On December 4, 2015, the U.S Department of Housing and Urban Development (HUD) published its final rule to define the term “chronically homeless” for use in HUD’s Continuum of Care Program and in the Consolidated Submissions for Community Planning and Development Programs.  HUD defines “chronically homeless” as a homeless individual with a disability who lives in a place not meant for human habitation, a safe haven, or in an emergency shelter and has been homeless and living in such a place continuously for at least 12 months or on at least 4 separate occasions in the last 3 years, as long as the combined occasions equal at least 12 months and each break in homelessness separating the occasions included at least 7 consecutive nights of not living in such a place.  Homeless Emergency Assistance and Rapid Transition to Housing: Defining “Chronically Homeless”, 80 Fed. Reg. 75791, 75804 (Dec. 4, 2015).  A family with an adult head of household (or a minor head of household in families with no adult) who meets this criteria is also classified as chronically homeless.  Id.  The rule also states that stays in institutional care facilities for fewer than 90 days are included in the 12-month total and do not constitute a break.  Id.

Although this definition of chronically homeless excludes homeless individuals who are residing in transitional housing, this does not affect the ability of homeless individuals with disabilities and homeless families headed by a person with disabilities who reside in transitional housing from being eligible for permanent housing.  80 Fed. Reg. at 75801.  The Homeless Emergency Assistance and Rapid Transition to Housing Act of 2009 (HEARTH Act) specifically provided that permanent housing be available to homeless individuals with disabilities and these families instead of only providing permanent housing for chronically homeless individuals and families.  Pub. L. No. 111-22, div. B, § 1305, 123 Stat. 1663, 1693 (2009).  In introducing similar bill language, Senator Reed stated that funding for permanent housing would be allocated to individuals with disabilities or families headed by a person with disabilities and at least 10 percent of overall funds would be allocated for permanently housing families with children.  153 Cong. Rec. S6849, S6880 (May 24, 2007).  The Senate Report and House Report discussing similar bill language also noted that funding for permanent housing was available for people with disabilities instead of only for chronically homeless people.  S. Rep. No. 110-216, at 4, 9 (2007); H.R. Rep. No. 110-906, at 34, 51-52 (2008).

To be consistent with the statutory definition of “chronically homeless”, the regulatory definition of “chronically homeless” cannot place extra time requirements to qualify as chronically homeless by having four separate occasions in the last three years as HUD has stated in its rule. The rule states that to qualify as chronically homeless an individual has to live in a place not meant for human habitation, a safe haven, or in an emergency shelter continuously for at least 12 months or on at least 4 separate occasions in the last three years as long as the combined occasions equal at least 12 months and each break in homelessness separating the occasions included at least 7 consecutive nights of not living in such a place.  80 Fed. Reg. at 75804.

The text of the chronically homeless definition does not contain extra non-explicitly stated time requirements. The time requirements in the HEARTH Act are that the individual or family has been living in such a place continuously for at least 1 year or on at least 4 separate occasions in the last three years.  Pub. L. No. 111-22, § 1101 (codified at 42 U.S.C. § 11360(2)).  In contrast to other parts of the Act which do list a specific number of days to qualify as homeless, the specific text of the HEARTH Act does not state that the 4 separate occasions have to total to 12 months or that there must be a break of at least 7 consecutive nights between each occasion.  Compare Pub. L. No. 111-22, §1003 (codified at 42 U.S.C. 11302), with Pub. L No. 111-22, § 1101 (codified at 42 U.S.C. § 11360(2)).

Setting specific and lengthy time requirements that the 4 occasions must cover at least 12 months is in sharp contrast to Congress’s intentions when it discussed a provision in the homeless definition that allowed unaccompanied youth and homeless families with youth to qualify as homeless, if they did not otherwise qualify, if they experienced a long-term period without living independently in permanent housing and experienced persistent instability through frequent moves during the period.  See Pub. L. No. 111-22, §1003 (codified at 42 U.S.C. 11302).  In discussing what the term “long-term period”, instead of setting specific long periods of a year or more, Congress wanted the term interpreted in view of the needs of the youth and how frequent moves can affect the educational and employment success of the youth.  See 154 Cong. Rec. H10654, H10669-H10670 (Oct. 2, 2008) (statement of Rep. Biggert); 154 Cong. Rec. at H10670 (statement of Rep. Waters).

