[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