 811 program occurred when Congress passed
the Frank Melville Supportive Housing Investment Act (P.L. 111-374) in 2010, at the end of the
111th Congress, making changes to the Section 811 program for the first time since 2000. The law
changed the way in which Section 811 units are financed and focused on the integration of units
into community settings. The Melville Act reauthorized the Section 811 program from FY2011
through FY2015 at $300 million per year.
P.L. 111-374 made changes to the way in which Section 811 rental assistance can be used. Until
the law’s enactment, Section 811 PRAC was used only in conjunction with units developed with
Section 811 capital grants. However, P.L. 111-374 provided that Section 811 rental assistance can
be used to assist multifamily housing units developed using other, non-Section 811 sources of
funding such as Low Income Housing Tax Credits (LIHTCs), HOME funds, or other public or
private sources. HUD has referred to this funding as the “Project Rental Assistance
Demonstration.”56
To the extent that Congress may still appropriate new capital grants for Section 811, P.L. 111-374
also limited the number of units in multifamily housing developed with Section 811 funds that
can be occupied by persons with disabilities to 25% of the total units in the building. Due to the
need to finance the remaining 75% of units, this limitation is meant to encourage developers to
use other funding sources, such as LIHTCs and HOME funds, to supplement the Section 811
funding. This 25% limitation does not apply to group homes or independent living facilities. In
addition, in cases where grantees combine Section 811 capital grants with funding from other
sources, the review and processing of the project will be delegated to state or local housing
finance agencies (HFAs) rather than HUD. Because HFAs are the agencies that administer tax
credits, delegating the processing of the Section 811 capital grant to the HFA, together with the
tax credit, is thought to be more efficient.
Both of the changes implemented by the Melville Act could mark a move away from
developments dedicated to persons with disabilities and toward units interspersed throughout
larger developments. In addition, one of the justifications for the Melville Act changes is that
Section 811 funding can go further (assuming similar appropriations levels) if the funds are not
needed to pay capital costs.
Capital Grants and Project Rental Assistance
In the years that Section 811 has existed, most program funding has been distributed as capital
grants and project rental assistance to nonprofit housing sponsors (until recently, the program also
funded tenant-based vouchers, described in the next section). With the capital grants, nonprofit
56
As introduced in P.L. 111-374, the use of rental assistance in this way would have been part of a demonstration
program, but an amendment to the bill prior to passage in the Senate modified Section 811 law to make the use of
rental assistance with other capital funding sources a part of the Section 811 program rather than a demonstration.
Despite this, the rental assistance component of the program is referred to as a demonstration.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
grantees build or rehabilitate housing to be used for persons with disabilities and their families.
HUD distributes the Section 811 capital grants through a two-step process. First, a formula is
used to allocate available funds to 18 multifamily hubs based on the number of noninstitutionalized persons within the jurisdiction of the local office who are between 16 and 64
years of age and have a disability.57 HUD then awards Section 811 grants through a competitive
process in which nonprofit organizations submit applications, and awards are limited by the
amount allocated to the hub.
Grantees need not pay back the capital grants as long as the property remains affordable to very
low-income tenants with disabilities (those with incomes at or below 50% of area median
income) for at least 40 years.58 The project sponsors also receive rental assistance from HUD to
make up the difference between the rent paid by residents and the costs of operating the housing
development. In addition, project sponsors must ensure that residents in Section 811 housing
receive appropriate supportive services. As of 2010, HUD reported that there were a total of
28,000 Section 811 units receiving rental assistance.59 HUD last awarded capital grants with
project rental assistance by combining the FY2010 and FY2011 appropriations, awarding a total
of $149 million to 92 projects in 34 states.60 This section of the report describes these components
of the Section 811 program.
Eligible Developments
The Section 811 statute governs the type of housing that may be provided through the program,
but in some cases, the statutory definitions have been further refined through HUD regulation and
policy. The physical design of Section 811 housing may take on several forms:61
•
Multifamily Rental Housing: Until enactment of the Frank Melville Supportive
Housing Investment Act (P.L. 111-374), multifamily rental housing typically
consisted of small developments with rental units available for persons with
disabilities. However, any rental units for persons with disabilities developed
from 2011 forward are limited to 25% of the total units available in any
building.62
•
Group Home: The Section 811 statute defines a group home as a single-family
residence designed for occupancy by not more than eight individuals with
disabilities. However, HUD’s annual Notice of Funding Availability (NOFA) that
guides applicants for Section 811 funds specifies that no more than six
57
U.S. Department of Housing and Urban Development, Notice of Funding Availability (NOFA) for Fiscal Year (FY)
2010 Section 811 Housing for Persons with Disabilities, April 7, 2011, p. 5, http://archives.hud.gov/funding/2010/
811nofa.pdf. The FY2010 NOFA was amended to include funds appropriated in FY2011. See Amendment to Add
FY2011 Funding and Technical Corrections, May 13, 2011, http://archives.hud.gov/funding/2010/811nofa-tc.pdf.
Hereinafter these two NOFAs are referred to as FY2010/FY2011 Section 811 NOFA.
58
42 U.S.C. §8013(e)(1).
59
U.S. Department of Housing and Urban Development, FY2010 Agency Financial Report, November 15, 2010, p.
178, http://hud.gov/offices/cfo/reports/2010afr.pdf (hereinafter HUD FY2010 Agency Financial Report).
60
U.S. Department of Housing and Urban Development, “Obama Administration Announces $749 Million to Fund
Housing for Very Low-Income Seniors and Persons with Disabilities,” press release, November 16, 2011,
http://portal.hud.gov/hudportal/HUD?src=/press/press_releases_media_advisories/2011/HUDNo.11-266.
61
42 U.S.C. §8013(c)(1).
62
42 U.S.C. § 8013(e)(4)(A).
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
individuals with disabilities may live in a group home.63 Bedrooms may be single
or double occupancy, but in the latter case, only when requested by the
residents.64 There must be at least one bathroom for every four residents,65 and an
additional bedroom may be provided for a staff person.66 Project sponsors may
not place more than one group home on a single site or on a site adjacent to
another group home.67
•
Independent Living Facility: According to the Section 811 statute, an
independent living facility has individual dwelling units with separate bedrooms,
kitchens, and baths for each resident, with a maximum occupancy of 24 persons
with disabilities per development (higher numbers may be allowed with approval
from HUD).68 The Section 811 NOFA restricts the maximum number of persons
in an independent living facility to 14 if the site already contains housing for
persons with disabilities or is adjacent to such a site. Further, if the housing is
part of a larger non-202/non-811 multifamily development, units for persons with
disabilities cannot comprise more than 25% of the total.69 The independent living
units may also be located on scattered sites.70 Independent living facilities differ
from multifamily housing in that there may be a unit included in the capital
grants for a resident manager.71
•
Condominium Projects: Condominium units are similar to independent living
facilities, with separate bedrooms, baths, and kitchens for each resident.
Standards for condominium units under the Section 811 program are not
provided in statute or regulation, but are outlined in the annual HUD NOFA. The
standard for maximum number of units follows the same rules as for independent
living facilities.72 However, unlike independent living facilities (or group homes),
a unit may not be used by a staff person.73
Project sponsors may choose to serve residents that fall within one of three major disability
categories—physical disability, developmental disability, and chronic mental illness—or any
combination of the three.74 In addition, with HUD approval, project sponsors may further restrict
residency to a subcategory of disability that falls within one of these three categories. For
example, a group house dedicated to individuals with developmental disabilities could choose
63
FY2010/FY2011 Section 811 NOFA, p. 15.
Ibid.
65
24 C.F.R. §891.310.
66
FY2010/FY2011 Section 811 NOFA, p. 15.
67
42 U.S.C. §8013(k)(1).
68
42 U.S.C. §8013(k)(4).
69
FY2010/FY2011 Section 811 NOFA, p. 15. Project sponsors may request an exception to the project size limitations
if they can show site control.
70
Ibid., p. 14.
71
The HUD Handbook for the Section 811 program describes eligible properties. It states that project size limitations
for group homes and independent living facilities do not include an extra unit for staff. See U.S. Department of
Housing and Urban Development, Handbook 4571.2, Section 811 Supportive Housing for Persons with Disabilities,
June 1991, pp. section 1-7, http://www.hud.gov/offices/adm/hudclips/handbooks/hsgh/4571.2/45712trnHSGH.pdf.
72
FY2010/FY2011 Section 811 NOFA, p. 15.
73
Ibid.
74
Ibid., p. 3.
64
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
specifically to serve persons with autism (with HUD’s consent). However, if HUD approves the
restriction, a project sponsor cannot deny occupancy to an otherwise qualified applicant who
meets the definition of the broader disability category.75 For example, in the case of a group home
for persons with autism, the owners could not deny a qualified application from a person with
another developmental disability, but could deny a qualified application from a person with a
physical disability. In order to qualify to restrict residency by categories of disability, applicants
for Section 811 funds must explain why it is necessary to restrict residency, and why it is not
possible to serve residents in a more integrated setting.76
Project Rental Assistance Contracts (PRAC)
Nonprofit organizations that are awarded capital grants to build or rehabilitate Section 811
housing facilities also enter into contracts with HUD to receive project rental assistance (referred
to as PRAC). The initial term of PRAC contracts is three years, and they are renewable on an
annual basis subject to appropriations. The rental assistance is paid to project sponsors by HUD in
order to make up the difference between the rent paid by tenants and the cost of operating the
Section 811 housing facility.77 Residents in Section 811 housing must be “very low income” (with
income at or below 50% of area median income),78 and they pay the higher of 30% of their
adjusted income or 10% of their gross income toward rent.79 (For more information about resident
eligibility and rent, see CRS Report R42734, Income Eligibility and Rent in HUD Rental
Assistance Programs: Responses to Frequently Asked Questions, by Libby Perl and Maggie
McCarty.)
Supportive Services
Housing developed through Section 811 capital grants must be supportive housing, that is, owners
must make supportive services available to residents to help them live independently. Supportive
housing is a model used to assist a variety of populations for whom it might be difficult to
maintain housing, not just persons with disabilities. These groups include elderly residents,
families with young children whose parents are making the transition to work, formerly homeless
individuals, and those living with HIV/AIDS. Services are to be tailored to the individual needs
of residents and so depend upon the population being served. Specifically, the Section 811 statute
requires property owners to ensure the availability of supportive services to address the health
(including mental health), and other individual needs of residents.7480 However, Section 811 funds
67
Ibid.
Ibid., p. 5.
69
Ibid.
70
Ibid., pp. 49-50.
71
42 U.S.C. § 8013(d)(2).
72
42 U.S.C. § 8013(d).
73
42 U.S.C. § 8013(d)(3).
74
42 U.S.C. § 8013(k)(3).
68
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
cannot themselves be used to fund supportive services for residents.75 Owners may provide
supportive services directly to residents, or may coordinate the availability of services through
outside agencies or service providers. Services may include assistance with activities of daily
living; counseling for mental health issues, drug, or alcohol addictions; case management; and
employment assistance.
cannot themselves be used to fund supportive services for residents.81 Owners may provide
supportive services directly to residents, or may coordinate the availability of services through
outside agencies or service providers. Services may include assistance with activities of daily
living; counseling for mental health issues, drug, or alcohol addictions; case management; and
employment assistance.
75
Ibid.
Ibid., p. 38.
77
42 U.S.C. §8013(d)(2).
78
42 U.S.C. §8013(d).
79
42 U.S.C. §8013(d)(3).
80
42 U.S.C. §8013(k)(3).
81
FY2010/FY2011 Section 811 NOFA, p. 44.
76
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
When organizations apply to HUD for Section 811 capital grants, they must submit a supportive
services plan that has been certified by the appropriate state or local agency responsible for
overseeing services to persons with disabilities as being well-designed to serve the needs of the
prospective residents.7682 The supportive services plans must include the following information
(among other requirements): (1) a detailed description of the service needs of the population that
will be served; (2) a list of community service providers that will provide services, and letters of
intent from those providers; (3) the experience of the proposed service providers; (4) a description
of how state and local agencies will be involved in the project; and (5) the applicant’s
commitment to provide services for residents.7783 While project sponsors are required to ensure that
supportive services are available, they cannot require residents to accept them.
Tenant-Based Vouchers
Tenant-based rental assistance allows individuals and families to find rental housing on the
private market rather than in specific housing developments. The rental assistance goes with the
tenant rather than being tied to a specific housing unit. Rental assistance is provided in the form
of a voucher, through which HUD pays a portion of a tenant’s rent to landlords who are willing to
accept the voucher (federal law does not require landlords to accept vouchers). The Section 8
voucher program is the primary way in which HUD provides tenant-based rental assistance,
although tenant-based assistance is available through other programs, including Section 811.78 In
both programs, tenants with vouchers pay between 30% and 40% of their income toward rent and
HUD pays the difference between the family’s contribution and the rent for the unit, subject to
certain limits.
This section of the report describes Section 811 vouchers for persons with disabilities; Section 8
vouchers for persons with disabilities are described later in the report in the section entitled
“Section 8 Vouchers for Persons with Disabilities.” (For more information about the Section 8
program, see CRS Report RL32284, An Overview of the Section 8 Housing Programs, by Maggie
McCarty).
Section 811 Mainstream Vouchers
The Housing and Community Development Act of 1992 (P.L. 102-550) made tenant-based rental
assistance part of the Section 811 program by authorizing the use of vouchers for eligible
75
FY2009 HUD NOFA, p. 63.
Ibid., p. 19.
77
Ibid., pp. 49-51.
76
78
For example, HUD’s Shelter Plus Care and Supportive Housing Programs make tenant-based rental assistance
available for homeless individuals. For more information about these programs see CRS Report RL33764, The HUD
Homeless Assistance Grants: Distribution of Funds, by Libby Perl.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
households. 79 The vouchers, sometimes referred to as “mainstream vouchers,” are administered
using the same rules that govern the Section 8 voucher program. Unlike Section 8 vouchers,
however, these vouchers are funded through the Section 811 account for initial five-year terms
(Section 8 vouchers are funded on an annual basis). The first year in which Congress set aside
funding for mainstream vouchers was FY1997. The HUD Appropriations Act for that year (P.L.
104-204) specified that HUD could use up to 25% of the amount appropriated for the Section 811
program for five-year vouchers.
In the first two years that the Section 811 vouchers were distributed, only public housing
authorities (PHAs) could administer the vouchers, but beginning in FY1999, private nonprofit
organizations were eligible to apply to administer them.80 HUD makes vouchers available through
an annual Notice of Funding Availability (NOFA) process through which PHAs and private
nonprofit organizations interested in administering the vouchers apply to HUD. Applicants are
scored based on a number of factors, which include the number of persons with disabilities at or
below poverty in the area to be served by the applicant as well as the existence of agreements
with organizations that will provide supportive services to voucher holders.81 Since 2005, HUD
has required voucher administrators (PHAs and private nonprofit organizations) to help persons
with disabilities who have Section 811 vouchers to obtain supportive services if they request
them, as well as to provide technical assistance to landlords in making reasonable
accommodations or reasonable modifications.82
The NOFAs issued by HUD in FY1997-FY1999 specified that the Section 811 vouchers should
remain available to disabled families during the initial funding term of the voucher (five years),
but were silent on who could use the voucher if the original family left the program (either
voluntarily or due to eviction or other non-voluntary reason) after the initial funding period was
over. Advocates for persons with disabilities have pointed out that these vouchers may have been
provided to non-disabled households after the original tenant left the program.83 However, in
annual appropriations acts since FY2005, Congress has required that Section 811 vouchers be
made available to disabled families upon turnover.84 Further, in 2004, HUD began to require that
PHAs track the disability status of families using Section 811 vouchers and provide the records to
HUD. 85 Prior to 2004, HUD did not collect this information. As of 2009, HUD reported that a
total of 14,811 Section 811 vouchers were funded through the Section 811 account.86
79
42 U.S.C. § 8103(d)(4).
80
U.S. Department of Housing and Urban Development, “Mainstream Housing Opportunities for Persons with
Disabilities FY1999 Funding Availability,” Federal Register, vol. 64, no. 44, March 8, 1999, p. 11303.
81
For more information on criteria used to select applicants, see, for example, U.S. Department of Housing and Urban
Development, “Notice of Funding Availability for FY2005 Mainstream Housing Opportunities for Persons with
Disabilities Program,” Federal Register, vol. 70, no. 211, November 2, 2005, pp. 66730-66732.
