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06/14/2010

Re: Docket No. FR-5333-P-01
Title:  Homeless Emergency Assistance and Rapid Transition to Housing: Defining “Homeless”

The Honorable Mercedes Marquez
Assistant Secretary of Community Planning and Development
U.S. Department of Housing and Urban Development
c/o Regulations Division
Office of the General Counsel
Room 10276, 451 7th St NW
Washington DC 20410-0500

Dear Assistant Secretary Marquez:

The National Coalition for the Homeless is submitting comments to the U.S. Department of Housing and Urban Development on its proposed rule (Docket No. FR-5333-P-01) to explain or elaborate the terms “homeless,” “homeless individual,” “homeless person,” and “homeless individual with a disability” as defined in the Homeless Emergency Assistance and Rapid Transition to Housing (HEARTH) Act.

Summary of Recommendations

Recommendation 1:  Restore Statutory Language to the Regulatory Definition

  • Restore to the proposed regulatory definition of the term “homeless” the complete structure and verbiage of the statutory definition.

Recommendation 2: Eliminate Verification Requirements

  • Establish certification as the final step in the eligibility determination process.

Recommendation 3: Remove Impediments to Eligibility for Homeless Youth and Families

  • Elaborate the statutorily-prescribed additional eligibility criteria imposed on people meeting eligibility as homeless under other federal laws in a manner that includes in the HEARTH definition as many people considered homeless by other federal laws as possible.

Recommendation 4: Remove Impediments to Eligibility for People Experiencing Dangerous or Life-Threatening Conditions

  • Restore statutory language establishing a route to eligibility for people experiencing dangerous and life-threatening conditions, and provide examples of such conditions.

Recommendation 5: Additional Supplementary Information and Requests

  • Make a declarative statement that the HEARTH Act statutory definition of the term “homeless” and its elaboration by HUD in regulation should not be construed to encompass the universe of living arrangements considered to be homeless.
  • Remind recipients of HUD homeless assistance funds to utilize the statutory and regulatory definitions of the term “homeless” when administering programs and projects with HUD homeless assistance funds.
  • Commit to prohibiting HUD regional offices from issuing additional “guidance” that further elaborates the definition of the term “homeless” beyond the meaning given that term by the final regulation. 
  • Develop electronic and print template certification instruments as a convenience for project sponsors to duplicate and use at their option.

Background

The National Coalition for the Homeless (NCH), founded in 1982, is a national network of people who are currently experiencing or who have experienced homelessness, activists and advocates, community-based and faith-based service providers, and others committed to a single mission. That mission, our common bond, is to end homelessness. We are committed to creating the systemic and attitudinal changes necessary to prevent and end homelessness. At the same time, we work to meet the immediate needs of people who are currently experiencing homelessness or who are at risk of doing so. We take as our first principle of practice that people who are currently experiencing homelessness or have formerly experienced homelessness must be actively involved in all of our work.

The National Coalition for the Homeless is the nation’s oldest national homeless advocacy organization. NCH was the lead organization in the fight to pass the Stewart B. McKinney Homeless Assistance Act (now named the McKinney-Vento Homeless Assistance Act) during the 1980s. We remain a champion for McKinney-Vento programs, including the programs administered by the U.S. Department of Housing and Urban Development. We continue to play an active role in monitoring the administration of McKinney-Vento programs and advocating for their reauthorization.  Our comments below on the HEARTH Act proposed rule definition of “homeless” continue this history.

Recommendations

Recommendation 1:  Restore Statutory Language to the Regulatory Definition

The proposed regulation offers a regulatory definition of the term “homeless” that largely follows the statutory definition of the term found in Section 103 of the McKinney-Vento Act. However, in some regards the proposed regulatory definition differs substantively from the statute in both structure and verbiage. Examples of the differences include:

