On June 29, President Obama signed into law the Housing Opportunity Through Modernization Act of 2016 (HOTMA), which included several reforms of federal rental assistance, including expanding the family unification program (FUP) for youth leaving and aging out of foster care. First, section 110 of HOTMA expanded the length of the term for FUP assistance of youth leaving or aging out of foster care from 18 months to 36 months. HOTMA, Pub. L. No. 114-201, § 110(1)(A), 130 Stat. 782, 803 (codified at 42 U.S.C. § 1437f(x)(2)). Second, section 110 increased the maximum age of eligibility for FUP assistance of youth leaving or aging out of foster care from 21 years old to 24 years old. Id. § 110(1)(B), 130 Stat. at 803. Third, section 110 increased eligibility for FUP assistance from youth who have left foster care to include youth who will leave foster care within 90 days, in accordance with a transition plan. Id. § 110(1)(C), 130 Stat. at 803. Fourth, section 110 stated eligibility for FUP assistance of youth leaving or aging out of foster care if they were homeless or at risk of becoming homeless. Id.
On Monday, the U.S. Department of Housing and Urban Development (HUD) issued initial implementation guidance in the Federal Register to implement HOTMA. In the guidance document, HUD listed these FUP provisions in its section of provisions of HOTMA that are effective upon enactment or otherwise already in effect and there is no HUD action required to implement. HOTMA: Initial Guidance, 81 Fed. Reg. 73,030, 73,030-31 (initial implementation guidance Oct. 24, 2016). HUD stated that the Office of Public and Indian Housing (PIH) issued a letter on August 29, 2016 to FUP Public Housing Authority (PHA) Executive Directors to ensure that such PHAs are aware that the changes to FUP assistance are effective upon enactment. Id. at 73,031. HUD also stated that they plan to issue guidance on improving coordination between PHAs and public child welfare agencies to carry out the FUP by the statutory deadline of January 25, 2017. In discussing HOTMA’s changes to the FUP, HUD stated that youth were eligible if they had left foster care or will leave foster care within 90 days at age 16 or older. In discussing HOTMA’s changes to the FUP, HUD did not refer to the definitions of homeless, homeless individual, and homeless person or the definition of “at risk of homelessness” in the McKinney-Vento Homeless Assistance Act, 42 U.S.C. §§ 11302, 11360(1), as defined by Congress in the Homeless Emergency Assistance and Rapid Transition to Housing (HEARTH) Act on May 20, 2009. Instead, HUD only stated that PHAs should refer to the definition of “at risk of homelessness” at 24 C.F.R. § 576.2.
Instead of only referring to HUD’s definition of “at risk of homelessness”, PHAs administering FUP assistance should refer to the statutory definitions of homeless, homeless individual, and homeless person and “at risk of homelessness” located at 42 U.S.C. § 11302 and 42 U.S.C. § 11360(1) and only using HUD’s definition of “at risk of homelessness” in some instances that do not conflict with the statutory definition.
In the HEARTH Act, Congress defined the terms homeless, homeless individual, and homeless person to mean an individual or family (1) who lacks a fixed, regular, and adequate nighttime residence, (2) whose primary nighttime residence is a place not designed or ordinarily used for sleeping, (3) who are living in a shelter designated to provide temporary living arrangements or transitional housing, (4) who resided in a shelter or place not meant for human habitation and who are exiting an institution where the individual temporarily resided, (5) who has no subsequent residence identified and (lacks the resources or support networks needed to obtain other permanent housing” and will either “imminently lose their housing . . . as evidenced by— a court order resulting from an eviction that notifies the individual or family that they must leave within 14 days”, the primary nighttime residence is a room in a hotel or motel and they “lack the resources necessary to reside there for more than 14 days”, or “credible evidence indicating the owner or renter of the housing will not allow the individual or family to stay for more than 14 days” and “any oral statement from an individual or family seeking homeless assistance that is found to be credible shall be considered credible evidence”, and (6) unaccompanied youth and homeless families with children and youth defined as homeless under other federal statutes who have “experienced a long term period without living independently in permanent housing”, “have experienced persistent instability as measured by frequent moves over such period”, and “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, the presence of a child or youth with a disability, or multiple barriers to employment.” 42 U.S.C. § 11302(a). In addition, any individual or family who is fleeing or attempting to flee domestic violence, dating violence, sexual assault, stalking, or other dangerous or life-threatening conditions in their current housing situation and who have no other residence and “lack the resources or support networks to obtain other permanent housing” is also considered homeless. 42 U.S.C. § 11302(b).
