[Federal Register Volume 76, Number 233 (Monday, December 5, 2011)]
[Rules and Regulations]
[Pages 75994-76019]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-30942]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Parts 91, 582, and 583

[Docket No. FR-5333-F-02]
RIN 2506-AC26


Homeless Emergency Assistance and Rapid Transition to Housing: 
Defining ``Homeless''

AGENCY: Office of the Assistant Secretary for Community Planning and 
Development, HUD.

ACTION: Final rule.

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SUMMARY: The Homeless Emergency Assistance and Rapid Transition to 
Housing Act of 2009 (HEARTH Act), enacted into law on May 20, 2009, 
consolidates three of the separate homeless assistance programs 
administered by HUD under the McKinney-Vento Homeless Assistance Act 
into a single grant program, revises the Emergency Shelter Grants 
program and renames the program the Emergency Solutions Grants program,

[[Page 75995]]

and creates the Rural Housing Stability program to replace the Rural 
Homelessness Grant program. The HEARTH Act also codifies in law the 
Continuum of Care planning process, long a part of HUD's application 
process to assist homeless persons by providing greater coordination in 
responding to their needs.
    This final rule integrates the regulation for the definition of 
``homeless,'' and the corresponding recordkeeping requirements, for the 
Shelter Plus Care program, and the Supportive Housing Program. This 
final rule also establishes the regulation for the definition 
``developmental disability'' and the definition and recordkeeping 
requirements for ``homeless individual with a disability'' for the 
Shelter Plus Care program and the Supportive Housing Program.

DATES: Effective Date: January 4, 2012.

FOR FURTHER INFORMATION CONTACT: Ann Marie Oliva, Director, Office of 
Special Needs Assistance Programs, Office of Community Planning and 
Development, Department of Housing and Urban Development, 451 7th 
Street SW., Washington, DC 20410-7000; telephone number (202) 708-4300 
(this is not a toll-free number). Hearing- and speech-impaired persons 
may access this number through TTY by calling the Federal Relay Service 
at (800) 877-8339 (this is a toll-free number).

SUPPLEMENTARY INFORMATION: 

I. Background--HEARTH Act

    An Act to Prevent Mortgage Foreclosures and Enhance Mortgage Credit 
Availability was signed into law on May 20, 2009 (Pub. L. 111-22). This 
new law implements a variety of measures directed toward keeping 
individuals and families from losing their homes. Division B of this 
new law is the Homeless Emergency Assistance and Rapid Transition to 
Housing Act of 2009 (HEARTH Act). The HEARTH Act consolidates and 
amends three separate homeless assistance programs carried out under 
title IV of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11371 
et seq.) (McKinney-Vento Act) into a single grant program that is 
designed to improve administrative efficiency and enhance response 
coordination and effectiveness in addressing the needs of homeless 
persons. The single Continuum of Care program established by the HEARTH 
Act consolidates the following programs: The Supportive Housing 
Program, the Shelter Plus Care program, and the Moderate 
Rehabilitation/Single Room Occupancy program. The former Emergency 
Shelter Grant program is renamed the Emergency Solutions Grant program 
and revised to broaden existing emergency shelter and homelessness 
prevention activities and to add rapid rehousing activities. The new 
Rural Housing Stability program replaces the Rural Homelessness Grant 
program. The HEARTH Act also codifies in law and enhances the Continuum 
of Care planning process, the coordinated response to addressing the 
needs of homelessness established administratively by HUD in 1995. HUD 
has commenced rulemaking to implement these new and revised programs, 
and this final rule is central to all of the HEARTH Act rules.

II. The April 2010 Proposed Rule

    On April 20, 2010, HUD published a proposed rule (75 FR 20541) to 
commence HUD's implementation of the HEARTH Act. The proposed rule 
provided necessary clarification on terms within the statutory 
definitions of ``homeless,'' ``homeless individual,'' ``homeless 
person,'' and ``homeless individual with a disability.'' In addition, 
the proposed rule contained proposed recordkeeping requirements 
designed to assist communities appropriately document an individual or 
family's homeless status in the case file.
    Through the proposed rule, HUD solicited public comment and 
suggestions on the proposed clarifications. The public comment period 
closed on June 21, 2010.
    A more detailed discussion of HUD's April 20, 2010, proposed rule 
can be found at 75 CFR 20541 through 20546, of the April 20, 2010, 
edition of the Federal Register, and the discussion of public comments 
submitted on the proposed rule and HUD's responses to the comments are 
addressed later in this preamble.
    This final rule is being published contemporaneously with the 
interim rule for the Emergency Solutions Grants (ESG) program, which 
establishes the regulations for the ESG program in 24 CFR part 576 and 
makes corresponding amendments to HUD's Consolidated Plan regulations 
in 24 CFR part 91. To complement the ESG interim rule, this final rule 
revises the definition of ``homeless'' in both 24 CFR parts 91 and adds 
recordkeeping requirements to part 576. While the proposed rule also 
included definitions for ``developmental disability'' and ``homeless 
individual with a disability,'' those definitions are not being adopted 
by this final rule. Part 576 does not use those terms, and the 
Consolidated Plan regulations in 24 CFR part 91 covers more than HUD's 
homeless assistance programs.
    The definitions of ``developmental disability'' and ``homeless 
individual with a disability'' will be addressed in the final rule for 
the Continuum of Care program, which will replace the Shelter Plus Care 
program and the Supportive Housing Program, and in the rule for the new 
Rural Housing Stability Assistance program. The rulemaking for the 
Continuum of Care program and the Rural Housing Stability Assistance 
program have not yet commenced, and therefore, this final rule 
integrates these new definitions into the current regulations for the 
Shelter Plus Care program and Supportive Housing Program at 24 CFR 
parts 582 and 583, respectively.

III. Overview of the Final Rule--Key Clarifications

    The proposed rule, submitted for public comment, provided four 
possible categories under which individuals and families may qualify as 
homeless, corresponding to the broad categories established by the 
statutory language of the definition in section 103 of the McKinney-
Vento Act, as amended by the HEARTH Act. The final rule maintains these 
four categories. The categories are: (1) Individuals and families who 
lack a fixed, regular, and adequate nighttime residence and includes a 
subset for an individual who resided in an emergency shelter or a place 
not meant for human habitation and who is exiting an institution where 
he or she temporarily resided; (2) individuals and families who will 
imminently lose their primary nighttime residence; (3) unaccompanied 
youth and families with children and youth who are defined as homeless 
under other federal statutes who do not otherwise qualify as homeless 
under this definition; and (4) individuals and families who are 
fleeing, or are attempting to flee, domestic violence, dating violence, 
sexual assault, stalking, or other dangerous or life-threatening 
conditions that relate to violence against the individual or a family 
member. Throughout this preamble, all references to a number ``category 
of homeless'' refer to this list.
    After reviewing issues raised by the commenters, discussed in 
Section IV of this preamble, and upon HUD's further consideration of 
issues related to this final rule, the following highlights the changes 
that are made by this final rule.
    ``Shelter'' includes ``Emergency Shelter'' but not ``Transitional 
Housing.'' The HEARTH Act defines an individual or family who resided 
in shelter or a place not meant for human habitation and who is exiting 
an institution where he or she temporarily

[[Page 75996]]

resided as ``homeless.'' In this final rule, HUD clarifies that 
``shelter'' means ``emergency shelter'' but not ``transitional 
housing'' for the purposes of qualifying as homeless under this 
provision
    ``Youth'' is defined as less than 25 years of age. Traditionally, 
HUD has defined children as less than 18 years of age and adults as 18 
years of age and above (as established in the Point-in-Time (PIT) and 
Housing Inventory Count Reporting and the annual Continuum of Care 
Competition Exhibit 1 and Exhibit 2 applications). The proposed rule 
did not define ``youth.'' With the inclusion of the term ``youth'' in 
Section 103(6), HUD determined it necessary to define youth. By 
establishing youth as less than 25 years of age, it is HUD's hope that 
the programs authorized by the HEARTH Act amendments to the McKinney-
Vento Act (42 U.S.C. 11301 et seq), (the Act) will be able to 
adequately and appropriately address the unique needs of transition-
aged youth, including youth exiting foster care systems to become 
stable in permanent housing.
    Inclusion of the ``other federal statutes'' with definitions of 
homelessness under which unaccompanied youth and families with children 
and youth could alternatively qualify as homeless under category 3 of 
the homeless definition. The final rule includes references to other 
federal statutes with definitions of ``homeless'' under which 
unaccompanied youth and families with children and youth could 
alternatively qualify as homeless under category 3 of the definition of 
``homeless.'' These statutes are the Runaway and Homeless Youth Act (42 
U.S.C. 5701 et seq.), the Head Start Act (42 U.S.C. 9831 et seq.), 
subtitle N of the Violence Against Women Act of 1994 (42 U.S.C. 14043e 
et seq.) (VAWA), section 330 of the Public Health Service Act (42 
U.S.C. 254b), the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et 
seq.), section 17 of the Child Nutrition Act of 1966 (42 U.S.C. 1786), 
and subtitle B of title VII of the McKinney-Vento Act (42 U.S.C. 11431 
et seq.). This list represents the entire universe of statutes with 
definitions under which an unaccompanied youth or a family with 
children and youth can qualify as homeless under this category. While 
there may be other federal statutes with definitions of ``homeless,'' 
this list is intended to include only those that encompass children and 
youth.
    ``Long-term period'' defined to mean 60 days and ``frequent moves'' 
is defined as two. The term ``long-term period'' found in Section 
103(6)(A) of the McKinney-Vento Act, is defined in this final rule to 
mean 60 days and the number of moves required during that time that are 
considered ``frequent,'' as established in Section 103(6)(B) of the 
McKinney-Vento Act, is two. HUD determined that two moves over a 60-day 
period strikes an appropriate balance between the statutory 
requirements of ``long term'' and ``frequent moves'' and identifying 
and addressing the needs of unaccompanied youth and families with 
children and youth in a manner that does not encourage instability.
    Third-party documentation, where it is available, is the preferable 
documentation of homeless status. The final rule provides that, 
whenever possible, third-party documentation of the criteria used to 
establish an individual or family as homeless should be obtained. The 
exception to this is for recipients that provide emergency assistance, 
including emergency shelters that provide a bed for one night, and 
victim service providers. The recordkeeping requirements in the final 
rule reflect this requirement and exception.
    Utilizing other forms of already available documentation is 
acceptable evidence of an individual or family's homeless status. HUD 
recognizes that verifying an individual or family's homeless status 
requires additional steps by housing and service providers and often 
requires a homeless individual or family to answer the same questions 
more than once. In an effort to alleviate some of this burden on both 
housing and service providers and homeless persons, HUD has established 
the recordkeeping requirements in this final rule to allow already 
available documentation to be used, where it is available. Already 
available documentation includes certification or other appropriate 
service transactions recorded in a Homeless Management Information 
System (HMIS) or other database that meet certain standards, discussed 
later in this preamble. This also includes discharge paperwork, to 
verify a stay in an institution.
    Documenting an individual's stay in an institution. The final rule 
expands what is acceptable evidence of an individual's stay in an 
institution to include an oral statement made by a social worker, case 
manager, or other appropriate official at an institution that is 
documented by the intake worker of the housing or service program. 
Where the intake worker is not able to obtain a written or oral 
statement from a social worker, case manager, or other appropriate 
official at an institution, the intake worker may document his or her 
due diligence in attempting to obtain a statement from the appropriate 
official in the case file.
    Documentation of imminent loss of housing. The final rule provides 
that documentation of imminent loss of housing includes not only a 
court order resulting from an eviction action, or the equivalent notice 
under applicable state law, but also a formal eviction notice, a Notice 
to Quit, or a Notice to Terminate, that require the individual or 
family to leave their residence within 14 days after the date of their 
application for homeless assistance.
    Documentation of homeless status of an unaccompanied youth or a 
family with children and youth who qualify as homeless under ``other 
federal statutes.'' The final rule provides that documentation of the 
homeless status of an unaccompanied youth or a family with children and 
youth who qualify as homeless under other federal statutes must be 
certified by the local nonprofit, state or local government entity that 
administers assistance under the other federal statutes. When 
certifying the homeless status of an unaccompanied youth or a family 
with children and youth who qualify as homeless under another federal 
statute, the case file must include a determination from the 
appropriate official at the appropriate administering nonprofit 
organization or state or local government.
    Verification of homeless status by providers serving individuals 
and families fleeing, or attempting to flee, domestic violence, dating 
violence, sexual assault, and stalking that are not victim service 
providers. The final rule imposes additional verification requirements 
for oral statements by individuals or families who are fleeing, or 
attempting to flee, domestic violence, dating violence, sexual assault, 
and stalking who are seeking or receiving shelter or services from 
providers who are not victim service providers, as defined in section 
401(32) of the McKinney-Vento Act, as amended by the HEARTH Act. 
Specifically, the individual or head of household must certify that he 
or she has not identified a subsequent residence and lacks the 
resources or support networks, e.g., family, friends, faith-based, or 
other social networks, needed to obtain housing, and, where the safety 
of the individual or family would not be jeopardized, the domestic 
violence, dating violence, sexual assault, stalking, or other dangerous 
or life-threatening condition must be verified by a written observation 
by the intake worker or a written referral from a housing or service 
provider, social worker, health-care provider, law enforcement agency, 
legal assistance provider, pastoral

[[Page 75997]]

counselor, or any other organization from whom the individual has 
sought assistance for domestic violence, dating violence, sexual 
assault, or stalking. The written referral or observation need only 
include the minimum amount of information necessary to document that 
the individual or family is fleeing, or attempting to flee, domestic 
violence, dating violence, sexual assault, and stalking. HUD does not 
expect that the written referral contain specific details about the 
incidence(s) of violence that occurred prior to the victim fleeing, or 
attempting to flee.
    Written documentation of disability status. The final rule provides 
that written documentation of disability status includes: (1) Written 
verification from a professional who is licensed by the state to 
diagnose and treat that condition, that the disability is expected to 
be long-continuing or of indefinite duration and that the disability 
substantially impedes the individual's ability to live independently; 
and (2) written verification from the Social Security Administration, 
or the receipt of a disability check (e.g., Social Security Disability 
Insurance check or Veteran Disability Compensation). Information on 
disability status should be obtained in the course of client assessment 
once the individual is admitted to a project, unless having a 
disability is an eligibility requirement for entry into the project. 
Where disability is an eligibility requirement, an intake staff-
recorded observation of disability may be used to document disability 
status as long as the disability is confirmed by the aforementioned 
evidence within 45 days of the application for assistance.
    Technical and additional clarifying changes. In addition to the 
changes highlighted above, this final rule also includes technical and 
minor clarifying changes to certain proposed regulatory provisions. 
Several of these changes are in response to requests by commenters for 
clarification, and are further discussed in section IV of this 
preamble. HUD's response to public comments discussed below identifies 
where the final rule makes these changes.

IV. Discussion of the Public Comments

A. The Comments, Generally

    The public comment period on the proposed rule closed on June 21, 
2010, and HUD received 201 public comments. HUD received public 
comments from a variety of sources including: Private citizens; 
nonprofit organizations; advocacy groups; Continuums of Care; and 
government, community, and affordable housing organizations. General 
concerns about this rule most frequently expressed by commenters were: 
(1) Vulnerable populations (e.g., individuals who are ``couch surfing'' 
and individuals and families in substandard housing) continue to be 
excluded from the definition of ``homeless'' used by HUD to administer 
its programs; and (2) the recordkeeping requirements are too 
burdensome.
    Regarding the first concern, it is important to note that the 
definition of ``homeless'' must be reviewed in its entirety when 
attempting to confirm that an individual or family is homeless. For 
example, an unaccompanied youth may not meet the criteria in the third 
category, but if the youth is fleeing domestic violence, then the youth 
will meet the criteria established in the fourth category. For 
individuals and families who do not meet the definition of ``homeless'' 
under any of the categories, HUD notes that the McKinney-Vento Act was 
amended to allow homeless assistance to be provided to persons who are 
``at risk of homelessness.'' Commenters should look for the definition 
of persons who are at risk of homelessness in upcoming program 
regulations, including the ESG program interim rule, which is published 
elsewhere in today's Federal Register.
    Regarding the second concern, documentation of an individual or 
family's status as ``homeless'' has always been required. Failure to 
maintain appropriate documentation of a household's status as homeless 
is the monitoring finding that most often requires recipients of HUD 
funds to repay grant funds. The recordkeeping requirements established 
by this final rule are those necessary for appropriately documenting 
``homeless'' status.
    Specific comments most frequently expressed by commenters pertained 
to requests that: (1) HUD revisit the standards provided for ``long-
term period'' and ``persistent instability'' and the list provided for 
``barriers to employment'' and (2) HUD broaden the fourth category of 
``homeless,'' ``homeless individual,'' and ``homeless person'' to 
include ``other dangerous or life-threatening situations'' and not 
limit the fourth category to individuals and families fleeing, or 
attempting to flee, domestic violence, dating violence, sexual assault, 
stalking, or other dangerous life-threatening conditions that relate to 
violence against the individual or family member.
    In addition to the general concerns raised and specific comments 
submitted regarding the definitions and the recordkeeping requirements 
in the proposed rule, many commenters raised questions or provided 
comments about topics that will be addressed in the upcoming proposed 
rules for the Rural Housing Stability program, the Continuum of Care 
program, and the Homeless Management Information System and the interim 
rule for the ESG program. Topics on which further clarification and 
guidance was requested, and which HUD intends to address in one or more 
of the upcoming proposed rules, or has addressed in the ESG interim 
rule, include the following: The definition of ``chronically 
homeless''; the definition of ``episode of homelessness''; the 
definition of ``at risk of homelessness''; the overlap between the 
definition of ``homeless'' and the definition of ``at risk of 
homelessness'' and how this impacts eligibility for programs; 
conducting point-in-time counts; establishing local priorities for 
serving homeless persons; matching requirements for recipients of 
funds; specific program requirements for protecting the confidentiality 
of victims of domestic violence, dating violence, sexual assault, and 
stalking; specific program requirements to ensure that recipients and 
subrecipients make known to lesbian, gay, bisexual, and transgendered 
persons the facilities, assistance, and services available within the 
community; confidentiality and privacy standards of HMIS; requirements 
for domestic violence providers with regard to HMIS; eligibility of 
costs necessary to participate in HMIS; further guidance on the 
Involuntary Separation provision in section 404 of the McKinney-Vento 
Act; further guidance on the provision providing communities the 
flexibility to serve persons identified as homeless under other federal 
laws established in section 422(j) of the McKinney-Vento Act; 
determining eligibility for rapid rehousing and homelessness prevention 
assistance; determining eligibility of subpopulations, specifically 
unaccompanied youth, in HUD's homeless assistance and homelessness 
prevention programs; for projects that are limited to persons with 
disabilities, guidance on which family member must have the disability 
to qualify a family for assistance; an appeal process for a person 
presenting as homeless who was denied assistance; information about the 
coordination and collaboration between recipients of ESG program funds 
and recipients of Continuum of Care program funds; eligibility of costs 
related to documenting homelessness; eligibility of costs related to 
documenting disability; Collaborative

