Opinion

Reilly v. Marin Housing Authority

Court
California Supreme Court
Filed
Aug 31, 2020
Status
Published
Cited by
0 cases
Authority
More cited than 12.5%

The opinion

IN THE SUPREME COURT OF

CALIFORNIA

KERRIE REILLY,

Plaintiff and Appellant,

v.

MARIN HOUSING AUTHORITY,

Defendant and Respondent.

S249593

First Appellate District, Division Two

A149918

Marin County Superior Court

CIV 1503896

August 31, 2020

Justice Chin authored the opinion of the Court, in which

Justices Liu, Cuéllar, and Groban concurred.

Chief Justice Cantil-Sakauye filed a dissenting opinion, in

which Justices Corrigan and Kruger concurred.

REILLY v. MARIN HOUSING AUTHORITY

S249593

Opinion of the Court by Chin, J.

The federal Housing Choice Voucher program is a key

program in section 8 of the United States Housing Act of 1937.

(42 U.S.C. § 1437 et seq., as amended by § 201(a) of the Housing

and Community Development Act of 1974.) Commonly referred

to as “Section 8,” the program provides low-income families a

monthly subsidy to pay for a portion of their rent. The amount

of the subsidy depends, in part, on the income Section 8 families

receive. The program, which is funded and regulated by the

United States Department of Housing and Urban Development

(HUD), is administered locally by public housing authorities

(PHAs). In this case, we address whether a Section 8

beneficiary’s compensation for providing in-home care for a

severely disabled adult daughter should be excluded from

income in calculating the rental subsidy. For reasons that

follow, we conclude that it should be excluded and reverse the

Court of Appeal’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 1998, plaintiff Kerrie Reilly and her two daughters

moved into a three-bedroom apartment in Novato and began

receiving Section 8 housing assistance payments to subsidize

their monthly rent. Reilly has an adult daughter, K.R., who is

severely disabled and requires constant supervision. Reilly

receives compensation to provide in-home supportive care for

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Opinion of the Court by Chin, J.

K.R. through the state and federally funded In-Home

Supportive Services (IHSS) program.

In 2004, Reilly’s other daughter, R.R., moved out of their

subsidized apartment, but Reilly did not inform the Marin

Housing Authority (MHA), which is responsible for

administering Reilly’s Section 8 voucher. Five years later, when

Reilly told MHA that R.R. no longer lived with her, MHA

advised her that her failure to report her daughter’s leaving

constituted a violation of the program rules. Reilly could only

stay in the government-subsidized apartment if she paid

approximately $16,000 in damages to MHA.

Reilly agreed to pay MHA in monthly installments,

initially starting at $486 and eventually lowered to $150 per

month at Reilly’s request. In 2010, after Reilly missed an

installment payment, MHA warned her that future missed

payments would result in termination of her housing assistance.

Reilly missed multiple payments in 2012, 2014, and 2015.

In 2015, Reilly requested that MHA recalculate her rent

and exclude her IHSS compensation from “income” under the

relevant federal regulation. (See 24 C.F.R. § 5.609(c)(16)

(2020).) MHA did not respond to this request, but instead served

Reilly a notice of termination of her Section 8 voucher. After a

hearing on MHA’s decision to terminate Reilly’s housing

voucher, the hearing officer upheld the agency’s decision, noting

that Reilly’s failure to pay amounts under the settlement

agreement constituted grounds for terminating her housing

assistance. The hearing officer did not address whether the

IHSS compensation counted as income, however.

On October 26, 2015, Reilly filed a petition for writ of

mandate seeking an order requiring MHA to terminate her

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REILLY v. MARIN HOUSING AUTHORITY

Opinion of the Court by Chin, J.

repayment plan and reinstitute her Section 8 voucher; she also

sought an administrative writ ordering MHA to terminate the

repayment plan and exclude Reilly’s IHSS payments in

calculating her income going forward. The trial court rejected

Reilly’s assertion that IHSS payments were excepted from the

meaning of “annual income” (24 C.F.R. § 5.609(c)(16) (2020)). It

sustained MHA’s demurrer without leave to amend, and the CA

affirmed the judgment. (Reilly v. Marin Housing Authority

(2018) 23 Cal.App.5th 425.) Both lower courts ordered “a stay

in the enforcement of the administrative order terminating

Reilly’s Section 8 benefits.” MHA later agreed to an extension

of this stay pending review in this court.

We granted review, limited to the issue whether IHSS

payments should be excluded from “annual income” for purposes

of calculating a Section 8 beneficiary’s home assistance

payment.

DISCUSSION

A. Overview of Section 8 voucher program

In 1974, Congress added the Section 8 housing program to

the United States Housing Act of 1937 “[f]or the purpose of

aiding low-income families in obtaining a decent place to live.”

(42 U.S.C. § 1437f(a); see generally Friedman et al., Cal.

Practice Guide: Landlord-Tenant (The Rutter Group 2019)

¶ 12.) The program gives eligible families either “tenant-based”

or “project-based” rent subsidies administered locally through

PHAs. (See Park Village Apartment Tenants Ass’n v. Mortimer

Howard Trust (9th Cir. 2011) 636 F.3d 1150, 1152–1153

[overview of Section 8 housing assistance].) “ ‘[T]enant-based

assistance’ ” is a rent subsidy that is tied to a specific family

even if the family moves to other suitable housing. (42 U.S.C.

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REILLY v. MARIN HOUSING AUTHORITY

Opinion of the Court by Chin, J.

§ 1437f(f)(7).) “ ‘[P]roject-based assistance,’ ” on the other hand,

is tied to a specific housing development or unit. (42 U.S.C.

§ 1437f(f)(6).) We focus on tenant-based assistance, which is at

issue in this case.

Under the tenant-based assistance program, at least 75%

of all admitted families must be “[e]xtremely low[] income,” i.e.,

their income may not exceed 30% of the median income

calculated by HUD for the relevant area (24 C.F.R. § 5.603(b)

(2020)); and all remaining admitted families must be “[l]ow

income,” i.e., their income may not exceed 50% of the median

income. (Ibid.; id., § 982.201(b)(1), (2)(i) (2020) [eligibility and

targeting].)

After a Section 8 family selects an eligible rental unit

approved by the applicable PHA, the PHA enters into a contract

with the rental property owner. That owner “functions as a

landlord in the private rental market. The owner signs a lease

with the Section 8 tenant (which includes a HUD Lease/Tenancy

Addendum) and also signs a Housing Assistance Payments

(HAP) contract with the Housing Authority.” (Apartment Assn.

of Los Angeles County, Inc. v. City of Los Angeles (2006) 136

Cal.App.4th 119, 123.) The PHA gives the subsidy payments

directly to the property owner. (24 C.F.R. § 982.311(a) (2020).)

As we explain below (see post, at p. 8), the amount of the

housing subsidy depends in large part on the “annual income”

the Section 8 family receives or expects to receive. (See 24

C.F.R. § 5.609(a) (2020); id. § 982.201(a), (b) (2020).) The issue

is whether the IHSS payments Reilly receives to provide

services to keep her developmentally disabled daughter at home

are excluded from income under 24 Code of Federal Regulations

part 5.609(c)(16) (2020).

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REILLY v. MARIN HOUSING AUTHORITY

Opinion of the Court by Chin, J.

B. IHSS

IHSS is a state social welfare program implemented under

The Burton-Moscone-Bagley Citizens’ Income Security Act for

Aged, Blind and Disabled Californians, enacted in 1973. (Welf.

& Inst. Code,1 § 12000 et seq., added by Stats. 1973, ch. 1216,

§ 37, p. 2904; see County of Sacramento v. State of California

(1982) 134 Cal.App.3d 428, 430–431.) The purpose of the

legislation is to give the aged, blind and disabled the “assistance

and services which will encourage them to make greater efforts

to achieve self-care and self-maintenance, whenever feasible,

and to enlarge their opportunities for independence.” (§ 12002.)

IHSS is specifically “designed to avoid institutionalization of

incapacitated persons.” (Basden v. Wagner (2010) 181

Cal.App.4th 929, 931.) Providers perform nonmedical

supportive services for IHSS recipients, such as domestic

services, personal care services, protective supervision, and

accompaniment to health-related appointments. (§ 12300; see

Miller v. Woods (1983) 148 Cal.App.3d 862, 867, disapproved on

other grounds by Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th

955, 986, fn. 15.)

“IHSS is actually provided under three programs: the

original IHSS program (the residual program) (§ 12300 et seq.);

the Medi-Cal personal care services program (PCSP) (§

14132.95); and the IHSS Plus waiver program (§ 14132.951).[2]

1

All further statutory references are to Welfare and

Institutions Code unless otherwise noted.

2

Section 14132.951, subdivision (a) provides: “It is the

intent of the Legislature that the State Department of Health

Services seek approval of a Medicaid waiver under the federal

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REILLY v. MARIN HOUSING AUTHORITY

Opinion of the Court by Chin, J.

The latter two programs tap into federal funds, and IHSS

recipients will receive services under the residual program only

if they do not qualify under the other two programs. (§§ 12300,

subd. (g); 14132.95, subd. (b); 14132.951, subd. (d).)” (Basden v.

Wagner, supra, 181 Cal.App.4th at p. 933, fn. 4; see 2 Dayton et

al., Advising the Elderly Client (2019) § 22:40 (Advising the

Elderly Client); Calderon v. Anderson (1996) 45 Cal.App.4th

607, 609–610.)

The State Department of Social Services (Department)

administers the IHSS program in compliance with state and

federal law. The Department promulgates regulations to

implement the relevant statutes, which are set out in its Manual

of Policies and Procedures: Social Services Standards (July

2019) (MPP). (MPP, §§ 30-700 to 30-785; see Norasingh v.

Lightbourne (2014) 229 Cal.App.4th 740, 744–745.) County

welfare departments administer the IHSS program with the

Department’s supervision, and determine an applicant’s

individual needs to authorize necessary services. (Norasingh v.

Lightbourne, at pp. 744–745; see MPP, § 30-761 [needs

assessment standards].)

A county welfare department may either obtain and pay

directly a provider of the supportive services, or pay the

recipient who hires one. (Basden v. Wagner, supra, 181

Cal.App.4th at p. 940 [when state pays provider or recipient

directly, it assumes certain “ ‘employer’ duties”]; MPP, § 30-

Social Security Act in order that the services available under

Article 7 (commencing with Section 12300) of Chapter 3, known

as the In-Home Supportive Services program, may be provided

as a Medi-Cal benefit under this chapter to the extent federal

financial participation is available. The waiver shall be known

as the ‘IHSS Plus waiver.’ ”

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REILLY v. MARIN HOUSING AUTHORITY

Opinion of the Court by Chin, J.

763.44.) Or, as in this case, it may compensate the parent who

provides in-home care to her disabled child. (See § 12300, subd.

(e); MPP, § 30-763.45 et seq.; see also Fam. Code, § 3910, subd.

(a) [parent’s responsibility extends to a “child of whatever age

who is incapacitated from earning a living and without

sufficient means”].) It bears noting that “[t]he vast majority of

home care is provided by family and friends.” (Advising the

Elderly Client, supra, § 22:17.)

Reilly’s daughter suffers from a severe developmental

disorder and obtained authorization for protective supervision,

i.e., 24-hours-a-day supervision that allows her to remain at

home safely. (§ 12301.21; MPP, § 30-757.173.) Protective

supervision involves “observing recipient behavior and

intervening as appropriate in order to safeguard the recipient

against injury, hazard, or accident.” (MPP, § 30-757.17; see

Marshall v. McMahon (1993) 17 Cal.App.4th 1841, 1847

[“ ‘Protective supervision’ appears to be similar to care given

small children, that is, anticipating everyday hazards and

intervening to avert harm”].) Such supervision is available for

“nonself-directing, confused, mentally impaired, or mentally ill

persons only.” (MPP, § 30.757.171; see Marshall v. McMahon,

at p. 1847; Calderon v. Anderson, supra, 45 Cal.App.4th at

p. 616.) There is no dispute that Reilly’s adult daughter was

entitled to IHSS services, or that Reilly was authorized to

receive IHSS compensation for providing those services to her.