82
See Department of Housing and Urban Development Notice PIH-2005-5, “New Freedom Initiative, Executive Order
13217: ‘Community-Based Alternatives for Individuals with Disabilities,’ and the Housing Choice Voucher Program,”
February 1, 2005, http://www.hud.gov/offices/adm/hudclips/notices/pih/files/05-5PIHN.doc (hereafter, “HUD Notice
PIH-2005-5”). PIH-2005-5 was extended indefinitely by PIH Letter L-2007-01, http://www.hud.gov/offices/adm/
hudclips/letters/07-1PIHL.doc.
83
See, for example, the Consortium for Citizens with Disabilities, Letter to Josh B. Bolton, Director of the Office of
Management and Budget, January 14, 2005. “[T]he CCD Housing Task Force believes there is a high likelihood that at
least some of these precious 811 tenant based funds are being used to support non-disabled households.”
84
The first appropriations act to have this requirement was the FY2005 Consolidated Appropriations Act, P.L. 108447.
85
In a notice dated August 5, 2004, HUD noted that mainstream vouchers would be tracked in its data set. See Notice
(continued...)
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
Table 1. Section 811 Funding Levels, FY2003 to FY2011
(dollars in thousands)
Section 811 Capital Grants
and PRACa
Section 811 Vouchersb
Appropriation
President’s
Request
Appropriation
Total
Section 811
Appropriationc
—d
166,787
—d
81,851
248,886
2004
—d
173,721
—d
74,904
249,092
2005
149,556
149,455
99,969
88,179
238,080
2006
39,450
152,603
80,000
78,269
231,268
2007
28,215
158,697
89,595
77,517
236,610
2008
34,655
161,655
74,745
74,745
237,000
2009
61,300
161,300
87,100
87,000
250,000
2010
162,900
—e
87,100
87,000
300,000
2011
89,137
—f
0g
—f
—f
Fiscal
Year
President’s
Request
2003
Source: Department of Housing and Urban Development Budget Justifications for FY2005 through FY2011 and
the FY2010 Consolidated Appropriations Act (P.L. 111-117).
a.
PRAC refers to “project-based rental assistance contracts.” Amounts for PRAC include renewals of existing
contracts as well as rental assistance for new units.
b.
Amounts for Section 811 vouchers include funds to renew existing vouchers.
c.
The total may be slightly greater than the sum of funds allocated for capital grants, PRAC, and vouchers due
to funds appropriated for the working capital fund that are included in the total.
d.
In both FY2003 and FY2004, the President’s proposed budget would have allocated $250.5 million for
Section 811. However, the proposal did not separately specify exact amounts for capital grants, PRAC, and
Section 811 vouchers.
e.
P.L. 111-117 provides $186 million for “capital advances and project-based rental assistance contracts,” but
does not specify whether this includes renewals of existing contracts.
f.
As of the date of this report, no funds had been appropriated for FY2011.
g.
For FY2011, the President proposed to fund the renewal of tenant-based vouchers through the Section 8
account. The budget would not fund new vouchers.
Other HUD Housing Designated for
Persons with Disabilities
While the Section 811 program is dedicated solely to persons with disabilities, HUD also funds
housing for persons with disabilities through programs that serve all tenant populations, but that
(...continued)
PIH-2004-13, “Codes for Special Programs Reported on the Family Report,” available at http://www.hud.gov/offices/
adm/hudclips/notices/pih/files/04-13PIHN.doc.
86
HUD FY2009 Performance and Accountability Report, p. 349.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
also give project owners the ability to designate buildings to special populations, including
elderly persons and persons with disabilities.87 In addition to housing historically provided
through the Section 202 program (described in the “Evolution of Section 811” section of this
report), property owners that participate in the project-based Section 8 rental assistance program
and Public Housing Authorities (PHAs) that administer the Public Housing program may choose
to designate buildings specifically for elderly residents and residents with disabilities together
(sometimes referred to as “mixed population” developments) or for residents with disabilities
alone. In addition, the Section 8 voucher program sets aside housing vouchers specifically for
persons with disabilities.
Public Housing
Public housing is the original federally assisted housing program for low-income families, created
as part of the Housing Act of 1937 (P.L. 75-412). The program provides housing for very lowincome households (those with incomes at or below 50% of area median income) and requires
tenants to pay 30% of their income toward rent. The Housing Act of 1956 (P.L. 84-1020)
authorized the Public Housing Administration (a predecessor to HUD) to provide units
specifically for low-income elderly individuals. 88 The first elderly-only public housing
development was built by 1960.89 Beginning in 1961, the HUD definition of “elderly family” was
amended to include individuals with disabilities of any age.90 Since then, persons with disabilities
have lived in public housing facilities designated for elderly residents (defined as households
where one or more person is age 62 or older).
Public housing developments designated for elderly residents, and where a mixed population of
elderly residents and residents with disabilities live together, have been controversial. During the
early years of public housing for elderly persons, disabled residents made up only a small
proportion of residents. The number of residents with disabilities living in public housing for the
elderly began to increase in the 1980s and early 1990s for at least two reasons. First, individuals
with mental illnesses were less likely to be institutionalized as a result of the availability of
outpatient mental health care, and were therefore in need of affordable housing.91 A second factor
was passage of the 1988 Fair Housing Act Amendments (P.L. 100-430). The amendments added
persons with a “handicap” to the class of individuals protected from discrimination in the
provision of housing. The definition of “handicap” included individuals with alcohol and drug
addictions.92 Following these changes, Public Housing experienced an increase in the number of
younger residents with disabilities, often with mental illnesses and addictions. Along with the
87
88
Tenants with disabilities may also live in assisted housing units that are not specifically designated for their use.
Prior to this, HUD’s definition of elderly families did not include single individuals.
89
Frances Merchant Carp, A Future for the Aged, Victoria Plaza and Its Residents (Austin: University of Texas Press,
1966).
90
The Housing Act of 1961 (P.L. 87-70) made all households in which an adult member has a disability eligible for
public housing. Prior to this, in the Housing Act of 1959 (P.L. 86-372), near-elderly households with an adult member
with a disability were made eligible. Near-elderly households are those with an adult member age 50 and older.
91
See General Accounting Office (now the Government Accountability Office), Housing Persons with Mental
Disabilities with the Elderly, GAO/RCED-92-81, August 1992, pp. 10-11, http://archive.gao.gov/d33t10/147294.pdf.
92
According to the House Judiciary Committee Report accompanying H.R. 1158, the Fair Housing Act Amendments of
1988, enacted as P.L. 100-430, the bill used the same definitions and concepts from the Rehabilitation Act of 1973
(P.L. 93-112), which included drug addiction and alcoholism as physical or mental impairments (see 28 CFR §41.31).
However, under P.L. 100-430, handicap does not include “current, illegal use of or addiction to a controlled substance.”
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
increase, Public Housing Authorities reported a greater number of incidents of disruptive
behavior, and some elderly residents reported feeling unsafe.93
Due to tension between elderly residents and residents with disabilities, in the Housing and
Community Development Act of 1992 (P.L. 102-550) Congress allowed PHAs to designate
buildings or portions of buildings as elderly only, disabled only, or as mixed population
facilities.94 In 1996, The Public Housing Opportunity Extension Act of 1996 (P.L. 104-120)
streamlined the process for designating public housing projects. If a PHA wants to change the
composition of a building to elderly residents only or to residents with disabilities, it must submit
a plan to HUD to ask for approval. If the plan is approved, PHAs cannot evict non-eligible
residents. For example, if a PHA designates a building with a mix of elderly residents and
residents with disabilities as elderly only, tenants with disabilities may not be evicted. If tenants
want to move, however, PHAs may help them relocate. According to HUD data, of those 188
PHAs with approved designated housing plans, 25 PHAs set aside projects, or portions of
projects, for persons with disabilities, six set aside units for elderly residents and residents with
disabilities together, and one PHA did both.95 Of the total PHA plans, 184 set aside projects or
portions of projects for elderly residents only.
Project-Based Section 8 Rental Assistance
Between 1974 and 1983, the Section 8 new construction and substantial rehabilitation program
made rental assistance available to developers that were creating new and rehabilitated rental
housing for low-income families. 96 From the inception of the program, owners were able to
develop properties designated for use by elderly residents together with tenants with disabilities.
The Housing and Community Development Act of 1992 (P.L. 102-550) gave owners of properties
designed primarily for occupancy by mixed populations—elderly families together with tenants
with disabilities—the ability to establish a preference for elderly families when selecting
tenants.97 However, unlike Public Housing, most Section 8 properties may not completely exclude
residents with disabilities. The statute requires owners that choose to create a preference for
elderly residents to continue to reserve some units for households where an adult member has a
disability and where the household is not considered elderly or near elderly (defined as at least 50
years old but below the age of 6298). Specifically, owners are required to set aside the lower of the
number of units occupied by disabled families in 99 or 10% of units. If owners are unable to rent
the units reserved for elderly residents to eligible families, they may give a preference to near
elderly families with an adult member who has a disability. 100 If owners are unable to rent units
93
Housing Persons with Mental Disabilities with the Elderly, p. 17. See, also, remarks of Representative Peter Blute,
Congressional Record, daily edition, vol. 142 (February 27, 1996), p. H1274.
94
The provisions are codified at 42 U.S.C. § 1437e; the regulations are at 24 CFR §§ 945.101-945.303.
95
CRS derived these numbers from HUD’s Designated Housing Status Report, http://www.fhasecure.gov/offices/pih/
programs/ph/dhp/designated.cfm, downloaded June 14, 2010.
96
The new construction and substantial rehabilitation program was created in P.L. 93-383; authority to enter into new
contracts was suspended in P.L. 98-181. For more information on Section 8 housing, see CRS Report RL32284, An
Overview of the Section 8 Housing Programs, by Maggie McCarty.
97
The provisions are codified at 42 U.S.C. §§ 13611-13620.
98
42 U.S.C. § 1437a(b)(3).
99
Specifically, the statute refers to the higher of the number of units occupied by individuals or families with
disabilities on either October 28, 1992 or January 1, 1992. 42 U.S.C. § 13612(b).
100
42 U.S.C. § 13613.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
designated for non-elderly and non-near elderly persons with disabilities, they may rent them to
near elderly persons with disabilities.
Section 8 Vouchers for Persons with Disabilities
In addition to housing vouchers made available through the Section 811 program (described
earlier in this report), HUD has set aside Section 8 vouchers for families with an adult member
who has a disability. The voucher portion of the Section 8 program was created in 1983 as part of
the Supplemental Appropriations Act of 1984 (P.L. 98-181). Unlike project-based Section 8 rental
assistance, which is tied to specific rental units, tenants may use Section 8 vouchers to rent any
eligible housing unit. To be eligible, a unit must meet minimum housing quality standards and a
family’s portion of the rent cannot exceed 40% of their income. 101 In addition, a landlord must
agree to accept the voucher.102
Congress appropriated funds for Section 8 vouchers for persons with disabilities, sometimes
referred to as “designated housing vouchers,” in response to enactment of the Housing and
Community Development Act of 1992 (P.L. 102-550). As discussed earlier, provisions in P.L.
102-550 permitted owners of Public Housing and project-based Section 8 developments where
elderly residents and residents with disabilities lived together to either designate buildings as
elderly only or to prioritize elderly tenants.103 Section 8 owners were given the authority to create
a preference for elderly families in these designated buildings, though they could not exclude
disabled families altogether. PHAs were given the authority to designate entire buildings as
elderly only. Although PHAs cannot evict tenants with disabilities if a building is designated as
elderly only, with attrition, eventually a building may have only elderly residents. These policy
changes affected the ability of tenants with disabilities to live in these facilities.
From FY1997 through FY2002, Congress appropriated funds for Section 8 vouchers in order to
assist tenants with disabilities who would have been eligible to reside in those Section 8 and
Public Housing developments prior to their designation as elderly only or elderly preference.
PHAs applied for these designated housing vouchers, which they then provided to eligible
tenants. 104 In FY2008 and FY2009, for the first time since FY2002, Congress appropriated
additional funds for designated housing vouchers. In both the FY2008 Consolidated
Appropriations Act (P.L. 110-161) and the FY2009 Omnibus Appropriations Act (P.L. 111-8),
Congress provided $30 million for Section 8 vouchers for tenants with disabilities affected by the
designation or restriction of tenant populations to elderly only.
101
This 40% cap on a tenant’s contribution is in effect only for the first year. After the first year, if rent increases and
the family wishes to continue to live in the unit, then the family can choose to contribute more than 40% of its income
toward rent.
102
For more information about the Section 8 program, see CRS Report RL32284, An Overview of the Section 8
Housing Programs, by Maggie McCarty.
103
See Title VI, Subtitle B of P.L. 102-550 for Public Housing and Title VI, Subtitle D for Section 8. The law also gave
authority to owners of Section 202, Section 221(d)(3), and Section 236 properties to continue to restrict occupancy to
elderly families according to the rules in place at the time the projects were developed (see Section 658).
104
Amounts appropriated from FY1997 through FY2002 were $50 million in FY1997 (P.L. 104-204) and $40 million
in each of FY1998 (P.L. 105-65), FY1999 (P.L. 105-276), FY2000 (P.L. 106-74), FY2001 (P.L. 106-377), and FY2002
(P.L. 107-73).
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
Unlike Section 811 mainstream vouchers, Section 8 designated housing vouchers for persons with
disabilities shall remain available to other disabled households upon turnover “to the extent
practicable [emphasis added].”105 (Section 811 vouchers must be made available only to families
where an adult member has a disability.) HUD defines the term “to the extent practicable” to
mean that before a voucher can be provided to a non-disabled household, every eligible nonelderly disabled family on a PHA’s waiting list must have received a voucher, and that outreach
must not have resulted in finding an eligible family. 106 As with Section 811 vouchers, PHAs must
assist tenants who request help in finding supportive services, and provide technical assistance to
landlords in providing reasonable accommodations and modifications.
Housing Financed by Low-Income Housing Tax
Credits and HUD Block Grants
Beginning in the 1980s, the federal government took a less direct role in the development of
affordable housing. At the same time, the production and rehabilitation of housing at the state and
local level began to increase. 107 This occurred, in part, due to the enactment of the Low-Income
Housing Tax Credit (LIHTC) and the HOME Investment Partnerships program. These programs
distribute funds to states and localities for the production of affordable housing. States and
localities may, in turn, decide to target a portion of the funds from these programs to develop
affordable housing for persons with disabilities. This section of the report describes the LIHTC
and the HOME program, as well as the Community Development Block Grant (CDBG), a
program created in 1974 to assist states and localities with economic development, including
housing activities that benefit low- and moderate-income households.
The Low-Income Housing Tax Credit
The Low-Income Housing Tax Credit (LIHTC) was enacted as part of the Tax Reform Act of
1986 (P.L. 99-514). The program provides incentives for the development of affordable rental
housing through federal tax credits administered by the Internal Revenue Service (IRS). The IRS
allocates tax credits to states based on population, and states award the credits to developers to
use as a source of financing for the development of affordable rental housing.108
The states, generally through their state housing finance agencies (HFAs), award the tax credits to
housing developers through a competitive process that is based on state priorities as set out
annually in their Qualified Allocation Plan (QAP). Developers may either retain the credits
themselves or sell them in exchange for equity to fund a housing development. Developers of
LIHTC-financed housing must ensure that at least 40% of the units are affordable to households
105
The phrase “to the extent practicable” appeared in appropriations laws beginning in FY2003 (P.L. 108-7) through
FY2006 (P.L. 109-115). The FY2007 House-passed HUD appropriations bill (H.R. 5576) also contained this phrase,
but a year-long continuing resolution was enacted in lieu of separate appropriations laws. The FY2008 HUD
Appropriations Act did not contain this phrase.
106
HUD Notice PIH-2005-5.
107
For more background on the evolution of federal housing assistance policy, see CRS Report RL34591, Overview of
Federal Housing Assistance Programs and Policy, by Maggie McCarty et al.
108
For more information on the LIHTC, see CRS Report RS22389, An Introduction to the Design of the Low-Income
Housing Tax Credit, by Mark P. Keightley.