  • The statute establishes seven separate categories of eligibility. The proposed regulation collapses this group to four categories, with HUD concluding that statutory categories (a)(2) through (a)(4) of section 103 are subsets of (a)(1). NCH disagrees with this conclusion.  If Congress had intended for statutory categories (a)(2) through (a)(4) to be subsets of (a)(1), it would have drafted the law in such a manner.  These separate categories should be restored.
  • The statute, at section 103(a)(5), establishes eligibility for individuals and families who will “imminently lose their housing, including housing they own, rent, or live in without paying rent, are sharing with others, and rooms in hotels or motels not paid for by Federal, State, or local government programs for low-income individuals or by charitable organizations…” The proposed regulation replaces this language with “imminently lose their primary residence.” NCH disagrees with HUD’s proposal to eliminate the statutory elaborations on the term “imminently lose their housing.”   Congress added these words expressly to ensure that there would be no confusion by HUD or other parties that a subset of “doubled up” individuals and families were to be allowed access to HUD homeless assistance programs. Removing these words undoes this Congressional intent.  We ask that they be restored to the regulatory definition of “homeless.”
  • The statute, at section 103(a)(5)(A), offers three types of evidence of the individual or family’s imminent loss of housing:  a court order resulting from an eviction action expected within 14 days; occupancy of a room in a hotel or motel and where the individual’s or family lacks the resources necessary to reside for more than 14 days; and credible evidence, including an oral statement, that the owner or renter of the housing will not allow the individual or family to remain for more than 14 days.  We appreciate HUD’s proposal to simplify this statutory list of evidence with the single clause, “the primary nighttime residence will be lost within 14 days of the application for homeless assistance.”  To be faithful to the statute and to give guidance to individuals in eligibility determination roles, we recommend that the final regulation restate the three statutory elaborations as examples of evidence of “imminent loss of housing.”

Recommendation 2: Eliminate Verification Requirements

The proposed regulation articulates stages for eligibility determination to include oral statements from persons seeking assistance, followed by documentation of the statements through certification (self-certification or certification by the project sponsor), concluding with verification by the project sponsor.

NCH is pleased that the first steps of the eligibility determination process is of low impact on persons seeking assistance. Allowing the process to begin with an oral statement, followed by a written certification statement would likely avert the possibility of discouraging individuals from seeking assistance due to actuality or perception of intensive screening or document presentation.

On the other hand, NCH is concerned with the proposed requirement that project sponsors then verify the certifications by collecting confirming documents or third-party statements. 
Our foremost concern is that while technically the verification burden falls on the sponsor, in practicality it will fall on the person seeking assistance, since the provider will need the cooperation of the homeless individual or family in gathering or presenting documents or providing references to third-party statements.  Inability of people experiencing homelessness to maintain documents is well understood, thus making that an impractical route to verification in many cases. Attainment of third-party statements is also fraught with difficulty, including, as an example, the lesser likelihood that caring individuals who “did someone a favor” by allowing the homeless person to share housing temporarily will extend similar kindness again.      
Also, verification places a heavy burden on project sponsors to spend hours or days per client on document collection and third-party interviews. This diverts intake, case management, and quality assurance staff, among others, from service delivery and monitoring responsibilities. It is especially of little benefit in situations where the person seeking assistance will be participating in a project for period that may actually be less than the time it takes to reach full verification.

The proposed regulation acknowledges the imperfections of verification by permitting project sponsors to present proof of due diligence in seeking verification when securing it is not actually accomplished. The proposed regulation also acknowledges the barrier to service that verification presents by waiving it as a condition of eligibility for victims of violence and other dangerous and life-threatening conditions. Given the imperfections with verification, as well as the fact that verification is not required by statute, we urge that the final regulation establish certification as the final step in the eligibility determination process.

Recommendation 3: Remove Impediments to Eligibility for Homeless Youth and Families

The statute allows people meeting eligibility as homeless under other federal laws to be also eligible for HUD homeless assistance if the person/people meet additional criteria, including lack of permanent housing for a long-term period, frequent moves, and an expectation of residential instability for an extended period of time.

We acknowledge that the lack of precision in the statute on the nuances of these additional criteria does compel the Department to elaborate the statutory provision. We urge HUD to apply this opportunity in a manner that include in the HEARTH definition as many people considered homeless by other federal laws as possible. After all, HUD homeless assistance programs are the largest source of federal funding targeted to people experiencing homelessness.  As the “engine that drives the train,” the Department must do everything in its power to set an environment for maximum inclusion of people experiencing homelessness in HUD’s homeless assistance programs (and the other programs that base eligibility on the HUD definition). Specific improvements to the proposed regulation that would accomplish this necessary and appropriate inclusiveness are:

  • Reduce the meaning of “long-term period” from 90 days to 30 days.
  • Reduce the meaning of “frequent moves” from three to two, within a 90-day period.
  • Include the initial move from permanent housing to a homeless living arrangement as one of the two moves.
  • Indicate that “multiple barriers to employment” shall be established by client or project sponsor certification.
  • Add as other examples of barriers to employment: “age below the state’s legal age of majority,” “lack of child care,” “responsibility for family member care,” “lack of transportation,” and “illegal alien status”.