C. HUD regulation on “Annual Income” and its

exclusions

The applicable federal regulation defines “annual income”

broadly, as “all amounts, monetary or not.” (24 C.F.R. § 5.609(a)

(2020).) For example, income includes “compensation for

personal services” (id., § 5.609(b)(1) (2020)) and “[p]ayments in

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REILLY v. MARIN HOUSING AUTHORITY

Opinion of the Court by Chin, J.

lieu of earnings, such as unemployment and disability

compensation, worker’s compensation, and severance pay” (id.,

§ 5.609(b)(5) (2020)). However, income does not include such

amounts as “specifically excluded” under the regulation. (Id.,

§ 5.609(a)(3) (2020).) There are 16 such exclusions. (Id.,

§ 5.609(c)(1)–(17) (2020).)

“An extensive set of statutory provisions and regulations

governs the calculations of the subsidy that must be paid on

behalf of each tenant.” (Nozzi v. Housing Authority of City of

Los Angeles (9th Cir. 2015) 806 F.3d 1178, 1184.) In general,

Section 8 tenants must contribute 30% of their monthly adjusted

income or 10% of their gross monthly income, whichever is

greater, towards each month’s rent. (42 U.S.C. § 1437f(o)(2)(A).)

The housing assistance payment covers the balance of the rent,

up to a statutorily capped amount. (Nozzi v. Housing Authority

of City of Los Angeles, at pp. 1184–1185.)

We do not examine the underlying method used to

calculate the rental subsidy, however, but focus on whether

Reilly’s IHSS compensation for care of her disabled daughter is

“specifically excluded” (24 C.F.R. § 5.609(a)(3) (2020)) from

income as “[a]mounts paid by a State agency to a family with a

member who has a developmental disability and is living at

home to offset the cost of services and equipment needed to keep

the developmentally disabled family member at home” (id.,

§ 5.609(c)(16) (2020), italics added). The parties do not dispute

that if Reilly’s daughter received IHSS care from a third party

rather than a family member, such amounts paid would qualify

under the exclusion. MHA argues that for the exclusion to

apply, however, a family must incur costs for hiring someone

because only then would the “[a]mounts paid” by the state to a

family truly “offset” those “cost[s].” (24 C.F.R. § 5.609(c)(16)

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Opinion of the Court by Chin, J.

(2020); see In re Ali (Minn. 2020) 938 N.W.2d 835, 840 (Ali)

[“Cost means an actual monetary expense . . . incurred by the

family to keep the disabled family member living at home”].)

Because the state pays Reilly to provide care for her own

daughter and not to hire a third party provider, MHA maintains

there is no actual “cost” to Reilly for such services, and

consequently, there is nothing to “offset.”

1. Meaning of “Offset” & “Cost”

MHA’s interpretation is based in part on the dictionary

definition of “offset,” which generally means to counterbalance

or compensate for something. (See Steinmeyer v. Warner Cons.

Corp. (1974) 42 Cal.App.3d 515, 518.) Echoing the Court of

Appeal, MHA asserts that payments by the state must offset

costs the family itself incurs to keep a developmentally disabled

member at home; “[o]therwise the payment does not

counterbalance or compensate for the costs of services.” As

MHA puts it, “the payment must go to the same entity that

incurs the cost of those services.” MHA further insists that

“cost” is a monetary term that does not encompass emotional

costs Reilly bears in caring for her daughter, nor any lost

opportunity costs when Reilly forgoes outside employment to be

her daughter’s IHSS provider.

We disagree with MHA’s interpretation. Unlike the word

“reimburse,” which means to “pay back or compensate (another

party) for money spent or losses incurred” (American Heritage

Dict. (5th ed. 2020) p. 1214, italics added), “offset” is not

similarly restrictive. (See Briggs v. Eden Council for Hope &

Opportunity (1999) 19 Cal.4th 1106, 1117 [“Where different

words or phrases are used in the same connection in different

parts of a statute, it is presumed the Legislature intended a

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Opinion of the Court by Chin, J.

different meaning”].) For example, the term “reimbursement”

is used in two other exclusions. (24 C.F.R. § 5.609(c)(4), (8)(iii)

(2020).) Consistent with the meaning of “reimburse,” those

exclusions refer to compensation of specific, discrete amounts,

e.g., “the cost of medical expenses” (id., § 5.609(c)(4) (2020)) and

“out-of-pocket expenses” to participate in a publicly assisted

program (id., § 5.609(c)(8)(iii)).

While the term “reimburse” suggests there may be full

recompense for any out-of-pocket expenses a family incurs

under those exclusions, “offset” as used here does not necessarily

reflect that same meaning. (See Briggs v. Eden Council for Hope

& Opportunity, supra, 19 Cal.4th at p. 1117.) Here, what is

“offset” is the “cost of services and equipment needed to keep the

developmentally disabled family member at home.” (24 C.F.R.

§ 5.609(c)(16) (2020).) “[C]ost,” in turn, is defined to include both

“an amount paid or required in payment for a purchase; a price”

and “the expenditure of something, such as time or labor,

necessary for the attainment of a goal.” (American Heritage

Dict., supra, at p. 454.) Whether a family uses homecare

payments to support itself so that it may care for a

developmentally disabled member at home, or instead uses the

funds to pay a third party to provide care for some of the time,

these payments do no more than “offset” the “cost” of services

and equipment needed to avoid institutionalization, costs that

are not otherwise specified or limited. (24 C.F.R. § 5.609(c)(16)

(2020).)

Further, contrary to MHA’s suggestion, “cost” in this

exclusion (24 C.F.R. § 5.609(c)(16) (2020)) does not have the

same meaning as “cost” used in other provisions of the

regulation. For instance, “actual cost of shelter and utilities” (24

C.F.R. § 5.609(b)(6)(ii) (2020)) and “cost of medical expenses for

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Opinion of the Court by Chin, J.

any family member” (id., § 5.609(c)(4) (2020)) both refer to

discrete, monetary amounts. “[T]he presumption that ‘identical

words used in different parts of the same act are intended to

have the same meaning . . . readily yields whenever there is such

variation in the connection in which the words are used as

reasonably to warrant the conclusion that they were employed

in different parts of the act with different intent.’ ” (Roberts v.

Sea-Land Services, Inc. (2012) 566 U.S. 93, 108.)

2. Rulemaking history of 24 Code of Federal

Regulations par 5.609(c)(16) (2020)

This interpretation of the terms “offset” and “cost” is also

consistent with the rulemaking history of 24 Code of Federal

Regulations part 5.609(c)(16) (2020). (See 60 Fed.Reg. 17388–

17395 (Apr. 5, 1995) [“Combined Income and Rent”; interim rule

as precursor to 24 C.F.R. § 5.609(c)(16) (2020)]; 61 Fed.Reg.

54492–54504 (Oct. 18, 1996) [final rule]). Though the Court of

Appeal found this history to be unhelpful and not illuminating,

we do not share that view. (See Thomas Jefferson Univ. v.

Shalala (1994) 512 U.S. 504, 512 [relevance of agency’s “ ‘intent

at the time of the regulation’s promulgation’ ”].)

In 1995, HUD published an interim rule proposing eight

new income exclusions — among them the homecare payments

exclusion — to the definition of annual income under Section 8

and other assisted housing programs. (See 60 Fed.Reg. 17388–

17395 (Apr. 5, 1995); 24 C.F.R. § 5.609(c) (2020).) It determined

that the new exclusions “are essential for achieving its goals of

ensuring economic opportunity, empowering the poor and

expanding affordable housing opportunities. Moreover, HUD

believes that the costs of additional exclusions will be offset by

long-term future savings because the exclusions will increase

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the number of economically self-sufficient families residing in

assisted housing.” (60 Fed.Reg. 17388, italics added.)

Regarding the “homecare payments” exclusion in

particular, HUD explained that the “exclusion exempts amounts

paid by a State agency to families that have developmentally

disabled children or adult family members living at home.

States that provide families with homecare payments do so to

offset the cost of services and equipment needed to keep a

developmentally disabled family member at home, rather than

placing the family member in an institution. Since families that

strive to avoid institutionalization should be encouraged, and

not punished, the Department is adding this additional

exclusion to income. The Department wishes to point out that

today’s interim rule does not define ‘developmentally disabled’

since whether a family member qualifies as developmentally

disabled, and is therefore eligible for homecare assistance, is

determined by each individual State.” (60 Fed.Reg. 17388,

17389 (Apr. 5, 1995), italics added.)

In finalizing the rule and responding to public comment

that “ ‘developmentally disabled children’ ” and “ ‘adult family

members’ ” should be expressly defined, HUD rejected the

suggestion as unnecessary: “There is no need for HUD to define

these terms, as they are defined by the State program providing

the payments. If the family is receiving such a payment from the

State because a family meets the criteria of the definition, the

[public housing authority] should consider the family eligible for

the exclusion.” (61 Fed.Reg. 54492, 54497 (Oct. 18, 1996), italics

added.)

We find several points from this rulemaking history to be

significant. As to the meaning of “offset,” HUD recognized that

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Opinion of the Court by Chin, J.

states that make payments for in-home services “do so to offset

the cost” to the family keeping the developmentally disabled

member at home “rather than placing the family member in an

institution.” (60 Fed.Reg. 17388, 17389 (Apr. 5, 1995).)

Significantly, HUD here did not use “cost” and “offset” in terms

of a specific monetary expense or amount a Section 8 family

incurs, but in a broad sense with respect to describing the

overall objective of the exclusion. HUD regarded homecare

payments as reducing or offsetting costs to families caring for

developmentally disabled individuals, costs that would be borne

by state and federal governments if the family member were

institutionalized. (See Perkins & Boyle, Addressing Long Waits

for Home and Community-Based Care Through Medicaid and

the ADA (2001) 45 St. Louis U. L.J. 117, 119 [“Most states have

reduced costly institutional care by shifting some public funding

to home and community settings”].)

This background clearly informs the interpretation of 24

Code of Federal Regulations part 5.609(c)(16) (2020). The

language of the regulation (“amounts paid by a State agency . . .

to offset the costs of services and equipment needed to keep the

developmentally disabled family member at home” [italics

added]) closely tracks this rulemaking language (“States that

provide families with homecare payments do so to offset the costs

of services and equipment needed to keep a developmentally

disabled family member at home, rather than placing the family

member in an institution”) (60 Fed.Reg. 17388, 17389, italics

added), and the italicized phrases at issue here are identical.

The only express limitation HUD has placed on this

exclusion is that the in-home care payments must be for services

and equipment needed to keep the “developmentally disabled”

family member at home. (See post, at pp. 15–16.) Even then,

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HUD found “no need” to define what “developmentally disabled”

meant, and instead left this up to the states to decide. (61

Fed.Reg. 54492, 54497 (Oct. 18, 1996; see 60 Fed.Reg. 17389

(Apr. 5, 1995) [“whether a family member qualifies as

developmentally disabled, and is therefore eligible for homecare

assistance, is determined by each individual State”].) From

HUD’s perspective, “If the family is receiving such a payment

from the State because a family member meets the criteria of

the definition, the [public housing authority] should consider the

family eligible for the exclusion.” (61 Fed.Reg. 54492, 54497,

italics added.)

Notwithstanding the general rule that exclusions from

income should be construed narrowly (see Commissioner v.

Schleier (1995) 515 U.S. 323, 328), we find no indication that

HUD intended a narrow construction of the homecare payments

exclusion. We perceive no reasoned basis — including any basis

informed by the regulation’s language — why HUD would single

out a parent provider’s compensation as unworthy for income

exclusion. Rather, we find HUD’s stated goals of encouraging

families to avoid the institutionalization of developmentally

disabled individuals through the addition of this exclusion (60

Fed.Reg. 17388, 17389 (April 5, 1995)), and more globally of

“ensuring economic opportunity, empowering the poor and

expanding affordable housing opportunities” (60 Fed.Reg.

17388), would be furthered by permitting all homecare

payments for services to keep developmentally disabled family

members at home — whether the provider is a family member

or third party — to be excluded from the meaning of “annual

income.” (24 C.F.R. § 5.609(c)(16) (2020).) By allowing these

families to realize the full benefit of the homecare payments

without facing a corresponding increase in rent, the exclusion

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would operate as intended by not penalizing families who take

on the onus of caring for a developmentally disabled family

member at home.

To that end, it is helpful to remember that “[t]he United

States Housing Act is a program of ‘cooperative federalism.’ ”

(James v. New York City Housing Authority (S.D.N.Y. 1985) 622

F.Supp. 1356, 1359; see 42 U.S.C. § 1437; see also Hodel v.