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with incomes at or below 60% of the area median income, or that at least 20% of units are
affordable to households with incomes at or below 50% of the area median income. 109 The
projects must remain affordable for at least 15 years, although there are incentives in place to
encourage developers to maintain affordability for 30 years. Rent charged for the rent-restricted
units in a development may not exceed 30% of an imputed income limitation—calculated based
on area median incomes.
In their Qualified Allocation Plans, states set forth the criteria they will use in selecting projects to
receive the tax credits.110 By statute, states must prioritize LIHTC projects that serve the lowest
income tenants for the longest period of time in their QAPs. In addition, the LIHTC statute
requires states to consider certain criteria in determining how they will set housing priorities in
the QAP. One of the ten criteria that states must consider is tenant populations with special
needs. 111 Tenant populations with special needs may include persons with disabilities (others with
special needs include individuals and families who are homeless, elderly individuals, or other
populations in need of housing with supportive services).112
States may choose to make housing units for populations with special needs one of the priorities
in the competition for tax credits in a number of ways.113 These methods include
109
110
•
requiring developers to set aside a portion of units for special needs
populations—for example, North Carolina requires that the greater of five units
or 10% of units in each tax credit development be devoted to persons with
disabilities or those who are homeless;114
•
setting aside a certain dollar value or percentage of available tax credits for a
specified population—for example, Illinois sets aside $2 million of the total
available tax credits for developments where at least 50% of units serve persons
with special needs;115 and
•
developing a scoring system in the competition for tax credits that awards
additional points for proposals that take account of certain special needs
populations—for example, New Mexico awards 15 points in the tax credit
competition to developers that propose to build housing in which at least 25% of
units are dedicated to persons with special needs.116
26 U.S.C. § 42(g).
26 U.S.C. § 42(m)(1)(B).
111
Until enactment of P.L. 110-289, the Housing and Economic Recovery Act of 2008, the LIHTC statute contained
eight selection criteria. P.L. 110-289 added two more. See 26 U.S.C. §42(m)(1)(C).
112
See Joseph Guggenheim, Tax Credits for Low Income Housing (Glen Echo, MD: Simon Publications, 1996) p. 33.
113
For more information about how state QAPs promote housing for populations with special needs, see James Tassos,
Housing Credit Policies in 2007 That Promote Supportive Housing, The Corporation for Supportive Housing and
Enterprise Community Partners, http://www.practitionerresources.org/cache/documents/657/65721.pdf. The report was
updated with an addendum for 2008. That report is available at http://documents.csh.org/documents/pubs/
QAPStudy2008Update.pdf.
114
Housing Credit Policies in 2007 That Promote Supportive Housing, p. 9.
115
Ibid., p. 10.
116
Ibid., p. 13.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
The HOME Investment Partnerships Program
The HOME Investment Partnerships program (referred to as the HOME program) is a block grant
to states and local jurisdictions—referred to as “participating jurisdictions”—distributed via a
formula for the purpose of developing both affordable rental housing and affordable housing for
homeowners.117 The factors used to distribute HOME funds to eligible states and jurisdictions
include population, the number of rental units occupied by households in poverty, housing
overcrowding, the number of units with incomplete kitchens or plumbing, and the age of
housing. 118 HOME funds can be used to build or rehabilitate housing, to provide tenant-based
rental assistance, and to provide assistance to homeowners and homebuyers. Assistance must go
to low-income households (at least 90% of funds must assist those with incomes at or below 60%
of area median income), and any housing provided must be affordable.
Like funds provided to states through the LIHTC, states and localities that receive HOME funds
have discretion in choosing the populations they wish to serve. Also like the LIHTC, jurisdictions
that receive HOME funds develop a plan regarding how they will distribute funds. This is done
through HUD’s Consolidated Plan process. Jurisdictions applying for funds from four HUD
formula grant programs, including HOME,119 submit a single Consolidated Plan to HUD. The
plan includes an assessment of community needs and a proposal to address those needs, using
both federal funds and community resources. State and local plans must also contain a housing
needs assessment, including the need for housing for persons with disabilities.120 In developing
the plan, states and communities must adopt a citizen participation plan, through which they are
encouraged to consult with citizens with disabilities. 121 States are further required to consult with
organizations that provide services (including fair housing services) to persons with disabilities
when preparing their consolidated plan. 122
After taking into consideration the needs of persons with disabilities, HOME recipient
jurisdictions may choose to prioritize housing for persons with disabilities as part of their
Consolidated Plans.123 In the tenant-based rental assistance portion of the program, the HOME
regulations specify that recipient jurisdictions may choose to establish a preference for tenants
with special needs, including persons with disabilities.124 Further, recipients of HOME funds may
choose to target tenant-based rental assistance to individuals with a specific disability. In terms of
new or rehabilitated rental housing that may be developed with HOME funds, communities can
choose to develop not only multifamily rental housing and single family homes, but also
117
The HOME program is codified at 42 U.S.C. §§ 12741-12756. For more information about HOME, see CRS Report
R40118, An Overview of the HOME Investment Partnerships Program, by Katie Jones.
118
24 C.F.R. § 92.50(c). In general, in order to be considered a “participating jurisdiction” eligible for HOME funds, a
locality must qualify for at least $750,000 under the HOME formula. 42 U.S.C. § 12746. All states receive allocations
under the HOME formula. 42 U.S.C. § 12747(b)(2).
119
The other three programs are the Community Development Block Grant, Housing Opportunities for Persons with
AIDS, and the Emergency Shelter Grants.
120
24 C.F.R. § 91.205 and § 91.305.
121
24 C.F.R. § 91.105 and § 91.115.
122
24 C.F.R. § 91.110.
123
24 C.F.R. § 91.215 and § 92.209.
124
24 C.F.R. § 92.209(c)(2).
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
transitional housing, single room occupancy projects, and group homes. 125 Some jurisdictions
may find that these types of housing developments are well suited for tenants with disabilities.
The Community Development Block Grant Program
The Community Development Block Grant (CDBG) program was enacted as part of the Housing
Act of 1974 (P.L. 93-383) with the purpose of developing viable urban communities by funding
housing, community, and economic development activities that principally benefit low- and
moderate-income households. 126 The CDBG program distributes 70% of total funds through
formula grants to entitlement communities—central cities of metropolitan areas, cities with
populations of 50,000 or more, and urban counties—and the remaining 30% goes to states for use
in small, non-entitlement communities.127 The allocation of CDBG funds is determined through a
formula that targets an area’s need for community development using a variety of factors
including population, poverty, overcrowded housing, age of housing, and the lag in community
growth.128 The CDBG program is subject to the same Consolidated Plan requirements as the
HOME program (described previously) in which the needs of persons with disabilities must be
taken into consideration. In addition, in response to the Bush Administration’s New Freedom
Initiative, HUD issued guidance to assist CDBG recipients with “identifying the needs of persons
with disabilities and targeting CDBG resources to meet those needs during the development of
the jurisdictions’ consolidated plans.”129
While many of the purposes of CDBG funds involve the improvement of neighborhoods, the
creation of public facilities, or the promotion of economic opportunity, funds may also be used to
rehabilitate housing, including making housing accessible for persons with disabilities. CDBG
funds may also be used to make public facilities accessible to persons with disabilities.130 In
addition, communities may use CDBG funds for “public services,” which include such services
as employment counseling. According to HUD, promoting economic opportunities for persons
with disabilities through job training and employment counseling are valid uses of CDBG
funds.131
Issues and Trends
Using Section 811 Funds with Low-Income Housing Tax Credits
Financing affordable housing, including housing for persons with disabilities, may require
multiple streams of funding in order to support the design, construction, and ongoing operating
125
24 C.F.R.§ 92.2.
42 U.S.C. § 5301(c).
127
42 U.S.C. § 5306.
128
Ibid.
129
HUD Notice CPD-050-03, “Implementing the New Freedom Initiative and Involving Persons with Disabilities in
the Preparation of the Consolidated Plan through Citizen Participation,” June 6, 2005, http://www.hud.gov/offices/adm/
hudclips/notices/cpd/05-3c.doc.
130
42 U.S.C. § 5305(a)(5).
131
HUD Notice CPD-050-03.
126
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costs of a project. In addition to federal funds provided through HUD programs, affordable
housing developers may use mortgage revenue bonds, tax credits, and local housing trust fund
resources, among other sources, to develop housing for low-income and special needs
populations. While HUD funds once might have been sufficient on their own to develop an
affordable housing project, that is rarely the case today. This is true for Section 811 developers,
who often must bring together multiple sources of funding to develop a project. In 2000, in order
to help Section 811 (and Section 202) developers bring together multiple financing sources,
Congress enacted a law that makes the interaction of Section 811 funds and the Low-Income
Housing Tax Credits (LIHTCs) more feasible by changing the definition of “private nonprofit
organization” in the Section 811 statute. This change, and its implication for Section 811
developers, is described below.
The value of LIHTCs are determined, in part, based on the cost of developing a property—
referred to as the qualified basis.132 The costs of constructing, acquiring, and rehabilitating a
property (among other costs133) are included in calculating the qualified basis, but the amount
must then be reduced by any federal grants received by the developer, which in turn reduces the
value of the tax credits. Therefore, if a nonprofit developer were to receive a Section 811 capital
grant, its value would be subtracted in calculating the qualified basis which could result in
minimal LIHTCs. The Homeownership and Economic Opportunity Act (P.L. 106-569), enacted in
2000, allowed for-profit limited partnerships, where a nonprofit organization is the sole general
partner, to be eligible Section 811 owners. The changed law allows a nonprofit Section 811
grantee to loan the Section 811 capital grant to the limited partnership. Under this arrangement,
the Section 811 funds are no longer a “federal grant” to be subtracted in calculating the qualified
basis, potentially increasing the value of LIHTCs.
The change in the law to allow for-profit limited partnerships to own Section 811 housing
developments has not immediately made mixed financing arrangements common, however. The
transactions are complicated and may require extensive expertise in housing finance to make
them work. HUD acknowledges that “most developers seek to avoid the use of federal grant
financing in most LIHTC projects.”134 In addition, the treatment of Section 811 PRAC in tax
credit transactions has been unclear. Although the IRS has created exceptions to the rule that
federal grants do not count toward the qualified basis of a property for certain categories of rental
assistance, Section 811 PRAC has not been among the exceptions. The programs that have been
exempted from the requirement include Section 8 project-based rental assistance payments and
public housing capital and operating funds, 135 the Native American Housing Block Grant
132
Specifically, a property’s qualified basis is determined as follows: (1) the cost of constructing, acquiring, or
rehabilitating the property is calculated, (2) this amount is reduced by federal grants received by the developer, and (3)
the resulting value is then multiplied by the percentage of space in the housing development that is devoted to lowincome use. This percentage is the lower of either the “unit fraction”—the ratio of low-income units to all units in the
building—or the “floor space fraction”—the ratio of square footage in low-income units to total square footage. 26
U.S.C. § 42(c). The qualified basis is then multiplied by the value of the tax credits—these are roughly either 9% or
4%—to determine the total annual value of the tax credits.
133
In addition to the costs of materials, construction, and/or rehabilitation, among the costs included in determining
qualified basis are: contractor fees, developer fees, engineering fees and the cost of drawing up architectural
specifications. Among the costs that are not included are the cost of land and fees associated with long-term financing.
See Joseph Guggenheim, Tax Credits for Low Income Housing (Glen Echo, MD: Simon Publications, 1996) p. 37.
134
See HUD website, “Calculating the Qualified Basis,” http://www.hud.gov/offices/cpd/affordablehousing/training/
web/lihtc/calculating/qualifiedbasis.cfm.
135
26 C.F.R. § 1.42-16.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
Program,136 Rent Supplement and Rental Assistance Payments programs,137 and the Shelter Plus
Care and Single Room Occupancy programs.138 Despite language in the Homeownership and
Economic Opportunity Act of 2000 indicating that Congress intended Section 811 (and Section
202) assistance to be included in calculating qualified basis (rather than subtracted from it), the
IRS has not issued a ruling that would be necessary to make this possible. 139
Another possible limitation in developing mixed finance projects using federal grants such as
Section 811 together with the LIHTC was removed with passage of the Housing and Economic
Recovery Act of 2008 (P.L. 110-289). Under LIHTC law, developers may qualify for tax credits
worth roughly 9% or 4%.140 Under previous LIHTC law, the higher 9% credit was available for
new construction that was not federally subsidized, while the 4% credit was available for either
federally subsidized new construction or existing buildings. The statutory definition of “federally
subsidized” included below market federal loans (the structure used by limited partnerships to
loan Section 811 capital grants).141 The fact that developers of federally subsidized buildings did
not qualify for the higher tax credit made financing projects with the LIHTC less lucrative.
Developers either had to accept the lower, 4% credit, or to set up a system through which federal
grants were loaned to the project at a market rate of interest.142
However, P.L. 110-289 removed the phrase “below market federal loans” from the definition of
federal subsidy in the LIHTC statute. This makes all federally subsidized new construction placed
in service after the effective date of P.L. 110-289 eligible for 9% tax credits. The 9% credits are
very competitive, 143 however, and it may still be difficult for Section 811 developers to obtain
them.
Housing Need for Persons with Disabilities
According to both advocates for persons with disabilities and HUD, persons with disabilities have
a need for affordable housing. Since 1991, HUD has regularly released reports (11 to date) on the
136
Rev. Rul. 2008-6.
Rev. Rul. 2002-65.
138
Rev. Rul. 98-49.
137
139
P.L. 106-569 amended the Section 811 statute to state that “[n]otwithstanding any other provision of law, assistance
amounts provided under this section may be treated as amounts not derived from a Federal grant.” See Section 842. On
September 17, 2003, the IRS issued a letter stating that it was reviewing the applicability of the LIHTC section of
federal grants to PRAC under the Section 202 program. The letter is available at http://www.irs.gov/pub/irs-wd/040061.pdf.
140
These credit rates are not set exactly at 9% and 4%—they vary depending on the current interest rate used in the
Department of the Treasury credit rate formula. For more information about this issue, see CRS Report RS22917, The
Low-Income Housing Tax Credit Program: The Fixed Subsidy and Variable Rate, by Mark P. Keightley.
141
The statute also specifically exempted funds received under CDBG, HOME, and Native American Housing and Self
Determination Act programs from the definition of federally subsidized, so those projects have been eligible for the 9%
credit all along.
142
See U.S. Department of Housing and Urban Development, “Mixed Finance Development for Supportive Housing
for the Elderly or Persons with Disabilities: Final Rule,” Federal Register vol. 70, no. 176, September 13, 2005, p.
54202.
143
See, for example, Liz Enochs, “Affordable Housing Equity: Developers Share Tips for Converting Projects That
Fail to Win 9% LIHTCs into 4% Deals,” Affordable Housing Finance, July 2007, http://www.housingfinance.com/ahf/
articles/2007/jul/AFFORDABLE0707.htm.
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worst case needs for affordable housing in the United States.144 HUD defines households with
worst case housing needs as very low-income renter households (those households with incomes
at or below 50% of area median income) that do not receive rental assistance and either (1) pay
more than half their income toward rent, or (2) live in severely substandard housing.145
Substandard housing is measured using the American Housing Survey definition of housing with
severe physical problems. These are varying degrees of problems with plumbing, heating,
electrical wiring, and upkeep of the physical unit or public areas.146 Using data from the 2005
American Housing Survey, in its most recent report—Affordable Housing Needs 2007—HUD
found that 5.91 million households had worst case housing needs, a decrease from 5.99 million
households that had worst case needs in 2005 (the decrease was not statistically significant).147
This represented a decrease from 5.50% of all U.S. households to 5.33% of all households.148
Prior to 2007, worst case needs had been increasing. In 2001, 5.01 million renter households had
worst case needs (representing 4.76% of all households), and in 2003, 5.18 million renter
households (4.89% of all households) had worst case needs.
The Affordable Housing Needs 2007 report also included an estimate of the number of persons
with disabilities who have worst case housing needs. Because disability status is not reported in
the American Housing Survey, HUD used four sources of income as proxies to estimate
households where a non-elderly adult member has a disability. These four proxies were receipt of
(1) Social Security and Railroad Retirement Benefits, (2) Supplemental Security Income (SSI),
(3) public assistance such as welfare, and (4) worker’s compensation or other disability payment.