Likewise, in the HEARTH Act, Congress defined the term “at risk of homelessness” to mean an individual or family who has income below 30 percent of median income for the geographic area and “insufficient resources immediately available to attain housing stability” and who either (1) “has moved frequently” because of economic reasons, (2) is living in the home of another because of economic hardship, (3) “has been notified that their right to occupy their current housing or living situation will be terminated”, (4) lives in a hotel or motel, (5) lives in severely overcrowded housing, (6) is exiting an institution, or (7) “otherwise lives in housing that has characteristics associated with instability and an increased risk of homelessness.” 42 U.S.C. § 11360(1).
In its regulations implementing the Emergency Solutions Grants (ESG) program, established in its HEARTH Act ESG interim and final rule on December 5, 2011 without apparent prior notice and opportunity for comment, HUD defined “at risk of homelessness” as an individual or family who has an annual income below 30 percent of median family income for the area, as determined by HUD and “does not have sufficient resources or support networks, e.g., family, friends, faith-based or other social networks, immediately available to prevent them from moving to an emergency shelter or another place described in paragraph (1) of the ‘homeless’ definition in this section” and either (1) “[h]as moved because of economic reasons two or more times during the 60 days immediately preceding the application for homelessness prevention assistance”, (2) is living in the home of another because of economic hardship, (3)”[h]as been notified in writing that their right to occupy their current housing or living situation will be terminated within 21 days after the date of application for assistance, (4) lives in a hotel or motel and the cost of the hotel or motel stay is not paid by charitable organizations or by federal, state, or local government programs for low-income individuals, (5) lives in a single-room occupancy or efficiency apartment unit which there reside more than 1.5 persons residing per room, as defined by the U.S. Census Bureau, (6) is exiting a publicly-funded institution or system of care, such as a health-care facility, mental health facility, foster care or other youth facility, or correction program or institution, or (7) “[o]therwise lives in housing that has characteristics associated with instability and an increased risk of homelessness as identified in the recipient’s approved consolidated plan[.]” HEARTH: ESG Program and Consolidated Plan Conforming Amendments; Defining “Homeless”, 76 Fed. Reg. 75,954, 75,954-56 (interim rule and final rule (Dec. 5, 2011) (codified at 24 C.F.R. § 576.2). In addition, the regulation defines “at risk of homelessness” to include a child or youth who does not qualify as “homeless” under this section, but qualifies as “homeless” under at least one of seven listed federal statutes. Id. at 75,956, 75,975.
PHAs administering FUP assistance should refer to the statutory definitions instead of the regulatory definition of “at risk of homelessness” because courts should apply the statutory definitions instead of the regulatory definition of “at risk of homelessness”. Courts would likely reach this outcome whether the “at risk of homelessness” regulatory language was considered established with prior notice and opportunity for comment as the December 5, 2011 interim rule did seek public comment on the “at risk of homelessness” language, HEARTH: CoC Program, 77 Fed. Reg. 45,422, 45,425 (interim final rule July 31, 2012), and HUD has not subsequently changed the language or whether the language was considered established without prior notice and opportunity comment before December 5, 2011.
The Senate Committee Report noted that on several occasions HUD had made significant policy changes in its implementation of the McKinney-Vento Act through its Notice of Funding Availability process and that it intended that HUD implement both existing provisions of the McKinney-Vento Act and those of the bill through the formal rulemaking procedures. S. Rep. No. 110-216, at 6 (2007). Therefore, policy changes made without prior notice and opportunity for comment may not be valid.
In order for courts to adhere to regulatory language that is an agency interpretation of statutory language for rules promulgated after notice and the opportunity to comment, courts must find that congressional intent is ambiguous and that the regulatory language is a permissible or reasonable interpretation of the statute. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Id. at 844. If a regulation represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, courts should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned. Id. at 845 (citations omitted). An interpretation represents a reasonable accommodation of manifestly competing interests, and is entitled to deference if the regulatory scheme is technical and complex, the agency considered the matter in a detailed and reasoned fashion, and the decision involves reconciling conflicting policies. Id. at 865 (citing, inter alia, Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). In Skidmore, an agency interpretation not promulgated with notice and comment rulemaking was not controlling and was given weight depending upon the “thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power o persuade, if lacking power to control.” See Skidmore, 323 U.S. at 140.