Virginia Surface Mining & Recl. Assn. (1981) 452 U.S. 264,

289.) “HUD’s delegation of eligibility requirements to local

public housing authorities is intended to effectuate the

underlying policy of the United States Housing Act by

promoting efficient management of the programs . . . .” (James

v. New York City Housing Authority, at pp. 1361–1362.) With

respect to the exclusion for homecare payments specifically (24

C.F.R. § 5.609(c)(16)) (2020)), HUD expressly left it to the states

to define “developmentally disabled,” which in part determines

a family’s eligibility for the income exclusion. (See ante, at p.

12.)

Along these lines, HUD did not limit the income exclusion

based on whether a state allows a family to use a family member

or a third party to provide the necessary care; the exclusion

covers “[a]mounts paid by a State agency to a family” with a

developmentally disabled member (24 C.F.R. § 5.609(c)(16)

(2020)). Indeed, acknowledging such a distinction would do

little to advance the complementary purposes of the federal and

state statutes. Congress established Section 8 with “the

purpose of aiding low-income families in obtaining a decent

place to live.” (42 U.S.C § 1437f(a).) And our Legislature

created IHSS with the goal of providing “supportive services . . .

to aged, blind, or disabled persons . . . who are unable to perform

the services themselves and who cannot safely remain in their

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homes or abodes of their own choosing unless these services are

provided.” (§ 12300, subd. (a).) Like the purpose of the federal

exclusion (see ante, at pp. 12–13), the IHSS program’s purpose

is to enable “ ‘disabled poor persons to avoid institutionalization

by remaining in their homes with proper supportive services.’ ”

(Basden v. Wagner, supra, 181 Cal.App.4th at p. 939.)

Nevertheless, MHA would have us read in the words “from third

parties” after the phrase “cost of services” (24 C.F.R. §

5.609(c)(16) (2020)) thereby making it correspondingly harder

for certain families to provide necessary in-home care. Given

this cooperative federalism regime, we ought to be reticent to

interpret the HUD regulation in a way that would foreclose or

hinder the objectives of the state IHSS program.

The dissent overstates the import of the authority it cites

(see dis. opn., post, at pp. 1–2, 16–19). (See Anthony v. Poteet

Housing Authority (5th Cir. 2009) 306 Fed. Appx. 98, 101

(Anthony) [“One must incur costs before they can be offset”]; Ali,

supra, 931 N.W.2d 835.) In Anthony, an unpublished Fifth

Circuit decision that first addressed the issue, plaintiff Brenda

Anthony provided in-home care for her severely disabled son in

their Section 8 subsidized apartment. Unlike California, the

State of Texas does not pay families directly for in-home care;

such care is provided by third party intermediaries, who in turn

employ in-home attendants and pay them wages partially

funded by the state. Through her employment as a personal

care attendant with two private for-profit companies, Anthony

provided care not only for her son but also for other clients under

the terms of her employment.

In determining Anthony’s annual income for purposes of

calculating her subsidized rent, the PHA refused to exclude

Anthony’s wages under 24 Code of Federal Regulations part

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Opinion of the Court by Chin, J.

5.609(c)(16) (2020)). The Fifth Circuit agreed with the PHA’s

decision: “[T]he fact that Anthony’s employment income

coincides with state funds that are set aside for her son’s care

does not make that income a form of reimbursement.” (Anthony,

supra, 306 Fed. Appx. at pp. 101–102.) The court further

rejected Anthony’s claim that the services she provided her son

were at a cost and were not free: “[F]or Anthony, they are free.

She has no out-of-pocket expenses — ‘costs’ — that must be

reimbursed or ‘offset’ by the state.” (Id. at p. 102.)

We are not persuaded by Anthony’s reasoning on several

grounds. Fundamentally, Texas’s program is distinct from the

IHSS scheme in that “all state-funded in-home attendant-care

services in Texas are provided by private intermediaries, and

Texas does not provide any amounts directly to families to offset

costs incurred to keep a disabled family member at home.”

(Anthony, supra, 306 Fed. Appx. at p. 101.) Next, although

Anthony’s private employers paid her to provide in-home care to

her son “with money partially provided by the state” (id. at p.

101), it is unclear what portion of her wages truly constituted

“pass-through” state funds. Her employers paid Anthony not

just to care for her disabled son, but also to care for other clients.

(Id. at p. 100.) Thus, Anthony’s compensation as an in-home

attendant was arguably indistinguishable from wages a parent

earns from outside employment, and therefore properly not

excluded from income under 24 Code of Federal Regulations

part 5.609(c)(16) (2020)). Finally, we do not agree with the Fifth

Circuit’s narrow interpretation of the exclusion as limited to out-

of-pocket expenses that a state directly reimburses. (See

Anthony, supra, 306 Fed. Appx. at pp. 101–102; see ante, at pp.

9–11.)

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Opinion of the Court by Chin, J.

Nor are we persuaded by the Minnesota Supreme Court’s

recent decision in Ali, supra, 938 N.W.2d 835, which relied in

part on both Anthony and the Court of Appeal opinion below to

reach a similar conclusion. (See Reilly v. Marin Housing

Authority, supra, 23 Cal.App.5th 425.) Under Minnesota’s

Consumer Directed Community Support option for home and

community-based services, a family receives a budget for

specific services and equipment needed to keep a

developmentally disabled member at home. (Ali, supra, 938

N.W.2d at p. 837.) The plaintiff, whose autistic son was eligible

for the program, “chose to allocate a portion of the budget to

herself as a paid parent to provide to her son some of the

necessary services.” (Ibid.) Following Anthony and Reilly, the

Ali court adopted a narrow view of “cost” to mean out-of-pocket

expenses, and concluded that the mother incurred no actual

monetary expenses to “offset.” (Id. at p. 840.)

As with the Texas program, the Minnesota program —

which allowed the mother to “allocate her budget as she saw fit

to keep her son living at home” — is structured differently from

the IHSS program in a way that makes Ali distinguishable.

(Ali, supra, 938 N.W.2d at p. 837.) Moreover, as with Anthony,

we disagree with the Ali court’s narrow interpretation of “cost”

and “offset.”

D. MHA’s policy arguments

Notwithstanding this reading of the HUD regulation,

MHA asserts that including a parent’s IHSS compensation as

income is necessary to achieve a measure of parity between

families in similar circumstances. An expansive reading of the

exclusion (24 C.F.R. § 5.609(c)(16) (2020)), MHA argues, would

unfairly advantage families who provide in-home care to a

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Opinion of the Court by Chin, J.

developmentally disabled member because their compensation

is not counted as income for purposes of calculating their rent

subsidy, whereas no comparable income exclusion is available

for a family with a medically disabled member or for a family

who hires a third party provider.

In advancing this argument, MHA asserts the state pays

Reilly “wages” under the IHSS program. Describing an

employment relationship between Reilly and the State of

California, MHA relies in part on the Court of Appeal’s

reasoning that “IHSS payments substitute in the family’s

budget for the money the parent would have earned outside the

home.” Such wages, MHA continues, should be considered part

of her annual income just like the outside income of a parent

who instead hires an in-home provider. We address these points

in turn.

1. Disparity based on individuals’ different

disabilities

First, we reject MHA’s and the dissent’s assertion that

excluding Reilly’s IHSS payments from annual income under 24

Code of Federal Regulations part 5.609(c)(16) (2020) would

create an unfair disparity by extending the exclusion to families

with a developmentally disabled member but not to families

with a medically disabled member. To the extent there is any

disparity, it is inherent in the federal regulation itself, which

specifically limits the exclusion to payments made to families

caring for a “developmentally disabled family member.” (24

C.F.R. § 5.609(c)(16) (2020).) Put another way, even assuming

MHA’s position is correct that the exclusion is limited to

payments made to third party providers, it would still treat

developmental disabilities more favorably than physical

disabilities because whatever its scope, the exclusion by its

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Opinion of the Court by Chin, J.

terms applies only to “[a]mounts paid by a State agency to a

family with a member who has a developmental disability.”

(Ibid., italics added.)

The regulation, moreover, does not require that an

individual meet a particular definition of “developmentally

disabled” for the income exclusion to apply. As previously

discussed (see ante, at p. 15), HUD has not defined

“developmental disability” in the regulation, but instead left it

up to states to determine its meaning. Specifically, if a state

program authorizes a family to receive in-home care for a family

member, in HUD’s view that family member “meets the criteria

of the definition” of developmentally disabled, and the PHA

“should consider the family eligible for the exclusion.” (61

Fed.Reg. 54492, 54497 (Oct. 18, 1996), italics added.) This

expansive view in favor of applying the exclusion is consistent

with HUD’s expressed concern that families of developmentally

disabled members in particular would receive unfair treatment

if this income exclusion were not made available to them. HUD

added the relevant exclusion for families with a developmentally

disabled member “[s]ince families that strive to avoid

institutionalization should be encouraged, and not punished.”

(60 Fed.Reg. 17388, 17389 (Apr. 5, 1995), italics added.)

The dissent, however, asserts that precluding Reilly from

utilizing this income exclusion would not amount to punishment

because no other group, besides foster parents, enjoys the

benefit of the income exclusion. (See dis. opn., post, at p. 34, fn.

18.) This critically misapprehends the nature of the penalty

involved. The punishment here is not merely withholding a

benefit to a family that is not otherwise given to similarly

situated families; in other words, the dilemma a family faces is

not choosing between enjoying or forgoing a “preferential

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REILLY v. MARIN HOUSING AUTHORITY

Opinion of the Court by Chin, J.

benefit,” as the dissent seems to suggest. (Dis. opn., post, at

p. 23.) Rather, if a family cannot utilize the income exclusion to

exclude compensation for a parent’s in-home care, this may

cause the family to lose its Section 8 housing altogether because

it is unable to pay an increased portion of rent. Without such

housing, a family may face having to institutionalize a

developmentally disabled member, a result the exclusion seeks

to prevent in the first place.

Further, despite no expressed preference for family

providers per se, “[r]ecipients needing 24-hour protective

supervision — and other services — are more likely to receive

better continuous care from relatives living with them whose

care is more than contractual.” (Miller v. Woods, supra, 148

Cal.App.3d at p. 870.) This continuity of care is particularly

salient here because of the nature of need-based tasks under the

IHSS program. Because an IHSS recipient may only receive

specific services based on an assessed need — i.e., where

“[p]erformance of the service by the recipient would constitute

such a threat to his/her health/safety that he/she would be

unable to remain in his/her own home” (MPP, § 30.761.14) —

not all time that a provider spends with a recipient would be

compensable. (See § 12300, subd. (a); MPP, § 30.761.12.) Many

tasks are discrete and not clustered together throughout the day

(such as feeding, dressing, bowel and bladder care), and a

provider may not be compensated for time spent waiting in

between those tasks. It would no doubt prove challenging to find

many providers — other than family members — willing to work

that intermittently during the day.

Family members may also make particularly good

providers because IHSS services “involve a most intimate and

personal aspect of an individual’s life” and family providers

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Opinion of the Court by Chin, J.

often “insure the least intrusion upon the recipient’s privacy.”

(Miller v. Woods, supra, 148 Cal.App.3d at p. 878; see § 12304.1

[“preference shall be given to any qualified individual provider

who is chosen by any recipient”].) Also recognizing that family-

provided care is often the best type of care for individuals with

disabilities, Congress has included it as one of the “goals of the

Nation” to provide families of children with disabilities the

services necessary to “enable families of children with

disabilities to nurture and enjoy their children at home”; and

“support family caregivers of adults with disabilities.” (42

U.S.C. § 15091(a)(6)(B), (D) [congressional findings of Families

of Children with Disabilities Support Act of 2000]; id.,

§ 15091(a)(1) [“It is in the best interest of our Nation to preserve,

strengthen, and maintain the family”].) Congress further

emphasized the important cost savings when family members

are themselves providers for their disabled children: “Families

of children with disabilities provide support, care, and training

to their children that can save States millions of dollars.

Without the efforts of family caregivers, many persons with

disabilities would receive care through State-supported out-of-

home placements.” (Id., § 15091(a)(2); see 60 Fed.Reg. 17388,

17389 (Apr. 5, 1995).) These expressed goals fully align with

HUD’s objective to have developmentally disabled individuals

avoid institutionalization and instead live with their families at

home.3

3

Contrary to the dissent’s suggestion, nothing in our

opinion should be construed as implying that third party

caregivers as a whole will provide “substandard” care compared

to family members. (Dis. opn., post, at p. 31.) We merely

confirm what Congress has expressly recognized about the

benefits of having family caregivers.

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Opinion of the Court by Chin, J.