Using these income sources as proxies, HUD estimated the number of households having a nonelderly adult member with a disability in two different categories: those households with children,
and those without children. Of very low-income households without children and an adult with a
disability, HUD reported that 602,000 had worst case housing needs.149 Of those very low-income
households with children and an adult with a disability, an estimated 404,000 had worst case
housing needs (or about 1.01 million households overall). These households represented 17.0% of
all households with worst case housing needs. 150 In the Affordable Housing Needs 2005 report,
the total number of households with worst case housing needs had been 1.06 million (694,000
without children and 365,000 with children, respectively); this represented 17.7% of all
households with worst case housing needs.151 The Affordable Housing Needs 2005 report noted
that it likely underestimates the need for housing among persons with disabilities. 152 This is due to
the fact that homeowners, homeless persons, and persons living in institutions (many of whom
may have disabilities) are not part of the worst case needs calculation.
144
For the most recent report, see David L. Hardiman, Carolyn Lynch, and Marge Martin, et al., Worst Case Housing
Needs 2007, U.S. Department of Housing and Urban Development, May 2010, http://www.huduser.org/Publications/
pdf/worstcase_HsgNeeds07.pdf (hereinafter Affordable Housing Needs 2007).
145
HUD developed the definition using preference rules for admission to assisted housing. See Affordable Housing
Needs 2007, p. 1.
146
For more information, see Affordable Housing Needs 2007, p. 86.
147
Ibid., p. 2.
148
Ibid., p. 9.
149
Ibid., pp. 14-15.
150
Ibid., p. 15.
151
U.S. Department of Housing and Urban Development, Housing Needs of Persons with Disabilities: Supplemental
Findings to the Affordable Housing Needs 2005 Report, February 2008, http://www.huduser.org/Publications/pdf/
Affhsgneedsdis.pdf.
152
Ibid., pp. 1-2.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
In 2008, the Consortium for Citizens with Disabilities (CCD) Housing Task Force, a coalition of
groups that advocates for persons with disabilities, published its own analysis of worst case
housing needs for persons with disabilities. 153 The CCD report, whose author had been an author
on previous HUD Affordable Housing Needs reports, differed from the HUD methodology in that
it used as an adjustment factor data on persons with disabilities from two other surveys, the
Survey of Income and Program Participation and the National Health Interview Survey.
According to the CCD report, these two surveys ask more questions about disability than the
American Housing Survey. Using these adjusted data, the CCD report estimated that between 1.3
and 1.4 million very low-income households without children and a non-elderly adult with a
disability had worst case housing needs, while between 840,000 and 960,000 households with
children and a non-elderly adult with a disability had worst case housing needs. 154
Homeless Persons with Disabilities
Although homelessness in the United States has always existed, it became a more prevalent
phenomenon in the 1970s and 1980s, when the homeless population began to grow and become
more visible to the general public. Explanations for the growth in homelessness include the
demolition of skid rows,155 the decreased availability of affordable housing generally, the reduced
need for seasonal unskilled labor, the reduced likelihood that relatives will accommodate
homeless family members, the decreased value of public benefits, and changed admissions
standards at mental hospitals.156
Early in the current decade, attention was again turned to homeless individuals, this time to those
persons who experience so-called “chronic homelessness,” when President Bush announced an
initiative to end chronic homelessness within ten years. In the late 1990s, researchers identified
chronically homeless individuals as those who have a disability (including those who suffer from
mental illness and/or substance abuse disorders) and who have been homeless for long periods of
time. 157 According to HUD, a person is chronically homeless if they have been continuously
homeless for one year or have experienced four episodes of homelessness in the past three
years.158 In 2008, HUD estimated that 19% of the total homeless population would be considered
chronically homeless. 159 Rates of mental health problems are estimated to exist in more than 60%
of chronically homeless individuals, and more than 80% of individuals are estimated to have
153
Kathryn P. Nelson, The Hidden Housing Crisis: Worst Case Housing Needs Among Adults with Disabilities,
Consortium for Citizens with Disabilities Housing Task Force, March 2008, http://www.tacinc.org/downloads/
HiddenHousCrisis.pdf.
154
Ibid.
155
Peter H. Rossi, Down and Out in America: The Origins of Homelessness (Chicago: The University of Chicago
Press, 1989), p. 33.
156
Ibid., pp. 181-194, 41. See, also, Martha Burt, Over the Edge: The Growth of Homelessness in the 1980s (New
York: Russell Sage Foundation, 1992), pp. 31-126.
157
See Randall Kuhn and Dennis P. Culhane, “Applying Cluster Analysis to Test a Typology of Homelessness by
Pattern of Shelter Utilization: Results from the Analysis of Administrative Data,” American Journal of Community
Psychology 26, no. 2 (April 1998): 210-212.
158
24 C.F.R. § 91.5.
159
U.S. Department of Housing and Urban Development, The Fourth Annual Homeless Assessment Report to
Congress, July 2009, p. 15, http://www.hudhre.info/documents/4thHomelessAssessmentReport.pdf.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
alcohol or drug problems.160 Medical problems, including HIV/AIDS, are also prevalent among
chronically homeless individuals. 161
Communities across the country have addressed chronic homelessness through a strategy called
“housing first,” in which permanent supportive housing is found for homeless individuals prior to
treatment of their illnesses and addictions. HUD makes funds available through its Homeless
Assistance Grants for the construction or rehabilitation of new permanent supportive housing for
chronically homeless individuals. 162 In the first five years after the announcement of President
Bush’s initiative to end chronic homelessness, through 2007, an estimated 65,000 to 72,000 units
of new permanent supportive housing were added to the stock of housing available for homeless
individuals with disabilities.163
Section 8 Vouchers and the Money Follows the
Person Demonstration
Money Follows the Person (MFP) is a demonstration program created in 2005 as part of the
Deficit Reduction Act (P.L. 109-171) and administered by the Department of Health and Human
Services (HHS). The purpose of MFP is to give states the flexibility to use Medicaid funds to
transition elderly people and persons with disabilities from institutional settings such as nursing
homes to home- and community-based care. MFP awards were announced in 2007—in January
of that year, 17 states were awarded funds, and in May additional awards were announced for 13
states plus the District of Columbia. 164 As of January 2009, grantee states planned to transition
approximately 34,000 individuals from institutional care to the community. 165
In general, MFP funds may be used to pay for services once individuals have transitioned from
institutional care to the community. However, the statute allows grantees to use funds for certain
160
Carol L. M. Caton, Carol Wilkins, and Jacquelyn Anderson, People Who Experience Long-Term Homelessness:
Characteristics and Intervention, 2007 National Symposium on Homelessness Research, September 2007, p. 4-4,
http://www.huduser.org/publications/pdf/p4.pdf.
161
See, for example, D.P. Culhane, E. Gollub, R. Kuhn, and M. Shpaner, “The Co-Occurrence of AIDS and
Homelessness: Results from the Integration of Administrative Databases for AIDS Surveillance, and Public Shelter
Utilization in Philadelphia,” Journal of Epidemiology and Community Health 55, no. 7 (2001): 515-520. Marjorie
Robertson, et al., “HIV Seroprevalence Among Homeless and Marginally Housed Adults in San Francisco,” American
Journal of Public Health 94, no. 7 (2004): 1207-1217. Angela A. Aidala and Gunjeong Lee, Housing Services and
Housing Stability Among Persons Living with HIV/AIDS, Joseph L. Mailman School of Public Health, May 30, 2000,
http://www.nyhiv.org/pdfs/chain/CHAIN%20Housing%20Stability%2032.pdf.
162
For more information about these grants, see CRS Report RL33764, The HUD Homeless Assistance Grants:
Distribution of Funds, by Libby Perl.
163
Dennis P. Culhane and Thomas Byrne, Ending Chronic Homelessness: Cost-Effective Opportunities for Interagency
Collaboration, A White Paper commissioned by the New York State Office of Mental Health and the New York City
Department of Homeless Services, March 2010, p. 8, http://works.bepress.com/cgi/viewcontent.cgi?article=1093&
context=dennis_culhane.
164
U.S. Department of Health and Human Services, Money Follows the Person Award Summary, June 1, 2007,
http://www.cms.hhs.gov/DeficitReductionAct/Downloads/MFP_FactSheet.pdf. Since the award announcement, South
Carolina has withdrawn from the demonstration.
165
Debra J. Lipson and Susan R. Williams, Implications of State Program Features for Attaining MFP Transition
Goals, The National Evaluation of the MFP Demonstration Grant Program, Reports from the Field, Number 2, June
2009, p. 9, http://www.cms.hhs.gov/DeficitReductionAct/Downloads/MFPfieldrpt2.pdf (hereinafter Implications of
State Program Features for Attaining MFP Transition Goals).
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supplemental services to help an individual make the transition. 166 These supplemental services
could include housing-related services such as housing or vehicle modifications to make them
suitable for MFP participants, security and utility deposits, basic furnishings and groceries, and
other housing-related transitional planning activities. 167 Some states are also using MFP funds as
a bridge subsidy to pay for rent until participants qualify for HUD-assisted housing or to
encourage developers to set aside units for MFP participants.168 These supplemental services may
be funded through MFP during the first 12 months of the demonstration.
Despite the availability of supplemental services for housing, one of the difficulties with
transition programs such as MFP is funding permanent housing for those individuals who are
leaving institutions. According to a report regarding MFP, “[t]he ability to find and secure
affordable, accessible housing is a key determinant of successful transition programs—as well as
the most frequently cited barrier.”169 Shortly after MFP was enacted, then-HUD Secretary
Alphonso Jackson issued a letter to Public Housing Authority (PHA) directors encouraging them
to use their resources to work with state Medicaid offices to provide housing options for those
involved with MFP.170
HUD is making a portion of the FY2009-funded Section 8 vouchers for persons with disabilities
available to individuals participating in MFP or similar programs. On April 7, 2010, HUD
released a NOFA for these FY2009 vouchers in which it stated that approximately 1,000 vouchers
will be available to non-elderly individuals with disabilities who are leaving institutions and
moving into the community. 171 (Another 4,300 vouchers were distributed to PHAs for non-elderly
persons with disabilities generally.172) In applying for the vouchers, PHAs in those states with
MFP grants will only need to show that the relevant agency is participating in MFP. PHAs in
states that were not awarded MFP grants still have the option of applying for vouchers. PHAs in
those states must partner with state Health and Human Services or Medicaid offices to provide
services to Section 8 voucher recipients.173
166
U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, Funding Opportunity
Announcement for Money Follows the Person Rebalancing Demonstration, July 26, 2006, p. 14,
http://www.cms.hhs.gov/NewFreedomInitiative/downloads/MFP_2007_Announcement.pdf.
167
Ibid., Appendix C.
168
Implications of State Program Features for Attaining MFP Transition Goals, pp. 4-5.
169
Ibid, p. 4.
170
A copy of the letter is available on the HHS website, http://www.cms.hhs.gov/DeficitReductionAct/Downloads/
MFP_PHALetterSigned.pdf.
171
For the funding announcement, see U.S Department of Housing and Urban Development, “Notice of Funding
Availability (NOFA) for HUD’s FY2009 Rental Assistance for Non-Elderly Persons with Disabilities,” 75 Federal
Register 18874, April 13, 2010. The detailed NOFA is available at http://portal.hud.gov/portal/page/portal/HUD/
program_offices/administration/grants/fundsavail/nednofa.pdf (hereinafter FY2009 MFP NOFA).
172
For recipients, see U.S. Department of Housing and Urban Development, “HUD Provides Rental Assistance to
4,300 Persons with Disabilities,” press release, October 1, 2010, http://portal.hud.gov/portal/page/portal/HUD/press/
press_releases_media_advisories/2010/HUDNo.10-214. Originally, 3,000 non-MFP vouchers for persons with
disabilities were to be made available. However, funds remaining from the FY2008 appropriation for vouchers for
persons with disabilities increased the FY2009 voucher allotment to 4,300. U.S. Department of Housing and Urban
Development, “Proposed Notice of Funding Availability for FY2009 Rental Assistance for Non-Elderly Persons with
Disabilities,” 74 Federal Register 29504, June 22, 2009.
173
FY2009 MFP NOFA, p. 10.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
Legislation
The Frank Melville Supportive Housing Investment Act
(H.R. 1675 and S. 1481)
Similar bills to amend the Section 811 program, both called the Frank Melville Supportive
Housing Investment Act, have been introduced in the 111th Congress. The version in the House
(H.R. 1675) was passed by the full House on July 22, 2009, while the version introduced in the
Senate (S. 1481) was ordered reported by the Senate Banking Committee on September 30, 2010.
Both H.R. 1675 and S. 1481 would make a number of changes to the Section 811 program. One
of these would be to eliminate the funding of tenant-based rental assistance through the Section
811 program account. Advocates for persons with disabilities contend that Section 811 vouchers
are poorly targeted and may not always be used to serve households with disabilities.174 Instead,
existing and future vouchers would be funded through the Section 8 account. The two bills would
authorize sufficient Section 8 funds to support the number of Section 811 vouchers that were
funded in FY2009 (H.R. 1675) and FY2010 (S. 1481). H.R. 1675 and S. 1481 would also codify
the requirement that Congress has inserted in recent appropriations acts requiring vouchers for
persons with disabilities to be turned over to households where an adult member has a disability
when the current voucher holders give them up. This requirement would also extend to any
Section 8 vouchers for persons with disabilities that are currently funded or that may be funded in
the future.
Another proposed change under H.R. 1675 and S. 1481 would reduce the concentration of
persons with disabilities living in Section 811-funded housing by limiting the number of units in
multifamily housing developed with Section 811 capital grants to 25% of the total units in the
building. Due to the need to finance the remaining 75% of units, this limitation would also
encourage developers to use other funding sources, such as the Low Income Housing Tax Credit
(LIHTC) and HOME program, to supplement the Section 811 funding. This 25% limitation
would not apply to group homes or independent living facilities. Both bills would adopt
development cost limits per unit that are used in the HOME program (currently, development cost
limits are set separately for Section 811 units, together with Section 202). HUD sets base
development cost limits every year for its housing production programs—limits are set for
elevator and non-elevator buildings and are based on the number of bedrooms per unit.175 The
HOME limits could be waived to account for special design features for persons with disabilities
or to allow properties to be built near services and transportation.
In cases where grantees combine Section 811 capital grants with funding from other sources, such
as LIHTCs and HOME, for the development of multifamily housing, H.R. 1675 and S. 1481
would delegate the review and processing of the project to state or local housing finance agencies
174
See, for example, Written Statement of Ann O’Hara, Consortium for Citizens with Disabilities Housing Task Force,
for the hearing before the House Financial Services Committee, Subcommittee on Housing and Community
Opportunity, H.R. 5772, The Frank Melville Supportive Housing Investment Act of 2008, 110th Cong., 2nd sess., June
20, 2008, http://financialservices.house.gov/hearing110/o%27hara062008.pdf.
175
HOME uses the “maximum per unit subsidy amount” under Section 221(d)(3)(ii) of the National Housing Act (42
U.S.C. § 12742(e)). For calendar year 2010, see U.S. Department of Housing and Urban Development, “Annual
Indexing of Basic Statutory Mortgage Limits for Multifamily Housing Programs,” 75 Federal Register 5800, February
4, 2010. The development cost limits for Section 811 are published in the annual NOFA.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
(HFAs) rather than HUD. Because HFAs are the agencies that administer tax credits, delegating
the processing of the Section 811 capital grant to the HFA, together with the tax credit, is thought
to be more efficient. This provision is similar to one that was enacted regarding the Section 202
Supportive Housing for the Elderly Program. The Housing and Economic Recovery Act of 2008
(P.L. 110-289) included a provision to direct HUD to delegate to state HFAs the ability to process
Section 202 capital grants when developers also intend to use other funding sources.
H.R. 1675 and S. 1481 would also create a Project Rental Assistance-Only Competitive
Demonstration Program to encourage mixed finance developments where rental units for persons
with disabilities would be interspersed with units for non-disabled households. The rental
assistance awarded through the demonstration program, instead of subsidizing units developed
through Section 811 capital grants, would be used to subsidize units of housing developed
through LIHTCs, the HOME program, or projects developed with government funds from other
sources. Under the demonstration program, only extremely low-income persons with disabilities
would be eligible for the assisted units (those with incomes at or below 30% of area median
income) and no more than 25% of units in LIHTC and HOME developments would be allowed to
be set-aside for those households. The initial term of the rental assistance would be 15 years, with
funding provided pursuant to five-year contracts. Recipients of rental assistance would be
required to operate the rent-assisted units for at least 30 years as supportive housing for persons
with disabilities.