For at least four of the provisions of the “at risk of homelessness” definition, courts should rely on the statutory definition instead of the regulatory definition.
First, whereas the statutory definition requires “insufficient resources immediately available to attain housing stability”, the regulatory definition requires that the individual or family to “not have sufficient resources or support networks, e.g., family, friends, faith-based or other social networks immediately available to prevent them from moving to an emergency shelter or another place described in paragraph (1) of the ‘homeless’ definition.” Applying the whole act rule approach to statutory interpretation and the presumption of meaningful variation when evaluating the text of § 11360 compared to the text of § 11302, Congress’s use of the term “lack of resources” in § 11302(a)(5)(A)(ii) and use of the more encompassing term “lacks the resources or support networks” in § 11302(a)(5)(C) and in § 11302(b) shows that Congress was aware of the wording of these phrases and that the use of the words “has insufficient resources” in § 11360(1)(B) includes only resources and does not include support networks. Also, the statutory interpretation canon to avoid rendering words as useless or a nullity counsels that the second threshold requirement in § 11360(1) does not require lack of supportive networks because this interpretation would render a nullity § 11360(1)(C)(ii) that an individual or family who is living in the home of another because of economic hardship is at risk of homelessness. The House Committee Report discusses the definition of “at risk of homelessness” as including people with “insufficient resources to obtain housing stability” not insufficient resources and supportive networks. H.R. Rep. No. 110-906, at 43 (2008). The House Committee Report stated that “ESG funding authorizes 20 percent of annual funding for emergency shelters and for prevention and rapid rehousing that can serve people who are homeless or at risk of homelessness, including people living doubled up, in motels or in other precarious situations” and that the bill provides “a significant expansion of funds that can be used to assist families with children in doubled up housing.” Id. at 35. The Senate Committee Report states that the legislation “provides resources to prevent homelessness for families that are doubled up, living in hotels, or in other precarious situations.” S. Rep. No. 110-216, at 4. Likewise, when debating the bill in the House, Rep. Moore, the floor manager in the House, stated that half of ESG funding would be spent on “homelessness prevention activities, which would be those who are ‘couch surfing’. that is, they are spending the night from couch to couch; they’re doubled up; or otherwise fall outside of HUD’s current definition.” 154 Cong. Rec. H10,654, H10,665 (daily ed. Oct. 2, 2008) (statement of Rep. Moore). Similarly, Rep. Waters noted that half of the ESG funding “must be spent on homelessness prevention; that is, on households that don’t fall into the HUD definition of homelessness.” 154 Cong. Rec. at H10,668 (statement of Rep. Waters). Also, Rep. Biggert discussed the testimony of a homeless children and families advocate who stated that homeless service providers “long to be free to focus on easing homelessness as it appears in their communities, on the street, doubled up or in motels, instead of having their hands tied with arbitrary rules and restrictions.” 154 Cong. Rec. at H10,670 (statement of Rep. Biggert). Sen. Reed also stated that the prevention title would allow communities to apply for funding to prevent homelessness and “[t]his would allow them to serve people who are . . . doubled up[.]” 154 Cong. Rec. S6849, S6880 (daily ed. May 24, 2007) (statement of Sen. Reed). Interpreting the definition of “at risk of homelessness” to require individuals or families to not have sufficient supportive networks to prevent them from becoming homeless would nullify this congressional intent that doubled up people and families are at risk of homelessness and eligible for ESG funding. In introducing the HEARTH Act as an amendment to Senate Bill 896, the bill enacted as Pub. L. No. 111-22, Senator Reed stated that the HEARTH Act would provide money to people who are at risk of homelessness, which is in accord with the spirit of the legislation to prevent people from losing their homes and would be available to those who are about to be evicted from their homes, live in severely overcrowded housing, or otherwise live in an unstable situation that puts them at risk of homelessness and would provide money to allow them to keep their homes:
[T]he HEART Act would also provide up to $440 million be used to
serve people who are not homeless yet, but are at risk of homelessness.
That, I think, is in accord with the spirit of the legislation Senator DODD
proposed; to prevent people from losing their homes.
It would allow cities and towns to serve people who are about to be
evicted, live in severely overcrowded housing, or otherwise live in an
unstable situation that puts them at risk of homelessness. The money
could be used to make utility payments, security deposits, and provide
short- and medium-term rental assistance.