This leads us to the inescapable conclusion that parents

who keep their disabled child at home instead of in an

institution — while also providing care as their child’s IHSS

provider — are different from other caregivers. That difference,

however, cuts in favor of allowing a parent’s IHSS compensation

under the exclusion. Unlike third party caregivers whose job it

is to take care of someone on an hourly basis, for these parent

providers, caring for their child “is not a day job; it is their life.”

(In re Hite (Bankr. W.D.Va. 2016) 557 B.R. 451, 458 [holding

parents’ in-home care payments excluded from monthly income

and consequently not deemed disposable income subject to

creditors].) If in-home care payments are not excluded from her

income, the benefits Reilly receives — the in-home care for her

disabled daughter K.R. and the Section 8 housing assistance —

would be at cross-purposes. A family should not be forced to

make an impossible choice between these two critical benefits.

We perceive no plausible reason why Reilly should not realize

the full benefit of what each program has to offer her family.4

2. IHSS payments as wages

Next, we reject MHA’s underlying assumption that a

parent provider’s compensation under the IHSS program seeks

to replicate the wages and hours of a parent who is employed

outside the home. A parent’s employment is relevant only to the

extent it relates to the parent’s suitability or availability to

provide IHSS services to a child. (MPP, § 30-763.451; Dept. All-

County Letter No. 19-02 (January 9, 2019) (All-County Letter

4

This conclusion focuses on Reilly’s general entitlement to

benefits under the Section 8 voucher and IHSS programs, and

does not consider any other basis for terminating these benefits

such as the failure to comply with any program requirements.

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Opinion of the Court by Chin, J.

19-02).) As section 12300, subdivision (e) explains, the predicate

for a paid parent provider is that “no other suitable provider is

available.” (§ 12300, subd. (e); see MPP, § 30-763.451.) In

providing the necessary in-home care to a disabled child, a

parent forgoes any outside employment — not to displace

otherwise competent professional caregivers — but to prevent a

third party caregiver’s “inappropriate placement or inadequate

care” for their child. (§ 12300, subd. (e).)

For instance, in its 2019 All-County Letter 19-02, the

Department clarified the paid parent provider requirements:

“The paid parent IHSS provider requirements, set forth in MPP

Section 30-763.451, do not require or imply that a parent must

have marketable job skills or a work history to be their child’s

paid IHSS provider, as long as it is the recipient child’s needs

which prevent the parent from maintaining or obtaining full-

time employment.” (All-County Letter 19-02, supra, at p. 4,

italics added.) Likewise, parents who retire or are laid off may

also serve as their child’s provider only if their retirement or

layoff is due to the child’s need for IHSS services. (Id. at p. 6.)

In short, “if a parent is not employed full-time for a reason other

than the recipient child’s IHSS needs . . . that parent would not

qualify as a paid parent IHSS provider.” (Id. at p. 4.)

Second, even assuming Reilly’s IHSS compensation

represents her wages, this does not mean that providing in-

home care to her child is “an employment for all purposes.”

(Basden v. Wagner, supra, 181 Cal.App.4th at p. 940.) In Basden

v. Wagner, the Court of Appeal recognized certain duties — such

as the state being responsible for the provider’s unemployment

compensation, workers’ compensation, federal and state income

tax and the like — that would suggest providing IHSS full-time

could be considered an employment. The court, however,

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Opinion of the Court by Chin, J.

pointed out that “the Legislature defined IHSS providers as

employees for limited circumstances, but undisputedly not for

all circumstances. More significantly, nothing in the statutes

even remotely suggests the Legislature defined the provision of

in-home, full-time, IHSS funded care by a parent to a child as

full-time employment . . . .” (Ibid., italics omitted.) The question

here is whether a parent’s compensation for providing in-home

care is “specifically excluded” from the definition of annual

income for purposes of the HUD regulation. (24 C.F.R.

§ 5.609(a)(3), (c)(16) (2020).) As explained above, we conclude

that IHSS compensation to a parent provider is excluded from

income. (See ante, at pp. 14–15.)

Nevertheless, the dissent maintains that “[u]nlike funds

that reimburse a family’s expenditures, funds provided by the

state to compensate for the family’s caregiving activities are

available to meet the family’s daily needs. That is their

purpose.” (Dis. opn., post, at p. 25, italics added.) This

characterization gravely misconstrues the nature and scope of

IHSS services.

Under the IHSS program, the main focus is on assessing

the disabled individual’s “service needs and authorizing service

hours to meet those needs.” (§ 12301.2, subd. (a)(1).) A

caregiver will be compensated only for those authorized service

hours and nothing more. As previously explained (see ante, at

p. 21), because many tasks are discrete and completed

throughout the day, a provider might not be compensated for

time spent waiting in between those tasks. Contrary to the

dissent’s suggestion, excluding a parent’s IHSS compensation

from income would not artificially reduce a family’s income and

thereby increase any resulting rent subsidy. At best, a parent’s

IHSS compensation will offset a portion of the costs of keeping

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Opinion of the Court by Chin, J.

a developmentally disabled family member at home, and would

not go far in meeting the family’s daily needs.

The dissent’s related assertion — i.e., family providers

“are effectively selling their labor to the state, and the resulting

income is indistinguishable, in its impact on the family’s

standard of living, from money earned working outside the

home” (dis. opn., post, at p. 25) — is likewise long on conclusion

but short on facts. (See ibid. [“to receive funds from IHSS a

parent must accept their disabled child’s care as, in effect, their

job”].) In the case of Reilly’s daughter, K.R., for example, she

required protective supervision that is “only available” if “a need

exists for twenty-four-hours-a-day of supervision in order for the

recipient to remain at home safely.” (MPP, § 30-757.173(a).) A

person needing 24-hour supervision would require a provider’s

services for 720 hours in a 30-day month. However, an IHSS

provider is limited to a statutory cap of 283 hours of

compensation. (§§ 12303.4, 14132.95, subd. (g).) The

discrepancy between a parent provider’s actual hours of service

and compensation belies any assertion that IHSS payments, at

least with respect to protective supervision, are intended to

represent wages the parent would have earned outside the

home, where compensation would be based on every hour

worked.

Finally, we find it significant that the IRS also treats in-

home care payments — whether the provider is related or

unrelated to the disabled individual — as excludable from a

provider’s income under Internal Revenue Code section 131. (26

U.S.C. § 131; see Rev. Proc. 2014-7, 2014-4 I.R.B. 445.) In 2014,

the IRS explained that Medicaid waiver payments to states,

which are used to fund IHSS payments through the state Medi-

Cal program (see ante, at pp. 5–6 & fn. 2), should be excluded

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REILLY v. MARIN HOUSING AUTHORITY

Opinion of the Court by Chin, J.

from a provider’s gross income. (Rev. Proc. 2014-7, 2014-4 I.R.B.

445.) It equated these payments to foster care payments, which

are considered “difficulty of care” payments excludable from a

provider’s income under Internal Revenue Code section 131.

(26 U.S.C. § 131(a) [“Gross income shall not include amounts

received by a foster care provider . . . as qualified foster care

payments”].) “The programs share the objective of enabling

individuals who otherwise would be institutionalized to live in a

family home setting rather than in an institution, and both

difficulty of care payments and Medicaid waiver payments

compensate for the additional care required.” (Rev. Proc. 2014-

7, 2014-4 I.R.B. 445 [these foster parents “ ‘are saving the

taxpayers’ money by preventing institutionalization of these

children’ ”].) As relevant here, the IRS makes no distinction

between care provided by a parent or by a third party — the

exclusion for Medicaid waiver payments “will apply whether the

care provider is related or unrelated to the eligible individual.”

(Ibid., italics added.)

Seeking to downplay any impact an IRS interpretation has

on a HUD regulation, MHA notes that HUD has indicated that

the “tax rules are different from the HUD program rules.”

(HUD, HUD Handbook 4350.3: Occupancy Requirements of

Subsidized Multifamily Housing Programs (Nov. 2013) ¶ 5-1.)

Be that as it may, we do not conclude that the IRS’s

interpretation is dispositive or compels the outcome in this case.

We do, however, acknowledge that it provides persuasive

insight, one that is consistent with the rulemaking record of the

HUD regulation (24 C.F.R. § 5.609(c)(16) (2020)). (See ante, at

pp. 11–13)

For example, though payments to foster parents and in-

home care payments are both considered “difficulty of care”

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Opinion of the Court by Chin, J.

payments excludable from a provider’s taxable income, these

payments would receive unequal treatment under MHA’s

interpretation of the regulation. Under 24 Code of Federal

Regulations part 5.609(c)(2) (2020), “[p]ayments received for the

care of foster children or foster adults (usually persons with

disabilities, unrelated to the tenant family, who are unable to

live alone)” are excluded from income for purposes of Section 8

housing. If a family takes into their home an unrelated disabled

adult who is unable to live alone, and receives payment from the

State for providing care to that adult, such payments are

excluded from the family’s income. However, if that same family

receives payment for providing the same care but to a

developmentally disabled family member, those payments

would not be excluded from income. To ascribe this

interpretation to HUD, which would impose a financial penalty

on a family simply because the care is given to a disabled family

member rather than a disabled stranger, would not only be

inconsistent with the IRS’s treatment of both payments, there is

no evidence in the regulation’s rulemaking record that HUD

intended different treatment.

E. HUD’s position

At our request, HUD filed an amicus brief in this matter.

We first note that at oral argument HUD’s counsel indicated

that the agency did not request we give deference to its

interpretation of the regulation because it believed the plain

language controlled. (See Kisor v. Wilkie (2019) 588 U.S. ___

[139 S. Ct. 2400, 2415] [“If uncertainty does not exist, there is

no plausible reason for deference. The regulation then just

means what it means — and the court must give it effect”].)

Urging us to affirm the Court of Appeal’s judgment, HUD opines

that the IHSS payments Reilly receives must be treated as

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Opinion of the Court by Chin, J.

income under the regulation because that “compensation

substitutes for income Reilly would otherwise earn for working

outside the home.” HUD essentially echoes the reasoning of the

Court of Appeal below.

Though deference is generally accorded an agency’s

interpretation of its own regulation in the face of ambiguity (see

Auer v. Robbins (1997) 519 U.S. 452; Skidmore v. Swift & Co.

(1944) 323 U.S. 134, 140), we conclude that such deference is not

compelled here. (See United States v. Mead Corp. (2001) 533

U.S. 218, 228 [“[t]he fair measure of deference to an agency

administering its own statute has been understood to vary with

circumstances”].) Courts should defer to an agency’s

interpretation unless an “ ‘alternative reading is compelled by

the regulation’s plain language or by other indications of the

[agency’s] intent at the time of the regulation’s promulgation.’ ”

(Thomas Jefferson Univ. v. Shalala, supra, 512 U.S. at p. 512,

italics added.)

As explained above (see ante, at pp. 12–13), we conclude

that HUD’s clearly expressed intent at the time it added the

exclusion for homecare payments (24 C.F.R. § 5.609(c)(16)

(2020)) was to encourage families to provide in-home care to, and

avoid institutionalization of, developmentally disabled family

members. This contemporaneous intent is fully realized only

when in-home payments for services needed to keep the

developmentally disabled member at home — are excluded from

income for purposes of the Section 8 program, i.e., whether those

payments are ultimately made to a family member or to a third

party provider. This interpretation is consistent with

exclusion’s language, which places no restrictions on who the

provider of services can be. (24 C.F.R. § 5.609(c)(16) (2020).)

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Opinion of the Court by Chin, J.

Contrary to MHA’s suggestion, we do not perceive any

intent by HUD to treat families with a developmentally disabled

member and families with a medically disabled member the

same, or to consider a parent’s outside income the same as a

parent’s IHSS compensation. We will not pursue parity for

parity’s sake, especially if such pursuit runs counter to the

language and purpose of the exclusion. Including a parent’s in-

home care payments as income to determine a family’s Section

8 eligibility will have the perverse effect of making it harder for

a family to maintain a home in which to care for the child.

In the end, we refuse to adopt a crabbed interpretation

that does little to advance the tandem goals of offering

affordable housing to low income families and of supporting

families who themselves provide in-home care for

developmentally disabled members. We cannot endorse a

construction that yields a result antithetical to our nation’s “goal

of providing families of children with disabilities with the

support they need to raise their children at home.” (42 U.S.C.

§ 15091(c).) We conclude a parent’s IHSS compensation to

provide care to keep a developmentally disabled child at home

is excluded from income under 24 Code of Federal Regulations

part 5.609(c)(16) (2020).

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Opinion of the Court by Chin, J.

