In addition to HUD’s new definition for the term “chronically homeless” being inconsistent with the text and purpose of Congress’s definition in the Homeless Emergency Assistance and Rapid Transition to Housing Act(HEARTH Act), the new regulatory definition is also not reasonable.  HUD’s new definition is not consistent with its long-standing definition
that has been published in the Federal Register, the change will reduce the safety of homeless individuals who may be forced to spend more time on the streets and the basis for the change is to target limited resources to a subset of chronically homeless individuals and families, a facet not allowed in the HEARTH Act.

HUD’s new definition for the term “chronically homeless” is inconsistent with its long-standing definition.  HUD first defined the term in its Notice of Funding Availability (NOFA) for the Continuum of Care Program for fiscal year (FY) 2003.  In the glossary of that year’s NOFA, HUD defined the term “chronically homeless person” as an “unaccompanied homeless individual with a disabling condition who has either been continuously homeless for a year or more OR has had at least (4) episodes of homelessness in the past three (3) years.”  HUD continued this definition of chronically homeless in the NOFA for the Continuum of Care Program in FY2004.  HUD continued this definition in its NOFA for the Continuum of Care Program in FY2005.  For the first time, HUD defined an episode to be considered chronically homeless.  In Exhibit 1 of the NOFA, HUD stated that “[a]n episode is a separate, distinct and sustained stay on the streets and/or in an emergency homeless shelter.”  In the NOFA for FY2006, HUD continued the definition for “chronically homeless.”  In a supplement to the NOFA, HUD kept the additional separate illumination of the term “episode” as a “separate, distinct, and sustained stay on the streets and/or in an emergency shelter.”   HUD continued the definition for “chronically homeless” in the NOFA for FY2007 and continued the separate illumination of the term “episode” as a “separate, distinct, and sustained stay on the streets and/or in an emergency homeless shelter” in a supplement to the NOFA.  HUD continued the definition for “chronically homeless” as “[a]n unaccompanied homeless individual with a disabling condition who has either been continuously homeless for a year or more OR has had at least four (4) episodes of homelessness in the past three (3) years” in the NOFA for the Continuum of Care Program for FY2008.

HUD continued to use a similar definition for “chronically homeless” in its NOFAs for the Continuum of Care Program after passage of the HEARTH Act.  The HEARTH Act is similar to HUD’s definition for “chronically homeless” as an individual or family that “has been homeless and living or residing in a place not meant for human habitation, a safe haven, or in an emergency shelter continuously for at least 1 year or on at least 4 separate occasions in the last 3 years.”  Congress appears to have carefully considered its definition of the term for the HEARTH Act as it used the term “occasion” instead of “episode.”  Pub. L. No. 111-22, div. B, § 1101, 123 Stat. 1663, 1669 (2009) (codified at 42 U.S.C § 11360(2)).  In the NOFA for the Continuum of Care Program for FY2009, HUD defined the term “chronically homeless” as it had in the NOFAs for the previous six years as an “unaccompanied homeless individual with a disabling condition who has either been continuously homeless for a year or more OR has had at least four (4) episodes of homelessness in the past three (3) years.”  In the NOFA for the Continuum of Care Program for FY2010, HUD modified its definition to include families and kept the term episode so that a “chronically homeless person” was an “unaccompanied homeless individual with a disabling condition or a family with at least one adult member who has a disabling condition who has either been continuously homeless for a year or more OR has had at least four (4) episodes of homelessness in the past three (3) years.”  In a supplement to the NOFA, HUD again reiterated its illumination of the term “episode” as a “separate, distinct, and sustained stay in a place not meant for human habitation, on the streets in an emergency shelter and/or in a HUD-defined Safe Haven.”  HUD kept the same definition for “chronically homeless person” in its FY2011 NOFA.  HUD included the same illumination of the term “episode” as a “separate, distinct, and sustained stay in a place not meant for human habitation, on the streets, in an emergency homeless shelter and/or in a HUD-defined Safe Haven” in a supplement to the FY2011 NOFA.  In the NOFA for the Continuum of Care Program for FY2012, HUD’s definition for the term “chronically homeless” stated that it was defined in 24 C.F.R. § 578.3 and the CoC Program Interim Rule.  The CoC Program Interim Rule defined the term “chronically homeless” as an individual who or family whose head of household “has been homeless and living or residing in a place not meant for human habitation, a safe haven, or in an emergency shelter continuously for at least one year or on at least four separate occasions in the last 3 years” or an individual who has been residing in an institutional care facility for fewer than 90 days and met all of the criteria of the definition before entering the facility.  HUD, HEARTH: Continuum of Care Program, 77 Fed. Reg. 45422, 45443 (Interim Rule July 31, 2012).  Similarly, in the NOFA for the Continuum of Care Program for FY2013 and FY2014, HUD defined the term “chronically homeless” by stating the term is defined in 24 C.F.R. § 578.3 and in the CoC Program interim rule.  Likewise, in the NOFA for the Continuum of Care Program for FY2015, HUD again defined the term “chronically homeless” by stating that the term is defined in 24 C.F.R. § 578.3 and in the CoC Program interim rule.