[[Page 75998]]

Applicants; Unified Funding Agencies; discharge planning requirements; 
high-performing communities and the bonus available to communities 
selected as high-performing; guidance on the ``Use Restrictions'' as 
they apply to ``Conversion'' as established in section 423(c)(3) of the 
McKinney-Vento Act; clarification of ``renewal funding for unsuccessful 
applicants'' established in section 422(e) of the McKinney-Vento Act; 
clarification on the standards HUD will use to determine when 
transitional housing assistance may be extended beyond 24 months; and 
clarification of the other federal laws that apply to the programs in 
the Act. For these issues, HUD welcomes commenters to review 
forthcoming HEARTH Act proposed rules when published and the ESG 
interim rule published elsewhere in today's Federal Register and to 
submit comments.
    Many commenters requested future guidance and technical assistance 
related to this final rule defining ``homeless,'' ``homeless person,'' 
``homeless individual,'' and ``homeless individual with a disability,'' 
on the following topics: a simple matrix clarifying the definition; a 
standard set of questions that can be used to make determinations about 
the credibility of oral statements; a standard set of questions for 
determining ``imminent loss of housing;'' a simple, safe process for 
determining survivor eligibility, with great attention paid to the 
confidentiality rights and needs of victims of domestic violence, 
dating violence, sexual assault, and stalking; eligibility of specific 
subpopulations, including prisoners and youth exiting the foster care 
system, within the specific categories of the definition of 
``homeless,'' ``homeless individual,'' and ``homeless person''; the 
other federal definitions of homelessness and how to integrate these 
definitions into intake procedures; assisting agencies and projects 
adjust their service delivery models to serving a broader group of 
homeless persons to ensure success; targeting funds from HUD's homeless 
assistance programs and other common funding streams; and the 
consequences of signing a certification that is false for both the 
applicant of funds and the program participant. HUD is coordinating a 
technical assistance strategy to assist recipients of funds who are 
required to use this definition adapt their projects, as necessary, and 
meet the requirements set forth in this proposed rule.
    Many commenters noted that current funding levels for the homeless 
assistance programs at HUD will not be sufficient to serve the increase 
in individuals and families defined as homeless under this final rule 
and encouraged HUD to work with Congress to increase funding to the 
homeless programs. HUD and its federal partners, including the U.S. 
Interagency Council on Homelessness, the U.S. Department of Education, 
the U.S. Department of Health and Human Services, the U.S. Department 
of Veterans Affairs, and the U.S. Department of Labor, are committed to 
preventing and ending homelessness as evidenced in Opening Doors: 
Federal Strategic Plan to Prevent and End Homelessness. To meet the 
goals established in the Federal Strategic Plan, HUD and its federal 
partners will provide the resources from both targeted and nontargeted 
agency programs. HUD reminds its stakeholders that the availability of 
resources, both for targeted and nontargeted programs, are subject to 
appropriations by Congress.

B. The Definition of ``Homeless'' in 24 CFR Parts 91, 582, and 583

In General: Overarching Comments
    Comment: The definition of ``homeless'' should be broadened to 
include others that continue to be left out of the definition. Several 
commenters noted that HUD's definition of homeless continues to leave 
out vulnerable persons who should be included in order for them to 
access needed housing and services. Several commenters requested that 
HUD's definition match the definition of homeless used by the U.S. 
Department of Education. Another commenter stated that someone who is 
living doubled up with others due to economic or other safety 
conditions should be included in the definition of homeless. One 
commenter requested that the definition be broadened to include those 
who are currently homeless, in danger of becoming homeless, or in 
housing where the rental or mortgage rate exceeds 30 percent of 
household qualifying income, while another commenter requested that the 
definition also include those persons who have recently experienced 
homelessness. Another commenter stated that a person should retain his 
or her homeless status if the person exited the shelter to live with 
family and friends.
    One commenter stated that a fifth category of ``homeless'' should 
consist of persons with disabilities who: (1) Have resided with a 
relative, but by virtue of age or other circumstances of that relative 
is unable to continue to provide shelter to the individual with a 
disability; (2) reside in an institution or facility not meant for 
permanent human habitation such as a hospital, rehabilitation facility, 
nursing or board and care home, and such individual has no home to 
return to where that person could live independently and safely; (3) 
are in situations such as (1) and (2) who no longer choose to live in 
that circumstance and who wish to live independently.
    HUD Response: HUD understands that there are vulnerable populations 
that continue to be excluded from the definition of homeless used by 
HUD to administer its programs; however, HUD is following the statutory 
guidelines established in section 103 of the McKinney-Vento Act as HUD 
further clarifies the definition. HUD reminds its stakeholders that the 
McKinney-Vento Act also includes the definition of ``at risk of 
homelessness'' and that funds through the ESG program, Rural Housing 
Stability program, and Continuum of Care program will be available to 
serve persons ``at risk of homelessness'' as well. Commenters should 
review the upcoming proposed and interim program rules when they are 
published, and HUD welcomes comments at that time.
    Comment: Restore the categories established in the statute. Some 
commenters viewed the paragraphs of section 103 of the McKinney-Vento 
Act as seven separate categories of homelessness and recommended that 
HUD use them instead of the four categories included in the proposed 
rule. These commenters stated that if Congress had intended for the 
statutory categories to be condensed from seven to four categories, 
then Congress would have drafted the law differently.
    One commenter stated that the proposed rule's simplification of the 
categories does not provide enough information and is confusing. This 
commenter suggested that the statutory categories be restored or be 
listed as examples.
    Several commenters stated that HUD is effectively eliminating 
eligibility for persons who lack a fixed, regular and adequate 
nighttime residence. The commenters stated that the statute was 
unambiguous and that HUD has narrowed the definition.
    Several commenters suggested that by maintaining the seven distinct 
categories from the McKinney-Vento Act, HUD's definition would match 
the Department of Education's definition and better align federal 
homelessness policy and complementary services.
    HUD Response: The final rule clarifies that an individual or family 
meets the first paragraph of section 103 of the McKinney-Vento Act by 
meeting the second, third, or fourth paragraph. In

[[Page 75999]]

other words, a person ``lacks a fixed, regular and adequate nighttime 
residence,'' if that person ``lives in a public or private place not 
designed for or ordinarily used as a regular sleeping accommodation for 
human beings,'' ``lives in a supervised publicly or privately operated 
shelter designated to provide temporary living arrangements,'' or ``is 
exiting an institution in which he or she temporarily resided after 
living in a shelter or a place not meant for human habitation.''
    This interpretation is consistent with HUD's longstanding 
interpretation of the statutory language ``lacks a fixed, regular and 
adequate nighttime residence,'' which the HEARTH Act, in amending the 
McKinney-Vento Act, did not change. This longstanding interpretation 
has helped target HUD's limited homeless resources to those most in 
need of them, while directing other people, like those who are poorly 
housed, to other HUD housing programs. The suggested alternatives to 
HUD's interpretation would greatly reduce this targeting of resources.
    The suggested alternatives also appear inconsistent with the 
statutory language. If the first paragraph were interpreted to 
encompass people who are poorly housed, it would undermine the 
McKinney-Vento Act's imposition of additional criteria for these people 
under the sixth paragraph of the ``homeless'' definition and the ``at 
risk of homelessness'' definition in section 401(1) of the McKinney-
Vento Act. For example, if a person qualifies as homeless merely 
because she lives in housing, there would be no reason to consider the 
additional criteria those provisions would otherwise require the person 
to meet.
    Although the final rule does not broaden the definition as 
requested by the commenters, HUD is committed to working as much as 
possible within its statutory parameters to facilitate coordination 
across all federal programs that can help prevent and end homelessness, 
including those administered by the Department of Education.
    Comment: Expand the single term ``domestic violence'' to include 
``domestic violence, dating violence, sexual assault, stalking, or 
other dangerous or life-threatening conditions.'' Many commenters 
disagreed with the proposed rule's inclusion of the term ``domestic 
violence'' without any accompanying mention of ``domestic violence, 
dating violence, sexual assault, stalking, or other dangerous or life-
threatening conditions.'' Commenters stated that individuals and 
families fleeing their homes for reasons of lack of safety in their 
housing situation, other than domestic violence, should be included as 
it is specified in the statute. Commenters explained that the term 
domestic violence does not adequately or accurately describe each 
unique term. By using separate terms, commenters stated that victims of 
each crime are afforded the same protections and benefits. The 
commenters recommended that each term be identified specifically and 
consistently throughout the proposed rule and stated that each term is 
defined under VAWA.
    HUD Response: HUD agrees that the references to ``domestic 
violence, dating violence, sexual assault, stalking, or other dangerous 
or life-threatening conditions'' should appear together in the final 
rule, wherever possible. Therefore, the final rule includes each of 
these unique terms in both the last category of the homeless definition 
and its corresponding recordkeeping requirements. However, because the 
term ``domestic violence'' is the only one of these terms to appear in 
section 103(a)(6)(C) of the Act, it remains the only one of these terms 
to appear in the corresponding provision in the final rule.
    Rule clarification. HUD has revised paragraph (b)(5) of the 
recordkeeping requirements of the final rule to include individuals and 
families who are fleeing dating violence, sexual assault, stalking, or 
other dangerous or life-threatening conditions that relate to violence, 
in addition to individuals and families who are fleeing domestic 
violence.
    Comment: A more detailed standard for ``lacks the resources'' is 
necessary. Section 577.3(b)(2)(ii) and (b)(4)(iii) of the proposed rule 
required that the individual or family lack the resources or support 
networks needed to obtain other permanent housing. One commenter asked 
for a clear definition of the meaning of lack of resources, as well as 
guidance on how to demonstrate a lack of resources, which would include 
examples.
    HUD Response: Historically, HUD has not specifically defined in 
regulations or notices ``lacks the resources or support networks'' for 
the purposes of documenting eligibility for HUD's homeless and 
homelessness prevention programs. HUD's view is that the resources and 
support networks required to demonstrate this criteria can vary 
drastically from person to person and community to community and HUD 
could never capture all of the various possibilities. The final rule, 
therefore, does not define ``resources or support networks,'' although 
HUD has included examples of support networks about which recipients 
must inquire when determining whether an individual or family lacks the 
resources or support networks to obtain other permanent housing. These 
examples, which include friends, family, and faith-based or other 
social networks, are not meant to be an all-inclusive list, but rather 
they are designed to illustrate the kinds of support networks that 
people must first turn to, if they are able to, before drawing on the 
scarce resources targeted to homeless people. A housing situation that 
is unsafe due to violence is not considered a resource or support 
network, and providers must not disqualify an individual or family 
under the applicable category based on these situations.
    Rule clarification. To clarify that family, friends, and faith-
based or other social networks are examples of ``resources or support 
networks'' about which recipients must inquire, HUD is revising 
paragraphs (2)(iii) and (4)(iii) of the ``homeless'' definition.
    Comment: Strike the word ``other'' when referring to ``other 
permanent housing.'' Where the proposed rule required ``The individual 
or family lacks the resources or support networks needed to obtain 
other permanent housing,'' some commenters recommended that HUD strike 
the word ``other.'' These commenters stated that the term ``other'' 
implies that housing in which one lives without paying rent or shares 
with others, including rooms in hotels and motels not paid for by 
federal, state, or local government programs for low-income individuals 
or by charitable organizations, is considered a permanent living 
arrangement as opposed to a primary nighttime residence.
    HUD Response: HUD recognizes that the statutory language may infer 
permanency in a housing situation that may not exist in reality; 
however, ``other'' is statutory language. Therefore, in this final 
rule, HUD has not changed the language from the proposed rule.
Category 1: An Individual or Family Who Lacks a Fixed, Regular, and 
Adequate Nighttime Residence
    Comment: Address severely substandard housing by including ``places 
designed for or ordinarily used as a regular sleeping accommodation 
that are not fit/suitable for human beings.'' Several commenters noted 
that the definition in the proposed rule does not address the issue of 
severely substandard housing. These commenters stated that by only 
including a ``place not designed for or ordinarily used as a regular 
sleeping

[[Page 76000]]

accommodation,'' persons living in houses that are dilapidated, or 
without water or electricity, will be excluded from the homeless 
definition because the buildings were originally designed for sleeping 
accommodation.
    HUD Response: HUD recognizes that there are vulnerable populations 
that live in overcrowded housing and are excluded from the definition 
of homeless; however, the language ``place not designed for or 
ordinarily used as a regular sleeping accommodation'' is statutory.
    Comment: A person staying in a hotel or motel room is homeless. 
Commenters recommended that a person be considered homeless regardless 
of who was paying the bill for the hotel or motel room--a federal, 
state, or local government; charitable institution; or the individual. 
The commenters stated that it should be recognized that these types of 
nighttime residences, as well as housing that is shared and in which 
rent is not paid, are, by their nature, temporary living arrangements.
    HUD Response: HUD understands that some housing situations are more 
precarious than others; however, the language in the proposed and final 
rules concerning people living in hotels and motels is directly derived 
from the statutory language in section 103(a)(3) and (5)(A) of the 
McKinney-Vento Act. Therefore, HUD has not changed this language in 
response to the comments.
    Comment: A clearer standard is needed for the term ``shelter.'' 
With respect to the term ``shelter,'' several commenters requested that 
HUD explicitly include both transitional housing and emergency shelter 
in the definition of ``shelter.'' One commenter stated that this 
inclusion is important for certain geographic areas where it is 
difficult to establish emergency shelters, but transitional housing has 
been more acceptable.
    HUD Response: The proposed rule did not define the term ``shelter'' 
from the definition in the McKinney-Vento Act. However, after reviewing 
the comments, HUD agrees that more clarification is needed regarding 
the use of the term ``shelter'' and has further clarified that 
``shelter'' means ``emergency shelter.'' HUD disagrees that 
transitional housing should be included in the definition of 
``shelter'' for persons who are exiting institutions who have resided 
in such institutions for less than 90 days. Historically, projects 
funded through the Supportive Housing Program and Shelter Plus Care 
program have been allowed to maintain a unit for an individual who is 
temporarily residing in an institution, and HUD intends to continue 
this policy in the proposed rule for the Continuum of Care program; 
therefore, these individuals would not be ``homeless'' because they 
would have a unit to which they could return. HUD welcomes commenters 
to review the Continuum of Care proposed rule when published and to 
submit any comments on this issue in connection with the Continuum of 
Care proposed rule.
    Rule clarification. The final rule clarifies that ``shelter'' in 
paragraph (1)(iii) of the definition of ``homeless'' means ``emergency 
shelter.''
    Comment: More clarification is needed for the term ``institution.'' 
With respect to the term ``institution,'' HUD received many comments 
that a clear standard for this term is needed. Commenters offered 
suggested standards, the most common of which were: penal institutions 
(jails and prisons), hospitals, nursing homes, Institutes for Mental 
Disease (IMDs), juvenile detention centers, substance abuse facilities, 
publicly operated mental health facilities, state mental hospitals, 
youth crisis beds, and Intensive Residential Treatment Service (IRTS) 
facilities. One commenter said that, in the regulatory text, 
``institution'' should explicitly include all possibilities, including 
health, mental health, and chemical dependency institutions.
    HUD Response: HUD acknowledges that clarification of the type of 
facility that qualifies as an institution would aid in better 
understanding of the meaning of ``institution.'' However, rather than 
establishing a fixed set of institutions in the final rule, HUD intends 
to issue guidance on the meaning of ``institution.''
    Comment: The standard for ``temporarily resided'' should be 
revised. With respect to the term ``temporarily resided,'' many 
commenters stated that the standard of 90 days or less should be 
lengthened. A variety of alternative time frames were suggested, the 
most common of which was 180 days, which is the current standard for 
HUD's Homelessness Prevention and Rapid Re-Housing Program (HPRP). 
Other commenters suggested that HUD define the term as a period of up 
to one year.
    Other commenters recommended that HUD not limit ``temporarily 
resided'' by an arbitrary count of calendar days and instead allow for 
a length of stay in the institution that varies based on the reason the 
individual entered the institution. One commenter suggested that HUD 
not establish a time frame or any additional qualifiers for 
``temporarily resided'' and instead should allow anyone who was 
homeless when entering an institution to be considered homeless upon 
exit.
    One commenter suggested that ``temporarily resided'' should mean 
that an individual exiting an institution may be considered homeless if 
that individual had at least one previous episode of homelessness 
lasting at least 30 days in the 5 years prior to entering the 
institution, has no subsequent residence identified, and lacks the 
resources or support networks needed to obtain other permanent housing.
    HUD Response: HUD disagrees with the conclusion that ``temporarily 
resided'' should be for a period of longer than 90 days. HUD has 
determined that 90 days strikes an appropriate balance between allowing 
homeless persons to maintain their homeless status while residing in an 
institution without undermining the considerable progress made in 
strengthening the discharge planning protocols and practices of 
institutions or state systems of care. Additionally the 90-day standard 
set for ``temporarily resided'' in paragraph (1)(iii) of the definition 
of ``homeless'' is consistent with policy established in the Fiscal 
Year (FY) 2008 Continuum of Care Homeless Assistance Grants Notice of 
Funding Availability (NOFA) and matches the ``Rule of Construction'' 
regarding the definition of ``chronically homeless'' in section 
401(2)(B) of the McKinney-Vento Act, which states that ``a person who 
currently lives or resides in an institutional care facility * * * and 
has resided there for fewer than 90 days shall be considered 
chronically homeless if such person met all of the requirements.''
Category 2: An Individual or Family Who Will Imminently Lose Their 
Housing
    Comment: Restore the statutory language covering people who will 
imminently lose their housing. Section 103(a)(5) of the McKinney-Vento 
Act adds a new category under which families and individuals may 
qualify as homeless: ``individuals or 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.'' The 
corresponding language in the proposed rule is ``an individual or 
family who will imminently lose their primary nighttime residence.'' 
Commenters stated that Congress used explicit language to ensure that 
there would be no confusion by HUD or other parties that a subset of 
doubled-up individuals and families would be allowed access to HUD's 
homeless assistance programs.