CONCLUSION

We reverse the Court of Appeal’s judgment and

remand the matter for further proceedings consistent with this

opinion.

CHIN, J.

We Concur:

LIU, J.

CUÉLLAR, J.

GROBAN, J.

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REILLY v. MARIN HOUSING AUTHORITY

S249593

Dissenting Opinion by Chief Justice Cantil-Sakauye

The federal Housing Choice Voucher program, 42

U.S.C. section 1437f (hereafter Section 8), provides housing

assistance to low-income families, with the amount of the

assistance determined by the family’s annual income. Under

24 Code of Federal Regulations part 5.609(c) (2020),1 certain

funds are excluded from the calculation of annual income.

Among the funds excluded from that calculation are state

payments to a family providing at-home care to a

developmentally disabled family member if those payments

“offset the cost of services and equipment needed to keep the

developmentally disabled family member at home.”

(§ 5.609(c)(16).) The majority adopts an expansive

interpretation of part 5.609(c)(16), holding that, in addition

to excluding the state’s reimbursement of out-of-pocket

expenses, the regulation also covers the compensation paid to

parents who are hired by the state to provide full-time care

to their developmentally disabled children. Every other

appellate court to consider part 5.609(c)(16) — the United

1

Hereafter part 5.609(c) — and, when referred to in a

citation parenthetical, § 5.609(c). (See California Style

Manual (2000) § 2:44.)

1

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

States Court of Appeals for the Fifth Circuit, the Minnesota

Supreme Court, and our Court of Appeal — has adopted a

narrower construction, limiting the exclusion to those state

payments that reimburse a family’s expenditures. In

contrast, these courts have held that compensation to parents

for their labor in caring for a developmentally disabled child,

which constitutes genuine income to the family, is outside the

scope of the exclusion.

The conclusion reached by these other appellate courts

is the most straightforward reading of the relevant

regulatory language, which is restricted to payments made

“to offset the cost of services and equipment.” (§ 5.609(c)(16).)

And this interpretation fully serves my understanding of the

purpose underlying the regulation, which is to ensure that

families caring for a developmentally disabled family

member are not disadvantaged in their receipt of Section 8

housing assistance by their acceptance of state help in

keeping the family member at home. Significantly, the

narrower interpretation is the one urged on us by the United

States Department of Housing and Urban Development

(HUD), the federal agency that drafted the regulation.

The majority’s more expansive construction of the

regulation relies on a strained reading that disregards the

actual language, and it will have unfortunate and selective

public policy consequences. First, the majority’s ruling will

introduce unintended and unwarranted inequities into the

2

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

administration of Section 8. Second, the majority’s

misreading will siphon scarce housing assistance from

California’s other low-income families, inevitably reducing

the number of families who will benefit from the Section 8

program. In light of the misguided, if well-intentioned,

nature of the majority’s analysis, I respectfully dissent.

I. BACKGROUND

A. Plaintiff’s Circumstances

Plaintiff Kerrie Reilly and her adult daughter, K.R.,

live together in a three-bedroom apartment in Marin County.

Due to a severe developmental disability, K.R. requires

around-the-clock supervision. Under the In-Home

Supportive Services program (IHSS; Welf. & Inst. Code,

§ 12300 et seq.), the state pays plaintiff to provide full-time

home care and supervision to her daughter. Without such

care, K.R. would likely be placed in an institution. At the

time of the trial court proceedings, the family’s annual

income exceeded $52,000, comprised of K.R.’s social security

benefits of $11,000 and more than $41,000 in IHSS

compensation to plaintiff.

Plaintiff is a long-time participant in Section 8. In

2004, plaintiff’s second daughter, R.R., moved from the

family’s apartment to attend college. For the next five years,

plaintiff falsely represented in annual, sworn certifications to

the Marin Housing Authority (Authority), the agency

responsible for administering her Section 8 benefits, that

3

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

R.R. continued to live with her.2 After the Authority learned

the truth, plaintiff admitted that she made the

misrepresentations because she was concerned that she and

K.R. would be required to move from their three-bedroom

apartment if she disclosed R.R.’s move. Plaintiff’s false

representations also caused her to be granted, the Authority

concluded, a larger Section 8 housing voucher than she would

have received had the Authority known the true

circumstances. When the Authority confronted plaintiff, she

agreed to repay more than $16,000 in excess subsidies under

a payment schedule. Unfortunately, plaintiff was often

unable to make the scheduled payments. The Authority’s

patience ran out in 2015, when it terminated her

participation in the Section 8 program.

As the Authority informed the trial court in explaining

its decision to terminate plaintiff, its implementation of

Section 8 is severely constrained by limited funding. In 2015,

more than 5,000 families in Marin County eligible for

Section 8 housing assistance were on a waiting list because

the Authority was unable to help them. At the time, the

Authority was authorized to grant vouchers to only 2,153

families; in practice, it provided rent vouchers only to 1,957

2

The majority’s statement that plaintiff “did not inform”

the Authority of R.R.’s departure (maj. opn., ante, at p. 2) is

a charitable but misleading characterization of plaintiff’s

repeated and knowing falsehoods.

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REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

families due to insufficient funding. The Authority decided

to terminate plaintiff because, it explained, although it “has

been grappling with the possibility of terminating hundreds

of compliant families from the Section 8 Program, [plaintiff]

has made it a practice to violate rules of the Section 8

Program and her contractual obligations.” Contrary to

majority’s claim (maj. opn., ante, at p. 2), the termination did

not require plaintiff’s eviction from her apartment, although

she would become responsible for paying the entire rent.

In this mandate action challenging her termination,

plaintiff argued that the Authority had improperly included

her IHSS payments when calculating her annual income

under Section 8, causing the Authority to understate the

housing subsidy due her. The trial court disagreed,

sustaining the Authority’s demurrer without leave to amend

upon concluding that the IHSS payments were properly

included in plaintiff’s income calculation. The Court of

Appeal affirmed in a published decision. (Reilly v. Marin

Housing Authority (2018) 23 Cal.App.5th 425, 439 (Reilly).)

The Supreme Court now reverses the Court of Appeal.

B. Governing Law

1. Section 8

The Section 8 voucher program “is funded by HUD and

administered by state and local public housing authorities

. . . in accordance with regulations promulgated by HUD.

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REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

When a rent payment exceeds a specified percentage of a

family’s monthly income, the federal program pays the

balance.” (Inclusive Communities Project, Inc. v. Lincoln

Property Co. (5th Cir. 2019) 920 F.3d 890, 900.) As HUD

characterizes the program in an amicus curiae brief,

“Section 8 is not an entitlement program; Congress

appropriates only a fixed sum for vouchers . . . each year, and

not every otherwise qualified family receives a voucher.”3

Each administering agency is assigned a maximum number

of annual vouchers and has a fixed budget.4 Yet Congress

has underfunded the program in recent years, requiring

3

If the Authority’s experience is any guide, HUD’s

concession that “not every otherwise qualified family receives

a voucher” is a gross understatement. More than 7,000

families in Marin County are eligible for assistance under

Section 8, but fewer than 2,000 are actually provided

vouchers.

4

See Congressional Research Service, An Overview of

the Section 8 Housing Programs: Housing Choice Vouchers

and Project-Based Rental Assistance, No. RL32284 (Feb. 7,

2014). A copy of the report can be found at

<https://www.everycrsreport.com/reports/RL32284.html#:~:t

ext=The%20voucher%20program%20is%20funded,an%20an

nual%20budget%20from%20HUD.> (as of Aug. 28, 2020). All

Internet citations in this opinion are archived by year, docket

number, and case name at <http://www.courts.ca.gov/

38324.htm>.

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REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

these agencies to operate at only 85 percent of their assigned

budgets.5

Each subsidized family is required to contribute to its

rent payment an amount equal to “thirty percent of the

tenant family’s monthly ‘adjusted income’ or ten percent of

its monthly gross income, whichever is greater.” (Hayes v.

Harvey (3d Cir. 2018) 903 F.3d 32, 36, citing 42 U.S.C.

§ 1437f(o).) “Adjusted income” for this purpose is a family’s

“annual income,” minus certain expenses and allowances.

(24 C.F.R. § 5.611 (2020); DeCambre v. Brookline Housing

Authority (1st Cir. 2016) 826 F.3d 1, 9 (DeCambre).) The

calculation of annual income therefore determines the

proportion of its monthly rent that a family participating in

Section 8 must pay.

For purposes of Section 8, “annual income” constitutes

“all amounts, monetary or not” that “[g]o to, or on behalf of,

the family head or spouse . . . or to any other family member.”

(24 C.F.R. § 5.609(a)(1), (3) (2020); DeCambre, supra, 826

F.3d at p. 9.) Among other things, this includes “[t]he full

amount, before any payroll deductions, of wages and

salaries, . . . and other compensation for personal services.”

(24 C.F.R. § 5.609(b)(1) (2020).) Subpart (c) of part 5.609 lists

5

Eligibility Team, How the Housing Choice (Section 8)

Voucher Program is Funded (Jan. 22, 2016)

<https://eligibility.com/section-8/how-the-housing-choice-

section-8-voucher-program-is-funded#> (as of Aug. 28, 2020).

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REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

16 exclusions from annual income. In addition to the

exclusion on which plaintiff relies, part 5.609(c)(16), which

excludes certain payments to a family providing at-home care

to a developmentally disabled family member, these include

payments received “for the care of foster children”

(§ 5.609(c)(2)), payments “for, or in reimbursement of, the

cost” of medical expenses (§ 5.609(c)(4)), students’ financial

aid (§ 5.609(c)(6)), certain nonrecurring payments

(§ 5.609(c)(3), (9)), and student earnings and adoption

assistance payments “in excess of $480” (§ 5.609(c)(11), (12)).

2. IHSS

The purpose of the IHSS program is “to avoid

institutionalization of incapacitated persons. It provides

supportive services to aged, blind, or disabled persons who

cannot perform the services themselves and who cannot

safely remain in their homes unless the services are provided

to them. The program compensates persons who provide the

services to a qualifying incapacitated person.” (Basden v.

Wagner (2010) 181 Cal.App.4th 929, 931 (Basden).) IHSS is

administered by the state’s counties (Skidgel v. California

Unemployment Ins. Appeals Bd. (2018) 24 Cal.App.5th 574,

578–579), which either hire a caregiver for the recipient or

pay the recipient directly to cover the costs of a caregiver.

(Basden, at p. 934; Welf. & Inst. Code, §§ 12302, 12304, subd.

(a).) Counties are required to give preference to a care

provider selected by the recipient, and some IHSS care

8

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

recipients are entitled to select and hire their own provider.

(Welf. & Inst. Code, §§ 12303.4, subd. (b); 12304, subd. (a),

12304.1; Skidgel, supra, 24 Cal.App.5th at p. 579.)

The state may hire parents to care for their children

under IHSS, but only “when the [parent] leaves full-time

employment or is prevented from obtaining full-time

employment because no other suitable provider is available.”

(Welf. & Inst. Code, § 12300, subd. (e); see generally, Basden,

supra, 181 Cal.App.4th at pp. 939–940.) Of the 535,000 IHSS

care providers in California, about 70 percent are a relative

or spouse of the recipient, and about one-quarter of those are

a parent. Slightly less than half of IHSS providers — 250,000

persons — are, like plaintiff, relatives of the person for whom

they provide care and live in the same home.6

Plaintiff’s claim that her IHSS payments should be

excluded from the calculation of her Section 8 annual income

is premised on part 5.609(c)(16), which excludes “[a]mounts

paid by a State agency to a family with a member who has a

developmental disability and is living at home to offset the

cost of services and equipment needed to keep the

6

The State Department of Social Services reports a wide

range of monthly data regarding participation in the IHSS

program. The information cited in this paragraph is from a

table of data for June 2020, maintained at IHSS Program

Data <https://www.cdss.ca.gov/inforesources/ihss/program-

data> (as of Aug. 28, 2020). The cited data is available under

a tab labeled “Provider Details,” which does not appear to be

accessible through a separate URL.

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REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

developmentally disabled family member at home.” The

Authority and HUD interpret the phrase “[a]mounts paid . . .

to offset the cost of services and equipment” to cover only

payments by the state to compensate for a family’s actual

expenditures on services or equipment. (§ 5.609(c)(16.)