155 Cong. Rec. S5097, S5106-07 (daily ed. May 5, 2009). This statement by the sponsor of the HEARTH Act stating that the statute would provide funding to those at risk of homelessness who are at risk of losing their home and to anyone living in an unstable situation demonstrates that the “at risk of homelessness” definition consideration of resources and not support networks was intentional and that requiring consideration of support networks would be contrary to the statute and it appears from the statute and its legislative history that the additional requirement that the individual or family lacks support networks is not one that Congress would have sanctioned. Sen. Reed also stated that the definition issue has been discussed and that “[a]ll of us want to be sure that we are providing services to homeless children and families, and those at risk of homelessness.” See 155 Cong. Rec. at S5106-07. Also, in debating the HEARTH Act, Sen. Begich noted that the “homeless” definition would “include people staying in motels if they only have enough money to stay for 14 days” apparently interpreting the language of “lack of resources” in § 11302(a)(5)(A)(ii) to only include money and not support networks. 155 Cong Rec. S5179, S5185 (daily ed. May 6, 2009) (statement of Sen. Begich). Based on the text and legislative history, the “lack of resources” text in § 11360(1)(B) is unambiguous or the agency interpretation is not a permissible and reasonable interpretation of the text because of the foregoing and because HUD did not consider the matter in a detailed and reasoned fashion as it established the text in the December 5, 2011 interim rule without prior notice and opportunity to comment. Also, the regulatory language is not entitled to deference because this lack of prior notice and opportunity to comment demonstrates the lack of thoroughness evident in HUD’s consideration of the language and validity of its reasoning. HUD stated that it is clarifying the language that the individual or family has insufficient resources to include resources or support networks because it is consistent with its practice in administering its homeless assistance programs and will help ensure consistent application of the criteria. See 76 Fed. Reg. at 77,956. The House Committee Report stated that the “enactment of the bill will provide significant new funding opportunities to serve needy families with children living in doubled up housing that are not currently permitted.” H.R. Rep. No. 110-906, at 35. HUD’s reasoning is not valid because HUD cannot continue to use a practice of denying assistance to persons with support networks because Congress intended to allow funding for people and families in doubled up housing that are not currently permitted and the lack of thoroughness in the reasoning and the inconsistency with requiring lack of support networks and the congressional intent to allow assistance for individuals and families to stay in their home and for anyone living in an unstable situation.
Second, whereas the statutory definition allows an individual or family who has met the two threshold requirements to qualify as at risk of homelessness if the individual or family “has moved frequently because of economic reasons”, the regulatory definition adds frequency and a time requirement that the individual or family “[h]as moved because of economic reasons two or more times during the 60 days immediately preceding the application for homelessness prevention assistance.” Considering the text of § 11302 and 11360, the text of § 11360(1)(C) that contains the word “frequently” instead of a number of moves and without a time span within which the moves must be made compared to the text of § 11302(a)(5) providing a specific time span within which the individual or family is to lose their housing indicates that the definition of “at risk of homelessness” in § 11360(1)(C) for individuals and families who move frequently does not contain a time span limitation. The House Committee Report discusses the definition of “at risk of homelessness” as including people who “live in an unstable or risky situation, including moving frequently” without a frequency or time requirement. H.R. Rep. No. 110-906, at 43. Again, Sen. Reed’s statement when introducing the HEARTH Act stated that the HEARTH Act would provide funding for anyone who is living in an unstable situation that puts them at risk of homelessness. See 155 Cong. Rec. at S5106-07. Based on the text and legislative history, the “[h]as moved frequently because of economic reasons” text in § 11360(1)(B) is unambiguous in terms of time spans or the agency interpretation is not a permissible and reasonable interpretation because of the foregoing and because HUD did not consider the matter in a detailed and reasoned fashion as it established the text in the December 5, 2011 interim rule without prior notice and opportunity to comment, the lack of thoroughness in its consideration, the lack of validity in its reasoning, and its lack of consistency with earlier pronouncements. The regulatory language is not entitled to deference because this lack of prior notice and opportunity to comment demonstrates the lack of thoroughness evident in HUD’s consideration of the language and validity of its reasoning. HUD stated that it is clarifying the words “has moved frequently” in the definition of “at risk of homelessness” because its interpretation is consistent with HUD’s interpretation of similar language in the “homeless” definition. See 76 Fed. Reg. at 77,956. The statutory definition of “homeless” does not include the term “moved frequently” and the regulatory definition of “homeless” does not include language “similar to [h]as moved because of economic reasons two or more times during the 60 days immediately preceding the application for homelessness prevention assistance” so this does not appear to be a valid reason for its interpretation of § 11360(1)(C). It also does not appear that HUD thoroughly considered the language or that its interpretation is valid because surveys of homeless youth have asked homeless and unstably housed youth the number of times they have moved during other time periods. For example, a youth survey in Connecticut asked homeless and unstably housed youth the number of times they have moved in the last 6 months while a youth survey in Houston asked homeless and unstably housed youth the number of times they have moved in the past two years. Connecticut Coalition to End Homelessness, 2015 Report on Homeless in Connecticut, at 29-30 & tbl. 15 (revised June 15, 2015); Sarah C. Narendorf et al., Youth Count 2.0! (May 13, 2015). HUD did not say that its interpretation was consistent with an earlier interpretation and there was not such evidence found that the regulatory text is consistent with an earlier interpretation. Therefore, courts should find that individuals or families who move frequently are at risk of homelessness and should not require specifically that the moves be within the past sixty days.