[[Page 76001]]

Many of these commenters stated that the proposed rule's rewording of 
the statute's language creates a risk that this subset of families will 
not be considered homeless as Congress intended. Commenters requested 
that HUD restore the language, ``(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 * * *)'' in the final rule. One commenter stated that HUD 
should be faithful to the statute and give guidance to individuals in 
eligibility determination roles.
    HUD Response: HUD disagrees that any population was excluded by 
replacing ``housing'' with ``primary nighttime residence'' or that 
clarity was lost by eliminating the examples from paragraph (a)(2) of 
the statutory definition of ``homeless.'' It is HUD's position that the 
recordkeeping requirements provided in Sec.  577.3(3)(i) of the 
proposed rule establish clear guidance for persons responsible for 
verifying and documenting homeless status for category two of the 
``homeless'' definition. Accordingly, HUD did not make changes in the 
final rule in response to these comments.
    Comment: Increase the time frame for the imminent loss of housing 
beyond 14 days. While many commenters supported the 14-day limit in 
Sec.  577.2(2)(i) of the proposed rule, which pertains to the period in 
which an individual or family has housing, but is about to lose such 
housing under Sec.  577.2(2)(i), one commenter disagreed. This 
commenter stated that more must be done to ensure that resources remain 
available to those who need them the most. The commenter stated that 
the 14-day limit presents a difficult time constraint on individuals 
and social workers trying to secure housing and resources. The 
commenter stated that the limit would also drastically reduce the 
ability to create a smooth housing transition without forcing 
individuals and families onto the streets. This commenter stated that 
many people who ``couch-surf'' would not be eligible, because these 
people are not considered ``street homeless.'' This commenter stated 
that by viewing a temporary shared living space with a friend or family 
as an obstacle to receiving additional housing assistance, the reality 
of homelessness looks more like a revolving door than a slow, steady 
climb to safe and suitable, permanent housing.
    HUD Response: HUD acknowledges that 14 days may not be sufficient 
time in all situations to ensure a smooth housing transaction to 
individuals and families facing imminent loss of their housing; 
however, the 14-day limit is statutory. However, HUD notes that 14 days 
is an increase from the 7-day time frame currently allowed in HUD's 
homeless programs. Beginning with the publication of the 2005 NOFA, and 
for every year since, HUD has allowed persons who are about to lose 
their housing within 7 days to be considered homeless if no subsequent 
residence has been identified and they lack the resources and support 
networks needed to obtain housing. Accordingly, HUD did not make 
changes in the final rule in response to these comments.
    Comment: Individuals and families who will imminently lose their 
housing should not be defined as ``homeless'' if the eviction was due 
to a lease violation. One commenter stated that being evicted should 
not qualify as homeless if the reason for eviction is based on a 
tenant's actions that violate the lease. The commenter pointed out that 
in public housing, it is conceivable that a family is evicted for 
failure to pay rent, drugs, etc. and that in such cases, the family 
should not qualify as homeless under this definition.
    HUD Response: HUD recognizes that there may be situations where 
individuals and families could have prevented the loss of their 
housing; however, HUD disagrees that these persons should not be 
defined as homeless when all other criteria for the definition of 
``homeless'' are met. HUD has not changed this language from the 
proposed rule based on these comments.
Category 3: Unaccompanied Youth and Families With Children and Youth 
Defined as Homeless Under Other Federal Statutes
    Comment: HUD should include individuals in the category of persons 
defined as homeless under other federal statutes. Many commenters 
stated that the category for unaccompanied youth and families with 
children and youth defined as ``homeless'' under other federal statutes 
should also include adult individuals. One commenter stated that HUD 
unnecessarily distinguishes families with children from those without 
children. Another commenter stated that many individuals who experience 
homelessness depend on ``couch surfing,'' especially in rural areas in 
the winter months when it is life-threatening to sleep outside, and 
would meet the criteria of this category.
    HUD Response: HUD recognizes that many adult individuals experience 
a long period of time without living independently and moving 
frequently; however, the limitation to unaccompanied youth and families 
with children and youth is statutory. HUD has not changed this language 
from the proposed rule.
    Comment: It would be helpful to identify the specific definitions 
of ``homeless'' included in ``other federal statutes.'' Commenters 
requested further clarification on using the definitions of homeless 
children and youth from other federal statutes. Commenters stated that 
the proposed rule is not clear concerning which other federal programs 
have definitions of ``homeless.'' One commenter asked if the proposed 
rule addresses only definitions existing as of the date of this 
proposed rule or if future definitions by other federal programs will 
also be considered.
    HUD Response: HUD agrees that further clarification is needed of 
the other federal statutes that have definitions of ``homeless'' that 
relate to children and youth. HUD has identified the following federal 
statutes with definitions of homelessness that apply to children and 
youth: the Runaway and Homeless Youth Act (42 U.S.C. 5701 et seq.), the 
Head Start Act (42 U.S.C. 9831 et seq.), subtitle N of the VAWA (42 
U.S.C. 14043e et seq.), section 330 of the Public Health Service Act 
(42 U.S.C. 254b), the Food and Nutrition Act of 2008 (7 U.S.C. 
2012(m)), the Child Nutrition Act of 1996 (42 U.S.C. 1786(b)(15)), and 
subtitle B of title VII of the McKinney-Vento Homeless Assistance Act 
(42 U.S.C. 11431 et seq.). This list represents the current universe of 
statutes with definitions under which an unaccompanied youth or family 
with children and youth can qualify as homeless under this category. 
While there may be other federal statutes with definitions of 
``homeless,'' this list is intended to include only those that 
encompass children and youth. This list also includes section 725(2) of 
the McKinney-Vento Act, which contains the definition of ``homeless 
children and youths'' used by the Department of Education. While this 
section is not actually an ``other federal statute,'' its definition of 
``homeless children and youths'' is fully incorporated by reference in 
the definition of ``homeless children'' under section 330 of the Public 
Health Service Act (42 U.S.C. 254b). See 42 U.S.C. 254b(h)(5)(A). 
Therefore, section 725(2) of the McKinney-Vento Act would be 
applicable, regardless of whether it is specifically mentioned. HUD has 
specifically included this statutory section in order to make its 
applicability clear.
    Rule clarification: To clarify the other federal statutes with 
definitions of ``homeless'' that apply to youth and

[[Page 76002]]

families with children and youth, HUD has revised paragraph (3) of the 
definition of ``homeless'' by listing the other federal statutes in the 
final rule.
    Comment: Clarification of the terms ``unaccompanied youth,'' 
``children'' and ``youth'' is needed. Many commenters suggested that 
HUD define an age range for youth. The suggested age in these requests 
varied, but the most common age suggested was 24 and under, followed by 
the suggestion that youth be defined as persons under the age of 21. 
Commenters noted that HUD traditionally has defined ``child'' as up to 
18 and ``adult'' as 18 and older and wanted to ensure that the uniquely 
vulnerable population of persons aged 18 through 24 were explicitly 
included in this category. One commenter suggested that HUD rename the 
category as ``unaccompanied minors'' and include children up to age 18.
    With respect to ``child,'' one commenter recommended that HUD 
define the term ``child,'' as ``an individual, the greater of not more 
than 18 years of age or the age of majority established by the law of 
the State in which the child or his or her family is seeking 
assistance.''
    With respect to ``unaccompanied youth,'' many commenters requested 
that HUD define unaccompanied youth. These commenters suggested that 
HUD define ``unaccompanied youth'' to mean ``youth not in physical 
custody of a parent or guardian.''
    HUD Response: HUD agrees that more clarification is needed 
regarding the use of the term ``youth.'' HUD determined that defining 
``youth'' as up to age 25 for the purposes of this category will help 
meet the needs of this uniquely vulnerable population, especially those 
youth exiting the foster care system. Additionally, this age standard 
aligns with that provided in the Runaway and Homeless Youth Act (42 
U.S.C. 5732a(3)). The final rule clarifies that an unaccompanied youth 
must be under 25 years of age to qualify under the category for 
unaccompanied youth and families with children and youth defined as 
homeless under other federal statutes.
    HUD disagrees that additional clarification is needed regarding the 
terms ``unaccompanied youth'' and ``child.''
    Rule clarification: To clarify that HUD means a youth under 25 
years of age when referring to unaccompanied youth, paragraph (3) of 
the ``homeless'' definition is revised.
    Comment: The standard for ``living independently'' should be 
revised. As reflected in the proposed rule, HUD interpreted ``without 
living independently in permanent housing'' under section 103(a)(6)(A) 
of the McKinney-Vento Act as not having ``a lease, ownership interest, 
or occupancy agreement in permanent housing.'' Some commenters 
requested that HUD change its interpretation of the statutory language 
to include people who ``have not resided in a place where they had a 
lease, ownership interest, or occupancy agreement,'' in order to 
account for a person whose name appears on a lease for a residence but 
who cannot live in that residence because of domestic violence, 
uninhabitable housing, or other reasons. Commenters stated that under 
HUD's proposed language, families whose names appear on any lease, 
ownership interest, or occupancy agreement cannot qualify for 
assistance, whether or not they have been able to reside in that unit. 
Commenters submitted that changing the language to specify that an 
individual or family must have resided in the property where they are 
named on the lease will increase the effectiveness of this section and 
ensure that families in these situations do not have to remove their 
names from a lease before receiving assistance.
    One commenter stated that the lease language unnecessarily excludes 
families with children who have a rental agreement with their landlord, 
but are doubling up out of economic need. This commenter explained that 
despite the fact that such families have leases or rental agreements, 
they often are not living ``independently'' and, out of pressing 
economic need, these families often strike long-term voluntary 
arrangements to inhabit housing with other individuals or families as a 
double or triple occupancy. This commenter recommended that HUD allow 
these families, even if their names appear on a lease, to be considered 
as not living independently.
    Another commenter stated that language requiring that a family not 
have a lease, ownership interest, or occupancy agreement should be 
removed altogether from the rule because it is too difficult to prove 
and to document that someone has not had a lease and it adds little 
value.
    HUD Response: HUD disagrees that the standard for ``living 
independently'' in the proposed rule, ``have not had a lease, ownership 
interest, or occupancy agreement in permanent housing,'' needs to be 
revised to reflect individuals who cannot stay in their housing due to 
domestic violence or uninhabitable housing or to accommodate those who 
are living doubled up due to economic reasons. Accordingly, HUD has not 
changed the language in this final rule from the proposed rule.
    HUD reiterates that this category is for unaccompanied youth, and 
families with children and youth, who do not qualify as homeless under 
another part of the definition. Those families who cannot stay in their 
housing due to domestic violence would qualify as homeless under the 
fourth category of the definition.
    Comment: The standards for ``long-term period'' and ``persistent 
instability'' should be redefined. Commenters urged HUD to amend the 
time period used in the proposed rule to define ``long-term period,'' 
as a period which is at least 91 days. The suggested time frames varied 
greatly--the most commonly suggested time period was 30 days. Another 
common recommendation was 180 days. One commenter suggested that HUD 
use 14 days to define ``long-term period'' because this is the time 
frame that HUD's rental housing programs use for visitation rules and 
that HUD should be consistent across programs.
    One commenter stated that there is nothing in the statutory 
language that required the long-term period to be continuous and 
suggested that the standard could be met by having several doubled up 
experiences over a certain longer time frame. This commenter suggested 
a definition similar to the chronically homeless definition, which 
allows four episodes over a time frame of 3 years.
    Many commenters simply requested that HUD elaborate on why 91 days 
or less was the chosen standard. These commenters stated that it would 
be helpful to understand HUD's decision-making process on the 91-day 
standard and whether there was research to support this time frame. 
Commenters noted that 91 days is not a factor in the Department of 
Education's statutory definition of homelessness under the Education 
for Homeless Children and Youth programs. Commenters mentioned that 
having two different standards would create confusion.
    With respect to ``persistent instability'' as measured by 
``frequent moves,'' the proposed rule set a standard of three moves or 
more during a 90-day period. Many commenters had concerns about this 
interpretation. These commenters stated that this standard is too 
restrictive and suggested a variety of alternatives. The standard most 
frequently suggested by the commenters was two moves; however, the 
period of time over which those two moves should occur varied greatly 
among the commenters. Common suggestions were 30 days, 90 days, and

[[Page 76003]]

180 days. Many commenters stated that one move should be sufficient, 
while others stated that three moves is appropriate so long as the 
length of time was extended to 180 days or a year. Most commenters 
agreed that the initial move out of the original, permanent placement 
should count as the first move.
    Some commenters suggested a standard not relating to a set period 
of time and number of moves. These commenters stated that there should 
be an alternate option that would combine the housing history of the 
family or unaccompanied youth with the current housing instability, 
which might be more applicable for some families and youth. One of 
these commenters stated that the housing history and current situation 
could be considered in conjunction with referrals from social workers 
and school counselors.
    Other commenters suggested a standard that was a combination of 
situational and number of moves over a designated length of time. One 
commenter recommended that, for unaccompanied youth, the standard for 
persistent instability should be defined as having no viable housing 
resources and having been in the foster care system some time during 
the 90-day period immediately before applying for homeless assistance 
or experiencing at least two moves in 90 days. Another commenter 
recommended that for unaccompanied youth between the ages of 18 and 22, 
the following standard should apply: two moves in 90 days or having 
been in the care and responsibility of the child welfare or juvenile 
justice systems at some point in the 90-day period immediately before 
applying for homeless assistance.
    Commenters stated that nothing in the McKinney-Vento Act requires a 
long period such as chronic homelessness when defining ``persistent 
instability'' over a ``long-term period.'' Many commenters stated that 
this standard would be detrimental to unaccompanied youth and children, 
especially when related to their performance in school. Some commenters 
pointed to studies that have proven that homelessness causes multiple 
problems for children when they lack stability and must experience 
multiple moves. Other commenters stated that there is little actual 
evidence to either support or contradict HUD's decision to provide this 
standard. These commenters recommended that HUD study the phenomenon of 
persistent instability, and modify this regulation in the future, if 
the need to do so is indicated by evidence.
    HUD Response: HUD agrees that 90 days without a permanent housing 
placement, coupled with three moves over that period, is too long a 
period and too many moves for unaccompanied youth and families with 
children and youth before homeless status can be documented and 
resources can be provided. In an effort to respect the statutory 
language of ``long term'' and ``frequent moves'' in section 103(6)(A) 
and (B) of the McKinney-Vento Act while still reaching this population 
earlier in their instability, in the final rule, HUD has redefined the 
long-term period as 60 days and redefined frequent moves as two moves 
or more during those 60 days. Moreover, HUD would consider the move out 
of the initial permanent housing placement as the first move.
    Rule clarification. To clarify that HUD means 60 days when 
referring to ``long-term period,'' and that HUD means two moves or more 
over that period when referring to ``persistent instability,'' HUD is 
revising paragraph (3)(i) of the definition of ``homeless.'' To clarify 
that HUD means persistent instability as measured by two moves or more 
during that 60-day period, HUD is revising paragraph (3)(ii) of the 
definition of ``homeless.''
    Comment: Standards should be established for ``childhood abuse.'' 
With respect to ``childhood abuse,'' many commenters requested a 
specific definition of this term. These commenters recommended that 
``childhood abuse'' be defined to include physical abuse, sexual abuse, 
chronic neglect, commercial sexual exploitation and human trafficking, 
mental abuse, and emotional or psychological abuse. In addition, 
commenters recommended that ``childhood abuse'' be defined without 
increasing the burden of proof for agencies.
    HUD Response: HUD disagrees that the term ``childhood abuse'' 
requires further specificity. HUD would consider ``childhood abuse'' to 
include physical abuse, sexual abuse, chronic neglect, commercial 
sexual exploitation and human trafficking, mental abuse, and emotional 
or psychological abuse, without further definition. Accordingly, HUD 
has not changed the language from the proposed rule.
    Comment: Fewer ``barriers to employment'' should be required. Some 
commenters did not agree with HUD's interpretation of ``multiple 
barriers to employment'' to mean two or more barriers to employment. 
Commenters recommended that only one barrier to employment be required. 
Other commenters stated that requiring youths to face two or more 
barriers to their employment unfairly restricts their ability to 
receive aid, because even well-qualified individuals, including recent 
college graduates, have been unable to attain employment in this 
economy. Commenters stated that the inherent barriers facing homeless 
youth are as great, and presumably greater, than those standing in the 
way of the average person trying to find a job.
    HUD Response: Section 103(6)(C) of the McKinney-Vento Act 
specifically refers to ``multiple barriers to employment'' (emphasis 
added). HUD disagrees with comments that one barrier meets the 
``multiple'' standard established by the McKinney-Vento Act. HUD has 
not revised the rule in response to these comments.
    Comment: The list of ``barriers to employment'' should be expanded 
and be more representative of the actual experiences of youth. 
Commenters expressed concerns with the list of ``barriers to 
employment.'' Some commenters urged HUD to make the list of barriers 
illustrative and not exclusionary. To achieve this, commenters 
recommended that HUD include the phrase ``including but not limited 
to.'' Other commenters recommended that HUD eliminate the list 
altogether.
    Other commenters strongly encouraged HUD to include additional 
barriers to employment to the list. The most common requests for 
inclusion were lack of child care; lack of transportation; lack of 
resources for necessary job-specific items (uniforms); the 
responsibility for care of another family member; and a history of 
victimization including domestic violence, stalking, dating violence, 
sexual assault, controlling behaviors, substance abuse, mental health 
issues such as post traumatic stress disorder (PTSD) and complex 
trauma, and other dangerous nonlife-threatening conditions. Commenters 
recommend that HUD include the barriers identified by the Department of 
Labor and Workforce Investment Act. Other commenters stated that there 
are barriers to employment that affect the general population, such as 
a high unemployment rate, plant closures, or an over-burdened Work 
Investment Act agency that should be included.
    Within the list of barriers to employment in the proposed rule was 
``a history of unstable employment.'' Several commenters stated that 
this term should be further clarified. Some commenters suggested that 
the phrase should be revised to state ``a lack of employment history or 
a history of unstable employment'' and should