The two bills also would amend the definition of “person with disabilities” in the Section 811
program to include a person who meets the Social Security Act definition of disability. As noted
earlier in this report, the current Section 811 definition does not reference the Social Security
definition. In addition, H.R. 1675 and S. 1481 would expand the Section 811 definition to include
those individuals who are living with HIV/AIDS consistent with the Public Housing and Section
8 programs. (See the Appendix.) Current Section 811 regulations state that a “person whose sole
impairment is a diagnosis of HIV positive ... (i.e. does not meet the qualifying criteria in [the
statute]) will not be eligible for occupancy in a section 811 project.” The proposed language
would instead state that the term person with disabilities “shall not exclude persons who have the
disease of acquired immunodeficiency syndrome or any conditions arising from the etiologic
agent for acquired immunodeficiency syndrome.” H.R. 1675 and S. 1481 also would make clear
that persons age 62 and older may not be considered a “person with disabilities” for purposes of
the Section 811 program.
HUD Draft Legislation
The HUD budget for FY2011 proposed a number of changes to the Section 811 program. In
September 2011, some of the changes were incorporated into draft legislation that HUD posted on
its website.176 The draft bill has some similarities to H.R. 1675 and S. 1481. For example, the
HUD draft would only allow 25% of multifamily housing units to be dedicated to persons with
disabilities, and it would also no longer fund Section 811 vouchers through the Section 811
account. Unlike H.R. 1675 and S. 1481, however, the HUD draft would explicitly refer to the
Section 811 capital grants as “gap financing.” In addition, the HUD draft legislation would fund
all rental assistance through the Section 8 account, using tenant-based vouchers instead of Section
811 vouchers, and project-based Section 8 contracts and/or vouchers instead of Section 811
176
The draft bill, as well as a summary, are on the HUD website at http://www.hud.gov/offices/hsg/mfh/202811/
sec811reform.cfm.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
PRAC. Note that in addition, the HUD legislation assumes that the Section 8 assistance programs
would be amended by the Preservation, Enhancement, and Transforming Rental Assistance Act of
2010 (PETRA). According to the President’s budget documents, PETRA is designed to streamline
HUD’s multiple rental assistance programs and increase residential mobility options for HUDassisted tenants.
Unlike H.R. 1675 and S. 1481, the HUD draft legislation does not propose a rental assistanceonly demonstration program, but, as with the demonstration, the bill would allow rental assistance
to be used for housing units that were developed with funds other than Section 811 capital grants.
Another difference is that HUD’s draft legislation would expand the type of entities eligible to
apply for Section 811 gap financing to include local governments and PHAs.
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Appendix. Definitions of Disability Applicable to HUD Housing Programs
Table A-1.Definitions of Disability Applicable to HUD Housing Programs
Provision
Section 811
Section 8 and Public Housing
Section 202 Loan Program
Mental, Physical,
or Emotional
Impairment
A physical, mental, or emotional impairment that is (1)
expected to be of long-continued and indefinite duration, (2)
substantially impedes a person’s ability to live independently,
and (3) could be improved by more suitable housing
conditions.
Same
Same
Chronic Mental Illness
A severe and persistent mental or emotional impairment.
No Provision
Same as Section 811
Developmental
Disability
A severe, chronic disability that (1) is attributable to a mental
or physical impairment or a combination of mental or physical
impairments, (2) manifests before age 22, (3) is likely to
continue indefinitely, and (4) results in substantial functional
limitations in three or more major life activities.
Same
Same
Social Security
Definition
No provision
Inability to engage in substantial gainful
activity by reason of a physical or mental
impairment that can be expected to
result in death or to last for not less
than 12 months.
No Provision
HIV/AIDS Status
“A person infected with the human acquired immunodeficiency
virus (HIV)” if they meet the definition of “person with
disabilities” in the statute. “A person whose sole impairment is
a diagnosis of HIV positive ... (i.e. does not meet the
qualifying criteria in [the statute]) will not be eligible for
occupancy in a Section 811 project.”
The term person with disabilities “shall
not exclude persons who have the
disease of acquired immunodeficiency
syndrome or any conditions arising from
the etiologic agent...”
“Persons infected with the human
acquired immunodeficiency virus (HIV)
who are disabled as a result of infection
with the HIV are eligible for occupancy in
Section 202 projects ...”
Drug and/or
Alcohol Addiction
“A person whose sole impairment is a diagnosis of ...
alcoholism or drug addiction ... will not be eligible for
occupancy in a Section 811 project.”
Substantially the same
Substantially the same
Source: 42 U.S.C. § 4013(k)(2) and 24 C.F.R. § 891.305 (Section 811); 42 U.S.C. § 1437a(b)(3)(E) and 24 C.F.R. § 5.403 (Section 8 and Public Housing); and 24 C.F.R. § 891.505
(Section 202).
CRS-33
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
Author Contact Information
Libby Perl
Specialist in Housing Policy
eperl@crs.loc.gov, 7-7806
Congressional Research Service
34Project Rental Assistance Demonstration Program
As part of P.L. 111-374, enacted at the end of the 111th Congress, the Section 811 program was
changed to allow rental assistance funds to be used to assist multifamily housing units developed
using other, non-Section 811 sources of funding such as LIHTCs, HOME, or other public or
private sources. Properties may be new or existing, but the Section 811 rental funding may not be
used to support units already dedicated to persons with disabilities, units that received Section 8
assistance in the previous six months, or units designated for elderly residents. No more than 25%
of units in any development may receive rental assistance, nor may more than 25% of units be set
aside for persons with disabilities whether the units receive a rental subsidy or not. Recipients of
rental assistance are required to operate the rent-assisted units for at least 30 years as supportive
housing for persons with disabilities. HUD refers to this model as the Project Rental Assistance
Demonstration.
On May 15, 2012, HUD released a Notice of Funding Availability for the Project Rental
Assistance Demonstration using funds appropriated in FY2012.84 In addition to the differences in
capital funding and the percentage of units dedicated to individuals with disabilities, there are
several other requirements that differ from the original Section 811 program.
•
Eligible applicants are state agencies that administer Low Income Housing Tax
Credits or the HOME Investment Partnership program. Unlike Section 811
capital grants, nonprofit organizations are not eligible applicants for funding.
However, state agencies may partner with public or private entities that have
experience in administering rental assistance contracts, such as Public Housing
Authorities, or private contractors.85
•
Grantees must administer the funds to provide rental assistance to extremely lowincome, non-elderly persons with disabilities (those with income at or below 30%
of area median income). Units developed with Section 811 capital grants are
available to residents who are low-income (those with income at or below 50%
of area median income).
82
Ibid., p. 13.
Ibid., pp. 38-39.
84
U.S. Department of Housing and Urban Development, FY2012 Notice of Funding Availability (NOFA) for Section
811 Project Rental Assistance Demonstration Program, May 15, 2012, http://portal.hud.gov/huddoc/
2012sec811prademonofa.pdf.
85
Ibid., p. 7.
83
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
•
Applicants must establish a partnership with both the state health and human
services agency as well as the state agency that administers Medicaid (this may
be the same agency in some states) with the goal of delivering services and
supports to residents.
There may only be one application for each state health and human services and Medicaid
agency, effectively limiting the program to one application per state. Resident participation in
services is voluntary.
The rental assistance contract between the state grantee and the property owner will be for at least
20 years. Funding is provided for the first five years, with the subsequent years subject to
appropriation.86 HUD expects to distribute $85 million to between 9 and 16 grantees, and will
award no more than one grant per state.87
Tenant-Based Rental Assistance for Persons
with Disabilities
Tenant-based rental assistance allows individuals and families to find rental housing on the
private market rather than in specific housing developments (i.e., the rental assistance goes with
the tenant rather than being tied to a specific housing unit). Rental assistance is provided in the
form of a voucher, through which HUD pays a portion of a tenant’s rent to landlords who are
willing to accept the vouchers (federal law does not require landlords to accept vouchers) and
whose units meet HUD’s housing quality standards. The tenant-based Section 8 rental assistance
program is the primary way in which HUD provides tenant-based rental assistance, although
tenant-based assistance has been made available through other programs, including Section 811.88
In voucher programs, tenants with vouchers pay between 30% and 40% of their income toward
rent and HUD pays the difference between the family’s contribution and the rent for the unit,
subject to certain limits.89
Both Section 811 and Section 8 have provided tenant-based rental assistance to persons with
disabilities over the years. However, due to a change in law made by the Frank Melville
Supportive Housing Investment Act (P.L. 111-374), all vouchers that were originally funded
through the Section 811 program are now funded through the tenant-based Section 8 rental
assistance account instead. This section of the report describes Section 811 vouchers for persons
with disabilities, Section 8 vouchers for persons with disabilities, and a collaboration in which
Section 8 vouchers are used in conjunction with the Medicaid-funded demonstration program
called “Money Follows the Person,” in which vouchers have been set aside to help persons with
disabilities who are transitioning from nursing homes into the community.
86
Ibid., p. 9.
Ibid.
88
For example, HUD’s Shelter Plus Care and Supportive Housing Programs make tenant-based rental assistance
available for homeless individuals. For more information about these programs see CRS Report RL33764, The HUD
Homeless Assistance Grants: Current Operation and HEARTH Act Changes, by Libby Perl.
89
The 40% cap on a tenant’s contribution is in effect only for the first year. After the first year, if rent increases and the
family wishes to continue to live in the unit, then the family can choose to contribute more than 40% of its income
toward rent.
87
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
Section 811 Mainstream Vouchers
The Housing and Community Development Act of 1992 (P.L. 102-550) made tenant-based rental
assistance part of the Section 811 program by authorizing the use of vouchers for eligible
households.90 The vouchers, sometimes referred to as “mainstream vouchers,” are administered
using the same rules that govern the Section 8 voucher program. Unlike Section 8 vouchers,
however, when the vouchers were created, they were funded through the Section 811 account for
initial five-year terms (Section 8 vouchers are funded on an annual basis), though their funding
has now been absorbed into the Section 8 account.
The first year in which Congress set aside funding for Section 811 mainstream vouchers was
FY1997. The HUD Appropriations Act for that year (P.L. 104-204) specified that HUD could use
up to 25% of the amount appropriated for the Section 811 program for five-year vouchers. In the
first two years that the Section 811 vouchers were distributed, only public housing authorities
(PHAs) could administer the vouchers, but beginning in FY1999, private nonprofit organizations
were eligible to apply to administer them.91 The last year in which Congress funded new vouchers
was FY2006.92
HUD made Section 811 vouchers available through an annual Notice of Funding Availability
(NOFA) process through which PHAs and private nonprofit organizations interested in
administering the vouchers applied to HUD. Applicants were scored based on a number of
factors, which included the number of persons with disabilities at or below poverty in the area to
be served by the applicant as well as the existence of agreements with organizations that would
provide supportive services to voucher holders.93 Since 2005, HUD required voucher
administrators (PHAs and private nonprofit organizations) to help persons with disabilities who
have Section 811 vouchers to obtain supportive services if they request them, as well as to
provide technical assistance to landlords in making reasonable accommodations or reasonable
modifications.94 As of 2010, HUD reported that Section 811 vouchers totaled 13,980.95
In 2011, the funding source for Section 811 vouchers changed from the Section 811 account to
the Section 8 tenant-based rental assistance account. P.L. 111-374 provided that new Section 811
tenant-based assistance would be funded via the Section 8 account, and it authorized
appropriations to the Section 8 account sufficient to convert existing vouchers to Section 8
assistance. In FY2011, funding to renew existing Section 811 vouchers was split between the
Section 811 and tenant-based Section 8 accounts (P.L. 112-10), and in FY2012 all funding to
90
42 U.S.C. §8103(d)(4).
U.S. Department of Housing and Urban Development, “Mainstream Housing Opportunities for Persons with
Disabilities FY1999 Funding Availability,” Federal Register, vol. 64, no. 44, March 8, 1999, p. 11303.
92
U.S. Department of Housing and Urban Development, Congressional Justifications for 2009 Estimates, p. C-5,
http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_11899.pdf.
93
For more information on criteria used to select applicants, see, for example, U.S. Department of Housing and Urban
Development, “Notice of Funding Availability for FY2005 Mainstream Housing Opportunities for Persons with
Disabilities Program,” Federal Register, vol. 70, no. 211, November 2, 2005, pp. 66730-66732.
94
See Department of Housing and Urban Development Notice PIH-2005-5, “New Freedom Initiative, Executive Order
13217: ‘Community-Based Alternatives for Individuals with Disabilities,’ and the Housing Choice Voucher Program,”
February 1, 2005, http://www.hud.gov/offices/adm/hudclips/notices/pih/files/05-5PIHN.doc (hereinafter “HUD Notice
PIH-2005-5”). PIH-2005-5 was extended indefinitely by PIH Letter L-2007-01, http://www.hud.gov/offices/adm/
hudclips/letters/07-1PIHL.doc.
95
HUD FY2010 Agency Financial Report, p. 178.
91
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
renew Section 811 vouchers was provided through the Section 8 account (P.L. 112-55). (See
Table 1.)
Section 8 Vouchers for Persons with Disabilities
In addition to housing vouchers made available through Section 811, HUD has set aside Section 8
vouchers for families with an adult member who has a disability.96 Congress appropriated funds
for Section 8 vouchers for persons with disabilities, sometimes referred to as “designated housing
vouchers” or vouchers for “certain developments,” in response to enactment of the Housing and
Community Development Act of 1992 (P.L. 102-550).97 Provisions in P.L. 102-550 permitted
owners of Public Housing and project-based Section 8 developments where elderly residents and
residents with disabilities lived together to either designate buildings as elderly only or to
prioritize elderly tenants.98 Section 8 owners were given the authority to create a preference for
elderly families in their buildings, though they could not exclude disabled families altogether.
PHAs were given the authority to designate entire buildings as elderly only. Although PHAs
cannot evict tenants with disabilities if a building is designated as elderly only, through attrition a
building may eventually have only elderly residents. These policy changes affected the ability of
tenants with disabilities to live in these developments.
Beginning in FY1997, Congress has appropriated funds for Section 8 vouchers in order to assist
tenants with disabilities who would have been eligible to reside in Section 8 and Public Housing
developments prior to their designation as elderly only or elderly preference. As with Section 811
vouchers, PHAs must assist tenants who request help in finding supportive services, and provide
technical assistance to landlords in providing reasonable accommodations and modifications.
PHAs applied for the designated housing vouchers, which they then provided to eligible tenants.
Congress appropriated funds in each year from FY1997 through FY2002, and then again in
FY2008 and FY2009.99
Turnover of Section 811 and Section 8 Vouchers for Persons with Disabilities
An issue with vouchers targeted to persons with disabilities is whether vouchers, when given up
by current vouchers holders, are turned over to another person with a disability or made available
to all families eligible for tenant-based rental assistance. In the case of Section 811 vouchers, the
NOFAs issued by HUD in FY1997-FY1999 specified that the vouchers should remain available
96
The voucher portion of the Section 8 program was created in 1983 as part of the Supplemental Appropriations Act of
1984 (P.L. 98-181). For more information about the Section 8 program, see CRS Report RL32284, An Overview of the
Section 8 Housing Programs: Housing Choice Vouchers and Project-Based Rental Assistance, by Maggie McCarty.
97
The portion of P.L. 102-550 that addresses Public Housing designation is entitled “Authority for Public Housing
Agencies to Provide Designated Public Housing and Assistance for Disabled Families,” while the portion that
addresses properties with project-based Section 8 assistance is entitled “Authority to Provide Preferences for Elderly
Residents and Units for Disabled Residents in Certain Section 8 Assisted Housing.”
98
See Title VI, Subtitle B of P.L. 102-550 for Public Housing and Title VI, Subtitle D for Section 8. The law also gave
authority to owners of Section 202, Section 221(d)(3), and Section 236 properties to continue to restrict occupancy to
elderly families according to the rules in place at the time the projects were developed (see Section 658).
