Homeless Emergency Assistance and Rapid Transition to Housing: Defining “Homeless”, 75994-76019 [2011-30942]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Federal Register Volume 76, Number 233 (Monday, December 5, 2011)]
[Rules and Regulations]
[Pages 75994-76019]
From the Federal Register Online via the Government Printing 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