In fact, the purpose behind why Congress and HUD initiated efforts to create more permanent supportive housing to end chronic homelessness indicates that these extra time requirements are not added to the four separate occasions qualification.  Both the House Report and the Senate Report accompanying earlier versions of the HEARTH Act explain that the efforts to create more permanent supportive housing to end chronic homelessness were because studies showed that homeless adults with disabilities who stayed homeless for long periods of time and cycled in and out of hospitals, jails, or other institutions used a disproportionate share of homeless assistance resources and that moving them into permanent supportive housing ended homelessness and dramatically reduced the costs to public systems.  S. Rep. No. 110-216, at 2-3; H.R. Rep. No. 110-906, at 31-32; see also McKinney-Vento Reauthorization and Consolidation of HUD’s Homeless Programs, Hearing Before the Subcomm. on Hous. & Transp. of the S. Comm. on Banking, Hous., & Urban Affairs, 109th Cong. 19-20 (2006) (testimony of Dennis Patrick Culhane, Ph.D. Professor of Social Welfare Policy and Psychology, University of Pennsylvania) [hereinafter S. Hrg. 109-872]; Working Towards Ending Homelessness: Reauthorization of the McKinney-Vento Homeless Assistance Act, Hearing Before the S. Comm. on Banking, Hous. & Urban Affairs, 110th Cong. 14-15 (2007) (testimony of Shirley Franklin, Mayor, City of Atlanta, Georgia) [hereinafter S. Hrg. 110-919]; S. Hrg. 110-919, at 20 (statement of Roy A. Bernardi, Deputy Secretary, Dep’t of Hous. & Urban Dev.); Reauthorization of the McKinney-Vento Homeless Assistance Act, Part I, Hearing Before the Subcomm. on Housing & Cmty. Opportunity of the H. Comm. on Fin. Servs., 110th Cong. 20-21 (2007) (statement of Deborah DeSantis, President and Chief Exec. Officer, Corp. for Supportive Hous.); Reauthorization of the McKinney-Vento Homeless Assistance Act, Part II, Hearing Before the Subcomm. on Housing & Cmty. Opportunity of the H. Comm. on Fin. Servs., 110th Cong. 27 (2007) (statement of James Michael Van Leeuwen, Ph.D., Project Manager, Denver’s Road Home) [hereinafter S. Hrg. 110-70]; S. Hrg. 110-70, at 58 (statement of Nancy Carter, Nat’l Alliance on Mental Illness, Urban Los Angeles).  Dr. Van Leeuwen noted that the annual cost to operate a unit of permanent supportive housing was less than the annual cost to operate one bed at a shelter and two-and-a-half times less than the annual public resources spent per homeless person living on the streets.  Congress would not have intended that the 4 occasions must total at least a year’s worth of time.

To require the four occasions to total 12 months and require a break of at least 7 nights between each occasion would lengthen the time before homeless individuals with a disability and homeless families where the head of household has a disability could obtain permanent housing and likely increase the cost to assist them and limit the cost-effectiveness of the efforts to provide permanent housing for individuals and families that are essentially those characterized as chronically homeless in the earlier studies.  In fact, Dr. Culhane, a researcher of the studies that found that chronically homeless individuals used a disproportionate amount of homeless assistance resources and that permanently supportive housing could reduce these costs, stated that Congress should be careful not to incentivize long stays in shelters as the sole means of accessing the limited resource of permanent housing.  S. Hrg. 109-872, at 20.

In addition to stays of fewer than 90 days in institutional care facilities counting toward the 1 year qualification to be considered chronically homeless, in calculating the 4 occasions qualification, stays at institutional care facilities should count as breaks between separate occasions.  According to the studies discussed in the hearings and committee reports and Dr. Culhane’s and other testimony, long-term homeless individuals with disabilities are “effectively living in the shelter system, and they bounce around between jails, hospital, and other very expensive systems of care at great cost, and research has shown that placing people in permanent supportive housing actually reduces their use of those services and saves money.”  See, e.g., S. Hrg. 109-872, at 20. Individuals with disabilities who have moved between places not fit for human habitation, safe havens, or emergency shelters and institutional care facilities on 4 separate occasions are using expensive systems of care at great cost regardless of the overall time.  Congress likely placed the language that persons currently residing in institutional care facilities shall be considered chronically homeless in response to the 2005 Notice of Funding Availability (NOFA) that announced that future permanent housing renewal projects would only be able to accept residents coming from transitional housing if they originally came from emergency shelter or from the streets, which prevented housing individuals who may have become homeless after being discharged from institutional care facilities.  See S. Hrg. 109-872, at 40-41 (testimony of Charles W. Gould, National President, Volunteers of America).  Senator Reed, who introduced the earlier bill language discussed in the hearing and the enacted bill language, stated that coordinating discharge from hospitals and jails makes sense and that households that typically lacked housing stability have moved into permanent supportive housing and eighty-five percent have remained in permanent housing two years later.  S. Hrg. 109-872, at 3 (statement of Sen. Reed).  With the studies of homeless individuals cycling between homeless shelters and institutional care facilities and the 2005 NOFA, Congress likely wanted to ensure that time in institutional care facilities could count toward the 1 year requirement and did not prolong the length of the 4 occasions qualification.

Moreover, for homeless individuals with a disability who only cycle between emergency shelters, safe havens, or places not meant for human habitation and institutional care facilities, to have short stays in institutional care facilities count only toward time in emergency shelters, safe havens, or places not meant for human habitation and not as breaks between time in these homeless locations, the two separate qualifications — living in these locations for 1 year continuously and for 4 separate occasions — converge into only 1 qualification and would render the 4 separate occasions qualification superfluous or a nullity.

In summary, chronically homeless should be defined as it is in the HEARTH Act, to be when individuals with a disability live in a place not meant for human habitation, a safe haven, or an emergency shelter for at least 1 year or on at least 4 separate occasions in the last 3 years.  A new occasion should commence any time there is a night in a place not meant for human habitation, a safe haven, or an emergency shelter (or in an institutional care facility during a stay of fewer than 90 days) after there is a night spent other than in in a place not meant for human habitation, a safe haven, or an emergency shelter.