Defining “Homeless”

Yesterday, HUD reasserted its definition of the term "homeless." It also established the regulatory final rule for the definition "developmental disability'' and the definition and record keeping requirements for a "homeless individual with a disability.''

Many people do not come into face-to-face contact with this population on a regular basis. Indeed, except as we might encounter such individuals through charitable venues, outreach programs, and so-called "faith-based" initiatives, most of us have derived our knowledge about the situation faced by the disabled and the homeless from infrequent news broadcasts as well as from media Spin Meisters and politicians.

In the spirit of this holiday season, a time of charity and compassion, let's explore together the various ways that HUD has sought to provide a definition for the often disenfranchised and weakest amongst us. I think you will find it enlightening.

Background

On May 20, 2009, an important congressional act was enacted into law. It is called the Homeless Emergency Assistance and Rapid Transition to Housing Act of 2009, aptly named HEARTH. This law consolidated three separate homeless assistance programs administered by HUD under the McKinney-Vento Homeless Assistance Act into a single grant program, revised the Emergency Shelter Grants program (renaming it the Emergency Solutions Grants program), and created the Rural Housing Stability program (which replaced the Rural Homelessness Grant program). HEARTH also codified 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.

Yesterday, HUD issued its final rule to integrate the regulation for the definition of "homeless," and the corresponding record keeping requirements, for the Shelter Plus Care program, and the Supportive Housing Program. And it established the regulation for the definition  of "developmental disability" as well as the definition and record keeping requirements for the "homeless individual with a disability" for the Shelter Plus Care program and the Supportive Housing Program.

What does "homeless" mean?

According to HUD, there are currently four categories of homelessness:

(1) Individuals and families who lack a fixed, regular, and adequate nighttime residence. This includes a "subset" 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 as described herein.

(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.

Sheltering Children and Youth

Some terms above require an explanation. For instance HUD considers a "shelter" to mean "emergency shelter," but not "transitional housing." And "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. But by establishing the term "youth" to mean less than 25 years of age, HUD hopes to more fully address the special needs of transition-aged youth, including youth exiting foster care systems to become stable in permanent housing.

I would also mention that other federal statutes provide 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. 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.).

As best as I can tell, this list represents the salient statutes with definitions under which an unaccompanied youth or a family with children and youth can qualify as homeless under this category; that is, although there may be other federal statutes with definitions of "homeless," the statutes I've listed include those that encompass children and youth.

A Fifth Category?

A public comment was submitted for HUD to consider in its drafting of the final rule. This comment recommended a fifth category of "homeless," one that frankly I also can see as having a category of its own.

Here's the proposed fifth category:

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; and (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's response to this proposed fifth category was that it recognized there are "vulnerable populations that continue to be excluded from the definition of homeless," however, HUD determined to stay close to the statutory guidelines established in section 103 of the McKinney-Vento Act as HUD further clarifies the definition. That means, in brief, that the definition provided in the McKinney-Vento Act for "at risk of homelessness" reaches to the Emergency Solutions Grants program, the Rural Housing Stability program, and the Continuum of Care program. So, re-setting the interpretation will require proposed and interim program rules.

Proving Disability

HUD does look for written documentation of disability status. Information on disability is obtained in the course of each individual's assessment once that individual is admitted to a project, unless having a disability is an eligibility requirement for entry into the project.

And, 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.

The procedural criteria for determining disability are:

(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 (i.e., Social Security Disability Insurance check or Veteran Disability Compensation).

What does "lacking resources" mean?

It is worth considering what HUD views as a condition in which an individual may claim to be "lacking resources." Often, the ideologues and demagogues of the world assert that this condition is contrived, a result of an unwillingness to work, laziness, lack of ambition, squandered opportunities, and willfully failing to contribute to their own and society's betterment.

I think the question to ask ourselves, when determining this condition, is "Who would we turn to if we were down and out?" For many people, there simply are no support networks available, and that is a condition which has nothing to do with rejecting a work ethic or turning away from contributing positively to society.

Historically, HUD's view has not specifically defined in regulations or notices the concept of "lacks the resources or support networks" for the purposes of documenting eligibility for HUD's homeless and homelessness prevention programs. HUD's view has been that the resources and support networks required to demonstrate this criteria can vary drastically from person to person and community to community. This is a valid view, given that HUD could never capture all of the various possibilities.

The final rule, therefore, does not provide a definition for "resources or support network." However, it does provide examples of support networks 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. Putting this differently, a housing situation that is unsafe due to violence is obviously not considered a "resource or support network," and such a condition does not disqualify an individual or family under the applicable category based on such a situation.

So HUD has clarified that family, friends, and faith-based or other social networks are examples of "resources or support networks."

"We" or "Me"

The challenge of homelessness, especially at a time when millions of families have lost their homes and jobs, is not someone else's problem. The effects of homelessness, as we all know, reach horizontally out to virtually all areas of economic activity, and vertically through generation after generation.

The least amongst us affects the strongest. I hope we will continue to address the needs of the homeless, especially because we are a great and caring nation, so that the children and youth that suffer as a result of homelessness will join us all in the task of building a stable and prosperous society.

Consider Hillel the Elder's piercing questions:

If I am not for myself, who will be for me?
If I am only for myself, what am I?
If not now, when?

In this season of joy and charity, maybe there will be a chance for us to become "first responders" to the homeless and the disabled.

Is our country a "We" or a "Me" nation?

Since 1776 we have had the answer: E Pluribus Unum. Out of Many, One.

Further Readings

Homeless Emergency Assistance and Rapid Transition to Housing: Defining "Homeless"
Final Rule
Department of Housing and Urban Development
Federal Register - 76/233
December 5, 2011

* Jonathan Foxx is the President and Managing Director of Lenders Compliance Group.