Third, whereas the statutory definition allows an individual or family who has met the two threshold requirements to qualify as at risk of homelessness if the individual or family “has been notified that their right to occupy their current housing or living situation will be terminated”, the regulatory definition adds a written limitation and a time limitation that the individual or family “[h]as been notified in writing that their right to occupy their current housing or living situation will be terminated within 21 days after the date of application for assistance.” Applying the whole act rule approach to statutory interpretation and the presumption of meaningful variation in comparing the text of § 11302 and § 11360 indicates that the statutory definition of “at risk of homelessness” does not have written or time limitations to the notification of the termination of housing. In § 11302(a)(5)(A), Congress explicitly placed written and time limitations in some places and excluded written limitations in other places. Section 11302(a)(5)(A) does contain a written limitation and a time limitation that individuals or families are homeless if they will imminently lose their housing as evidenced by a court order resulting from an eviction action that notifies the individual or family that they must leave within 14 days and two other time limitations that individuals or families residing in a hotel or motel lack the resources to reside there for more than 14 days and credible evidence that an owner or renter of housing will not allow the individual or family to state for more than 14 days. The latter provision specifically states that an oral statement from an individual or family seeking homeless assistance that is found to be credible “shall” be considered credible evidence indicating that a written requirement is not necessary. In contrast, § 11360(1)(C)(iii) does not contain any explicit written limitation or time limitation to the notification of termination. The House Committee Report discussed the definition of “at risk of homelessness” and stated that people who live in an unstable or risky situation including facing eviction were included without requiring a written notice or formal court-ordered eviction. H.R. Rep. No. 110-906, at 43. Also, Sen. Reed’s statement when introducing the HEARTH Act stated that the HEARTH Act would provide funding for people about to be evicted, without any reference to whether they were formally evicted after receipt of written notice of termination or informally evicted after oral or written notice (and Sen. Reed likely included both in those that are “at risk of homelessness” because individuals and families who already received a court order resulting from an eviction action that notifies the individual or family that they must leave within 14 days are considered “homeless”) and anyone who is living in an unstable situation that puts them at risk of homelessness. See 155 Cong. Rec. at S5106-07. Oral notifications of termination of housing can place individuals and families in an unstable situation that puts them at risk of homelessness, especially if individuals and families who receive such notices do not have legal representation to contest the legality of the oral notice or the termination or, particularly relevant in the case of FUP assistance, youth are residing with family or friends. Also, in tight housing markets or for individuals and families who have difficulty obtaining a tenancy, individuals or families with notifications that termination of their housing or living situation will occur in more than 21 days can also be living in an unstable situation and at risk of homelessness. Based on the text and legislative history, the “has been notified that their right to occupy their current housing or living situation will be terminated” text in § 11360(1)(C)(iii) is unambiguous and in terms of the type of notice and time limit required or the agency interpretation is not a permissible and reasonable interpretation because of the foregoing and because HUD did not consider the matter in a detailed and reasoned fashion as it established the text in the December 5, 2011 interim rule without prior notice and opportunity to comment, the lack of thoroughness in its consideration, the lack of validity of its reasoning, and its lack of consistency with earlier pronouncements. HUD did not consider the matter in a detailed and reasoned fashion as it established the text in the December 5, 2011 interim rule without prior notice and opportunity to comment. Also, the regulatory language is not entitled to deference because this lack of prior notice and opportunity to comment demonstrates the lack of thoroughness evident in HUD’s consideration of the language and validity of its reasoning. The lack of thoroughness and lack of valid reasoning also appears because HUD’s stated reason for adding the language is merely for clarity without explaining why the statutory language was unclear, providing a specific reason for why clarity is needed or why it selected only written notification and the specific time period and because it is contrary to the statute and appears from the statute and its legislative history that the interpretation is not one that Congress would have sanctioned. See 76 Fed. Reg. at 77,956. HUD did not say that its interpretation was consistent with an earlier interpretation and there was not such evidence found that the regulatory text is consistent with an earlier interpretation. Therefore, courts should find that individuals or families who have been notified that their right to occupy their current housing or living situation will be terminated are at risk of homelessness and should not require specifically that they receive written notification or that the right to occupy the housing or living situation will be terminated within 21 days after the date of application for assistance.