[[Page 76004]]

reference the barrier created by a weak, unstable job market. Another 
commenter recommended that the number of jobs held within a specific 
time period and/or the length of periods of employment and unemployment 
experienced should define ``a history of unstable employment.''
    Other commenters stated that ``unstable employment,'' unlike the 
other listed barriers, is an outcome and not necessarily a 
precipitating factor. These commenters suggested this term be further 
revised to read ``unstable employment refers to employment that is not 
permanent or procured on a full-time basis.'' Commenters also stated 
that unstable employment could be inferred as the result of a 
combination of the barriers to employment currently listed; therefore, 
these commenters recommended that lack of work experience, including 
vocational training, be identified in this section as it is both a 
barrier to employment and a factor which contributes to unstable 
employment.
    Many commenters commented that the list of barriers to employment 
did not accurately reflect the experiences of youth. Specifically, 
commenters recommended that HUD change the inclusion of a ``history of 
incarceration'' in the proposed rule to a ``history of incarceration or 
detention.'' Other commenters stated that a ``history of 
incarceration'' should be more inclusive, such as including a history 
of institutionalization, and should also include detention or 
involvement with juvenile court, since these are much more likely in 
the case of youth.
    Many commenters suggested that unaccompanied youth under the age of 
18 should automatically be considered as having met the barriers to 
employment, because being under the age of majority and being 
unaccompanied by a parent or guardian each represent barriers to 
employment.
    HUD Response: The list in the regulatory text of ``barriers to 
employment'' provides examples of possible barriers to employment that 
unaccompanied youth and families with children and youth might face and 
is not indicative of all the possible barriers. HUD has not added 
additional items to the list of barriers in the regulatory text, and 
HUD has not further defined ``a history of unstable employment.'' HUD 
would consider the suggestions provided in the comments (e.g., lack of 
child care, lack of transportation, lack of work experience) as 
barriers to employment without their specific inclusion in the 
regulatory text.
    HUD agrees with comments that the list of barriers does not reflect 
the typical experiences of youth and has added ``detention for criminal 
activity'' to ``history of incarceration,'' as suggested by many 
commenters.
    HUD also agrees that it is probable that unaccompanied youth under 
the age of 18 will likely meet the criteria of having multiple barriers 
to employment; however, intake workers cannot automatically presume 
eligibility for this criterion. The intake worker must document the 
barriers used to establish eligibility in the case file.
    Rule clarification. To more accurately reflect the experiences of 
youth, HUD has revised paragraph (3)(iii) of the definition of 
``homeless'' to add ``detention for criminal activity.''
    Comment: This category should be revised to broaden the number of 
children, youth, and families defined as homeless that could meet the 
standards. Commenters appeared, through the comments submitted, to 
understand that lack of precision in the statute compelled HUD to 
elaborate on the statutory provisions; however, the commenters sought 
to ensure that HUD did so in a way that is inclusive of as many people 
considered homeless under other federal statutes as possible. One 
commenter stated the view that HUD's narrow interpretation of the key 
terms is unnecessary to meet the statutory requirements and is 
unreasonable. A few commenters stated that unaccompanied youth and 
families with children and youth should not have to meet all three 
criteria to qualify as ``homeless'' under this category. One commenter 
recommended that families be considered homeless if they: (1) Have not 
lived independently in the last 90 days (including doubling up) and are 
likely to continue to be unstably housed because of disability or 
barriers to employment; or (2) have moved frequently in the last 90 
days (with three or more moves dispositive, but fewer moves still 
allowable) and are likely to continue to be unstably housed because of 
disability or barriers to employment; or (3) have experienced a 
combination of not living independently and moving frequently. The 
commenter stated that this language allowed the consideration of a 
number of conditions, but did not create a rigid formula that excludes 
needy families with children. Another commenter suggested that as long 
as the youth and families deemed homeless under this category have 
chronic disabilities or other similarly disabling conditions, there is 
no purpose served by extending the time period to be living in doubled-
up conditions or requiring a certain number of moves, as it is the 
presence of these conditions that make it difficult for these youth and 
families to find stable housing.
    HUD Response: HUD understands that there are vulnerable populations 
that continue to be excluded from the definition of homeless. The 
changes made to the standards for ``youth,'' ``long-term period,'' and 
``persistent instability'' discussed above will help make the 
definition more inclusive. Nevertheless, the requirement that 
unaccompanied youth, and families with children and youth defined as 
homeless under other federal statutes meet the three criteria in 
paragraphs (3)(i), (ii), and (iii) of the definition of ``homeless'' is 
statutory. HUD has not made any change in the final rule in response to 
these comments.
Category 4: Individual or Family Who Is Fleeing, or Attempting To Flee, 
Domestic Violence, Dating Violence, Sexual Assault, Stalking, or Other 
Dangerous or Life-Threatening Conditions
    Comment: Restore the statutory language regarding people fleeing 
domestic violence and other dangerous or life-threatening situations. 
Section 103(b) of the McKinney-Vento Act states that any individual or 
family ``who is fleeing, or is attempting to flee, domestic violence, 
dating violence, sexual assault, 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 the children are 
jeopardized * * *'' shall be considered homeless. The proposed rule 
limited the ``other dangerous or life-threatening conditions'' to those 
that ``relate to violence against the individual or 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 nighttime residence.'' Many commenters 
expressed concerns about the specific language of ``that relate to 
violence,'' noting that the McKinney-Vento Act did not require this. 
Commenters stated that violence is not the only dangerous environment 
and strongly suggested that HUD use broad language that includes 
unsanitary and unsafe living conditions.
    Other commenters simply sought clarification regarding other 
dangerous or life-threatening conditions that relate to violence 
against an individual or family that HUD would consider as meeting this 
standard. One commenter asked if an arson case would qualify as a 
dangerous or life-threatening condition or must such condition 
specifically relate to domestic violence.

[[Page 76005]]

    Many commenters expressed concerns that the proposed rule does not 
refer to ``where the health and safety of children are jeopardized,'' 
which is statutory language, given the paramount importance of 
protecting already vulnerable children and youth. Some commenters 
advised that other federal programs contain express provisions for the 
health and safety of children (i.e., the Childcare and Development 
Block Grant, and the Asbestos Control Loan programs). Commenters 
explained that unaccompanied youth may be vulnerable to sexual abuse or 
other exploitation and they should not have to experience such abuse to 
meet eligibility criteria for homeless services. The commenters also 
recommended that HUD elaborate on ``where the health and safety of 
children are jeopardized'' by including the following: Physical abuse, 
sexual abuse, mental or emotional abuse, child abuse, child neglect, 
commercial sexual exploitation, human trafficking, sex trafficking, 
discharge from the child welfare system into a nonpermanent living 
arrangement, discharge from juvenile justice placement into a 
nonpermanent living arrangement, and witness to domestic violence or 
sexual assault. Some commenters stated that while the current language 
could be interpreted to include sex exploitation and sex trafficking, 
there would be no debate about their inclusion if they were 
specifically mentioned.
    Commenters stated that the statutory language uses the phrase ``in 
the individual's or family's current housing situation,'' but the 
proposed rule uses the phrase ``primary nighttime residence.'' 
Commenters stated that the proposed rule's simplification narrows the 
number of people who would be covered. For example, commenters 
explained that a dangerous situation could be at the house of a 
noncustodial parent but this would not be the custodial parent's nor 
the children's primary nighttime residence. One commenter stated that 
the language in the proposed rule did not take into account dangers to 
children that may exist within an apartment complex, such as actions by 
a known child predator. Commenters recommended that HUD use the phrase 
``in the individual's or family's current housing situation.''
    HUD Response: HUD acknowledges that the rule limits the eligibility 
of individuals and families living in unsanitary and unsafe living 
conditions. HUD's view is that persons living in these types of 
situations are at risk of homelessness and reiterates that persons at 
risk of homelessness may be served under programs created by the HEARTH 
Act amendments. Additionally, the Department administers other programs 
to serve persons who are poorly housed, such as the Housing Choice 
Voucher (Section 8) program, the Public Housing program, and the HOME 
program.
    The examples that commenters recommended for inclusion for 
situations ``where the health and safety of children are jeopardized'' 
are already covered in the definition of ``homeless'' either under this 
category or another category within the definition. However, HUD has 
revised the language to state ``including a child'' to identify that 
the dangerous or life-threatening condition applies to the child as 
well as to the adult.
    Further, HUD disagrees that any population has been excluded by 
replacing ``housing'' with ``primary nighttime residence.'' 
Accordingly, HUD has not revised the language from the proposed rule 
based on these comments.
    Rule clarification: HUD has revised paragraph (4)(i) to state 
``including a child'' in the definition of ``homeless.''
    Comment: The phrase ``dangerous or life-threatening'' should not be 
construed to describe the level of violence required to qualify as 
``homeless.'' Commenters expressed concern that the phrase ``dangerous 
or life-threatening'' could be construed as describing the level of 
domestic violence, dating violence, sexual assault, and stalking needed 
to qualify for programs. Commenters feared that this interpretation 
could result in the denial of assistance to domestic violence, dating 
violence, sexual assault, or stalking victims who may not appear to be 
in immediate physical danger. The commenters stated that the definition 
could exclude many victims of violence whose situations may not be 
deemed dangerous or life-threatening by untrained third parties, 
contrary to congressional intent. Commenters recommended that HUD 
ensure that dangerous or life-threatening is not applied as a 
determination of the level of violence experienced.
    HUD Response: It is HUD's position that any level of domestic 
violence, dating violence, sexual assault, or stalking is inherently 
dangerous and life-threatening. Therefore, HUD did not intend the 
phrase ``dangerous or life-threatening'' to be interpreted as a level 
of violence that must occur before an individual or family can qualify 
as homeless. HUD interprets the intent behind section 103(a)(6) of the 
McKinney-Vento Act as including all individual and families fleeing, or 
attempting to flee domestic violence, dating violence, sexual assault, 
and stalking in the definition of ``homeless'' and plans to interpret 
this provision in such a way.
    Comment: Unaccompanied youth should be presumed eligible under 
category four of the definition of ``homeless.'' Many commenters 
suggested that unaccompanied youth should be presumed eligible under 
the last category of the definition of ``homeless.'' These commenters 
stated that an unaccompanied youth's vulnerability to abuse should 
constitute a dangerous or life-threatening condition and consequently 
automatically qualify such youth as eligible. Some commenters limited 
this to unaccompanied minor youth that have left their housing and are 
living on the streets or seeking assistance. All of these commenters 
expressed the view that these youth are particularly vulnerable to 
victimization, sexual abuse, exploitation, and other forms of abuse.
    HUD Response: HUD agrees that unaccompanied youth are highly 
vulnerable to victimization, sexual abuse, exploitation, and other 
forms of abuse. However, intake workers cannot automatically presume 
that a youth is eligible under the last category of the definition. The 
category under which an unaccompanied youth can qualify as homeless 
will depend on his or her particular situation. An unaccompanied youth 
who is living on the streets or in shelters will qualify as homeless 
under the first category of this definition. An unaccompanied youth who 
has been notified that she or he cannot stay in her or his current home 
may qualify under the second category of homeless. An unaccompanied 
youth who has bounced from one home to the next may qualify under the 
third category of the definition. If an unaccompanied youth is fleeing 
domestic violence, dating violence, sexual assault, or stalking, she or 
he will qualify under the last category of the definition. But to 
qualify under any of these four categories, an unaccompanied youth must 
meet the same criteria and evidentiary requirements that apply to all 
other individuals and families. The intake worker must obtain the 
credible evidence required to document that an unaccompanied youth is 
fleeing, or attempting to flee, domestic violence, dating violence, 
sexual assault, stalking, or other dangerous or life-threatening 
conditions that relate to violence, in order to qualify the 
unaccompanied youth as homeless under this category.
    Comment: The standards in the fourth category are so broad that 
almost anyone can qualify. One commenter suggested

[[Page 76006]]

that the definition of domestic violence in the proposed rule is so 
broad that almost anyone can qualify. This commenter suggested that the 
prescreening tools could be fine tuned to clearly identify those who 
truly need and would most likely benefit from the limited resources.
    HUD Response: In the final rule, HUD has clarified that the lesser 
documentation standards for homeless status under this category shall 
be limited to victim service providers, as defined in section 401(32) 
of the McKinney-Vento Act. If the person is not being admitted to a 
domestic violence shelter or is not receiving services from a victim 
service provider, then stricter documentation requirements are imposed. 
Specifically, the individual or head of household must certify in 
writing that he or she has not identified a subsequent residence and 
lacks the resources or support networks e.g., family, friends, faith-
based or other social networks, needed to obtain housing and, where the 
safety of the individual or family would not be jeopardized, the 
documentation must include either: (1) A written referral by a housing 
or service provider, social worker, health-care provider, law 
enforcement agency, legal assistance provider, pastoral counselor, or 
any other organization from whom the individual or head of household 
has sought assistance for domestic violence, dating violence, sexual 
assault, or stalking, (2) or a written observation that will verify 
that the individual or family is fleeing, or attempting to flee, 
domestic violence, dating violence, sexual assault, stalking, or other 
dangerous and life-threatening situations that relate to violence. The 
written referral or observation need only include the minimum amount of 
information necessary to document that the individual or family is 
fleeing, or attempting to flee, domestic violence, dating violence, 
sexual assault, and stalking. HUD does not expect that the written 
referral contain specific details about the incidence(s) of violence 
that occurred prior to the victim fleeing, or attempting to flee.
    HUD stresses that where the safety of the individual of family 
fleeing, or attempting to flee, domestic violence, dating violence, 
sexual assault, or stalking would be jeopardized by an intake worker's 
attempt to obtain third-party verification, that the intake worker must 
not attempt to obtain, under any circumstances, third-party 
verification and may accept written certification by the individual or 
head of household that he or she is fleeing, or attempting to flee, 
domestic violence, dating violence, sexual assault, or stalking. When 
making this determination, homeless service providers are expected to 
take into account community dynamics that may impact the victim. For 
example, if the community is so small that any attempt to gain third-
party documentation would potentially reveal the identity or location 
of the victim to the perpetrator of the violence, the homeless service 
provider must not pursue third-party documentation.
    Rule clarification: To clarify HUD's expectations, HUD has revised 
the recordkeeping requirements found in paragraph (b)(5) of the final 
rule to accept the most minimal documentation of an oral statement only 
if it is made by an individual or family being admitted to a domestic 
violence shelter or receiving services from a victim service provider 
as defined in section 401(32) of the McKinney-Vento Act. Otherwise, the 
oral statement that the individual or head of household seeking 
assistance has not identified a subsequent residence and lacks the 
resources or support networks, e.g., family, friends, faith-based or 
other social networks, needed to obtain housing must be documented by a 
certification by the individual or head of household, and, where the 
safety of the individual or family would not be jeopardized, the 
domestic violence, dating violence, sexual assault, stalking, or other 
dangerous or life-threatening condition must be verified by a written 
observation by the intake worker or a written referral by a housing or 
service provider, social worker, health-care provider, law enforcement 
agency, legal assistance provider, pastoral counselor, or other 
organization from whom the individual or head of household has sought 
assistance for domestic violence, dating violence, sexual assault, or 
stalking. The written referral or observation need only include the 
minimum amount of information necessary to document that the individual 
or family is fleeing, or attempting to flee, domestic violence, dating 
violence, sexual assault, and stalking.