99
Amounts appropriated from FY1997 through FY2002 were $50 million in FY1997 (P.L. 104-204) and $40 million in
each of FY1998 (P.L. 105-65), FY1999 (P.L. 105-276), FY2000 (P.L. 106-74), FY2001 (P.L. 106-377), and FY2002
(P.L. 107-73). Congress appropriated $30 million for Section 8 vouchers in FY2008 (P.L. 110-161) and $30 million in
FY2009 (P.L. 111-8).
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
to disabled families during the initial funding term of the voucher (five years), but were silent on
who could use the voucher if the original family left the program (either voluntarily or due to
eviction or other non-voluntary reason) after the initial funding period was over. Advocates for
persons with disabilities have pointed out that these vouchers may have been provided to nondisabled households after the original tenant left the program.100 However, in annual
appropriations acts for vouchers funded from FY2005 through FY2011, Congress required that
Section 811 vouchers be made available to disabled families upon turnover.101 Further, in 2004,
HUD began to require that PHAs track the disability status of families using Section 811
vouchers and provide the records to HUD.102 Prior to 2004, HUD did not collect this information.
Unlike Section 811 mainstream vouchers, the appropriations laws for Section 8 designated
housing vouchers for persons with disabilities have specified that the vouchers shall remain
available to other disabled households upon turnover “to the extent practicable [emphasis
added].”103 (According to appropriations law language, Section 811 vouchers must be made
available only to families where an adult member has a disability.) HUD defined the term “to the
extent practicable” to mean that before a voucher can be provided to a non-disabled household,
every eligible non-elderly disabled family on a PHA’s waiting list must have received a voucher,
and that outreach must not have resulted in finding an eligible family.104
The Frank Melville Supportive Housing Investment Act (P.L. 111-374) changed the law in 2011
so that vouchers initially funded through the Section 811 account and Section 8 tenant-based
account will be treated the same. The law amended the Section 811 statute to provide that HUD
develop guidance to ensure that all tenant-based assistance for persons with disabilities, whether
funded initially through the Section 811 or Section 8 accounts, “to the maximum extent possible
... continue to be provided upon turnover to qualified persons with disabilities or to qualified nonelderly disabled families, respectively.”
Section 8 Vouchers and the Money Follows the Person Demonstration
Money Follows the Person (MFP) is a demonstration program created in 2005 as part of the
Deficit Reduction Act (P.L. 109-171) and administered by the Department of Health and Human
Services (HHS). The purpose of MFP is to give states the flexibility to use Medicaid funds to help
elderly people and persons with disabilities transition from institutional settings such as nursing
homes to home- and community-based care. Initial MFP awards were announced in 2007—in
January of that year, 17 states were awarded funds, and in May additional awards were
100
See, for example, the Consortium for Citizens with Disabilities, Letter to Josh B. Bolton, Director of the Office of
Management and Budget, January 14, 2005. “[T]he CCD Housing Task Force believes there is a high likelihood that at
least some of these precious 811 tenant based funds are being used to support non-disabled households.”
101
The first appropriations act to have this requirement was the FY2005 Consolidated Appropriations Act, P.L. 108447.
102
In a notice dated August 5, 2004, HUD noted that mainstream vouchers would be tracked in its data set. See Notice
PIH-2004-13, “Codes for Special Programs Reported on the Family Report,” available at http://www.hud.gov/offices/
adm/hudclips/notices/pih/files/04-13PIHN.doc.
103
The phrase “to the extent practicable” appeared in appropriations laws beginning in FY2003 (P.L. 108-7) through
FY2006 (P.L. 109-115). The FY2007 House-passed HUD appropriations bill (H.R. 5576) also contained this phrase,
but a year-long continuing resolution was enacted in lieu of separate appropriations laws. The FY2008 HUD
Appropriations Act did not contain this phrase, and the FY2009 law stated that “assistance made available under this
paragraph shall continue to remain available for the same population upon turnover.”
104
HUD Notice PIH-2005-5.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
announced for 13 states plus the District of Columbia.105 In 2011, another 13 states began to
participate in the program.106 Persons with disabilities make up most of the MFP participants. Of
those participating in MFP in states reporting data for 2011, 40% were non-elderly persons with a
physical disability, 18% had a developmental or intellectual disability, and another 6% had a
serious mental illness or other condition; 37% of participants were elderly (age 65 and older).107
In general, MFP funds may be used to pay for services once individuals have transitioned from
institutional care to the community. However, the statute allows grantees to use funds for certain
supplemental services to help an individual make the transition.108 These supplemental services
could include housing-related services such as housing or vehicle modifications to make them
suitable for MFP participants, security and utility deposits, basic furnishings and groceries, and
other housing-related transitional planning activities.109 Some states are also using MFP funds as
a bridge subsidy to pay for rent until participants qualify for HUD-assisted housing or to
encourage developers to set aside units for MFP participants.110 These supplemental services may
be funded through MFP during the first 12 months of the demonstration.
Despite the availability of supplemental services for housing, one of the difficulties with
transition programs such as MFP is finding permanent housing for individuals who are leaving
institutions. According to an early report regarding MFP, “[t]he ability to find and secure
affordable, accessible housing is a key determinant of successful transition programs—as well as
the most frequently cited barrier.”111 A more recent report, released in 2012, noted that “MFP
program officials have consistently reported severe shortages of affordable and physically
accessible housing units for those who want to live in” apartments or homes.112
Shortly after MFP was enacted, then-HUD Secretary Alphonso Jackson issued a letter to Public
Housing Authority (PHA) directors encouraging them to use their resources to work with state
Medicaid offices to provide housing options for those involved with MFP.113 HUD made a portion
of the FY2009-funded Section 8 vouchers for persons with disabilities available to individuals
participating in MFP or similar programs. On April 7, 2010, HUD released a NOFA for these
FY2009 vouchers in which it stated that approximately 1,000 vouchers would be available to
105
U.S. Department of Health and Human Services, Money Follows the Person Award Summary, June 1, 2007,
http://www.cms.hhs.gov/DeficitReductionAct/Downloads/MFP_FactSheet.pdf. Since the award announcement, South
Carolina has withdrawn from the demonstration.
106
U.S. Department of Health and Human Services, “Affordable Care Act Supports States in Strengthening
Community Living,” press release, February 22, 2011, http://www.hhs.gov/news/press/2011pres/02/20110222b.html.
107
Carol V. Irvin, Debra Lipson, and Samuel Simon, et al., Money Follows the Person 2011 Annual Evaluation Report,
Mathematica Policy Research, October 31, 2012, p. 6, http://www.mathematica-mpr.com/publications/pdfs/health/
MFP_annual_report_2011.pdf (hereinafter Money Follows the Person 2011 Annual Evaluation Report).
108
U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, Funding Opportunity
Announcement for Money Follows the Person Rebalancing Demonstration, July 26, 2006, p. 14,
http://www.cms.hhs.gov/NewFreedomInitiative/downloads/MFP_2007_Announcement.pdf.
109
Ibid., Appendix C.
110
Debra J. Lipson and Susan R. Williams, Implications of State Program Features for Attaining MFP Transition
Goals, The National Evaluation of the MFP Demonstration Grant Program, Reports from the Field, Number 2, June
2009, pp. 4-5, http://www.cms.hhs.gov/DeficitReductionAct/Downloads/MFPfieldrpt2.pdf.
111
Ibid, p. 4.
112
Money Follows the Person 2011 Annual Evaluation Report, p. 7.
113
A copy of the letter is available on the HHS website, http://www.cms.hhs.gov/DeficitReductionAct/Downloads/
MFP_PHALetterSigned.pdf.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
non-elderly individuals with disabilities who are leaving institutions and moving into the
community.114 (Another 4,300 vouchers were distributed to PHAs for non-elderly persons with
disabilities generally.)115 On January 6, 2011, HUD announced that it had awarded the vouchers
to eligible housing authorities in 15 states.116 According to a 2012 report about the progress of
Money Follows the Person, the availability of housing vouchers, among other housing options,
may have increased the rate at which persons with physical disabilities transition to the
community.117
Other HUD Housing Designated for
Persons with Disabilities
While the Section 811 program is dedicated solely to persons with disabilities, HUD also funds
housing for persons with disabilities through programs that serve all tenant populations, but that
also give project owners the ability to designate buildings to special populations, including
elderly persons and persons with disabilities.118 In addition to housing historically provided
through the Section 202 program (described in the “Evolution of Section 811” section of this
report), property owners that participate in the project-based Section 8 rental assistance program
and Public Housing Authorities (PHAs) that administer the Public Housing program may choose
to designate buildings specifically for elderly residents and residents with disabilities together
(sometimes referred to as “mixed population” developments) or for residents with disabilities
alone.
Public Housing
Public housing is the original federally assisted housing program for low-income families, created
as part of the Housing Act of 1937 (P.L. 75-412).119 The program provides housing for very lowincome households (those with incomes at or below 50% of area median income) and requires
tenants to pay 30% of their income toward rent. The Housing Act of 1956 (P.L. 84-1020)
114
For the funding announcement, see U.S Department of Housing and Urban Development, “Notice of Funding
Availability (NOFA) for HUD’s FY2009 Rental Assistance for Non-Elderly Persons with Disabilities,” 75 Federal
Register 18874, April 13, 2010. The detailed NOFA is available at http://portal.hud.gov/portal/page/portal/HUD/
program_offices/administration/grants/fundsavail/nednofa.pdf (hereinafter, FY2009 MFP NOFA).
115
For recipients, see U.S. Department of Housing and Urban Development, “HUD Provides Rental Assistance to
4,300 Persons with Disabilities,” press release, October 1, 2010, http://portal.hud.gov/portal/page/portal/HUD/press/
press_releases_media_advisories/2010/HUDNo.10-214. Originally, 3,000 non-MFP vouchers for persons with
disabilities were to be made available. However, funds remaining from the FY2008 appropriation for vouchers for
persons with disabilities increased the FY2009 voucher allotment to 4,300. U.S. Department of Housing and Urban
Development, “Proposed Notice of Funding Availability for FY2009 Rental Assistance for Non-Elderly Persons with
Disabilities,” 74 Federal Register 29504, June 22, 2009.
116
U.S. Department of Housing and Urban Development, “HUD, HHS Announce Joint Effort to Assist Nearly 1,000
Non-Elderly Persons With Disabilities To Move From Institutions to Independence,” press release, January 6, 2011,
http://portal.hud.gov/hudportal/HUD?src=/press/press_releases_media_advisories/2011/HUDNo.11-003. The list of
grantees is available at http://portal.hud.gov/hudportal/documents/huddoc?id=rane2_pr2.pdf.
117
Money Follows the Person 2011 Annual Evaluation Report, p. 7.
118
Tenants with disabilities may also live in assisted housing units that are not specifically designated for their use.
119
For more information about Public Housing, see CRS Report R41654, Introduction to Public Housing, by Maggie
McCarty
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
authorized the Public Housing Administration (a predecessor to HUD) to provide units
specifically for low-income elderly individuals.120 The first elderly-only public housing
development was built by 1960.121 Beginning in 1961, the HUD definition of “elderly family”
was amended to include individuals with disabilities of any age.122 Since then, persons with
disabilities have lived in public housing facilities designated for elderly residents (defined as
households where one or more person is age 62 or older).
Public housing developments designated for elderly residents, and where a mixed population of
elderly residents and residents with disabilities live together, have been controversial. During the
early years of public housing for elderly persons, disabled residents made up only a small
proportion of residents. The number of residents with disabilities living in public housing for the
elderly began to increase in the 1980s and early 1990s for at least two reasons. First, individuals
with mental illnesses were less likely to be institutionalized as a result of the availability of
outpatient mental health care, and were therefore in need of affordable housing.123 A second factor
was passage of the 1988 Fair Housing Amendments Act (P.L. 100-430). The amendments added
persons with a “handicap” to the class of individuals protected from discrimination in the
provision of housing. The definition of “handicap” included individuals with alcohol and drug
addictions.124 Following these changes, Public Housing experienced an increase in the number of
younger residents with disabilities, often with mental illnesses and addictions. Along with the
increase, Public Housing Authorities reported a greater number of incidents of disruptive
behavior, and some elderly residents reported feeling unsafe.125
Due to tension between elderly residents and residents with disabilities, in the Housing and
Community Development Act of 1992 (P.L. 102-550) Congress allowed PHAs to designate
buildings or portions of buildings as elderly only, disabled only, or as mixed population
facilities.126 In 1996, The Public Housing Opportunity Extension Act of 1996 (P.L. 104-120)
streamlined the process for designating public housing projects. If a PHA wants to change the
composition of a building to elderly residents only or to residents with disabilities, it must submit
a plan to HUD to ask for approval. If the plan is approved, PHAs cannot evict non-eligible
residents. For example, if a PHA designates a building with a mix of elderly residents and
residents with disabilities as elderly only, tenants with disabilities may not be evicted. If tenants
want to move, however, PHAs may help them relocate. According to HUD data, of the 210 PHAs
with approved designated housing plans, 27 PHAs set aside projects, or portions of projects, for
persons with disabilities, 8 set aside units in developments for elderly residents and residents with
120
Prior to this, HUD’s definition of elderly families did not include single individuals.
Frances Merchant Carp, A Future for the Aged, Victoria Plaza and Its Residents (Austin: University of Texas Press,
1966).
122
The Housing Act of 1961 (P.L. 87-70) made all households in which an adult member has a disability eligible for
public housing. Prior to this, in the Housing Act of 1959 (P.L. 86-372), near-elderly households with an adult member
with a disability were made eligible. Near-elderly households are those with an adult member age 50 and older.
123
See General Accounting Office, Housing Persons with Mental Disabilities with the Elderly, GAO/RCED-92-81,
August 1992, pp. 10-11, http://archive.gao.gov/d33t10/147294.pdf.
124
According to the House Judiciary Committee Report accompanying H.R. 1158, the Fair Housing Amendments Act
of 1988, enacted as P.L. 100-430, the bill used the same definitions and concepts from the Rehabilitation Act of 1973
(P.L. 93-112), which included drug addiction and alcoholism as physical or mental impairments (see 28 CFR §41.31).
However, under P.L. 100-430, handicap does not include “current, illegal use of or addiction to a controlled substance.”
125
Housing Persons with Mental Disabilities with the Elderly, p. 17. See, also, remarks of Representative Peter Blute,
Congressional Record, daily edition, vol. 142 (February 27, 1996), p. H1274.
126
The provisions are codified at 42 U.S.C. §1437e; the regulations are at 24 CFR §§945.101-945.303.
121
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
disabilities together, and 1 PHA did both.127 Of the total PHA plans, 206 set aside projects or
portions of projects for elderly residents only.
Project-Based Section 8 Rental Assistance
Between 1974 and 1983, the Section 8 new construction and substantial rehabilitation program
made rental assistance available to developers that were creating new and rehabilitated rental
housing for low-income families.128 From the inception of the program, owners were able to
develop properties designated for use by elderly residents together with tenants with disabilities.
The Housing and Community Development Act of 1992 (P.L. 102-550) gave owners of properties
designed primarily for occupancy by mixed populations—elderly families together with tenants
with disabilities—the ability to establish a preference for elderly families when selecting
tenants.129 However, unlike Public Housing, most Section 8 properties may not completely
exclude residents with disabilities. The statute requires owners that choose to create a preference
for elderly residents to continue to reserve some units for households where an adult member has
a disability and where the household is not considered elderly or near elderly (defined as at least
50 years old but below the age of 62).130 Specifically, owners are required to set aside the lower of
the number of units occupied by disabled families in 1992131 or 10% of units. If owners are
unable to rent the units reserved for elderly residents to eligible families, they may give a
preference to near elderly families with an adult member who has a disability.132 If owners are
unable to rent units designated for non-elderly and non-near elderly persons with disabilities, they
may rent them to near elderly persons with disabilities.
Housing Financed by Low-Income Housing Tax
Credits and HUD Block Grants
Beginning in the 1980s, the federal government took a less direct role in the development of
affordable housing. At the same time, the production and rehabilitation of housing at the state and
local level began to increase.133 This occurred, in part, due to the enactment of the Low-Income
Housing Tax Credit (LIHTC) and the HOME Investment Partnerships program. These programs
distribute funds to states and localities for the production of affordable housing. States and
localities may, in turn, decide to target a portion of the funds from these programs to develop
affordable housing for persons with disabilities. This section of the report describes the LIHTC
127
CRS derived these numbers from HUD’s Designated Housing Status Report, http://portal.hud.gov/hudportal/
documents/huddoc?id=DOC_25867.xls, downloaded January 17, 2012.