Because plaintiff’s IHSS compensation was not used to pay

for the costs of services or equipment purchased by the family

to care for K.R., the Authority explains, it did not exclude

plaintiff’s IHSS payments when calculating her annual

income. Plaintiff contends, however, and the majority holds,

that the phrase “[a]mounts paid . . . to offset the cost of

services and equipment” (ibid.) should be construed to cover

any payment made to a family by the state in connection with

the in-home care of a developmentally disabled family

member, regardless of whether the payment offset an

expenditure by the family or compensated a family member

hired by the state to care for the disabled person.

II. DISCUSSION

A. The Language of Part 5.609(c)(16) Precludes

the Majority’s Interpretation

We review questions of statutory interpretation de

novo. (Christensen v. Lightbourne (2019) 7 Cal.5th 761, 771.)

Under “our familiar principles of statutory construction,”

“ ‘[w]e start with the statute’s words, which are the most

reliable indicator of legislative intent.’ [Citation.] ‘ “We

interpret relevant terms in light of their ordinary meaning,

10

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

while also taking account of any related provisions and the

overall structure of the statutory scheme to determine what

interpretation best advances the Legislature’s underlying

purpose.” ’ [Citations.] ‘If we find the statutory language

ambiguous or subject to more than one interpretation, we

may look to extrinsic aids, including legislative history or

purpose to inform our views.’ ” (In re A.N. (2020) 9 Cal.5th

343, 351–352 (A.N.).) We take the same approach when

interpreting administrative regulations. (Centinela Freeman

Emergency Medical Associates v. Health Net of California,

Inc. (2016) 1 Cal.5th 994, 1011.) Based on the ordinary

meaning of its language, we should conclude that the

part 5.609(c)(16) exclusion is limited to state payments that

compensate a family’s actual expenditures for services and

equipment to keep a developmentally disabled family

member in their home.

As noted above, part 5.609(c)(16), excludes from a

Section 8 family’s annual income “[a]mounts paid by a State

agency to a family . . . to offset the cost of services and

equipment needed to keep the developmentally disabled

family member at home.” According to Merriam-Webster,

the verb “offset” means “to serve as a counterbalance for :

COMPENSATE.” (Merriam-Webster Dict. Online (2020)

<https://www.merriam-webster.com/dictionary/offset> [as of

Aug. 28, 2020]; see, e.g., Steinmeyer v. Warner Cons. Corp.

(1974) 42 Cal.App.3d 515, 518 [“An ‘offset’ may be defined as

11

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

a claim that serves to counterbalance or to compensate for

another claim”].) Part 5.609(c)(16) therefore excludes

payments by the state to a family that are made to

“counterbalance” the cost of services and equipment needed

to keep the developmentally disabled family member at

home. Necessarily, this language anticipates that an

equivalent cost has been or will be paid by the family for

those services or equipment, since there would be nothing to

counterbalance in the absence of such an expenditure.

If HUD, the agency that drafted part 5.609(c)(16), had

intended the regulation to bear the broader meaning imposed

by the majority, it could have used a more inclusive phrase,

such as amounts paid by the state “for services and

equipment,” instead of requiring the excluded payments to

“offset the cost” of services and equipment. This is the

approach taken by HUD in drafting the only part 5.609(c)

exclusion that undoubtedly bears the breadth bestowed on

subpart (c)(16) by the majority. Part 5.609(c)(2) excludes

“[p]ayments received for the care of foster children or foster

adults (usually persons with disabilities, unrelated to the

tenant family, who are unable to live alone),” leaving no

uncertainty about its meaning.7 (Italics added.) By imposing

7

The parenthetical presumably explains the reason for

the breadth of the exclusion: To provide a benefit to low-

income families that care for unrelated persons who are in

12

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

a similar breadth on part 5.609(c)(16), the majority’s reading

renders pointless the use of the term “offset” because its

reading is not restricted to the exclusion of payments that

“offset the cost” of services and equipment. It is an

elementary principle of statutory interpretation that “ ‘[a]n

interpretation that renders statutory language a nullity is

obviously to be avoided.’ ” (Tuolumne Jobs & Small Business

Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1039.) The

majority’s expansive approach also defies the general

interpretive principle that exceptions to a statute are to be

construed narrowly. (Mathews v. Becerra (2019) 8 Cal.5th

756, 771; Simpson Strong-Tie Co. v. Gore (2010) 49 Cal.4th

12, 22.)

HUD has confirmed this understanding in an amicus

curiae brief, arguing that it intended the regulation to reach

only state payments that reimburse a family’s expenditures.

As HUD reasons, this narrower reading “accords with the

distressed circumstances. The majority contends that

interpreting subpart (c)(2) differently from subpart (c)(16)

“would be unreasonable” because both families are providing

“the same care.” (Maj. opn., ante, at p. 28.) The different

approaches, however, are readily explained. HUD could

reasonably have concluded that the familial connection

required by part 5.609(c)(16) makes it unnecessary to bestow

this type of benefit on families covered by that exclusion. In

any event, the distinctly different language in the two

exclusions suggests that they should be interpreted

differently.

13

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

basic policy objectives of the regulation. [Citation.] As HUD

has explained, in promulgating [part] 5.609(c)(16), the

exclusion exists because ‘families that strive to avoid

institutionalization should be encouraged, and not punished.’

[Citation.] The regulation pursues this goal in part by

ensuring that families that choose different means of keeping

the developmentally disabled family member at home are

treated evenhandedly.”8

Plaintiff argues that the term “cost” could cover more

than a monetary expenditure. In ordinary parlance, “cost,”

admittedly, can refer not simply to the price paid for

something, but more broadly to “the outlay or expenditure

(as of effort or sacrifice) made to achieve an object” or the

“loss or penalty incurred especially in gaining something.”

(Merriam-Webster Dict. Online (2020)

<https://www.merriam-webster.com/dictionary/cost> [as of

Aug. 28, 2020].) In this connection, plaintiff invokes the

economic concept of an “opportunity cost,” that is, the

opportunities foregone when a person makes a particular

8

Leaving aside debate about the precise degree of

deference to be accorded HUD’s interpretation under

Yamaha Corp. of America v. State Bd. of Equalization (1998)

19 Cal.4th 1, 7–8, the administrative agency’s interpretation

undoubtedly deserves serious consideration. Although the

majority does address HUD’s views, its explanation for

rejecting them amounts to little more than a disagreement

with HUD over which interpretation best serves HUD’s

goals. (Maj. opn., ante, at pp. 28–30.)

14

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

economic choice. Here, the argument goes, “cost” refers to the

employment opportunities that plaintiff has foregone in order

to provide care under IHSS. The payments therefore “offset”

the cost to plaintiff of not having other employment. This is

hardly the “ordinary meaning” of the language HUD chose to

use. (A.N., supra, 9 Cal.5th at p. 351.) We typically refer to

a payment for services as “compensation” or, more simply,

“payment” for the work performed. We do not refer to

compensation for providing a service as “offsetting the cost”

of the service provider’s own effort, much less the service

provider’s decision to take this job, rather than a different

hypothetical job.

The majority takes a different tack in justifying its

interpretation, suggesting that because much of the IHSS

compensation paid to plaintiff will ultimately be spent on

costs associated with supporting K.R. in the family home,

that compensation is paid to “offset the cost of services and

equipment needed to keep [K.R.] at home.” (§ 5.609(c)(16);

see Maj. opn., ante, at p. 10 [“Whether a family uses homecare

payments to support itself so that it may care for a

developmentally disabled member at home, or instead uses

the funds to pay a third party to provide care for some of the

time, these payments do no more than ‘offset’ the ‘cost’ of

services and equipment needed to avoid

institutionalization”].) This rationale fails for two

independent reasons. First, while it finds a role for the term

15

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

“offset,” it disregards other aspects of the regulatory

language. Part 5.609(c)(16) excludes only state payments

that offset expenditures for “services and equipment.” As

rationalized above, the majority’s reading necessarily

stretches the exclusion to cover any cost related to K.R.’s

presence in the home, including food, clothing, and rent.

These are not normally viewed as “services and equipment.”9

By restricting the exclusion to the costs of “services and

equipment,” HUD signaled its intent to exclude only costs

related to the family member’s disability, rather than the

ordinary, if necessary, expenses of daily life. Second, the

regulation excludes “[a]mounts paid by a state agency . . . to

offset the costs of services and equipment.” (§ 5.609(c)(16).)

As discussed above, the IHSS compensation is paid by the

state to compensate plaintiff for her labor in caring for her

daughter. While it may be used by plaintiff to cover the costs

of supporting her daughter, it is not paid by the state to offset

those costs.

The restrictive view of part 5.609(c)(16) has been

adopted by all other appellate courts that have considered the

issue. The plaintiff in Anthony v. Poteet Housing Authority

9

Indeed, because the majority reads the regulation to

exclude the entirety of plaintiff’s IHSS compensation on this

basis, it construes “the costs of services and equipment” to cover

the cost of anything plaintiff chooses to spend her compensation

on.

16

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

(5th Cir. 2009) 306 Fed. Appx. 98, the first decision to address

this issue, lived with her developmentally disabled adult

child. Under a state-funded program in Texas, she was

employed by a private entity to care for the child and, like

plaintiff, contended that the income she earned in this role

should be excluded from her Section 8 income under

part 5.609(c)(16). The court was willing to accept that her

payments, despite being provided by a private employer,

constituted payments by the state. It rejected her argument

that the payments should be excluded from the calculation of

her Section 8 income under part 5.609(c)(16), however, upon

concluding that the exclusion applies only to reimbursements

for costs paid for care by third-party providers. As the court

explained, “One must incur costs before they can be offset.”

(Anthony, at p. 101.)

The Court of Appeal below reached a similar conclusion

after a more extensive analysis. It declined to equate “offset”

with “reimburse,” but the distinction it found between the

two terms was quite narrow and is inconsequential in these

circumstances. As the court explained, part 5.609(c)(16)

“appears to reach money paid to a family so that the family

can go out and hire services or purchase equipment necessary

for the developmentally disabled family member. Such

payments ‘offset the cost of services and equipment’ that

would otherwise fall on the family. But they are not

reimbursement for out-of-pocket expenses if the family

17

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

receives payment before, rather than after, incurring the

expense.”10 (Reilly, supra, 23 Cal.App.4th at p. 434.) The

appellate court below also rejected plaintiff’s argument that

the IHSS payments should be excluded because “the services

she provides are necessary for her daughter to live at home,

and the IHSS payments offset the costs of those services.”

(Id. at p. 432.) The court rightly accepted plaintiff’s

contention that her services were necessary to keep K.R. at

home, but it found the language of the regulation inconsistent

with plaintiff’s argument that it excludes any payment for

necessary services. As the court explained, part 5.609(c)(16)

refers to payments “ ‘to a family . . . to offset the cost of

services . . . .’ ” (Reilly, at p. 434.) “If a payment is to ‘offset

the cost of services,’ the payment must go to the same entity

that incurs the cost of those services. Otherwise the payment

does not counterbalance or compensate for the cost of

services. . . . This means that the costs these payments offset

must be costs that the family itself incurs.” (Ibid.)

Most recently, the Minnesota Supreme Court reached

the same conclusion in In re Ali (Minn. 2020) 938 N.W.2d 835

(Ali). In that case the plaintiff lived at home with her

developmentally disabled son. Under a Minnesota state

10

The majority contends that “ ‘offset’ as used here does

not necessarily reflect th[e] same meaning” as “reimburse”

(maj. opn., ante, at p. 10), but it does not clearly articulate

what the difference might be.

18

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

program, she was provided with a budget for the services and

equipment needed to keep him in the home, some of which

she allocated to herself as compensation for her services as a

caregiver. (Id. at p. 837.) In concluding that the sums

allocated to plaintiff were not excluded from her Section 8

income under part 5.609(c)(16), the court held that the word

“cost” should be interpreted as “price.” (Ali, at p. 839.) It

rejected the argument that the word should be given a

broader definition for three independent reasons. First,

referring to the entirety of the phrase “to offset the cost of

services and equipment,” the court reasoned that “[t]he ‘and’

between the words services and equipment suggests that the

same measurement is used for each. Typically, the cost of

equipment is calculated in monetary terms — such as the cost

to buy or lease.” (Ibid.) Second, like the appellate court

below, Ali cited the use of the word “cost” elsewhere in part

5.609, where it clearly refers to “a monetary expense.” (Ali,

at p. 839.) Finally, the court noted that “when the regulators

wanted to exclude amounts paid to family members for their

own services, they knew how to do so — and did so

unambiguously.” (Ibid.) Ali cited in support two other

subparts of part 5.609(c), in both of which the regulatory

language, unlike part 5.609(c)(16), unambiguously excludes

19

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

state payments made to the Section 8 family.11 (Ali, at

p. 839.)