C. Recordkeeping Requirements for the Definition of ``Homeless'' in 24 
CFR Parts 582 and 583

    Comment: In general, reduce the recordkeeping requirements. 
Generally, commenters recommended that HUD keep recordkeeping 
requirements to a minimum. These commenters stated that this would help 
expedite assistance and be less burdensome to providers. Other 
commenters emphasized that individuals claiming to be homeless under 
the rule should be taken at their word, unless information comes to 
light that casts substantial doubt on a claim of homelessness. Many 
commenters expressed the view that an oral statement, or self-
verification, by the homeless person should suffice in order to receive 
housing and/or services and that the statements should not be verified 
in such rigid terms. Finally, many commenters stated that the 
verification requirements in the proposed rule will be burdensome to 
project sponsors, take up valuable caseworker time and resources, and 
will increase the burden on homeless individuals and families.
    While most commenters supported reduced recordkeeping requirements, 
many suggested differing standards for persons seeking emergency 
shelter as opposed to those seeking transitional and permanent housing. 
Many commenters suggested that HUD allow Continuums of Care to adopt a 
presumptive eligibility period in which an intake worker could serve a 
homeless household or a household at risk of homelessness while 
obtaining the required evidence. These commenters explained that 
presumptive eligibility should apply particularly to homelessness 
prevention and permanent supportive housing.
    HUD Response: HUD acknowledges that the recordkeeping requirements 
established in the proposed rule are detailed and have not previously 
been established by HUD in codified regulation. However, recipients of 
grants have always been required to keep records proving the 
eligibility of program participants. The monitoring finding that most 
often requires repayment of grant funds by recipients is failure to 
maintain adequate documentation of homeless eligibility; therefore, to 
assure that program compliance and funding is directed to those 
individuals intended to be the beneficiaries of funding under the 
McKinney-Vento Act programs, the recordkeeping requirements set forth 
in this final rule are important and necessary.
    The recordkeeping requirements in paragraph (b) of the rule are 
included to clarify for recipients the documentation that HUD deems 
acceptable as proof of homelessness to assist recipients in maintaining 
adequate case files. For paragraphs (b)(1) and (b)(5), the rule 
prefaces the list of acceptable documentations with the term 
``includes.'' This assures that the list is not the all-inclusive list 
but rather that HUD will consider other forms of evidence, in addition 
to those listed, for these categories. The recordkeeping requirements 
for all four categories of

[[Page 76007]]

``homeless'' contain more than one form of evidence that HUD considers 
satisfactory evidence.
    HUD recognizes that circumstances, as well as the type of service 
or housing provided, will affect the ability of intake workers to 
obtain some forms of documentation listed in paragraph (b) of the 
recordkeeping requirements for the definition of ``homeless.'' For 
emergency shelters that require clients to present every night to gain 
access to a bed for just that night, HUD would not want the inability 
to obtain third-party documentation to prohibit access to a bed for the 
night. Therefore, in such instances, HUD would expect to see 
certification by the individual or head of household as the primary 
method of establishing homeless eligibility. HUD would consider a sign-
in sheet, with a certification that the individual or head of household 
seeking assistance is homeless typed at the top, as meeting this 
standard. However, for permanent housing and nonemergency services, 
such as employment assistance, HUD will expect to see third-party 
documentation.
    Specific changes to the recordkeeping requirements for the 
definition of ``homeless'' will be discussed in the remainder of this 
section of the preamble.
    Comment: Create a template for communities to use to document 
``homeless'' status. In the proposed rule, HUD solicited comment as to 
whether a HUD-approved form would assist recipients in documenting 
homelessness. The comments HUD received in response to this question 
were mixed. Some commenters requested a standard form of documentation 
to allow intake workers to record oral statements provided by homeless 
households, as well as enable applicants to self-certify statements. 
Some commenters stated that the HPRP Eligibility Determination and 
Documentation Guidance (3-17-10) was an extremely helpful tool and 
suggested that HUD develop a document similar to this guide.
    Other commenters stated that it would be helpful if HUD provided 
guidelines regarding the information a self-certification should 
include, as well as a sample form, or template, that a provider could 
choose to use, but not be required to use. These commenters stated that 
it would be easier to comply with the rules if there was flexibility 
regarding the format of the statement and certification and suggested 
that a HUD-approved form would not lessen the recordkeeping burden. 
Other commenters requested that HUD create a mechanism whereby a 
Continuum of Care could submit one or more forms for preapproval to 
HUD. One commenter suggested that a government form may actually create 
a barrier to service for many people, especially those who have a 
mental illness. Many commenters requested the ability to collect intake 
information in a flexible manner that meets local needs.
    Response: HUD understands that communities need flexibility at the 
local level to determine a household's status. Therefore, HUD will not 
issue a HUD-approved form that providers must use to document 
homelessness at this time, because HUD agrees that would be contrary to 
providing the flexibility needed at the local level. However, HUD 
intends to provide a template that can be used, or modified, by 
providers to certify homeless status at intake.
    Comment: Documentation standards should be clarified and third-
party documentation is preferable. While many commenters suggested that 
the recordkeeping standards established by HUD in the proposed rule 
were burdensome, other commenters recommended that oral statements 
should be relied upon as evidence only after all other attempts to 
obtain documentation have been exhausted. Another commenter, referring 
specifically to the standards established in Sec.  577.3(3) of the 
proposed rule, stated that the standards were particularly confusing 
and it was unclear when an oral statement could be accepted versus one 
written down versus when third-party documentation must be obtained. 
One commenter urged HUD to establish and promulgate clear criteria for 
documentation to confirm eligibility and suggested that the inability 
to obtain a written or oral statement from a third party to document 
homeless status will cause providers to rely heavily on self-
declaration of homelessness, which will increase the likelihood of 
misuse, and which is problematic because of the inability to meet 
current need, combined with the knowledge that few resources will be 
available to the current eligible population when the eligibility pool 
is expanded with the publication of this rule.
    HUD Response: HUD agrees that third-party documentation should be 
obtained whenever possible. HUD revised paragraph (b) of the 
recordkeeping requirements for ``homeless status'' to clarify that the 
order of priority among documentation is third-party documentation 
first, intake worker observation second, and certification by the 
individual or head of household seeking assistance third. Overnight 
emergency shelters, where program participants line up nightly for a 
bed for one night and must leave at a designated time in the morning, 
may rely on certifications by the individual or head of household 
seeking assistance.
    Rule clarification. To clarify HUD's expectations for the 
recordkeeping requirements, giving priority to third-party 
documentation, HUD has revised paragraph (b) in the recordkeeping 
requirements for homeless status.
    Comment: The rule should allow intake workers to use other evidence 
that may be available to document homeless status of a household. Some 
commenters stated that the rule should include other evidence that 
providers could use to document homeless status. These commenters 
stated that this would be particularly useful when a person may be 
reluctant to reveal information or sign a certification because of a 
disability or because the person fears for his or her safety. Some 
commenters suggested that incorporating existing electronic technology, 
such as HMIS, is favorable.
    HUD Response: HUD agrees that providers should be able to use 
existing evidence to document a household's status. To help reduce the 
burden of documentation on providers and to utilize existing resources 
where they are available, HUD has revised the rule to allow use of 
information recorded in an HMIS that retains an auditable history of 
all entries, including the person who entered the data, the date of 
entry, and the change made, and that prevents overrides of changes of 
the dates on which entries are made.
    Rule clarification. HUD has revised paragraph (b) of the 
recordkeeping requirements for ``homeless status'' to include service 
transactions recorded in an HMIS or comparable database as acceptable 
evidence.
    Comment: The recordkeeping requirements for persons leaving an 
institution should be clarified. Commenters stated that HUD should 
provide additional guidance on documentation that should be collected 
or provided by an institution under this rule to certify homeless 
status at entry and exit. Commenters recommended that, at a minimum, 
institutions should document the address and program name of the last 
known location, and any supportive service program a resident may have 
had contact with prior to entry. One commenter suggested that HUD 
create a form that institutions could use to certify homelessness. 
These commenters noted that extensive documentation requirements will 
create an additional burden on already stressed institutions, and that 
it will be important to know

[[Page 76008]]

what the homeless documentation requirements will be for institutions 
so that they can attempt to collect as much information as needed at 
intake.
    Many commenters expressed concern that it is very difficult to 
obtain information from institutions. Commenters stated that many 
public institutions are currently in crisis mode and will not have the 
time or wherewithal to do this. In addition, commenters stated that 
once the person has left the institution, the institution is less 
likely to respond quickly to requests for information. Commenters said 
that there is often local information that would verify the stay in the 
institution, such as a local mental health agency or HMIS records. 
Commenters recommended that the rule mention other ways stays in 
institutions could be verified, such as via certifications by local 
caseworkers, discharge paperwork, or HMIS. In addition, commenters 
recommended that intake workers that can reach the institution by phone 
should be allowed to document that call. The commenters expressed the 
view that it was important that access to assistance for a homeless 
individual not be adversely impacted by the inability of a provider to 
obtain data from the institution.
    Other commenters expressed the view that the proposed rule places a 
relatively light burden of documentation or proof for institutions, 
such as a referral letter with end dates, while provider agencies are 
burdened with far greater documentation requirements. These commenters 
requested that HUD clarify protocols whereby social workers, case 
managers, or other officials of institutions identify homelessness and 
community of origin, so that it is clear that institutions are not 
simply coding clients as homeless without cause.
    HUD Response: HUD recognizes that it is often difficult for 
homeless providers to obtain documentation from discharging 
institutions and agrees that an individual should not be denied access 
to housing or services because the institution did not maintain the 
appropriate records. To accommodate these concerns while still 
maintaining a level of responsibility for documentation by the 
institution, HUD added additional methods of documenting ``homeless 
status'' for persons in paragraph (1)(iii) of the ``homeless'' 
definition to include discharge paperwork; written and oral referrals 
from a social worker, case manager, or other appropriate official of 
the institution; and a written record of the intake worker's due 
diligence in attempting to obtain a statement from an appropriate 
official at the institution as acceptable evidence when coupled with a 
certification by the individual seeking assistance.
    Rule clarification. To incorporate additional methods of 
documenting homeless status for persons who have temporarily resided in 
an institution, but were homeless prior to entry, HUD has revised 
paragraph (b)(2) of the recordkeeping requirements for the ``homeless'' 
definition.
    Comment: Additional documentation standards should be included for 
persons at imminent risk of losing their housing. Many commenters 
expressed concern with HUD's standard set in Sec.  577.3(b)(3)(i)(A) of 
the proposed rule. These commenters stated that this language shows a 
disconnect with how the eviction process actually works, fails to 
recognize that eviction procedures differ by state, and lacks the 
understanding that many evictions are not conducted legally, and even 
if they are, the paperwork is not easily transferred from location to 
location by the evicted household. These commenters recommended that 
HUD incorporate a Notice to Quit/Notice to Terminate, a letter from the 
landlord, or other similar documentation as acceptable evidence in the 
final rule.
    HUD Response: The language to which the commenters object in Sec.  
577.3(b)(3) of the proposed rule is the exact language from the 
statute. In response to the comments, HUD has added ``or the equivalent 
under applicable state law'' after ``court order resulting from an 
eviction action'' in recognition of differing state law. HUD agrees 
that the recordkeeping standards established in section Sec.  
577.3(b)(3) of the proposed rule should be expanded to incorporate a 
documentation standard that reflect situations that occur. Accordingly, 
HUD has revised the language from the proposed rule in this section to 
include ``or the equivalent under applicable state law'' after ``court 
order resulting from an eviction.'' Additionally, HUD has clarified 
that the ``equivalent notice under applicable state law, a Notice to 
Quit, or a Notice to Terminate issued under state law'' are acceptable 
evidence where a court order resulting from an eviction action or other 
equivalent under applicable state law are not available.
    Rule clarification. HUD has revised paragraph (b)(3) of the 
recordkeeping requirements for the ``homeless'' definition in response 
to these comments.
    Comment: Clarify the recordkeeping standards for persons staying in 
a hotel or motel that lack the resources to stay there for more than 14 
days. One commenter stated that the requirement to prove that someone 
lacks the funds to continue paying for a hotel or motel established in 
Sec.  577.3(b)(3)(i)(B) of the proposed rule is not realistic and is 
unnecessary. This commenter questioned how this could be proven and 
suggested that persons whose residence is a motel should automatically 
be assumed homeless without this requirement.
    HUD Response: The requirement that the individual or family ``lack 
the resources necessary to reside there for more than 14 days'' is 
statutory. HUD recognizes that the methods used to establish lack of 
resources and lack of funds will vary by community. In order to allow 
for this variation, HUD has not revised the language from the proposed 
rule.
    Comment: An oral statement should be sufficient without further 
verification. Many commenters stated that HUD should relax the 
verification and documentation requirements under Sec.  
577.3(b)(3)(i)(C) of the proposed rule for households that will 
imminently lose their housing. Most commenters stated that an oral 
statement should be sufficient and that requiring an intake worker to 
obtain records from the host family where the individual or family is 
living could cause friction between the families and seriously threaten 
the housing. In addition, many commenters expressed the view that this 
requirement is burdensome and stated that it would divert resources 
from assistance to individual and families. Other commenters stated 
that requiring additional documentation went against the statutory 
intent of the McKinney-Vento Act and would lengthen the time that 
persons spend homeless. Another commenter stated that requiring 
written, third-party documentation of an oral statement is inconsistent 
with and contrary to the principles of statutory interpretation 
articulated in Chevron, U.S.A., Inc. v. N.R.D.C., Inc., 467 U.S. 837 
(1984). Other commenters questioned the value of a written self-
certification and stated that it did nothing to increase the 
credibility of an oral statement. Many commenters agreed with the 
recordkeeping requirements established in Sec.  577.3(b)(3)(i)(C) of 
the proposed rule, but suggested that further elaboration of the role 
of the intake worker is needed and suggested that ``due diligence'' be 
defined. One commenter suggested that the proposed rule contain a 
provision that there is a legal penalty of $10,000 associated with 
falsifying the homeless status of a person receiving HUD funds for 
housing and/or services. Other

[[Page 76009]]

commenters suggested that time frames should be set for how long the 
intake worker has to complete the ``due diligence.''
    HUD Response: The statute specifically states that ``an oral 
statement * * * that is found to be credible shall be considered 
credible evidence.'' HUD proposed implementation of this provision by 
providing verification requirements intended to establish a consistent 
standard by which an oral statement may be found credible. Some form of 
verification is needed to faithfully implement the statute. However, in 
light of the numerous comments received, HUD revised the requirements 
to require a written certification by the person making an oral 
statement only when third-party documentation is not available and the 
owner or renter cannot be reached. If the oral statement is verified by 
the owner or renter of the home where the person or family is living, 
the oral statement may be documented by the intake worker's 
certification. The final rule maintains the requirement that the intake 
worker document his or her due diligence in attempting to obtain the 
owner or renter's verification, if the owner or renter cannot be 
reached.
    Additionally, HUD recognizes that the methods used to establish 
``imminent loss of housing,'' including standards for ``due 
diligence,'' vary by community and often by the circumstances of the 
presenting household. In order to allow for a variety of appropriate 
processes, HUD has not revised the language from the proposed rule.
    Comment: Provide training on eligibility criteria for other federal 
statutes with definitions of ``homeless.'' One commenter stated that 
many service providers are not familiar with eligibility criteria for 
other federal statutes with definitions of ``homeless'' and stated that 
it is one more program requirement on which they must be trained in 
order to effectively document homeless status under Sec.  577.3(b)(3) 
of the proposed rule.
    HUD Response: HUD does not expect its providers to become experts 
in applying the definitions of homeless under other federal statutes. 
Therefore, HUD has revised the language from the proposed rule to 
accept certification of homeless status by the local private nonprofit 
organizations or state or local government entities responsible for 
administering assistance under the other federal statutes (e.g., the 
school district) in order to determine if the youth or children meet 
the homeless definition under that statute.
    Rule clarification. HUD has slightly revised Sec.  577.3(b)(4) to 
incorporate language allowing the local private nonprofit organizations 
or state or local government entities responsible for administering 
assistance under the other federal statutes to certify the homeless 
status of an unaccompanied youth or family with children and youth.
    Comment: Relax the standards for documenting ``persistent 
instability.'' Many commenters stated that the standards established 
for documenting homelessness of unaccompanied youth and families with 
children and youth in Sec.  577.3(b)(4) were cumbersome, difficult, 
countered the intent of increased coordination with school liaisons, 
and failed to reflect the reality that unaccompanied youth are not 
likely to travel with documentation. One commenter posited that the 
criteria for establishing proof of eligibility in this category was so 
complex that it would cause program operators to ``work around'' this 
category and qualify this population as homeless under category two.
    Some commenters requested that HUD adopt standards similar to those 
established in Sec.  577.3(b)(5) for victims of domestic violence, 
dating violence, sexual assault, and stalking. These commenters stated 
that unaccompanied youth are often being kicked out of housing by the 
very people that abuse them.
    Specifically, for the standards for ``persistent instability'' 
established in Sec.  577.3(b)(4)(ii) of the proposed rule, many 
commenters stated that the requirement to obtain a statement from host 
households is unduly burdensome for case managers, as well as for 
unaccompanied youth and families with children and youth whose living 
situations are fragile. Other commenters expressed the fear that the 
requirement to obtain a statement may put host households at risk of 
losing their housing because they violated the terms of their lease by 
allowing the unaccompanied youth or family with children and youth to 
stay there. Some commenters requested that the standard to obtain 
documentation from each host household be eliminated entirely, other 
commenters requested that the standard be limited to the most recent 
owner or renter of the housing, and others requested that it be limited 
to those host families who still resided in the place where the 
unaccompanied youth or family with children and youth stayed or to 
those host households who have phones or email.
    HUD Response: HUD understands that it can often be difficult to 
obtain verification from the owner or renter of the housing where the 
individual or family presenting for assistance has been staying. HUD 
agrees that the standard should be eliminated or scaled back where a 
move by the unaccompanied youth or family with children and youth was 
due to domestic violence, dating violence, sexual assault, or stalking. 
It is HUD's position that these verification steps help ensure that 
individuals and families meet the definition of ``homeless'' and assist 
in identifying resources and needs to allow providers to assist the 
unaccompanied youth or family with children and youth effectively; 
however, HUD understands the need to protect this particularly 
vulnerable population from their abusers.
    HUD reminds readers that where an unaccompanied youth or family 
with children and youth is moving to immediately flee, or attempt to 
flee, domestic violence, dating violence, sexual assault, or stalking, 
the unaccompanied youth or family with children and youth will qualify 
as homeless under the fourth category of the homeless definition and 
the accompanying minimal evidentiary standards for that category will 
apply.
    Rule clarification: HUD has revised paragraph (b)(4)(iii) of the 
recordkeeping requirements for the definition of ``homeless'' to 
clarify that where a move of the unaccompanied youth, or of the family 
with children and youth, was due to domestic violence, dating violence, 
sexual assault, or stalking, the provider may accept a written 
certification from the individual or head of household as documentation 
of that living arrangement.
    Comment: Appropriate licensed professionals should be able to 
diagnose and document disabilities. With respect to the standards for 
documenting disability in Sec.  577.3(b)(4)(iii) of the proposed rule, 
many commenters suggested that HUD remove the term ``medical'' and 
allow ``appropriate licensed professionals'' to diagnose and document 
disabilities. These commenters stated that a licensed nonmedical 
professional will be able to provide acceptable evidence of disability 
in many cases. Some of these commenters stated that requiring that a 
disability be confirmed by an ``appropriate licensed medical 
professional'' will cost money and HUD should pay the associated costs. 
These commenters recommended that HUD publish a list of professionals 
that can verify disability. Another commenter suggested that HUD 
explore the feasibility of including certification by a Center for 
Independent Living as