HUD’s first change in its interpretation of episodes or occasions in the term “chronically homeless” was more consistent with its long-standing interpretation of the term “episode.”  The change seemed to add a specific duration to what constituted an episode.  As discussed, HUD had long responded that an “episode” must be a “separate, distinct, and sustained” stay.  In an interim rule, HUD changed this response to that an episode must be at least 15 days in duration.  In the interim rule for the Emergency Solutions Grants program and Consolidated Plan regulations, published without the prior opportunity for public comment, HUD defined “chronically homeless” as an individual who   “[h]as been homeless and living or residing in a place not meant for human habitation, a safe haven, or in an emergency shelter continuously for at least one year or on at least four separate occasions in the last 3 years, where each homeless occasion was at least 15 days” and an individual who has been residing in an institutional care facility for fewer than 90 days and met all of the criteria before entering the facility. HUD, HEARTH: Emergency Solutions Grants Program and Consolidated Plan Conforming Amendments.  76 Fed. Reg. 75954, 75967 (Interim Rule Dec. 5, 2011).  In the preamble, HUD stated that it added the 15-day minimum to ensure consistency for counting and eligibility purposes and “is an appropriate measure to distinguish the chronically homeless from the homeless population in general, so as to recognize chronically homeless people who have spent a significant amount of time as homeless.”  76 Fed. Reg. at 75963.  In the interim rule for the Continuum of Care Program, HUD stated that after the public comment on the definition in the interim rule, HUD decided against this definition for the term “chronically homeless” with the 15-day phrase in its Continuum of Care program.  HUD, HEARTH: Continuum of Care Program, 77 Fed. Reg., 45422, 45425 (Interim Rule July 31, 2012).  The definition of “chronically homeless” in the interim rule for the Continuum of Care Program regulations mirrored the definition in the HEARTH Act and did not include the phrase with the 15 day requirement for occasions.  Id. at 45425, 45443.