 

Recommendation 4: Remove Impediments to Eligibility for People Experiencing Dangerous or Life-Threatening Conditions

The statute extends eligibility for HUD homeless assistance to people who are fleeing or attempting to flee domestic violence, dating violence, sexual assault, and stalking “or other dangerous or life-threatening conditions in the individual’s or family’s current housing situation, including where the health and safety of children are jeopardized.”

The proposed regulation substantively limits this eligibility category by restricting the dangerous or life-threatening conditions qualification only to situations “that relate to violence against the individual or a family member that has either taken place within the individual’s or family’s primary nighttime residence or has made the individual or family afraid to return to their primary residence.” The proposed regulation is limited in two ways – first the dangerous or life-threatening condition would be limited only to violent situations. Second, considerations of the “health and safety of children” is completely disappeared from the regulatory definition.

NCH objects to these limitations on the dangerous or life-threatening routes to eligibility.  We urge HUD to restore the statutory language. Moreover, we request the Department to include examples of “dangerous or life-threatening conditions… where the health and safety of children are jeopardized” to include: “child abuse,” “child neglect,” “commercial sexual exploitation,” “human trafficking,” “witness to domestic violence or sexual assault,” “overcrowding in the primary nighttime residence to the extent that the individual must sleep in a space not ordinarily used as a regular sleeping accommodation,” and “substandard conditions of the primary nighttime residence such as inoperable or faulty plumbing, inoperable or faulty electric or gas supply, or lack of heat, ventilation, or air conditioning.”  

Recommendation 5: Additional Supplementary Information and Requests

During the Congressional deliberations leading up to passage of the HEARTH Act, the National Coalition for the Homeless supported the addition into the definition of “homeless” applicable to HUD programs additional living arrangements that are understood to be homeless, but not then included in the HUD statute at that time. We proposed a definition that would have aligned the HUD definition with more comprehensive understandings of the term “homeless” found in other federal laws. Congress accepted our recommendation only in part.

We request the Department, in the supplementary information published with the final rule, to make a declarative statement reminding future readers of the document that the HEARTH Act statutory definition of the term “homeless” and its elaboration by HUD in regulation should not be construed to encompass the universe of living arrangements considered to be homeless, but rather the subset of living arrangements considered to be homeless for purposes of eligibility for HUD homeless assistance programs and other federal, state, local, and private programs that adopt the HUD definition by cross-reference or by choice.

Also, we request the Department, in the supplementary information published with the final rule, to remind recipients of HUD homeless assistance funds, whether they be States, local units of government, unified funding agencies, or project sponsors, to utilize the statutory and regulatory definitions of the term “homeless” when administering programs and projects with HUD homeless assistance funds.  Further, the Department should caution these parties against utilizing definitions of the term “homeless” that are more restrictive than the HUD definition when administering programs and projects financed with sources other than HUD, unless required to do so by the other financing source. 

Similarly we request the Department, in the supplementary information published with the final rule, to commit to prohibiting its regional offices from issuing additional “guidance” that further elaborates the definition of the term “homeless” beyond the meaning given that term by the final regulation.  We are aware of numerous instances where differences in policy and practice sprout among regions of the country due to competing guidance issued by various HUD regional offices. This results in confusion among grantees and project sponsors, and ultimately inequitable treatment or consideration of people experiencing homelessness. On a matter most central to effective program management as is the very eligibility for such program, there truly should not be differences in interpretation across the country.

Finally, we request the Department to develop electronic and print template certification instruments, in multiple languages, as a convenience for project sponsors to duplicate and use at their option. This step would alleviate a small burden on providers, who will otherwise be designing their own forms and seeking translation assistance. The template certification statements should include notices to the certifiers reminding them of their duty to be truthful in their certification and of the penalties for making false statements.  The template documents should be made available to project sponsors prior to their project start dates or renewal dates, so that their use may be integrated into operations at project commencement.

The National Coalition for the Homeless looks forward to working with the Department of Housing and Urban Development, people experiencing homelessness, grantees, and project sponsors in implementing and monitoring a strengthened final regulation on the HEARTH Act definition of homelessness.

Sincerely,

/s/

Neil Donovan
Executive Director

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