[[Page 76010]]

acceptable evidence of disability status if the individual or member of 
the household has a pre-existing consumer service record.
    Other commenters suggested that the provision requiring 
documentation by an ``appropriate licensed medical professional'' be 
removed entirely and that intake workers be allowed to use self-
certifications and/or documented behavioral observations by staff as 
evidence of a disability and that a written diagnosis is not needed.
    Other commenters suggested that documentation of disability by an 
appropriate licensed medical professional within 45 days, as required 
in Sec.  577.3(b)(4)(iii) of the proposed rule, may be impossible. One 
commenter urged HUD to consider the constraints of availability of 
medical professionals in some locations.
    HUD Response: HUD disagrees that the requirement to verify 
disability should be removed from the rule completely. HUD has a 
responsibility to ensure that federal funds are spent wisely and having 
the existence of a disabling condition confirmed where required for 
eligibility protects against fraud and waste. However, in light of the 
comments, HUD clarified that the diagnosis of a disability need not be 
made by an appropriate licensed ``medical'' professional, but must be 
made by a professional who is licensed by the state to diagnose and 
treat that condition.
    Rule clarification. HUD has revised the recordkeeping standards 
established in paragraph (b)(4)(iv) of the recordkeeping requirements 
for the ``homeless'' definition.
    Comment: Revise the standards for documenting ``barriers to 
employment.'' Many commenters requested that HUD lessen the standards 
for documenting ``barriers to employment'' established in Sec.  
577.3(4)(iii) of the proposed rule. Many of these commenters suggested 
that an oral statement from the unaccompanied youth or family with 
children or youth should be acceptable. Other commenters stated that 
intake workers should be required to document, in their case notes, the 
challenges an individual faces in seeking work, but should not have to 
seek out employment records, department of correction records, and 
literacy tests. Another commenter requested that a self-certification 
be an acceptable form of documentation for barriers to employment.
    One commenter stated that within the barriers to employment that 
HUD lists as examples, there are some that are easier to document than 
others. This commenter stated that this could cause providers to serve 
unaccompanied youth and families with children and youth with fewer 
barriers because they are easier to document and be detrimental to 
harder-to- serve populations with more intensive disabilities.
    HUD Response: HUD disagrees that the standards for documenting 
barriers to employment are cumbersome and would cause providers to 
serve easier-to-serve populations for which the recordkeeping 
requirements are easier to meet. HUD reminds commenters that the list 
of barriers to employment are examples and not all-inclusive. Intake 
workers should use whatever evidence is available that is appropriate 
to the barrier to employment that is utilized for determining 
eligibility under category three of the definition of ``homeless.''
    Comment: Additional guidance is needed for documenting the absence 
of a characteristic. Many commenters requested guidance on how to 
document the absence of a characteristic, such as the lack of a 
``lease, ownership interest or occupancy agreement in permanent 
housing,'' or a ``lack of a high school degree or General Education 
Development (GED).''
    HUD Response: The methods used to establish the absence of a 
characteristic often varies depending on the characteristic, the 
presenting individual's or family's situation, local processes, and 
local data that is available. In order to allow for a variety of 
appropriate documentation standards, including a note from a high 
school, employment counselor, or a certification signed by the 
individual or head of household that a characteristic does not exist, 
HUD has not revised the language from the proposed rule.
    Comment: The recordkeeping standards established for victims of 
domestic violence, dating violence, sexual assault, stalking, and other 
dangerous or life-threatening conditions should be reduced. Many 
commenters recommended that Sec.  577.3(b)(5) of the proposed rule 
should be revised to allow an oral statement to be sufficient. These 
commenters suggested that requiring a written certification, whether by 
the victim or the intake worker, creates a number of safety concerns 
and the proposed rule should be amended to allow service providers to 
accept the oral statement without the additional written documentation. 
One commenter stated that by granting intake workers discretion to 
certify statements in writing, this policy not only risks undermining 
the confidentiality of sensitive information, but introduces the 
potential for subjective judgment to result in discrimination against 
victims. Other commenters stated that requiring a written verification 
goes beyond the plain meaning of the McKinney-Vento Act.
    Commenters suggested that if HUD requires service providers to 
implement a written certification process, it should do so in a manner 
that reduces the burden on survivors and staff and maximizes 
confidentiality. These commenters proposed that HUD issue guidance on 
the limited scope of any certification form, requiring only the name of 
the victim and family members and a box to check to indicate victim 
status. Some commenters suggested that the same degree of brevity 
should also characterize the documentation submitted by housing or 
service providers, social workers, hospital staff, or police when 
making referrals on behalf of victims.
    HUD Response: HUD recognizes the importance of maintaining the 
confidentiality of all client-level information. HUD also recognizes 
the significant safety needs of victims of domestic violence, dating 
violence, sexual assault, or stalking, and for this reason, greatly 
limited the documentation requirements for victims of domestic 
violence, dating violence, sexual assault, and stalking. HUD must 
require some documentation to assist the Department in monitoring and 
oversight of projects receiving HUD funds, and the final rule presents 
the minimal documentation necessary. HUD will publish confidentiality 
and privacy standards at the time of publication of those rules.

D. Definition of ``Persons With Disabilities'' in 24 CFR Part 582

    The proposed rule contained proposed definitions for 
``developmental disability'' and ``homeless individual with a 
disability,'' which were intended to be included in the final 
regulations for the Continuum of Care program and the Rural Housing 
Stability program. However, because the proposed rules for those 
programs have not yet been published, this final rule has integrated 
the proposed definitions for ``developmental disability'' and 
``homeless individual with a disability'' into the regulations for the 
Shelter Plus Care program and the Supportive Housing Program. Because 
the existing regulations for the Shelter Plus Care program (24 CFR part 
582) use the term ``persons with disabilities,'' the substance of the 
proposed definition of ``homeless individual with a disability'' has 
been integrated into the existing definition of ``persons with 
disabilities''

[[Page 76011]]

in the Shelter Plus Care regulations while preserving language that 
involves requirements that go beyond the definition of ``homeless 
individual with a disability'' in the HEARTH Act.
    Comment: Further define ``long-continuing or indefinite duration.'' 
Commenters recommended that HUD provide clear, objective guidelines and 
factors for determining whether a person's disability is expected to be 
``long-continuing or of indefinite duration,'' to assist persons and 
organizations responsible for administering programs authorized in the 
Act. Commenters suggested that the guidelines include a set of factors 
to consider and forms of verifying information, and requested that the 
guidelines take into account circumstances in which a homeless 
individual with a disability may not be able to produce such 
documentation or relate necessary information, often because of their 
disabilities. These commenters expressed concern that without clear, 
objective guidelines, decisions on whether a person's disability is 
``long-continuing or of indefinite duration'' may be based on 
subjective notions or stereotypes about disabilities, and will 
potentially exclude eligible individuals.
    HUD Response: The definition of disability is one that currently 
exists for HUD's homeless programs. Historically, HUD has not further 
defined ``long-continuing or indefinite duration,'' and allows an 
appropriate licensed official to certify that the disability meets this 
criterion. To clarify that HUD continues to expect a professional 
licensed by the state to diagnose and treat that condition to certify 
that the disability is expected to be ``long-continuing or of 
indefinite duration,'' HUD has added recordkeeping requirements to the 
final rule.
    Rule clarification. To clarify that HUD expects an appropriate 
professional licensed in the state to diagnose and treat the condition 
to verify that the disability of the person applying for assistance, is 
expected to be ``long continuing or of indefinite duration,'' this 
final rule adds specific recordkeeping requirements for ``disability.''
    Comment: Include additional factors to the list for determining a 
disabling condition. Commenters requested that HUD include additional 
factors to the definition of homeless individual with a disability, 
including persons with intellectual, cognitive, or developmental 
disabilities (ICDD), who are institutionalized, at risk of 
institutionalization, or placed in a licensed or more restrictive 
setting, under the definition of a homeless individual with a 
disability. In addition, these commenters requested that HUD include 
disabled persons residing with aging caregivers. Other commenters 
expressed the view that the definition of homeless individual with a 
disability should explicitly recognize individuals with cancer as 
having a disability, especially those with cancer in advanced stages. 
Commenters stated that cancer should be explicitly recognized in the 
regulation because it generally falls outside the traditional notions 
of physical or mental disability like Human Immunodeficiency Virus 
(HIV)/Acquired Immune Deficiency Syndrome (AIDS), which is explicitly 
recognized by the proposed rule. Commenters stated that cancer is a 
disability when it, or its side effects, substantially limit(s) one or 
more of a person's major life activities, and it can lead to the 
occurrence of other impairments that may be considered a disability.
    HUD Response: The definition of ``homeless individual with a 
disability'' in the proposed rule includes a ``physical, mental, or 
emotional impairment.'' Where persons with ICDD and cancer also are 
homeless, and where the ICDD or cancer is expected to be long-
continuing or of indefinite duration, substantially impede the 
individual's ability to live independently, and could be improved by 
the provision of more suitable housing, then the individual could be 
considered a ``homeless individual with a disability.'' HUD has not 
changed the language from the proposed rule in response to these 
comments.
    Comment: Remove provisions (1)(ii) and (1)(iii) from the definition 
of ``homeless individual with a disability.'' Commenters recommended 
that HUD eliminate the requirement that the homeless individual's 
disability be one that ``substantially impedes the individual's ability 
to live independently.'' Commenters expressed the view that in order to 
avoid unnecessary confusion and maintain consistency, HUD should 
utilize the federal definition of disability employed by other federal 
laws, such as the Fair Housing Act, Section 504 of the Rehabilitation 
Act of 1973, and the Americans with Disabilities Act. These laws 
require only that the disability be one that causes a ``substantial 
limitation on one or more major life activities.'' Commenters stated 
that requiring additional proof that the disability ``substantially 
impedes'' the individual's ability to live independently is unnecessary 
and an extremely high burden that will needlessly preclude many 
deserving individuals from obtaining housing assistance based on their 
disabilities.
    While commenters strongly recommended that HUD eliminate this 
requirement, if the regulation is implemented as is, commenters urged 
HUD to set clear, objective guidelines on how persons and organizations 
responsible for administering the HEARTH Act should determine whether 
an individual's disability is a substantial impediment to his or her 
ability to live independently. These guidelines should include a set of 
factors these persons and organizations should consider, and types of 
verifying information, and should also take into account circumstances 
in which a homeless individual with a disability may not be able to 
produce such documentation or relate such information, often because of 
his or her disability.
    Some commenters recommended that HUD delete the requirement that 
the disability ``could be improved by the provision of more suitable 
housing conditions.'' These commenters stated that every homeless 
individual's disability improves by the provision of more suitable 
housing, and this factor is difficult to document and adds little 
value. Other commenters submitted that the rule should not condition 
disability eligibility for housing assistance on an expectation that 
homeless people with disabilities will ``improve'' their disability in 
housing. Commenters explained that such a notion is misguided and will 
exclude many people with disabilities deserving of housing assistance, 
and that this type of definition is based on outmoded concepts of 
disability. Commenters stated that while housing assistance provided 
through this program may improve the person's quality of life or 
stability, the disability itself will often remain. The commenters 
concluded that individuals with disabilities should not be barred from 
the program because their disability cannot be remediated, and barring 
such individuals from the program would likely violate federal 
nondiscrimination mandates, including those in the Americans with 
Disabilities Act and Section 504 of the Rehabilitation Act.
    In addition, these commenters expressed the view that housing 
assistance should be focused on stabilizing homeless people with 
disabilities. The commenters stated that while suitable housing may not 
succeed immediately in changing the level of impairment of an 
individual's disability, it does succeed in stabilizing homeless people 
with disabilities, such as those with serious mental illness and/or

[[Page 76012]]

substance-related disorders who have traditionally been very difficult 
to house or have had great difficulty maintaining their housing. The 
commenters further stated that housing combined with support services 
can stabilize a client's financial status and promote self-sufficiency.
    HUD Response: The language in paragraphs (1)(ii) and (1)(iii) of 
the definition of a ``homeless individual with a disability'' is 
statutory. Recordkeeping requirements have been established in this 
rule to assist recipients appropriately document that a disability will 
``substantially impede the individual's ability to live 
independently,'' as will be discussed in Section IV.F of this preamble. 
It is HUD's position that the provision of stable housing and services 
will inherently improve with the provision of more stable housing 
conditions. Additionally, the proposed rule requires that a disability 
be expected to be ``long-continuing or of indefinite duration;'' 
therefore, HUD does not expect the disability to be completely 
remediated by the provision of more suitable housing.
    HUD disagrees that housing and service providers will be barred 
from determining that an individual has a disability because the 
disability cannot be remediated; therefore, HUD has not changed this 
language from the proposed rule based on these comments. HUD includes 
recordkeeping requirements to assist intake workers in documenting 
disability as defined in this final rule.
    Comment: Restore the statutory language under Section 401(9)(B) of 
the Act. Commenters recommended that HUD include in the final rule the 
specific statutory language under section 401(9)(B) the McKinney-Vento 
Act. Commenters strongly recommended that this language be included 
unless the language regarding AIDS is removed.
    HUD Response: HUD disagrees that the statutory language in section 
401(9)(B) of the McKinney-Vento Act needs to be included in the rule or 
that the language regarding AIDS in section 401(9)(A)(iii) needs to be 
removed if the language in section 401(9)(B) is not included. Because 
of the inclusion of an ``or,'' instead of an ``and,'' after the 
statement in paragraph (2) of the definition of ``homeless individual 
with a disability'' in the proposed rule, the language allows persons 
eligible under paragraph (3) to also qualify as a homeless individual 
with a disability under paragraphs (1) and (2). Including the statutory 
language as recommended by the commenters creates a redundancy in the 
proposed rule; therefore, HUD has not made changes to the language in 
the proposed rule based on this comment.

E. Definition of ``Disability'' in 24 CFR Part 583

    Because the existing regulations for the Supportive Housing Program 
(24 CFR part 583) do not use the term ``homeless individual with a 
disability,'' the substance of the new definition, including changes 
HUD has adopted in response to public comments on the proposed rule, 
has been included in a revised definition of ``disability.''

F. Recordkeeping Requirements for ``Disability'' in 24 CFR Parts 582 
and 583

    Comment: The proposed rule should contain documentation standards 
for ``homeless individual with a disability.'' Commenters mentioned 
that the proposed rule did not clarify the requirements for documenting 
a disability (when a client is not receiving Supplemental Social 
Security Income (SSI) or Social Security Disability Income (SSDI), 
other than a brief note in conjunction with the definition of 
homelessness by virtue of persistent instability. Commenters said that 
it is critically important to document a disability for the purpose of 
determining client eligibility for permanent supportive housing 
targeted for homeless persons with disabilities. Thus, commenters 
recommended that HUD use this opportunity to clarify, and to the extent 
possible, expand the options for documenting disability.
    Additionally, one commenter recommended that the recordkeeping 
requirements for a ``homeless individual with a disability'' should 
include a process for identifying a person with a disability after 
intake. This commenter stated that HUD needs to ensure that persons not 
originally identified at intake as a ``homeless individual with a 
disability'' can be identified at a later point and be made eligible 
for resources associated with that definition.
    HUD Response: HUD recognizes that providers need clear guidelines 
and documentation standards for establishing that an individual meets 
the definition of ``homeless individual with a disability.'' HUD has 
added recordkeeping requirements to the language from the proposed 
rule.
    Rule clarification. To set clear guidelines and documentation 
standards for the definition of ``homeless individual with a 
disability,'' this final rule adds recordkeeping requirements for 
``disability'' to 24 CFR parts 582 and 583.

G. Comments Regarding Burden Estimate

    Comment: The burden estimate of 0.25 hours is too low. Some 
commenters expressed the view that the Reporting and Recordkeeping 
burden estimate of 0.25 hours as an average time for requirement is not 
enough for even one portion of the documentation. Commenters stated 
that the average burden could be as high as 2 to 3 hours for many 
individuals and families, and under the third category of homelessness, 
it could easily be 1 to 2 days per case. Other commenters expressed 
concern that 0.25 hours was an inadequate amount of time to analyze and 
document the information provided by applicants and third parties, 
especially when an applicant has resided in upwards of three different 
residences, and stated that the time required would be between 30 
minutes to 3 hours.
    HUD Response: HUD disagrees that the Reporting and Recordkeeping 
burden estimate of 0.25 hours as an average time is too low. The 
reporting and recordkeeping burden is an estimate of the average time 
it takes all recipients of HUD funds that serve homeless persons to 
document homeless status. In this final rule, HUD has made significant 
changes to lessen the documentation standards for providers, including 
allowing providers to use information that is available through other 
community resources, including HMIS, and clarifying that lesser 
documentation standards apply to overnight emergency shelters; 
therefore, HUD determined that 0.25 hours is an appropriate average. 
HUD has not revised the burden estimated in the April 2010 proposed 
rule.

IV. Findings and Certifications

Regulatory Planning and Review

    The Office of Management and Budget (OMB) reviewed this rule under 
Executive Order 12866, ``Regulatory Planning and Review.'' This rule 
was determined to be a ``significant regulatory action,'' as defined in 
section 3(f) of the order (although not an economically significant 
regulatory action under the order). The docket file is available for 
public inspection in the Regulations Division, Office of the General 
Counsel, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. Due 
to security measures at the HUD Headquarters building, please schedule 
an appointment to review the docket file by calling the Regulations 
Division at (202) 402-3055 (this is not a toll-free number). 
Individuals with speech or hearing impairments may

[[Page 76013]]

access this number via TTY by calling the Federal Information Relay 
Service at (800) 877-8339.

Information Collection Requirements

    The information collection requirements contained in this final 
rule have been submitted to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and 
assigned OMB control number 2506-0112. In accordance with the Paperwork 
Reduction Act, an agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information, unless the 
collection displays a currently valid OMB control number.

Environmental Impact

    This rule does not direct, provide for assistance or loan and 
mortgage insurance for, or otherwise govern or regulate, real property 
acquisition, disposition, leasing, rehabilitation, alteration, 
demolition, or new construction, or establish, revise, or provide for 
standards for construction or construction materials, manufactured 
housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this 
proposed rule is categorically excluded from environmental review under 
the National Environmental Policy Act of 1969 (42 U.S.C. 4321).