Fourth, whereas the statutory definition allows an individual or family who has met the two threshold requirements to qualify as at risk of homelessness if the individual or family “otherwise lives in housing that has characteristics associated with instability and an increased risk of homelessness”, the regulatory definition adds a requirement that the individual or family “[o]therwise lives in housing that has characteristics associated with instability and an increased risk of homelessness, as identified in the recipient’s approved consolidated plan[.]” Applying the whole act rule approach to statutory interpretation and the presumption of meaningful variation in comparing the text of § 11302 and § 11360 indicates that the statutory definition of “at risk of homelessness” does not have the requirement that characteristics be identified in the recipient’s approved consolidated plan. In § 11302(a)(6), Congress explicitly listed in the statute characteristics of unaccompanied youth and homeless families with children and youth defined under other federal statutes who can be expected to continue in such status for an extended period of time. In contrast, § 11360(1)(C)(vii) does not contain any listed characteristics. When introducing the language of the HEARTH Act in the precursor bill, Sen. Reed stated that unaccompanied youth and families with children are “homeless” in § 11302(a)(6) when they are expected to continue to have housing instability “due to a number of enumerated factors”, but there was no mention of HUD enumerating any factors for any other provision. See 155 Cong. Rec. S4315, S4357 (Apr. 2, 2009) (statement of Sen. Reed). Also, Sen. Reed’s statement when introducing the HEARTH Act stated that the HEARTH Act would provide funding for anyone who is living in an unstable situation that puts them at risk of homelessness. See 155 Cong. Rec. at S5106-07. Based on the text and legislative history, the “otherwise lives in housing that has characteristics associated with instability and an increased risk of homelessness” text in § 11360(1)(C)(vii) is unambiguous or the agency interpretation is not a permissible and reasonable interpretation of the text because of the foregoing and because HUD did not consider the matter in a detailed and reasoned fashion as it established the text in the December 5, 2011 interim rule without prior notice and opportunity to comment, the lack of thoroughness in its consideration, the lack of validity of its reasoning, and its lack of consistency with earlier pronouncements. HUD did not consider the matter in a detailed and reasoned fashion as it established the text in the December 5, 2011 interim rule without prior notice and opportunity to comment. Also, the regulatory language is not entitled to deference because this lack of prior notice and opportunity to comment demonstrates the lack of thoroughness evident in HUD’s consideration of the language and validity of its reasoning. HUD’s reasoning lacks validity. HUD stated that it is clarifying the language that the individual or family otherwise lives in housing that has characteristics associated with instability and an increased risk of homelessness that are identified in the recipient’s consolidated plan as it strives to balance the need for consistent application of this risk factor with sensitivity to the differences in the conditions of each community’s housing stock. See 76 Fed. Reg. at 77,956. Despite the validity of having a consistent application, this language actually subjects individuals and families with the same characteristics to differing eligibility for being “at risk of homelessness” and having access to assistance based on the geographic area and the extent to which the characteristics are listed in a consolidated plan and is inconsistent with the congressional intent to allow assistance for individuals and families to stay in their home and for anyone living in an unstable situation. HUD did not say that its interpretation was consistent with an earlier interpretation and there was not such evidence found that the regulatory text is consistent with an earlier interpretation. Therefore, courts should find that individuals or families who otherwise live in housing that has characteristics are at risk of homelessness and should not require specifically that the characteristics be listed in a recipient’s approved consolidated plan.
In summary, courts should apply the statutory definition of “at risk of homelessness” because the statutory definition is unambiguous and/or the regulatory definition is not a permissible or reasonable interpretation of the statute or not otherwise entitled to deference and PHAs administering FUP assistance should refer to the statutory definitions of “homeless” and “at risk of homelessness” instead of the regulatory definitions.