Impact of ABLE Funds on Needs-Based Public Assistance - HUD

October 9, 2017

The ABLE Act explicitly addresses how funds in an ABLE account impact SSI and Medicaid eligibility, but what about HUD? 

 

Even though the text of the ABLE statute does not specifically reference HUD or Section 8 Benefits, it does reference other needs-based federal programs in generalized language in section 103(a) of the Act (see full text using this link excerpted here). Regarding federal means-tested benefit programs, the Act provides that:

 

“Notwithstanding any other provision of Federal law that requires” means testing “any amount . . . in the ABLE account . . ., any contributions to the ABLE account . . ., and any distribution for qualified disability expenses . . . shall be disregarded. . .”

 

26 U.S.C. § 529A at sec. 103, Pub. L. 113-295, div. B, title I at sec. 103, Dec. 19, 2014, 128 Stat. 4063

 

At this point, The U.S. Department of Housing and Urban Development (HUD) has not issued guidance on the impact ABLE funds have on Section 8 rental assistance (vouchers). Compare that with the recent guidance from CMS regarding ABLE's effect (or lack thereof) on SSI and Medicaid. ABLE program administrators have encouraged HUD to take action.

 

Until then, we are left with the language of the Act referencing federal means tested programs. Since the HUD Handbook has not been updated since November of 2013, before the passage of the ABLE Act, some housing authorities are trying to include the assets in ABLE accounts as resources. The workers point to the handbook and say they are bound to follow the guidelines there (which are silent on ABLE). Understandably, this is causing much angst and worry on the part of people with vouchers and ABLE accounts.

 

So what is the answer? Well It seems that that the ABLE Act would pre-empt contrary PHA regulations. Agencies are not allowed to create rules or policies that contradict Federal statute. Since statues trump agency policy and since ABLE came after the handbook, It follows to reason that ABLE accounts (and qualifying distributions from them) should not be counted for HUD programs.

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