B. Extrinsic Aids to Interpretation Weigh

Against the Majority’s Approach

I do not agree with the majority that the interpretation

it has imposed on the language of part 5.609(c)(16) is

sufficiently reasonable to create a statutory ambiguity, but

there is no need to debate the issue. The available extrinsic

aids to interpretation also weigh against the majority’s

reading. Its interpretation assigns an unfounded purpose to

the part 5.609(c)(16) exclusion that will seriously distort the

intended operation of the annual income calculation for

families receiving caregiving income under IHSS. In turn,

this distortion will not only introduce unintended inequities

among Section 8 families, but it is also likely to materially

reduce the funds available to support housing subsidies for

other low-income families in California. These unfortunate

consequences weigh strongly against the majority’s ruling.

1. The rulemaking history does not support the

majority’s reading

The majority finds support for its interpretation in

commentary on part 5.609(c)(16) published by HUD around

11

In addition to addressing part 5.609(c)(2), discussed

above, which excludes payments to foster families, Ali cited

part 5.609(c)(12), which excludes from annual income

“[a]doption assistance payments in excess of $480 per

adopted child.” (Ali, supra, 938 N.W.2d at p. 839.)

20

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

the time of its adoption. (Maj. opn., ante, at pp. 11–16.)

Reviewing the same materials, the Court of Appeal found

them “unhelpful in resolving the interpretive issue before

us,” and I agree. (Reilly, supra, 23 Cal.App.5th at p. 436.) As

quoted by the majority (maj. opn., ante, at p. 12), the

commentary never expressly addresses the issue before us —

the distinction between state payments made to reimburse a

family’s expenditures for services and those made to

compensate the family’s own provision of services — and does

little more than parrot the language of the regulation. The

commentary does use the term “homecare payments,” but it

characterizes those payments in the language of the

exclusion itself. That is, “homecare payments,” as the term

is used by HUD, are payments made “to offset the cost of

services and equipment needed to keep a developmentally

disabled family member at home, rather than placing the

family member in an institution.” (60 Fed.Reg. 17388, 17389

(Apr. 5, 1995).) HUD’s use of the term is therefore of no help

in resolving the question before us.

The majority’s contrary conclusion is based on circular

reasoning. Beginning with its assumption that “homecare

payments” means any payment made by the state in

connection with the care in the home of a developmentally

disabled person, the majority concludes that by joining that

term with the regulatory language HUD signaled its

agreement with the majority’s broad interpretation. The

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REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

conclusion that “homecare payments” refers to any payment

by the state, however, rather than only those intended to

offset family expenditures, is unsupported by anything in the

commentary. In fact, the commentary clearly uses “homecare

payments” merely as a synonym for the type of payments that

are excluded by part 5.609(c)(16). Its use therefore confirms

the majority’s interpretation only if one assumes that the

regulation should be interpreted in the manner adopted by

the majority. In reality, the HUD commentary simply does

not address the question before us.

The policy argument advanced by the majority in

connection with HUD’s commentary is, in essence, that

because payments made by the state to compensate a family

for caregiving services may be critical in keeping a

developmentally disabled family member in the home, they

must be included within the part 5.609(c)(16) exclusion. The

flaw in this logic, as the Court of Appeal noted in rejecting

the same argument below (Reilly, supra, 23 Cal.App.4th at

p. 434), is that it ignores the language of the regulation.

Merely because these payments are important in keeping a

developmentally disabled family member in the home does

not alone mean that they “offset the costs of service and

equipment” necessary to that task. As explained above, to

reach the majority’s conclusion it is necessary to read the

phrase “offset the costs” as synonymous with “for,” a different

and broader term. Because it is the regulation’s language

22

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

that must guide our interpretation, we are required to

respect HUD’s word choice.

2. The majority’s interpretation misunderstands the

limited function of the part 5.609(c)(16)

exclusion

The impetus underlying the majority’s interpretation of

part 5.609(c)(16) seems to be to maximize the Section 8

subsidy for persons in plaintiff’s situation, given the

difficulties of their circumstances. In other words, if some

subsidy is good, more is better. Because the purpose of the

exclusion is to help burdened, low income families, it is

difficult to argue with the sentiment. Yet our interpretation

must be guided not by our own view of proper public policy,

but by the views of Congress and HUD, the agency tasked

with administering the Section 8 program. In implementing

the congressional plan, HUD is required to balance a wide

variety of pertinent policy and equity considerations, not the

least of which is the allocation of very limited public

resources among many needy families. Its policy choice is

reflected in the language of part 5.609(c)(16), which limits

the exclusion to out-of-pocket expenses. As discussed below,

HUD’s choice is consistent with the foundational concerns of

Section 8. The majority’s more expansive view upsets the

balance struck by Section 8, will create unintended inequities

in its implementation, and will ultimately lead to a

23

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

diminution in the housing assistance available to other low-

income Californians.

The purpose of the part 5.609(c)(16) exclusion is to

ensure that the acceptance of state financial help by families

who keep a developmentally disabled family member at home

does not place the families at a disadvantage in receiving

Section 8 housing assistance; they are to be “ ‘encouraged,

and not punished.’ ” (Maj. opn., ante, at p. 12 [quoting HUD

explanation].) To accomplish this, part 5.609(c)(16) excludes

from the families’ annual income funds provided by the state

that the family spends on services and equipment to support

at-home care of the disabled family member. By excluding

this type of payment, the regulation ensures that the

acceptance of state aid by families maintaining a

developmentally disabled family member does not inflate

their annual income and result in a diminished Section 8

subsidy. Instead, the family receives the same housing

subsidy as other Section 8 families having a similar

disposable income.

There is no indication in the language of the regulation

itself or the limited regulatory history that, in adopting

part 5.609(c)(16), HUD intended to go further and provide

affirmative advantages to families with a developmentally

disabled member at home. HUD did not say such families

should be preferentially benefitted, and not punished. Yet

such a preferential benefit is the consequence of the

24

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

majority’s interpretation of part 5.609(c)(16), since it affords

families who are paid to provide at-home care of a

developmentally disabled family member substantially

greater Section 8 housing subsidies than to other low-income

families with the same family income.

Section 8 housing subsidies are determined by a

participating family’s income — that is, the funds available

to the family to pay for rent and other daily needs.12 The

part 5.609(c)(16) exclusion is necessary because the

regulations defining “annual income” for purposes of Section

8 are very broad, including “all amounts, monetary or not”

that “[g]o to, or on behalf of, the family head or spouse . . . or

to any other family member.” (24 C.F.R. § 5.609(a)(1) (2020).)

Given this comprehensive definition, any payments made by

the state to a family for the care of a developmentally

disabled family member are included in annual income under

part 5.609(a), even if the payments are not available to the

family to pay for rent and other daily needs because they

merely offset family expenditures for at-home care. Properly

understood, part 5.609(c)(16) prevents a family’s annual

income from being inflated by payments covering such out-of-

12

Literally, it is not the subsidy that is determined by a

family’s income. Rather, annual income determines the

amount the family is required to contribute to its rent

payment. The subsidy is then the difference between this

contribution and the family’s actual rent. For purposes of

this analysis, the difference is immaterial.

25

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

pocket expenses, recognizing that those payments should not

be treated as income because they do not increase the

resources available to the family for daily expenses. In the

absence of the exclusion, the acceptance of such aid would

reduce the family’s Section 8 subsidy without improving its

standard of living — in the words of HUD, such families

would be “punished.”

This highlights the fundamental difference, for

purposes of Section 8, between IHSS funds that are given to

reimburse expenditures by a family and funds that

compensate a family for the care of the disabled family

member. Unlike funds that reimburse a family’s

expenditures, funds provided by the state to compensate for

the family’s caregiving activities are available to meet the

family’s daily needs. That is their purpose. In accepting

compensation for their caregiving activities, IHSS

participants are effectively selling their labor to the state,

and the resulting income is indistinguishable, in its impact

on the family’s standard of living, from money earned

working outside the home. For that reason, HUD has

determined that this compensation is properly characterized

as income under Section 8.

This is particularly true of parents who are hired to

provide caregiving responsibilities under IHSS. As noted

above, the state precludes a parent’s acceptance of full-time

work outside the home if the parent is receiving IHSS

26

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

compensation; such funding is available to parents only if

“the [parent] leaves full-time employment or is prevented

from obtaining full-time employment because no other

suitable provider is available.” (Welf. & Inst. Code, § 12300,

subd. (e).) In other words, to receive funds from IHSS a

parent must accept their disabled child’s care as, in effect,

their job. Plaintiff is an example. So far as the appellate

record reveals, caring for her daughter is her full-time

activity, and IHSS compensation is her only income.

The majority argues that the acceptance of

compensation from IHSS is not “ ‘an employment for all

purposes.’ ” (Maj. opn., ante, at p. 24.) The issue here,

however, is not whether IHSS “employs” caregivers for all

purposes. As defined by part 5.609, “annual income” includes

any “compensation for personal services,” not just income

from formal employment. (24 C.F.R. § 5.609(b)(1) (2020).)

The issue is therefore whether the compensation received

from IHSS by persons like plaintiff should be treated the

same as income received by Section 8 participants from other

types of compensable labor. By limiting the exclusion of

part 5.609(c)(16) to offsetting payments, HUD has declared

that it should. The majority may disagree with HUD’s policy

27

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

choice, but it is HUD’s choice, not that of the majority, that

must govern our interpretation.13

Excluding IHSS compensation from a Section 8 family’s

annual income, as the majority requires, artificially reduces

the family’s income and, consequently, increases the family’s

housing subsidy above the level justified by its actual income.

The effect can be substantial. Take, as an example, plaintiff.

As noted above, a Section 8 family is ordinarily required to

contribute 30 percent of its annual income toward rent. The

remainder of its rent is paid by the program. Plaintiff’s

family income in the latest year for which we have

information was more than $52,000, consisting primarily of

plaintiff’s $41,000 income from IHSS; the remainder was

$11,000 in disability payments to K.R. If plaintiff’s IHSS

compensation is included in her annual income for purposes

of Section 8, the family would be expected to contribute

$1,300 toward its monthly rent. Here, the majority would

exclude plaintiff’s $41,000 in IHSS compensation from the

13

The majority also finds support in the exclusion of in-

home care payments from “income” under the Internal

Revenue Code. (Maj. opn., ante, at pp. 26–27.) Because

Section 8 and the Internal Revenue Code are quite different

statutes with very different aims, there is no reason why the

exclusion of IHSS payments from federal taxable income

should weigh in favor of their exclusion from “annual income”

under Section 8.

28

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

family’s annual income. Plaintiff’s family will therefore be

treated as though it had an annual income of $11,000,

although it was living on an actual income of $52,000 per

year. As a result, the family’s expected rent contribution will

be reduced to $275.14 The remaining $1,005 of the family’s

monthly rent payment, an annual gap of more than $12,000,

must be made up from the Authority’s Section 8 funds. It is

noteworthy that the majority nowhere acknowledges, let

alone attempts to explain or justify, that its interpretation

will treat a family with an annual income exceeding $52,000,

more than three times the federal poverty level for a family

of two, as though it were living far below the poverty line.15

Yet that is the clear and unavoidable import of its decision.

Low-income families caring for a developmentally

disabled family member at home face daily challenges

14

This assumes the resulting subsidy does not exceed the

maximum permitted. Section 8 housing subsidies are capped

by a “payment standard,” which is determined by local rental

conditions. (See Nozzi v. Housing Authority (9th Cir. 2015)

806 F.3d 1178, 1184–1185; 24 C.F.R. § 982.503(b) (2020); 42

U.S.C. § 1437f(o)(2).) The appellate record does not contain

sufficient information from which we may determine whether

plaintiff’s subsidy, as re-jiggered by the majority, would be

capped.

15

The 2020 federal poverty level for a family of two is an

annual income of $17,240. (See U.S. Dept. Health & Human

Services, Poverty Guidelines (Jan. 2020)

<https://aspe.hhs.gov/poverty-guidelines> [as of Aug. 28,

2020].)

29

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

unknown to the rest of us. Few would begrudge such families

a generous housing subsidy, above and beyond that provided

to other low-income families with a similar income — if there

was evidence that Congress or HUD intended to provide

them such assistance. But as noted above, the

part 5.609(c)(16) exclusion was intended to ensure that

families receiving aid from IHSS are simply treated the same

as, not better than, other families — to ensure that they were

not punished, rather than to preferentially benefit them.