After 10 years of not setting a duration requirement for the cumulative length of the four episodes or occasions requirement to constitute chronic homelessness, HUD proposed to add this type of duration requirement in its Rural Housing Stability Assistance Program proposed rule.  In the 2013 proposed rule, HUD stated that it was submitting for public comment a definition of chronically homeless that requires that an individual or head of household of a family “has been homeless and living or residing in a place not meant for human habitation, a safe haven, or in an emergency shelter continuously for at least one year or on at least four separate occasions in the last 3 years, where the cumulative total of the four occasions is at least one year” and that “[s]tays in institutions of 90 days or less will not constitute a break in homelessness, but rather such stays are included in the cumulative total.”  HUD, HEARTH: Rural Housing Stability Assistance Program and Revisions to the Definition of “Chronically Homeless”, 78 Fed. Reg. 18726, 18729, 18742 (Proposed Mar. 27, 2013).  In the preamble, HUD stated that this definition “better targets persons with the longest histories of homelessness and therefore the highest level of need” and “[t]he definition of “homeless occasion” also allows for limited resources to be more effectively targeted.”  78 Fed. Reg. at 18729.  In the preamble, HUD also stated that “[it] has chosen the duration of one year to be consistent with section 401(2)(A)(ii) of the HEARTH Act, which discusses a one year timeframe, and based on consensus from the participants in the expert convening on the ‘chronically homeless’ definition.”  78 Fed. Reg. at 18729.  In the final rule defining the term “chronically homeless” for the Continuum of Care Program and the Consolidated Plan regulations, HUD kept this time requirement requiring an individual or head of household of a family to have lived 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 3 years, as long as the combined occasions equal at least 12 months[.]”  HUD, HEARTH: Defining “Chronically Homeless”, 80 Fed. Reg. 75791, 75792, 75804 (Dec. 4, 2015). In the preamble to the final rule, HUD stated that its primary intent in lengthening the time to qualify was to align the period of time of those experiencing occasional homelessness with that of those who are experiencing continuous homelessness, to ensure individuals and families who already meet the new criteria are prioritized for assistance, so that recipients and subrecipients can demonstrate to HUD that they are complying with the requirements, and to make the required reports to Congress.  80 Fed. Reg. at 75794.  HUD’s new definition of “chronically homeless” to require that four homeless occasions total 12 months is unreasonable because it is different and inconsistent with its long-standing definition and understanding of the term wherein there must simply be four homeless occasions and these occasions be separate, distinct, and sustained.  HUD’s new definition is also inconsistent with its prior determination that 15 days for each homeless occasion (for a total of 2 months) satisfied the requirement.

Not only is HUD’s new definition of “chronically homeless” requiring four occasions total at least 12 months unreasonable because it is inconsistent with its prior definitions and understanding of the term, it is also unreasonable because it would lengthen the time that homeless individuals are on the streets and other unsafe locations.  HUD noted in the preamble to the final rule that the general concerns most frequently expressed by commenters about the definition were the length of time an individual or family must be homeless and living in a place not meant for human habitation, a safe haven, or in an emergency shelter was too long and would require households to experience longer periods of homelessness in order to qualify as chronically homeless.  80 Fed. Reg. at 75794.

Likewise, HUD’s new definition of “chronically homeless” requiring four occasions total at least 12 months is unreasonable because it establishes a definition considering costs and available resources in an impermissible manner.  HUD stated when proposing the definition that it allows for limited resources to be more effectively targeted.  78 Fed. Reg. at 18729.  The HEARTH Act states that HUD “shall provide bonuses or incentives” for
“permanent supportive housing for chronically homeless individuals and families . . . and …any other activity determined by the Secretary, based on research and after notice and comment to the public, to have been proven effective at reducing homelessness generally, reducing homelessness for a specific subpopulation, or achieving homeless prevent and independent living goals[.]”  Pub. L. No. 111-22, § 1305, 123 Stat. at 1694.  This language requires HUD to provide bonuses or incentives for chronically homeless individuals and families. Although HUD can also prioritize other subpopulations based on research, they have to also provide bonuses and incentives for chronically homeless individuals and families, not just a subset of chronically homeless persons.

HUD’s new definition of “chronically homeless” requiring four occasions total at least 12 months is unreasonable also because setting the time frame to the time frame for continuous homelessness renders the four occasions requirement a nullity in some circumstances.  HUD stated when proposing the definition that it selected a duration of one year to be consistent with section 401(2)(A)(ii) of the HEARTH Act, which requires continuous homelessness for 1 year.  78 Fed. Reg. at 18729.  The fact that the four occasions requirement would be redundant when the four occasions all occur within 12 months and the presumption of meaningful variation in that Congress put the 1 year language in for the continuous homeless requirement but not the homeless occasions requirement indicate that there is not a 12 month limit to the homeless occasions requirement.

In summary, HUD’s new definition of “chronically homeless” requiring individuals and families to have four occasions of homelessness total at least 12 months is inconsistent with HUD’s own definition, will force homeless individuals and families to spend more time on the streets and in unsafe locations, takes away the prioritization for a category of
chronically homeless individuals and families, renders the continuously homeless requirement a nullity, and is an unreasonable interpretation of the HEARTH Act’s definition of chronically homeless.