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
(UMRA) establishes requirements for federal agencies to assess the 
effects of their regulatory actions on state, local, and tribal 
governments and on the private sector. This rule does not impose a 
federal mandate on any state, local, or tribal government, or on the 
private sector, within the meaning of UMRA.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) generally 
requires an agency to conduct a regulatory flexibility analysis of any 
rule subject to notice and comment rulemaking requirements, unless the 
agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. This rule solely 
addresses the definitions of ``homeless,'' ``homeless individual,'' 
``homeless person,'' and ``homeless individual with a disability.'' The 
purpose of this rule is to determine the universe of individuals and 
families who qualify as ``homeless'' under the HEARTH Act, and are 
therefore eligible to be served by HUD homeless programs that will be 
implemented by separate rulemaking. Given the narrow scope of this 
rule, HUD has determined that it would not have a significant economic 
impact on a substantial number of small entities.

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any rule that has federalism implications if the rule 
either imposes substantial direct compliance costs on state and local 
governments and is not required by statute, or the rule preempts state 
law, unless the agency meets the consultation and funding requirements 
of section 6 of the Executive Order. This final rule does not have 
federalism implications and does not impose substantial direct 
compliance costs on state and local governments nor preempt state law 
within the meaning of the Executive Order.

List of Subjects

 24 CFR Part 91

    Aged, Grant programs--housing and community development, Homeless, 
Individuals with disabilities, Low- and moderate-income housing, 
Reporting and recordkeeping requirements.

24 CFR Part 582

    Homeless, Rent subsidies, Reporting and recordkeeping requirements, 
Supportive housing programs--housing and community development, 
Supportive services.

24 CFR Part 583

    Homeless, Rent subsidies, Reporting and recordkeeping requirements, 
Supportive housing programs--housing and community development, 
Supportive services.

    Accordingly, for the reasons described in the preamble, parts 91, 
576, 582, and 583 of title 24 of the Code of Federal Regulations are 
amended as follows:

PART 91--CONSOLIDATED SUBMISSIONS FOR COMMUNITY PLANNING AND 
DEVELOPMENT PROGRAMS

0
1. The authority citation for 24 CFR part 91 continues to read as 
follows:

    Authority:  42 U.S.C. 3535(d), 3601-3619, 5301-5315, 11331-
11388, 12701-12711, 12741-12756, and 12301-12912.


0
2. In Sec.  91.5, the definition of ``Homeless'' is added to read as 
follows:


Sec.  91.5  Definitions.

* * * * *
    Homeless. (1) An individual or family who lacks a fixed, regular, 
and adequate nighttime residence, meaning:
    (i) An individual or family with a primary nighttime residence that 
is a public or private place not designed for or ordinarily used as a 
regular sleeping accommodation for human beings, including a car, park, 
abandoned building, bus or train station, airport, or camping ground;
    (ii) An individual or family living in a supervised publicly or 
privately operated shelter designated to provide temporary living 
arrangements (including congregate shelters, transitional housing, and 
hotels and motels paid for by charitable organizations or by federal, 
state, or local government programs for low-income individuals); or
    (iii) An individual who is exiting an institution where he or she 
resided for 90 days or less and who resided in an emergency shelter or 
place not meant for human habitation immediately before entering that 
institution;
    (2) An individual or family who will imminently lose their primary 
nighttime residence, provided that:
    (i) The primary nighttime residence will be lost within 14 days of 
the date of application for homeless assistance;
    (ii) No subsequent residence has been identified; and
    (iii) The individual or family lacks the resources or support 
networks, e.g., family, friends, faith-based or other social networks 
needed to obtain other permanent housing;
    (3) Unaccompanied youth under 25 years of age, or families with 
children and youth, who do not otherwise qualify as homeless under this 
definition, but who:
    (i) Are defined as homeless under section 387 of the Runaway and 
Homeless Youth Act (42 U.S.C. 5732a), section 637 of the Head Start Act 
(42 U.S.C. 9832), section 41403 of the Violence Against Women Act of 
1994 (42 U.S.C. 14043e-2), section 330(h) of the Public Health Service 
Act (42 U.S.C. 254b(h)), section 3 of the Food and Nutrition Act of 
2008 (7 U.S.C. 2012), section 17(b) of the Child Nutrition Act of 1966 
(42 U.S.C. 1786(b)), or section 725 of the McKinney-Vento Homeless 
Assistance Act (42 U.S.C. 11434a);
    (ii) Have not had a lease, ownership interest, or occupancy 
agreement in permanent housing at any time during the 60 days 
immediately preceding the date of application for homeless assistance;
    (iii) Have experienced persistent instability as measured by two 
moves or more during the 60-day period immediately preceding the date 
of applying for homeless assistance; and
    (iv) Can be expected to continue in such status for an extended 
period of

[[Page 76014]]

time because of chronic disabilities, chronic physical health or mental 
health conditions, substance addiction, histories of domestic violence 
or childhood abuse (including neglect), the presence of a child or 
youth with a disability, or two or more barriers to employment, which 
include the lack of a high school degree or General Education 
Development (GED), illiteracy, low English proficiency, a history of 
incarceration or detention for criminal activity, and a history of 
unstable employment; or
    (4) Any individual or family who:
    (i) Is fleeing, or is attempting to flee, domestic violence, dating 
violence, sexual assault, stalking, or other dangerous or life-
threatening conditions that relate to violence against the individual 
or a family member, including a child, 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 
nighttime residence;
    (ii) Has no other residence; and
    (iii) Lacks the resources or support networks, e.g., family, 
friends, faith-based or other social networks, to obtain other 
permanent housing.

PART 582--SHELTER PLUS CARE

0
3. The authority citation for 24 CFR part 582 continues to read as 
follows:

    Authority: 42 U.S.C. 3535(d), and 11403-11407b.


0
4. In Sec.  582.5, the definition of ``Homeless or homeless 
individual'' is removed, the definitions of ``Developmental 
disability'' and ``Homeless'' are added, and the definition of ``Person 
with disabilities'' is revised to read as follows:


Sec.  582.5  Definitions.

* * * * *
    Developmental disability means, as defined in section 102 of the 
Developmental Disabilities Assistance and Bill of Rights Act of 2000 
(42 U.S.C. 15002):
    (1) A severe, chronic disability of an individual that--
    (i) Is attributable to a mental or physical impairment or 
combination of mental and physical impairments;
    (ii) Is manifested before the individual attains age 22;
    (iii) Is likely to continue indefinitely;
    (iv) Results in substantial functional limitations in three or more 
of the following areas of major life activity:
    (A) Self-care;
    (B) Receptive and expressive language;
    (C) Learning;
    (D) Mobility;
    (E) Self-direction;
    (F) Capacity for independent living;
    (G) Economic self-sufficiency; and
    (v) Reflects the individual's need for a combination and sequence 
of special, interdisciplinary, or generic services, individualized 
supports, or other forms of assistance that are of lifelong or extended 
duration and are individually planned and coordinated.
    (2) An individual from birth to age 9, inclusive, who has a 
substantial developmental delay or specific congenital or acquired 
condition, may be considered to have a developmental disability without 
meeting three or more of the criteria described in paragraphs (1)(i) 
through (v) of the definition of ``developmental disability'' in this 
section if the individual, without services and supports, has a high 
probability of meeting those criteria later in life.
* * * * *
    Homeless means:
    (1) An individual or family who lacks a fixed, regular, and 
adequate nighttime residence, meaning:
    (i) An individual or family with a primary nighttime residence that 
is a public or private place not designed for or ordinarily used as a 
regular sleeping accommodation for human beings, including a car, park, 
abandoned building, bus or train station, airport, or camping ground;
    (ii) An individual or family living in a supervised publicly or 
privately operated shelter designated to provide temporary living 
arrangements (including congregate shelters, transitional housing, and 
hotels and motels paid for by charitable organizations or by federal, 
state, or local government programs for low-income individuals); or
    (iii) An individual who is exiting an institution where he or she 
resided for 90 days or less and who resided in an emergency shelter or 
place not meant for human habitation immediately before entering that 
institution;
    (2) An individual or family who will imminently lose their primary 
nighttime residence, provided that:
    (i) The primary nighttime residence will be lost within 14 days of 
the date of application for homeless assistance;
    (ii) No subsequent residence has been identified; and
    (iii) The individual or family lacks the resources or support 
networks, e.g., family, friends, faith-based or other social networks, 
needed to obtain other permanent housing;
    (3) Unaccompanied youth under 25 years of age, or families with 
children and youth, who do not otherwise qualify as homeless under this 
definition, but who:
    (i) Are defined as homeless under section 387 of the Runaway and 
Homeless Youth Act (42 U.S.C. 5732a), section 637 of the Head Start Act 
(42 U.S.C. 9832), section 41403 of the Violence Against Women Act of 
1994 (42 U.S.C. 14043e-2), section 330(h) of the Public Health Service 
Act (42 U.S.C. 254b(h)), section 3 of the Food and Nutrition Act of 
2008 (7 U.S.C. 2012), section 17(b) of the Child Nutrition Act of 1966 
(42 U.S.C. 1786(b)), or section 725 of the McKinney-Vento Homeless 
Assistance Act (42 U.S.C. 11434a);
    (ii) Have not had a lease, ownership interest, or occupancy 
agreement in permanent housing at any time during the 60 days 
immediately preceding the date of application for homeless assistance;
    (iii) Have experienced persistent instability as measured by two 
moves or more during the 60-day period immediately preceding the date 
of applying for homeless assistance; and
    (iv) Can be expected to continue in such status for an extended 
period of time because of chronic disabilities; chronic physical health 
or mental health conditions; substance addiction; histories of domestic 
violence or childhood abuse (including neglect); the presence of a 
child or youth with a disability; or two or more barriers to 
employment, which include the lack of a high school degree or General 
Education Development (GED), illiteracy, low English proficiency, a 
history of incarceration or detention for criminal activity, and a 
history of unstable employment; or
    (4) Any individual or family who:
    (i) Is fleeing, or is attempting to flee, domestic violence, dating 
violence, sexual assault, stalking, or other dangerous or life-
threatening conditions that relate to violence against the individual 
or a family member, including a child, 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 
nighttime residence;
    (ii) Has no other residence; and
    (iii) Lacks the resources or support networks, e.g., family, 
friends, and faith-based or other social networks, to obtain other 
permanent housing.
* * * * *
    Person with disabilities means a household composed of one or more 
persons at least one of whom is an adult who has a disability.

[[Page 76015]]

    (1) A person shall be considered to have a disability if he or she 
has a disability that:
    (i) Is expected to be long-continuing or of indefinite duration;
    (ii) Substantially impedes the individual's ability to live 
independently;
    (iii) Could be improved by the provision of more suitable housing 
conditions; and
    (iv) Is a physical, mental, or emotional impairment, including an 
impairment caused by alcohol or drug abuse, post-traumatic stress 
disorder, or brain injury.
    (2) A person will also be considered to have a disability if he or 
she has a developmental disability, as defined in this section.
    (3) A person will also be considered to have a disability if he or 
she has acquired immunodeficiency syndrome (AIDS) or any conditions 
arising from the etiologic agent for acquired immunodeficiency 
syndrome, including infection with the human immunodeficiency virus 
(HIV).
    (4) Notwithstanding the preceding provisions of this definition, 
the term person with disabilities includes, except in the case of the 
SRO component, two or more persons with disabilities living together, 
one or more such persons living with another person who is determined 
to be important to their care or well-being, and the surviving member 
or members of any household described in the first sentence of this 
definition who were living, in a unit assisted under this part, with 
the deceased member of the household at the time of his or her death. 
(In any event, with respect to the surviving member or members of a 
household, the right to rental assistance under this part will 
terminate at the end of the grant period under which the deceased 
member was a participant.)

0
5. A new Sec.  582.301 is added to read as follows:


Sec.  582.301  Recordkeeping.

    (a) [Reserved.]
    (b) Homeless status. The recipient must maintain and follow written 
intake procedures to ensure compliance with the homeless definition in 
Sec.  582.5. The procedures must require documentation at intake of the 
evidence relied upon to establish and verify homeless status. The 
procedures must establish the order of priority for obtaining evidence 
as third-party documentation first, intake worker observations second, 
and certification from the person seeking assistance third. However, 
lack of third-party documentation must not prevent an individual or 
family from being immediately admitted to emergency shelter, receiving 
street outreach services, or being immediately admitted to shelter or 
receiving services provided by a victim service provider, as defined in 
section 401(32) of the McKinney-Vento Homeless Assistance Act, as 
amended by the HEARTH Act. Records contained in an HMIS or comparable 
database used by victim service or legal service providers are 
acceptable evidence of third-party documentation and intake worker 
observations if the HMIS retains an auditable history of all entries, 
including the person who entered the data, the date of entry, and the 
change made; and if the HMIS prevents overrides or changes of the dates 
entries are made.
    (1) If the individual or family qualifies as homeless under 
paragraph (1)(i) or (ii) of the homeless definition in Sec.  582.5, 
acceptable evidence includes a written observation by an outreach 
worker of the conditions where the individual or family was living, a 
written referral by another housing or service provider, or a 
certification by the individual or head of household seeking 
assistance.
    (2) If the individual qualifies as homeless under paragraph 
(1)(iii) of the homeless definition in Sec.  582.5, because he or she 
resided in an emergency shelter or place not meant for human habitation 
and is exiting an institution where he or she resided for 90 days or 
less, acceptable evidence includes the evidence described in paragraph 
(b)(1) of this section and one of the following:
    (i) Discharge paperwork or a written or oral referral from a social 
worker, case manager, or other appropriate official of the institution, 
stating the beginning and end dates of the time residing in the 
institution. All oral statements must be recorded by the intake worker; 
or
    (ii) Where the evidence in paragraph (b)(2)(i) of this section is 
not obtainable, a written record of the intake worker's due diligence 
in attempting to obtain the evidence described in paragraph (b)(2)(i) 
and a certification by the individual seeking assistance that states he 
or she is exiting or has just exited an institution where he or she 
resided for 90 days or less.
    (3) If the individual or family qualifies as homeless under 
paragraph (2) of the homeless definition in Sec.  582.5, because the 
individual or family will imminently lose their housing, the evidence 
must include:
    (i)(A) A court order resulting from an eviction action that 
requires the individual or family to leave their residence within 14 
days after the date of their application for homeless assistance; or 
the equivalent notice under applicable state law, a Notice to Quit, or 
a Notice to Terminate issued under state law;
    (B) For individuals and families whose primary nighttime residence 
is a hotel or motel room not paid for by charitable organizations or 
federal, state, or local government programs for low-income 
individuals, evidence that the individual or family lacks the resources 
necessary to reside there for more than 14 days after the date of 
application for homeless assistance; or
    (C) An oral statement by the individual or head of household that 
the owner or renter of the housing in which they currently reside will 
not allow them to stay for more than 14 days after the date of 
application for homeless assistance. The intake worker must record the 
statement and certify that it was found credible. To be found credible, 
the oral statement must either: (I) Be verified by the owner or renter 
of the housing in which the individual or family resides at the time of 
application for homeless assistance and be documented by a written 
certification by the owner or renter or by the intake worker's 
recording of the owner or renter's oral statement; or (II) if the 
intake worker is unable to contact the owner or renter, be documented 
by a written certification by the intake worker of his or her due 
diligence in attempting to obtain the owner or renter's verification 
and the written certification by the individual or head of household 
seeking assistance that his or her statement was true and complete;
    (ii) Certification by the individual or head of household that no 
subsequent residence has been identified; and
    (iii) Certification or other written documentation that the 
individual or family lacks the resources and support networks needed to 
obtain other permanent housing.
    (4) If the individual or family qualifies as homeless under 
paragraph (3) of the homeless definition in Sec.  582.5, because the 
individual or family does not otherwise qualify as homeless under the 
homeless definition but is an unaccompanied youth under 25 years of 
age, or homeless family with one or more children or youth, and is 
defined as homeless under another Federal statute or section 725(2) of 
the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), the 
evidence must include:
    (i) For paragraph (3)(i) of the homeless definition in Sec.  582.5, 
certification of homeless status by the local private nonprofit 
organization or state or local governmental entity responsible for 
administering assistance under the Runaway and Homeless Youth Act (42

[[Page 76016]]