3. The majority’s interpretation will introduce

unintended inequities into Section 8

implementation and reduce the availability of

Section 8 housing assistance in California

As discussed above, the majority’s reading of the

part 5.609(c)(16) exclusion is contrary to its language and

achieves the result, unintended by HUD, of granting IHSS

participants like plaintiff substantially greater Section 8

subsidies than are justified by their actual income. That

alone, of course, would be sufficient to reject the reading. But

we should be particularly wary of imposing a rule HUD did

not write, given the serious public policy consequences that

will follow.

As explained below, these consequences are of two

types. First, the interpretation adopted by the majority will

create inequities among families participating in the IHSS

and Section 8 programs. Families that are paid through

IHSS to care at home for a developmentally disabled person

30

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

will receive a far larger housing subsidy than families of

similar income that (1) IHSS funds to hire a third party to

care for a developmentally disabled family member in their

home or (2) receive IHSS funds to care for a medically

disabled family member.

Second, and just as important, the majority’s

interpretation will reduce, by an unknown but potentially

sizable amount, the number of families that can obtain

Section 8 housing assistance in California. The majority’s

decision will not increase by a single dollar the Section 8

funds reaching California. Yet it will require the state’s

counties to steer a significantly larger portion of their Section

8 housing funds to families that receive IHSS compensation

for caring for a disabled member in the home. These

increased subsidies can come from only one place: The funds

available to other low-income families who are, or would have

been, receiving housing assistance under Section 8. The

majority’s expansive interpretation will come at the cost of

assistance to other families in need.

First the inequities. IHSS provides families with the

funds necessary to maintain a developmentally disabled

family member in their home. The Authority or the family

can use these funds to hire a third-party caregiver or,

alternatively, a member of the family for the same role. Both

approaches serve the purposes of IHSS and the

part 5.609(c)(16) exclusion by (1) keeping the

31

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

developmentally disabled family member out of an

institution and (2) ensuring that the family is not

disadvantaged in the receipt of Section 8 funds by doing so.

So far as appears, neither HUD nor IHSS favors one option

over the other; certainly there is no language in either

Section 8 or IHSS reflecting a preference, as the majority

acknowledges. (Maj. opn., ante, at p. 21 [“despite no

expressed preference for family providers per se”].) Yet

under the majority’s reading a family that provides its own

compensated care will receive a far larger Section 8 housing

voucher than the family that uses IHSS funds to hire a

nonfamily member to provide the same care, even if both

families have identical incomes. This occurs because, under

the majority’s interpretation, some or all of the income of the

first family, consisting of compensation received from IHSS,

is excluded from the annual income, while the income of the

second family, earned outside the home, is fully included.

Assuming both families end up with similar disposable

income, the first family will receive a far larger subsidy under

Section 8 due to the exclusion of a significant portion of its

disposable income. (See Reilly, supra, 23 Cal.App.5th at

pp. 437–438.) There is no indication in the language of

part 5.609(c)(16) or the regulatory history to suggest that

HUD intended this result; in its amicus curiae brief, HUD

expressly disavows such an intent.

32

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

The majority seeks to explain away this disparity by

claiming that persons needing 24-hour care “ ‘are more likely

to receive better continuous care from relatives living with

them whose care is more than contractual.’ ” (Maj. opn., ante,

at pp. 21, quoting Miller v. Woods (1983) 148 Cal.App.3d 862,

870.) Neither Miller nor our appellate record contains

evidence to support the proposition that third-party

caregivers provide substandard care, compared to family

members.16 But more to the point, the majority cites no

evidence that HUD believed this to be true or that it crafted

part 5.609(c)(16) based on any assumptions about the relative

competence of family members versus third-party caregivers.

Much of the majority’s policy justification for its

interpretation is a recognition of the importance and

difficulty of the work done by persons who care for a

developmentally disabled family member at home. And I

agree, there is no doubt that this work is difficult and

important. If preferentially benefitting families who care for

developmentally disabled members themselves, rather than

16

The majority notes that IHSS does not pay for 24-hour

care. (Maj. opn., ante, at p. 26.) Although true, that is of no

policy consequence here. Families that hire a third-party to

provide care for a developmentally disabled family member

in their home must provide the same type of uncompensated

off-hours care for the dependent as families that receive IHSS

compensation.

33

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

retain a third-party caregiver, were actually a motive

underlying part 5.609(c)(16), however, one would expect

some express indication that HUD intended to favor family

care over care by third-party providers. As noted above, there

is no such indication. In fact, the regulation is entirely silent,

and therefore presumably neutral, on that issue.17

The majority’s interpretation will create a similar

inequity between families that receive IHSS compensation to

care for a developmentally disabled family member and

families that receive IHSS funds to care for a medically

disabled family member. (See Reilly, supra, 23 Cal.App.5th

at p. 438.) Like families maintaining a developmentally

disabled member in the home, families that maintain a

medically disabled family member in the home can receive

IHSS reimbursement for expenditures necessary to keep that

person at home as well as compensation for caregiving by a

family member. The Section 8 exclusion covering families

with a medically disabled member, however, allows the

17

The majority also claims that if IHSS compensation is

not excludable under part 5.609(c)(16), the two programs,

IHSS and Section 8, will be at “cross-purposes,” presumably

because accepting IHSS compensation will reduce a family’s

Section 8 subsidy. (Maj. opn., ante, at p. 23.) Accepting IHSS

compensation, however, is no more at cross-purposes with

Section 8 than is employment generally, since all income

reduces a family’s Section 8 subsidy to the same degree. In

any event, there are no cross-purposes. The supplement to a

family’s income from accepting IHSS compensation far

exceeds any corresponding decline in its Section 8 subsidy.

34

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

exclusion from annual income only of “[a]mounts . . . that are

specifically for, or in reimbursement of, the cost of medical

expenses . . . .” (§ 5.609(c)(4).) Although families caring for a

medically disabled family member face challenges similar to

those of families caring for a developmentally disabled family

member, the enhanced Section 8 subsidy made available by

the majority’s interpretation of part 5.609(c)(16) is

unavailable to families with a medically disabled member.

Such families will also receive a materially reduced Section 8

subsidy compared to families that benefit from the majority’s

interpretation of part 5.609(c)(16).

The majority responds that this disparity “is inherent

in the federal regulation itself” because part 5.609(c)(4)

permits recovery only of payments to third-party providers.

(Maj. opn., ante, at p. 19.) The argument misses the point.

Part 5.609(c)(16) has a materially wider scope than

part 5.609(c)(4) only because the majority has interpreted it

that way. If “offset the cost of services and equipment” is

interpreted to cover only the reimbursement of out-of-pocket

expenditures, the two exclusions have a similar scope. It is

not “the federal regulation itself,” but the majority’s

interpretation of it, that creates an inequity. The majority

otherwise fails to explain what possible public policy supports

giving families with a developmentally disabled member far

35

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

more advantageous treatment under Section 8 than families

with a medically disabled family member.18

The second unfortunate policy consequence of the

majority’s interpretation of part 5.609(c)(16) is its inevitable

diminution of the funds available to other low-income

participants in the Section 8 program. In an ideal world, the

majority’s award of greater Section 8 housing subsidies to

low-income families receiving state compensation to care for

disabled family members at home would be financed by

additional congressional appropriations for the Section 8

program. In our real world, it does not work that way.

Already, Section 8 housing subsidies are available only to a

relatively small subset of all eligible families. The Authority,

for example, is authorized to serve less than one-third of the

families that qualify for its help. Yet even that does not fully

capture the inadequacy of the program. Presumably because

18

The majority’s claim that HUD believes that families

with a developmentally disabled member would “receive

unfair treatment” if they were not allowed to exclude income

(maj. opn., ante, at p. 20) is based entirely on HUD’s comment

that such families should be “ ‘encouraged, and not

punished’ ” (ibid., italics omitted). Because no other class of

Section 8 participants, besides foster parents, is able to

exclude such income, restricting the exclusion to

reimbursement of expenditures hardly constitutes

punishment. The majority argues that such families will be

punished if their income is not excluded because they might

not qualify for Section 8 subsidy. (Ibid.) Again, the same is

true of all other families who have too much income to qualify

for Section 8; it is not a punishment.

36

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

of congressional underfunding, the Authority actually

provides vouchers to only 1,957 families, rather than the

2,153 it is authorized to help.

The majority’s generosity toward plaintiff and similar

IHSS participants does not come without cost, and that cost

will likely be borne by other low-income families in

California. The funding available to the Authority will not

be increased by $12,000 per year merely because the majority

has decreed that plaintiff must receive an additional annual

subsidy of $12,000. Instead, given the fixed and inadequate

budgets available under Section 8, it is likely that every

additional dollar of subsidy provided to families with a

developmentally disabled member at home will come directly

from the funds available to subsidize the housing of other

low-income families that are, or could have been, served by

the Authority. By skewing the allocation of Section 8 housing

subsidies to families receiving IHSS compensation, contrary

to HUD’s express intent, the majority’s misinterpretation of

the regulation will likely lead to a reduction in the housing

subsidies available to other low-income families in California,

and these will likely be reduced in an amount equal to the

37

REILLY v. MARIN HOUSING AUTHORITY

Cantil-Sakauye, C. J., dissenting

enhanced subsidies given by the majority to IHSS

participants.19

If the language of part 5.609(c)(16) required this result,

we would be duty-bound to implement it. In fact, the result

is eminently avoidable. To bring it about, the majority

stretches the language of the regulation and fails to account

for the serious public policy implications weighing against its

decision. Further, the dubious end result is to require the

Authority to treat a family with an income of more than

$50,000 as though it were living on $11,000. In the process,

the majority will divert the Authority’s all-too-scarce low-

income housing assistance away from other needy families.

Every other court to consider the issue has avoided this

result, and this court should as well.

CANTIL-SAKAUYE, C. J.

We Concur:

CORRIGAN, J.

KRUGER, J.

19

We lack the evidence necessary to estimate the financial

impact of the majority’s interpretation, but the limited

information available suggests that it could be substantial.

According to the state data cited above (see ante, fn. 6), there are

currently 250,000 “live-in relative providers” caring for a

disabled family member under IHSS. If just a tiny proportion

of those live-in relatives care for a developmentally disabled

person, participate in the Section 8 program, and receive IHSS

compensation similar to that of plaintiff, the majority’s ruling

will divert millions of dollars in Section 8 housing subsidies from

other low income families state-wide.

38

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Reilly v. Marin Housing Authority

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XX 23 Cal.App.5th 425

Rehearing Granted

__________________________________________________________________________________

Opinion No. S249593

Date Filed: August 31, 2020

__________________________________________________________________________________

Court: Superior

County: Marin

Judge: Paul M. Haakenson

__________________________________________________________________________________

Counsel:

Law Offices of Frank S. Moore, Frank S. Moore; Autumn M. Elliott, Ben Conway and Deborah Gettleman

for Plaintiff and Appellant.

Morgan, Lewis & Bockius, Thomas M. Peterson and Jordan Mundell for Association of Regional Center

Agencies, Autism Society of Los Angeles, CASHPCR, Disability Voices United, Fairview Families and

Friends, Inc., Housing Choices, Jewish Los Angeles Special Needs Trust (JLA Trust), National Disability

Rights Network, Professor Alison Morantz and Public Counsel as Amici Curiae on behalf of Plaintiff and

Appellant.

Munger, Tolles & Olson and Michael E. Soloff for National Housing Law Project and Western Center on

Law and Poverty as Amici Curiae on behalf of Plaintiff and Appellant.

Ilya Filmus; WFBM, Randall J. Lee, Anne C. Gritzer; Wilson Elser Moskowitz Edelman & Dicker and

Robert Cooper for Defendant and Respondent.

Paul Compton, Miniard Culpepper, David M. Reizes, Alexandra N. Iorio, Joseph H. Hunt, Alisa B. Klein,

Melissa N. Patterson and Brad Hinshelwood for United States as Amicus Curiae on behalf of Defendant

and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Autumn M. Elliott

Disability Rights California

350 S. Bixel Street, Ste. 290

Los Angeles, CA 90017

(213) 213-8000

Robert Cooper

Wilson Elser Moskowitz Edelman & Dicker LLP

555 S. Flower Street, Suite 2900

Los Angeles, CA 90071

(213) 443-5100

Brad Hinshelwood

U.S. Department of Justice

950 Pennsylvania Avenue NW

Washington, DC 20530

(202) 514-7823

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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