128
The new construction and substantial rehabilitation program was created in P.L. 93-383; authority to enter into new
contracts was suspended in P.L. 98-181. For more information on Section 8 housing, see CRS Report RL32284, An
Overview of the Section 8 Housing Programs: Housing Choice Vouchers and Project-Based Rental Assistance, by
Maggie McCarty.
129
The provisions are codified at 42 U.S.C. §§13611-13620.
130
42 U.S.C. §1437a(b)(3).
131
Specifically, the statute refers to the higher of the number of units occupied by individuals or families with
disabilities on either October 28, 1992 or January 1, 1992. 42 U.S.C. §13612(b).
132
42 U.S.C. §13613.
133
For more background on the evolution of federal housing assistance policy, see CRS Report RL34591, Overview of
Federal Housing Assistance Programs and Policy, by Maggie McCarty et al.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
and the HOME program, as well as the Community Development Block Grant (CDBG), a
program created in 1974 to assist states and localities with economic development, including
housing activities that benefit low- and moderate-income households.
The Low-Income Housing Tax Credit
The Low-Income Housing Tax Credit (LIHTC) was enacted as part of the Tax Reform Act of
1986 (P.L. 99-514). The program provides incentives for the development of affordable rental
housing through federal tax credits administered by the Internal Revenue Service (IRS). The IRS
allocates tax credits to states based on population, and states award the credits to developers to
use as a source of financing for the development of affordable rental housing.134
The states, generally through their state housing finance agencies (HFAs), award the tax credits to
housing developers through a competitive process that is based on state priorities as set out
annually in their Qualified Allocation Plan (QAP). Developers may either retain the credits
themselves or sell them in exchange for equity to fund a housing development. Developers of
LIHTC-financed housing must ensure that at least 40% of the units are affordable to households
with incomes at or below 60% of the area median income, or that at least 20% of units are
affordable to households with incomes at or below 50% of the area median income.135 The
projects must remain affordable for at least 15 years, although there are incentives in place to
encourage developers to maintain affordability for 30 years. Rent charged for the rent-restricted
units in a development may not exceed 30% of an imputed income limitation—calculated based
on area median incomes.
In their Qualified Allocation Plans, states set forth the criteria they will use in selecting projects to
receive the tax credits.136 By statute, states must prioritize LIHTC projects that serve the lowest
income tenants for the longest period of time in their QAPs. In addition, the LIHTC statute
requires states to consider certain criteria in determining how they will set housing priorities in
the QAP. One of the 10 criteria that states must consider is tenant populations with special
needs.137 Tenant populations with special needs may include persons with disabilities (others with
special needs include individuals and families who are homeless, elderly individuals, or other
populations in need of housing with supportive services).138
States may choose to make housing units for populations with special needs one of the priorities
in the competition for tax credits in a number of ways.139 These methods include
•
requiring developers to set aside a portion of units for special needs
populations—for example, North Carolina requires that 10% of units in each tax
134
For more information on the LIHTC, see CRS Report RS22389, An Introduction to the Low-Income Housing Tax
Credit, by Mark P. Keightley.
135
26 U.S.C. §42(g).
136
26 U.S.C. §42(m)(1)(B).
137
Until enactment of P.L. 110-289, the Housing and Economic Recovery Act of 2008, the LIHTC statute contained
eight selection criteria. P.L. 110-289 added two more. See 26 U.S.C. §42(m)(1)(C).
138
See Joseph Guggenheim, Tax Credits for Low Income Housing (Glen Echo, MD: Simon Publications, 1996) p. 33.
139
For more information about how state QAPs promote housing for populations with special needs, see The
Corporation for Supportive Housing, Housing Credit Policies in 2011 that Promote Supportive Housing, 2011,
http://www.csh.org/wp-content/uploads/2011/12/Report_QAP2011.pdf.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
credit development be devoted to persons with disabilities or those who are
homeless;140
•
setting aside a certain dollar value or percentage of available tax credits for a
specified population—for example, Tennessee sets aside 10% of the total
available tax credits for developments serving populations with special needs;141
and
•
developing a scoring system in the competition for tax credits that awards
additional points for proposals that take account of certain special needs
populations—for example, New Mexico awards 20 points in the tax credit
competition to developers that propose to build housing in which at least 25% of
units are dedicated to persons with special needs, or five points where at least 5%
of units will serve those with special needs.142
The HOME Investment Partnerships Program
The HOME Investment Partnerships program (referred to as the HOME program) is a block grant
to states and local jurisdictions—referred to as “participating jurisdictions”—distributed via a
formula for the purpose of developing both affordable rental housing and affordable housing for
homeowners.143 The factors used to distribute HOME funds to eligible states and jurisdictions
include population, the number of rental units occupied by households in poverty, housing
overcrowding, the number of units with incomplete kitchens or plumbing, and the age of
housing.144 HOME funds can be used to build or rehabilitate housing, to provide tenant-based
rental assistance, and to provide assistance to homeowners and homebuyers. Assistance must go
to low-income households (at least 90% of funds must assist those with incomes at or below 60%
of area median income), and any housing provided must be affordable.
Like funds provided to states through the LIHTC, states and localities that receive HOME funds
have discretion in choosing the populations they wish to serve. Also like the LIHTC, jurisdictions
that receive HOME funds develop a plan regarding how they will distribute funds. This is done
through HUD’s Consolidated Plan process. Jurisdictions applying for funds from four HUD
formula grant programs, including HOME,145 submit a single Consolidated Plan to HUD. The
plan includes an assessment of community needs and a proposal to address those needs, using
both federal funds and community resources. State and local plans must also contain a housing
needs assessment, including the need for housing for persons with disabilities.146 In developing
the plan, states and communities must adopt a citizen participation plan, through which they are
140
Ibid., p. 89.
Ibid., p. 107.
142
Ibid., p. 83.
143
The HOME program is codified at 42 U.S.C. §§12741-12756. For more information about HOME, see CRS Report
R40118, An Overview of the HOME Investment Partnerships Program, by Katie Jones.
144
24 C.F.R. §92.50(c). In general, in order to be considered a “participating jurisdiction” eligible for HOME funds, a
locality must qualify for at least $750,000 under the HOME formula. 42 U.S.C. §12746. All states receive allocations
under the HOME formula. 42 U.S.C. §12747(b)(2).
145
The other three programs are the Community Development Block Grant, Housing Opportunities for Persons with
AIDS, and the Emergency Shelter Grants.
146
24 C.F.R. §91.205 and §91.305.
141
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
encouraged to consult with citizens with disabilities.147 States are further required to consult with
organizations that provide services (including fair housing services) to persons with disabilities
when preparing their consolidated plan.148
After taking into consideration the needs of persons with disabilities, HOME recipient
jurisdictions may choose to prioritize housing for persons with disabilities as part of their
Consolidated Plans.149 In the tenant-based rental assistance portion of the program, the HOME
regulations specify that recipient jurisdictions may choose to establish a preference for tenants
with special needs, including persons with disabilities.150 Further, recipients of HOME funds may
choose to target tenant-based rental assistance to individuals with a specific disability. In terms of
new or rehabilitated rental housing that may be developed with HOME funds, communities can
choose to develop not only multifamily rental housing and single family homes, but also
transitional housing, single room occupancy projects, and group homes.151 Some jurisdictions
may find that these types of housing developments are well suited for tenants with disabilities.
The Community Development Block Grant Program
The Community Development Block Grant (CDBG) program was enacted as part of the Housing
Act of 1974 (P.L. 93-383) with the purpose of developing viable urban communities by funding
housing, community, and economic development activities that principally benefit low- and
moderate-income households.152 The CDBG program distributes 70% of total funds through
formula grants to entitlement communities—central cities of metropolitan areas, cities with
populations of 50,000 or more, and urban counties—and the remaining 30% goes to states for use
in small, non-entitlement communities.153 The allocation of CDBG funds is determined through a
formula that targets an area’s need for community development using a variety of factors
including population, poverty, overcrowded housing, age of housing, and the lag in community
growth.154 The CDBG program is subject to the same Consolidated Plan requirements as the
HOME program (described previously) in which the needs of persons with disabilities must be
taken into consideration. In addition, in response to the Bush Administration’s New Freedom
Initiative, HUD issued guidance to assist CDBG recipients with “identifying the needs of persons
with disabilities and targeting CDBG resources to meet those needs during the development of
the jurisdictions’ consolidated plans.”155
While many of the purposes of CDBG funds involve the improvement of neighborhoods, the
creation of public facilities, or the promotion of economic opportunity, funds may also be used to
rehabilitate housing, including making housing accessible for persons with disabilities. CDBG
147
24 C.F.R. §91.105 and §91.115.
24 C.F.R. §91.110.
149
24 C.F.R. §91.215 and §92.209.
150
24 C.F.R. §92.209(c)(2).
151
24 C.F.R.§92.2.
152
42 U.S.C. §5301(c). For more information about CDBG, see CRS Report R41754, Community Development Block
Grants: Funding Issues in the 112th Congress and Recent Funding History, by Eugene Boyd.
153
42 U.S.C. §5306.
154
Ibid.
155
HUD Notice CPD-050-03, “Implementing the New Freedom Initiative and Involving Persons with Disabilities in
the Preparation of the Consolidated Plan through Citizen Participation,” June 6, 2005, http://www.hud.gov/offices/adm/
hudclips/notices/cpd/05-3c.doc.
148
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
funds may also be used to make public facilities accessible to persons with disabilities.156 In
addition, communities may use CDBG funds for “public services,” which include such services
as employment counseling. According to HUD, promoting economic opportunities for persons
with disabilities through job training and employment counseling are valid uses of CDBG
funds.157
Issues
Funding for the Section 811 Program
The funding structure of the Section 811 program changed beginning in FY2011, in part as a
result of the enactment of the Frank Melville Supportive Housing Investment Act of 2010 (P.L.
111-374). Changes occurred in both the voucher portion of the Section 811 program as well as
with capital grants funding for new projects. Regarding Section 811 vouchers, the Melville Act
authorized that funds to renew Section 811 vouchers could be provided through the tenant-based
Section 8 rental assistance account. In FY2011, renewals were split between the Section 811 and
Section 8 accounts, and in FY2012 all voucher renewal funding was provided through the Section
8 account. See Table 1.
A second change authorized through P.L. 111-374 was funding for Section 811 rental assistance
only (i.e., not provided in conjunction with Section 811 capital grants). In FY2012, for the first
time since the creation of Section 811, Congress provided no new funding for Section 811 capital
grants. Instead, the bulk of the funding appropriated for Section 811 ($145 million of the $165
million appropriation) was set aside for rental assistance to be applied to units of housing
developed with Low Income Housing Tax Credits, funds through the HOME program, or other
funding sources. On May 15, 2012, HUD released a Notice of Funding Availability for the Project
Rental Assistance Demonstration.158 For more information, see the section “Project Rental
Assistance Demonstration Program.”
For FY2013, the President proposed a total of $150 million for Section 811, $96 million for
renewing existing rental assistance contracts, and $54 million for the Project Rental Assistance
Demonstration. The budget proposed $111 million through the Section 8 account to renew
Section 811 vouchers. As of the date of this report, Congress had not yet approved an FY2013
appropriations bill for HUD, and most federal programs were funded at FY2012 levels for six
months pursuant to a Continuing Resolution (H.J.Res. 117).159 See Table 1 for Section 811
funding levels, including vouchers, from previous years. For more information about current year
appropriations, see CRS Report R42517, Department of Housing and Urban Development
(HUD): FY2013 Appropriations, coordinated by Maggie McCarty.
156
42 U.S.C. §5305(a)(5).
HUD Notice CPD-050-03.
158
U.S. Department of Housing and Urban Development, FY2012 Notice of Funding Availability (NOFA) for Section
811 Project Rental Assistance Demonstration Program, May 15, 2012, http://portal.hud.gov/huddoc/
2012sec811prademonofa.pdf.
159
The CR also provides an across-the-board increase in funding of 0.612%.
157
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
Table 1. Funding for Section 811 Capital Grants, Rental Assistance, and Vouchers,
FY2003-FY2012 and FY2013 Proposal
(dollars in thousands)
Section 811 Capital Grants
and PRACa
Section 811 Vouchersb
Section 811 Account
Section 8 Account
Fiscal
Year
Total
Section 811
Appropriationcd
2003
248,886
—e
166,787
—e
81,851
—
—
2004
249,092
—e
173,721
—e
74,904
—
—
2005
238,080
149,556
149,455
99,969
88,179
—
—
2006
231,268
39,450
152,603
80,000
78,269
—
—
2007
236,610
28,215
158,697
89,595
77,517
—
—
2008
237,000
34,655
161,655
74,745
74,745
—
—
2009
250,000
61,300
161,300
87,100
87,000
—
—
2010
300,000
162,900
209,900
87,100
87,100
—
—
2011g
149,700
89,137
117,764
0f
31,936
113,663
34,930
2012
165,000
196,000
165,000h
0f
0
114,056
112,018
2013
—
150,000
—
0f
—
111,335
—
President’s
Request
Appropriation
President’s
Request
Appropriation
President’s
Request
Appropriation
Source: Department of Housing and Urban Development Budget Justifications for FY2005 through FY2013 and
the FY2012 Consolidated and Further Continuing Appropriations Act (P.L. 112-55).
a.
PRAC refers to “project-based rental assistance contracts.” Amounts for PRAC include renewals of existing
contracts as well as rental assistance for new units.
b.
Amounts for Section 811 vouchers include funds to renew existing vouchers. FY2006 was the last year in
which funds were appropriated for new Section 811 vouchers.
c.
Total does not include amounts appropriated to the tenant-based Section 8 voucher account to fund
Section 811 voucher renewals in FY2011.
d.
The total may be slightly greater than the sum of funds allocated for capital grants, PRAC, and vouchers due
to funds appropriated for the working capital fund that are included in the total.
e.
In both FY2003 and FY2004, the President’s proposed budget would have allocated $250.5 million for
Section 811. However, the proposal did not separately specify exact amounts for capital grants, PRAC, and
Section 811 vouchers.
f.
For FY2011 through FY2013, the President proposed to fund the renewal of tenant-based vouchers through
the Section 8 account.
g.
The amounts for Section 811 in FY2011 reflect an across-the-board rescission of 0.2% that was applied to
all discretionary accounts.
h.
According to HUD budget justifications, of the amount appropriated for Section 811 in FY2012, $20 million
is set aside to renew existing rental assistance contracts and $145 million is for rental assistance to be used
in conjunction with other forms of housing capital assistance (such as Low Income Housing Tax Credits) as
authorized by the Frank Melville Supportive Housing Investment Act.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
Using Section 811 Capital Grants with Low-Income
Housing Tax Credits
Financing affordable housing, including housing for persons with disabilities, may require
multiple streams of funding in order to support the design, construction, and ongoing operating
costs of a project. In addition to federal funds provided through HUD programs, affordable
housing developers may use mortgage revenue bonds, tax credits, and local housing trust fund
resources, among other sources, to develop housing for low-income and special needs
populations. While HUD funds once might have been sufficient on their own to develop an
affordable housing project, that is rarely the case today. This is true for Section 811 developers,
who often must bring together multiple sources of funding to develop a project. In 2000, in order
to help Section 811 developers bring together multiple financing sources, Congress enacted a law
that makes the interaction of Section 811 funds and the Low-Income Housing Tax Credits
(LIHTCs) more feasible by changing the definition of “private nonprofit organization” in the
Section 811 statute. This change, and its implication for Section 811 developers, is described
below.
The value of LIHTCs are determined, in part, based on the cost of developing a property—
referred to as the qualified basis.160 The costs of constructing, acquiring, and rehabilitating a
property (among other costs)161 are included in calculating the qualified basis, but the amount
must then be reduced by any federal grants received by the developer, which in turn reduces the
value of the tax credits. Therefore, if a nonprofit developer were to receive a Section 811 capital
grant, its value would be subtracted in calculating the qualified basis which could result in
minimal LIHTCs. The Homeownership and Economic Opportunity Act (P.L. 106-569), enacted in
2000, allowed for-profit limited partnerships, where a nonprofit organization is the sole general
partner, to be eligible Section 811 owners. The changed law allows a nonprofit Section 811
grantee to loan the Section 811 capital grant to the limited partnership. Under this arrangement,
the Section 811 funds are no longer a “federal grant” to be subtracted in calculating the qualified
basis, potentially increasing the value of LIHTCs.