U.S.C. 5701 et seq.), the Head Start Act (42 U.S.C. 9831 et seq.), 
subtitle N of the Violence Against Women Act of 1994 (42 U.S.C. 14043e 
et seq.), section 330 of the Public Health Service Act (42 U.S.C. 
254b), the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et seq.), 
section 17 of the Child Nutrition Act of 1966 (42 U.S.C. 1786), or 
subtitle B of title VII of the McKinney-Vento Homeless Assistance Act 
(42 U.S.C. 11431 et seq.), as applicable;
    (ii) For paragraph (3)(ii) of the homeless definition in Sec.  
582.5, referral by a housing or service provider, written observation 
by an outreach worker, or certification by the homeless individual or 
head of household seeking assistance;
    (iii) For paragraph (3)(iii) of the homeless definition in Sec.  
582.5, certification by the individual or head of household and any 
available supporting documentation that the individual or family moved 
two or more times during the 60-day period immediately preceding the 
date of application for homeless assistance, including: Recorded 
statements or records obtained from each owner or renter of housing, 
provider of shelter or housing, or social worker, case worker, or other 
appropriate official of a hospital or institution in which the 
individual or family resided; or, where these statements or records are 
unobtainable, a written record of the intake worker's due diligence in 
attempting to obtain these statements or records. Where a move was due 
to the individual or family fleeing domestic violence, dating violence, 
sexual assault, or stalking, then the intake worker may alternatively 
obtain a written certification from the individual or head of household 
seeking assistance that they were fleeing that situation and that they 
resided at that address; and
    (iv) For paragraph (3)(iv) of the homeless definition in Sec.  
582.5, written diagnosis from a professional who is licensed by the 
state to diagnose and treat that condition (or intake staff-recorded 
observation of disability that within 45 days of the date of 
application for assistance is confirmed by a professional who is 
licensed by the state to diagnose and treat that condition); employment 
records; department of corrections records; literacy, English 
proficiency tests; or other reasonable documentation of the conditions 
required under paragraph (3)(iv) of the homeless definition.
    (5) If the individual or family qualifies under paragraph (4) of 
the homeless definition in Sec.  582.5, because the individual or 
family is fleeing domestic violence, dating violence, sexual assault, 
stalking, or other dangerous or life-threatening conditions related to 
violence, then acceptable evidence includes an oral statement by the 
individual or head of household seeking assistance that they are 
fleeing that situation, that no subsequent residence has been 
identified, and that they lack the resources or support networks, e.g., 
family, friends, faith-based or other social networks, needed to obtain 
other housing. If the individual or family is receiving shelter or 
services provided by a victim service provider, as defined in section 
401(32) of the McKinney-Vento-Homeless Assistance Act, as amended by 
the HEARTH Act, the oral statement must be documented by either a 
certification by the individual or head of household, or a 
certification by the intake worker. Otherwise, the oral statement that 
the individual or head of household seeking assistance has not 
identified a subsequent residence and lacks the resources or support 
networks, e.g., family, friends, faith-based or other social networks, 
needed to obtain housing must be documented by a certification by the 
individual or head of household that the oral statement is true and 
complete, and, where the safety of the individual or family would not 
be jeopardized, the domestic violence, dating violence, sexual assault, 
stalking or other dangerous or life-threatening condition must be 
verified by a written observation by the intake worker or a written 
referral by a housing or service provider, social worker, health-care 
provider, law enforcement agency, legal assistance provider, pastoral 
counselor, or any other organization from whom the individual or head 
of household has sought assistance for domestic violence, dating 
violence, sexual assault, or stalking. The written referral or 
observation need only include the minimum amount of information 
necessary to document that the individual or family is fleeing, or 
attempting to flee domestic violence, dating violence, sexual assault, 
and stalking.
    (c) Disability.--Each recipient of assistance under this part must 
maintain and follow written intake procedures to ensure that the 
assistance benefits persons with disabilities, as defined in Sec.  
582.5. In addition to the documentation required under paragraph (b), 
the procedures must require documentation at intake of the evidence 
relied upon to establish and verify the disability of the person 
applying for homeless assistance. The recipient must keep these records 
for 5 years after the end of the grant term. Acceptable evidence of the 
disability includes:
    (1) Written verification of the disability from a professional 
licensed by the state to diagnose and treat the disability and his or 
her certification that the disability is expected to be long-continuing 
or of indefinite duration and substantially impedes the individual's 
ability to live independently;
    (2) Written verification from the Social Security Administration;
    (3) The receipt of a disability check (e.g., Social Security 
Disability Insurance check or Veteran Disability Compensation);
    (4) Intake staff-recorded observation of disability that, no later 
than 45 days of the application for assistance, is confirmed and 
accompanied by evidence in paragraph (c)(1), (2), (3), or (4) of this 
section; or
    (5) Other documentation approved by HUD.

PART 583--SUPPORTIVE HOUSING PROGRAM

0
6. The authority citation for 24 CFR part 583 continues to read as 
follows:

    Authority: 42 U.S.C. 3535(d) and 11389.


0
7. In Sec.  583.5, the definitions of ``Disability'' and ``Homeless 
person'' are removed and the definitions of ``Disability,'' 
``Developmental disability,'' and ``Homeless'' are added to read as 
follows:


Sec.  583.5  Definitions.

* * * * *
    Developmental disability means, as defined in section 102 of the 
Developmental Disabilities Assistance and Bill of Rights Act of 2000 
(42 U.S.C. 15002):
    (1) A severe, chronic disability of an individual that--
    (i) Is attributable to a mental or physical impairment or 
combination of mental and physical impairments;
    (ii) Is manifested before the individual attains age 22;
    (iii) Is likely to continue indefinitely;
    (iv) Results in substantial functional limitations in three or more 
of the following areas of major life activity:
    (A) Self-care;
    (B) Receptive and expressive language;
    (C) Learning;
    (D) Mobility;
    (E) Self-direction;
    (F) Capacity for independent living;
    (G) Economic self-sufficiency; and
    (v) Reflects the individual's need for a combination and sequence 
of special, interdisciplinary, or generic services, individualized 
supports, or other forms of assistance that are of lifelong or extended 
duration and are individually planned and coordinated.

[[Page 76017]]

    (2) An individual from birth to age 9, inclusive, who has a 
substantial developmental delay or specific congenital or acquired 
condition, may be considered to have a developmental disability without 
meeting three or more of the criteria described in paragraphs (1)(i) 
through (v) of the definition of ``developmental disability'' in this 
section if the individual, without services and supports, has a high 
probability of meeting those criteria later in life.
* * * * *
    Disability means:
    (1) A condition that:
    (i) Is expected to be long-continuing or of indefinite duration;
    (ii) Substantially impedes the individual's ability to live 
independently;
    (iii) Could be improved by the provision of more suitable housing 
conditions; and
    (iv) Is a physical, mental, or emotional impairment, including an 
impairment caused by alcohol or drug abuse, post-traumatic stress 
disorder, or brain injury;
    (2) A developmental disability, as defined in this section; or
    (3) The disease of acquired immunodeficiency syndrome (AIDS) or any 
conditions arising from the etiologic agent for acquired 
immunodeficiency syndrome, including infection with the human 
immunodeficiency virus (HIV).
* * * * *
    Homeless means:
    (1) An individual or family who lacks a fixed, regular, and 
adequate nighttime residence, meaning:
    (i) An individual or family with a primary nighttime residence that 
is a public or private place not designed for or ordinarily used as a 
regular sleeping accommodation for human beings, including a car, park, 
abandoned building, bus or train station, airport, or camping ground;
    (ii) An individual or family living in a supervised publicly or 
privately operated shelter designated to provide temporary living 
arrangements (including congregate shelters, transitional housing, and 
hotels and motels paid for by charitable organizations or by federal, 
state, or local government programs for low-income individuals); or
    (iii) An individual who is exiting an institution where he or she 
resided for 90 days or less and who resided in an emergency shelter or 
place not meant for human habitation immediately before entering that 
institution;
    (2) An individual or family who will imminently lose their primary 
nighttime residence, provided that:
    (i) The primary nighttime residence will be lost within 14 days of 
the date of application for homeless assistance;
    (ii) No subsequent residence has been identified; and
    (iii) The individual or family lacks the resources or support 
networks, e.g., family, friends, faith-based or other social networks, 
needed to obtain other permanent housing;
    (3) Unaccompanied youth under 25 years of age, or families with 
children and youth, who do not otherwise qualify as homeless under this 
definition, but who:
    (i) Are defined as homeless under section 387 of the Runaway and 
Homeless Youth Act (42 U.S.C. 5732a), section 637 of the Head Start Act 
(42 U.S.C. 9832), section 41403 of the Violence Against Women Act of 
1994 (42 U.S.C. 14043e-2), section 330(h) of the Public Health Service 
Act (42 U.S.C. 254b(h)), section 3 of the Food and Nutrition Act of 
2008 (7 U.S.C. 2012), section 17(b) of the Child Nutrition Act of 1966 
(42 U.S.C. 1786(b)), or section 725 of the McKinney-Vento Homeless 
Assistance Act (42 U.S.C. 11434a);
    (ii) Have not had a lease, ownership interest, or occupancy 
agreement in permanent housing at any time during the 60 days 
immediately preceding the date of application for homeless assistance;
    (iii) Have experienced persistent instability as measured by two 
moves or more during the 60-day period immediately preceding the date 
of applying for homeless assistance; and
    (iv) Can be expected to continue in such status for an extended 
period of time because of chronic disabilities, chronic physical health 
or mental health conditions, substance addiction, histories of domestic 
violence or childhood abuse (including neglect), the presence of a 
child or youth with a disability, or two or more barriers to 
employment, which include the lack of a high school degree or General 
Education Development (GED), illiteracy, low English proficiency, a 
history of incarceration or detention for criminal activity, and a 
history of unstable employment; or
    (4) Any individual or family who:
    (i) Is fleeing, or is attempting to flee, domestic violence, dating 
violence, sexual assault, stalking, or other dangerous or life-
threatening conditions that relate to violence against the individual 
or a family member, including a child, 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 
nighttime residence;
    (ii) Has no other residence; and
    (iii) Lacks the resources or support networks, e.g., family, 
friends, and faith-based or other social networks, to obtain other 
permanent housing.

0
8. A new Sec.  583.301 is added to read as follows:


Sec.  583.301  Recordkeeping.

    (a) [Reserved.]
    (b) Homeless status. The recipient must maintain and follow written 
intake procedures to ensure compliance with the homeless definition in 
Sec.  583.5. The procedures must require documentation at intake of the 
evidence relied upon to establish and verify homeless status. The 
procedures must establish the order of priority for obtaining evidence 
as third-party documentation first, intake worker observations second, 
and certification from the person seeking assistance third. However, 
lack of third-party documentation must not prevent an individual or 
family from being immediately admitted to emergency shelter, receiving 
street outreach services, or being immediately admitted to shelter or 
receiving services provided by a victim service provider, as defined in 
section 401(32) of the McKinney-Vento Homeless Assistance Act, as 
amended by the HEARTH Act. Records contained in an HMIS or comparable 
database used by victim service or legal service providers are 
acceptable evidence of third-party documentation and intake worker 
observations if the HMIS retains an auditable history of all entries, 
including the person who entered the data, the date of entry, and the 
change made; and if the HMIS prevents overrides or changes of the dates 
on which entries are made.
    (1) If the individual or family qualifies as homeless under 
paragraph (1)(i) or (ii) of the homeless definition in Sec.  583.5, 
acceptable evidence includes a written observation by an outreach 
worker of the conditions where the individual or family was living, a 
written referral by another housing or service provider, or a 
certification by the individual or head of household seeking 
assistance.
    (2) If the individual qualifies as homeless under paragraph 
(1)(iii) of the homeless definition in Sec.  583.5, because he or she 
resided in an emergency shelter or place not meant for human habitation 
and is exiting an institution where he or she resided for 90 days or 
less, acceptable evidence includes the evidence described in paragraph 
(b)(1) of this section and one of the following:
    (i) Discharge paperwork or a written or oral referral from a social 
worker, case manager, or other appropriate official of the institution, 
stating the beginning and end dates of the time

[[Page 76018]]

residing in the institution. All oral statements must be recorded by 
the intake worker; or
    (ii) Where the evidence in paragraph (b)(2)(i) of this section is 
not obtainable, a written record of the intake worker's due diligence 
in attempting to obtain the evidence described in paragraph (b)(2)(i) 
and a certification by the individual seeking assistance that states he 
or she is exiting or has just exited an institution where he or she 
resided for 90 days or less.
    (3) If the individual or family qualifies as homeless under 
paragraph (2) of the homeless definition in Sec.  583.5, because the 
individual or family will imminently lose their housing, the evidence 
must include:
    (i)(A) A court order resulting from an eviction action that 
requires the individual or family to leave their residence within 14 
days after the date of their application for homeless assistance; or 
the equivalent notice under applicable state law, a Notice to Quit, or 
a Notice to Terminate issued under state law;
    (B) For individuals and families whose primary nighttime residence 
is a hotel or motel room not paid for by charitable organizations or 
federal, state, or local government programs for low-income 
individuals, evidence that the individual or family lacks the resources 
necessary to reside there for more than 14 days after the date of 
application for homeless assistance; or
    (C) An oral statement by the individual or head of household that 
the owner or renter of the housing in which they currently reside will 
not allow them to stay for more than 14 days after the date of 
application for homeless assistance. The intake worker must record the 
statement and certify that it was found credible. To be found credible, 
the oral statement must either: Be verified by the owner or renter of 
the housing in which the individual or family resides at the time of 
application for homeless assistance and documented by a written 
certification by the owner or renter or by the intake worker's 
recording of the owner or renter's oral statement; or if the intake 
worker is unable to contact the owner or renter, be documented by a 
written certification by the intake worker of his or her due diligence 
in attempting to obtain the owner or renter's verification and the 
written certification by the individual or head of household seeking 
assistance that his or her statement was true and complete;
    (ii) Certification by the individual or head of household that no 
subsequent residence has been identified; and
    (iii) Certification or other written documentation that the 
individual or family lacks the resources and support networks needed to 
obtain other permanent housing.
    (4) If the individual or family qualifies as homeless under 
paragraph (3) of the homeless definition in Sec.  583.5, because the 
individual or family does not otherwise qualify as homeless under the 
homeless definition but is an unaccompanied youth under 25 years of 
age, or homeless family with one or more children or youth, and is 
defined as homeless under another Federal statute or section 725(2) of 
the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), the 
evidence must include:
    (i) For paragraph (3)(i) of the homeless definition in Sec.  583.5, 
certification of homeless status by the local private nonprofit 
organization or state or local governmental entity responsible for 
administering assistance under the Runaway and Homeless Youth Act (42 
U.S.C. 5701 et seq.), the Head Start Act (42 U.S.C. 9831 et seq.), 
subtitle N of the Violence Against Women Act of 1994 (42 U.S.C. 14043e 
et seq.), section 330 of the Public Health Service Act (42 U.S.C. 
254b), the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et seq.), 
section 17 of the Child Nutrition Act of 1966 (42 U.S.C. 1786), or 
subtitle B of title VII of the McKinney-Vento Homeless Assistance Act 
(42 U.S.C. 11431 et seq.), as applicable;
    (ii) For paragraph (3)(ii) of the homeless definition in Sec.  
583.5, referral by a housing or service provider, written observation 
by an outreach worker, or certification by the homeless individual or 
head of household seeking assistance;
    (iii) For paragraph (3)(iii) of the homeless definition in Sec.  
583.5, certification by the individual or head of household and any 
available supporting documentation that the individual or family moved 
two or more times during the 60-day period immediately preceding the 
date for application of homeless assistance, including: Recorded 
statements or records obtained from each owner or renter of housing, 
provider of shelter or housing, or social worker, case worker, or other 
appropriate official of a hospital or institution in which the 
individual or family resided; or, where these statements or records are 
unobtainable, a written record of the intake worker's due diligence in 
attempting to obtain these statements or records. Where a move was due 
to the individual or family fleeing domestic violence, dating violence, 
sexual assault, or stalking, then the intake worker may alternatively 
obtain a written certification from the individual or head of household 
seeking assistance that they were fleeing that situation and that they 
resided at that address; and
    (iv) For paragraph (3)(iv) of the homeless definition in Sec.  
583.5, written diagnosis from a professional who is licensed by the 
state to diagnose and treat that condition (or intake staff-recorded 
observation of disability that within 45 days of the date of 
application for assistance is confirmed by a professional who is 
licensed by the state to diagnose and treat that condition); employment 
records; department of corrections records; literacy, English 
proficiency tests; or other reasonable documentation of the conditions 
required under paragraph (3)(iv) of the homeless definition.
    (5) If the individual or family qualifies under paragraph (4) of 
the homeless definition in Sec.  583.5, because the individual or 
family is fleeing domestic violence, dating violence, sexual assault, 
stalking, or other dangerous or life-threatening conditions related to 
violence, then acceptable evidence includes an oral statement by the 
individual or head of household seeking assistance that they are 
fleeing that situation, that no subsequent residence has been 
identified, and that they lack the resources or support networks, e.g., 
family, friends, faith-based or other social networks, needed to obtain 
other housing. If the individual or family is receiving shelter or 
services provided by a victim service provider, as defined in section 
401(32) of the McKinney-Vento Homeless Assistance Act, as amended by 
the HEARTH Act, the oral statement must be documented by either a 
certification by the individual or head of household; or a 
certification by the intake worker. Otherwise, the oral statement that 
the individual or head of household seeking assistance has not 
identified a subsequent residence and lacks the resources or support 
networks, e.g., family, friends, faith-based or other social networks, 
needed to obtain housing, must be documented by a certification by the 
individual or head of household that the oral statement is true and 
complete, and, where the safety of the individual or family would not 
be jeopardized, the domestic violence, dating violence, sexual assault, 
stalking, or other dangerous or life-threatening condition must be 
verified by a written observation by the intake worker; or a written 
referral by a housing or service provider, social worker, health-care 
provider, law enforcement agency, legal assistance provider, pastoral 
counselor, or any another organization from whom the individual or head 
of household has sought assistance for domestic violence,

[[Page 76019]]

dating violence, sexual assault, or stalking. The written referral or 
observation need only include the minimum amount of information 
necessary to document that the individual or family is fleeing, or 
attempting to flee domestic violence, dating violence, sexual assault, 
and stalking.
    (c) Disability.--Each recipient of assistance under this part must 
maintain and follow written intake procedures to ensure that the 
assistance benefits persons with disabilities, as defined in Sec.  
583.5. In addition to the documentation required under paragraph (b) of 
this section, the procedures must require documentation at intake of 
the evidence relied upon to establish and verify the disability of the 
person applying for homeless assistance. The recipient must keep these 
records for 5 years after the end of the grant term. Acceptable 
evidence of the disability includes:
    (1) Written verification of the disability from a professional 
licensed by the state to diagnose and treat the disability and his or 
her certification that the disability is expected to be long-continuing 
or of indefinite duration and substantially impedes the individual's 
ability to live independently;
    (2) Written verification from the Social Security Administration;
    (3) The receipt of a disability check (e.g., Social Security 
Disability Insurance check or Veteran Disability Compensation);
    (4) Other documentation approved by HUD; or
    (5) Intake staff-recorded observation of disability that, no later 
than 45 days of the application for assistance, is confirmed and 
accompanied by evidence in paragraph (c)(1), (2), (3), or (4) of this 
section.

    Dated: November 9, 2011.
Mercedes M[aacute]rquez,
Assistant Secretary for Community Planning and Development.
[FR Doc. 2011-30942 Filed 12-2-11; 8:45 am]
BILLING CODE 4210-67-P