The change in the law to allow for-profit limited partnerships to own Section 811 housing
developments has not immediately made mixed financing arrangements common, however. The
transactions are complicated and may require extensive expertise in housing finance to make
them work. HUD acknowledges that “most developers seek to avoid the use of federal grant
financing in most LIHTC projects.”162 In addition, the treatment of Section 811 PRAC in tax
credit transactions has been unclear. Although the IRS has created exceptions to the rule that
160
Specifically, a property’s qualified basis is determined as follows: (1) the cost of constructing, acquiring, or
rehabilitating the property is calculated, (2) this amount is reduced by federal grants received by the developer, and (3)
the resulting value is then multiplied by the percentage of space in the housing development that is devoted to lowincome use. This percentage is the lower of either the “unit fraction”—the ratio of low-income units to all units in the
building—or the “floor space fraction”—the ratio of square footage in low-income units to total square footage. 26
U.S.C. §42(c). The qualified basis is then multiplied by the value of the tax credits—these are roughly either 9% or
4%—to determine the total annual value of the tax credits.
161
In addition to the costs of materials, construction, and/or rehabilitation, among the costs included in determining
qualified basis are: contractor fees, developer fees, engineering fees and the cost of drawing up architectural
specifications. Among the costs that are not included are the cost of land and fees associated with long-term financing.
See Joseph Guggenheim, Tax Credits for Low Income Housing (Glen Echo, MD: Simon Publications, 1996) p. 37.
162
See HUD website, “Calculating the Qualified Basis,” http://www.hud.gov/offices/cpd/affordablehousing/training/
web/lihtc/calculating/qualifiedbasis.cfm.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
federal grants do not count toward the qualified basis of a property for certain categories of rental
assistance, Section 811 PRAC has not been among the exceptions. The programs that have been
exempted from the requirement include project-based Section 8 rental assistance payments and
public housing capital and operating funds,163 the Native American Housing Block Grant
Program,164 Rent Supplement and Rental Assistance Payments programs,165 the Shelter Plus Care
and Single Room Occupancy programs,166 and the Housing Opportunities for Persons with AIDS
program.167 Despite language in the Homeownership and Economic Opportunity Act of 2000
indicating that Congress intended Section 811 assistance to be included in calculating qualified
basis (rather than subtracted from it), the IRS has not issued a ruling that would be necessary to
make this possible.168
Another possible limitation in developing mixed finance projects using federal grants such as
Section 811 together with the LIHTC was removed with passage of the Housing and Economic
Recovery Act of 2008 (P.L. 110-289). Under LIHTC law, developers may qualify for tax credits
worth roughly 9% or 4%.169 Under previous LIHTC law, the higher 9% credit was available for
new construction that was not federally subsidized, while the 4% credit was available for either
federally subsidized new construction or existing buildings. The statutory definition of “federally
subsidized” included below market federal loans (the structure used by limited partnerships to
loan Section 811 capital grants).170 The fact that developers of federally subsidized buildings did
not qualify for the higher tax credit made financing projects with the LIHTC less lucrative.
Developers either had to accept the lower, 4% credit, or to set up a system through which federal
grants were loaned to the project at a market rate of interest.171
However, P.L. 110-289 removed the phrase “below market federal loans” from the definition of
federal subsidy in the LIHTC statute. This makes all federally subsidized new construction placed
in service after the effective date of P.L. 110-289 eligible for 9% tax credits. The 9% credits are
very competitive,172 however, and it may still be difficult for Section 811 developers to
obtain them.
163
26 C.F.R. §1.42-16.
Rev. Rul. 2008-6, 2008-1 C.B. 271.
165
Rev. Rul. 2002-65, 2002-2 C.B. 729.
166
Rev. Rul. 98-49, 1998-2 C.B. 451.
167
Rev. Rul. 99-39, 1999-2 C.B. 424.
168
P.L. 106-569 amended the Section 811 statute to state that “[n]otwithstanding any other provision of law, assistance
amounts provided under this section may be treated as amounts not derived from a Federal grant.” See Section 842. On
September 17, 2003, the IRS issued a letter stating that it was reviewing the applicability of the LIHTC section of
federal grants to PRAC under the Section 202 program. The letter is available at http://www.irs.gov/pub/irs-wd/040061.pdf.
169
These credit rates are not set exactly at 9% and 4%—they vary depending on the current interest rate used in the
Department of the Treasury credit rate formula. For more information about this issue, see CRS Report RS22917, The
Low-Income Housing Tax Credit Program: The Fixed Subsidy and Variable Rate, by Mark P. Keightley.
170
The statute also specifically exempted funds received under CDBG, HOME, and Native American Housing and Self
Determination Act programs from the definition of federally subsidized, so those projects have been eligible for the 9%
credit all along.
171
See U.S. Department of Housing and Urban Development, “Mixed Finance Development for Supportive Housing
for the Elderly or Persons with Disabilities: Final Rule,” Federal Register vol. 70, no. 176, September 13, 2005, p.
54202.
172
See, for example, Liz Enochs, “Affordable Housing Equity: Developers Share Tips for Converting Projects That
Fail to Win 9% LIHTCs into 4% Deals,” Affordable Housing Finance, July 2007, http://www.housingfinance.com/ahf/
(continued...)
164
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
Housing Need for Persons with Disabilities
According to both advocates for persons with disabilities and HUD, persons with disabilities have
a need for affordable housing. Since 1991, HUD has regularly released reports (12 to date) on the
worst case needs for affordable housing in the United States.173 HUD defines households with
worst case housing needs as very low-income renter households (households with incomes at or
below 50% of area median income) that do not receive rental assistance and either (1) pay more
than half their income toward rent, or (2) live in severely substandard housing.174 Substandard
housing is measured using the American Housing Survey definition of housing with severe
physical problems. These are varying degrees of problems with plumbing, heating, electrical
wiring, and upkeep of the physical unit or public areas.175 Using data from the 2009 American
Housing Survey, HUD found in its most recent report—Worst Case Housing Needs 2009—that
17.12 million renter households were very low income. Of those, 7.10 million households had
worst case housing needs, an increase of 20% over 2007 and 42% over 2001.176 This represented
an increase from 2007 to 2009 from 5.3% of all U.S. households to 6.3% of all households.177
HUD released a supplement to the Worst Case Housing Needs 2009 report that specifically
estimated the number of households with worst case needs where a member of the household had
a disability.178 While there have previously been worst case needs estimates for persons with
disabilities, the supplement is the first to estimate worst case needs since the American Housing
Survey added specific questions to determine disability status. Prior to 2009, the American
Housing Survey did not include direct questions on disability status, so in the previous Worst
Case Needs report (for 2007), HUD relied on four sources of income as proxies to estimate
households where a non-elderly person has a disability.179
The 2009 American Housing Survey asked questions about functional limitations (hearing, visual,
cognitive, and ambulatory) and ability to perform activities of daily living (self care and
independent living) in order to determine disability status. Using the AHS data, HUD estimated
that 2.6 million very low-income rental households had a non-elderly member who answered yes
to at least one of the questions regarding disability. Further, 38% of very low-income renter
households that included a nonelderly person with a disability (about 987,000) had worst-case
housing needs.180 HUD found that households that included a nonelderly person with a disability
(...continued)
articles/2007/jul/AFFORDABLE0707.htm.
173
For the most recent report, see Barry L. Steffen, Keith Fudge, and Marge Martin, et al., Worst Case Housing Needs
2009: Report to Congress, U.S. Department of Housing and Urban Development, February 2011,
http://www.huduser.org/Publications/pdf/worstcase_HsgNeeds09.pdf (hereinafter Worst Case Housing Needs 2009).
174
HUD developed the definition using preference rules for admission to assisted housing. See Worst Case Housing
Needs 2009, p. 63.
175
For more information, see Worst Case Housing Needs 2009, pp. 62-63.
176
Ibid., p. 1.
177
Ibid., p. 3.
178
Maria Teresa Souza, Robert A. Collinson, and Marge Martin, et al., 2009 Worst Case Housing Needs of People with
Disabilities: Supplemental Findings of the Worst Case Housing Needs 2009: Report to Congress, U.S. Department of
Housing and Urban Development, March 2011, http://www.huduser.org/Publications/pdf/
WorstCaseDisabilities03_2011.pdf (hereinafter, 2009 Worst Case Housing Needs of People with Disabilities).
179
These were (1) Social Security and Railroad Retirement Benefits, (2) Supplemental Security Income (SSI), (3)
public assistance such as welfare, and (4) worker’s compensation or other disability payment.
180
Ibid., p. 4.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
were more likely to have very low incomes, pay more than half their income toward rent, and
experience worst-case housing needs than households that did not include a person with a
disability.181
Homeless Persons with Disabilities
Although homelessness in the United States has always existed, it became a more prevalent
phenomenon in the 1970s and 1980s, when the homeless population began to grow and become
more visible to the general public. Explanations for the growth in homelessness include the
demolition of skid rows,182 the decreased availability of affordable housing generally, the reduced
need for seasonal unskilled labor, the reduced likelihood that relatives will accommodate
homeless family members, the decreased value of public benefits, and changed admissions
standards at mental hospitals.183
In the early 2000s, attention was again turned to homeless individuals, this time to those persons
who experience so-called “chronic homelessness,” when President Bush announced an initiative
to end chronic homelessness within 10 years. In the late 1990s, researchers identified chronically
homeless individuals as those who have a disability (including those who suffer from mental
illness and/or substance use disorders) and who have been homeless for long periods of time.184
Later, HUD defined what it means to be chronically homeless in regulation, and the definition
was adapted and incorporated into statute in 2009 as part of the Helping Families Save Their
Homes Act (P.L. 111-22). According to the definition, a person is chronically homeless if they
have a disability and have been continuously homeless for one year (meaning that they have been
living in a place not meant for human habitation or an emergency shelter) or have experienced
four episodes of homelessness in the past three years and disability.185 A family is chronically
homeless if the adult head of household (or minor in the absence of an adult) has a disability.
In 2012, HUD estimated that 16% of the total homeless population could be considered
chronically homeless.186 Rates of mental health problems are estimated to exist in more than 60%
of chronically homeless individuals, and more than 80% of individuals are estimated to have
alcohol or drug problems.187 Medical problems, including HIV/AIDS, are also prevalent among
chronically homeless individuals.188
181
Ibid.
Peter H. Rossi, Down and Out in America: The Origins of Homelessness (Chicago: The University of Chicago
Press, 1989), p. 33.
183
Ibid., pp. 181-194, 41. See, also, Martha Burt, Over the Edge: The Growth of Homelessness in the 1980s (New
York: Russell Sage Foundation, 1992), pp. 31-126.
184
See Randall Kuhn and Dennis P. Culhane, “Applying Cluster Analysis to Test a Typology of Homelessness by
Pattern of Shelter Utilization: Results from the Analysis of Administrative Data,” American Journal of Community
Psychology 26, no. 2 (April 1998): 210-212.
185
42 U.S.C. § 11360(2).
186
U.S. Department of Housing and Urban Development, The 2012 Point-in-Time Estimates of Homelessness:
Volume I of the 2012 Annual Homeless Assessment Report, November 2012, p. 12, https://www.onecpd.info/resources/
documents/2012AHAR_PITestimates.pdf.
187
Carol L. M. Caton, Carol Wilkins, and Jacquelyn Anderson, People Who Experience Long-Term Homelessness:
Characteristics and Intervention, 2007 National Symposium on Homelessness Research, September 2007, p. 4-4,
http://www.huduser.org/publications/pdf/p4.pdf.
188
See, for example, D.P. Culhane, E. Gollub, R. Kuhn, and M. Shpaner, “The Co-Occurrence of AIDS and
(continued...)
182
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
Communities across the country have addressed chronic homelessness through a strategy called
“housing first,” in which permanent supportive housing is found for homeless individuals prior to
treatment of their illnesses and addictions. HUD makes funds available through its Homeless
Assistance Grants for the construction or rehabilitation of new permanent supportive housing for
chronically homeless individuals.189 HUD estimates that 89,000 beds in permanent supportive
housing units have been funded since 2001, many devoted to individuals who had been
chronically homeless.190 Perhaps in part for that reason, HUD estimates that chronic
homelessness has fallen by 19% between 2007 and 2012.191
(...continued)
Homelessness: Results from the Integration of Administrative Databases for AIDS Surveillance, and Public Shelter
Utilization in Philadelphia,” Journal of Epidemiology and Community Health 55, no. 7 (2001): 515-520. Marjorie
Robertson, et al., “HIV Seroprevalence Among Homeless and Marginally Housed Adults in San Francisco,” American
Journal of Public Health 94, no. 7 (2004): 1207-1217. Angela A. Aidala and Gunjeong Lee, Housing Services and
Housing Stability Among Persons Living with HIV/AIDS, Joseph L. Mailman School of Public Health, May 30, 2000,
http://www.nyhiv.org/pdfs/chain/CHAIN%20Housing%20Stability%2032.pdf.
189
For more information about these grants, see CRS Report RL33764, The HUD Homeless Assistance Grants:
Current Operation and HEARTH Act Changes, by Libby Perl.
190
U.S. Department of Housing and Urban Development, FY2013 Congressional Budget Justifications, p. T-1,
http://portal.hud.gov/hudportal/documents/huddoc?id=HomelessAssistanceGrants.pdf.
191
2012 Point-in-Time Supplement to the AHAR, p. 12.
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Section 811 and Other HUD Housing Programs for Persons with Disabilities
Appendix. Definitions of Disability Applicable to HUD Housing Programs
Table A-1. Definitions of Disability Applicable to HUD Housing Programs
Provision
Section 811
Section 8 and Public Housing
Section 202 Loan Program
Mental, Physical,
or Emotional
Impairment
A physical, mental, or emotional impairment that is
(1) expected to be of long-continued and indefinite duration,
(2) substantially impedes a person’s ability to live
independently, and (3) could be improved by more suitable
housing conditions.
Same
Same
Chronic Mental Illness
A severe and persistent mental or emotional impairment.
No Provision
Same as Section 811
Developmental
Disability
A severe, chronic disability that (1) is attributable to a mental
or physical impairment or a combination of mental or physical
impairments, (2) manifests before age 22, (3) is likely to
continue indefinitely, and (4) results in substantial functional
limitations in three or more major life activities.
Same
Same
Social Security
Definition
No provision
Inability to engage in substantial gainful
activity by reason of a physical or mental
impairment that can be expected to
result in death or to last for not less
than 12 months.
No Provision
HIV/AIDS Status
“A person infected with the human acquired immunodeficiency
virus (HIV)” if they meet the definition of “person with
disabilities” in the statute. “A person whose sole impairment is
a diagnosis of HIV positive ... (i.e. does not meet the qualifying
criteria in [the statute]) will not be eligible for occupancy in a
Section 811 project.”
The term person with disabilities “shall
not exclude persons who have the
disease of acquired immunodeficiency
syndrome or any conditions arising from
the etiologic agent.... ”
“Persons infected with the human
acquired immunodeficiency virus (HIV)
who are disabled as a result of infection
with the HIV are eligible for occupancy in
Section 202 projects ...”
Drug and/or
Alcohol Addiction
“A person whose sole impairment is a diagnosis of ...
alcoholism or drug addiction ... will not be eligible for
occupancy in a Section 811 project.”
Substantially the same
Substantially the same
Age
18 or older, but less than 62
No provision
No provisiona
Source: 42 U.S.C. §4013(k)(2) and 24 C.F.R. §891.305 (Section 811); 42 U.S.C. §1437a(b)(3)(E) and 24 C.F.R. §5.403 (Section 8 and Public Housing); and 24 C.F.R. §891.505
(Section 202).
a.
CRS-35
The regulations governing the Section 202 loan program do not include age in the definition of “handicapped person or individual.” However, the regulation does
define a handicap family to include a “single handicapped person over the age of 18.”
Section 811 and Other HUD Housing Programs for Persons with Disabilities
Author Contact Information
Libby Perl
Specialist in Housing Policy
eperl@crs.loc.gov, 7-7806
Congressional Research Service
36