The following is a copy of a letter Councilmember Jim Graham sent to D.C. Attorney General Irvin B. Nathan after last week’s hearing on the Homeless Services Reform Amendment Act of 2013.
Re: Request for legal opinion on constitutionality of proposed language in the Homeless Services Reform Amendment Act of 2013
Mr. Attorney General,
As Chairperson of the Committee on Human Services, I have legal concerns about B20- 281, “The Homeless Services Reform Amendment Act of 2013 (HRSA)”. If passed it would make significant changes to the Homeless Services Reform Act. I introduced this measure which was originally introduced as part of the Fiscal Year 2014 Budget Support Act of 2013, to ensure that it would get a full hearing and opportunity for public comment, rather than being passed as part of the BSA.
I am writing to ask for your opinion about certain specific provisions of the bill. A serious concern of mine and one raised repeatedly by witnesses at today’s hearing, regards the proposed language in several sections of the bill, which would severely limit existing due process rights for homeless individuals and families. I would like a response from you regarding your view of these constitutional concerns.
We heard strong testimony, in particular, from Professor Peter Edelman, Professor of Constitutional Law at Georgetown Law Center, as well as from other advocates regarding the provisions listed below. Professor Edelman spoke about his view that the following provisions violate the requirements of Goldberg v. Kelly, 397 U.S. 254 (1974) as a result of the elimination of pretermination hearings.
The Supreme Court held in Goldberg v. Kelly, 397 U.S. 254 (1974) that “due process requires an adequate hearing before termination of welfare benefits, and the fact that there is a later…proceeding does not alter the result” Id. at 262. I question the propriety of the provisions listed below, all of which would eliminate a pre-termination hearing before a homeless individual or family would be required to vacate shelter.
Please find below and please provide your opinion of, the HRSA provisions that create new limits on due process rights:
- Section 2 (a)(3) and (3)(c) of the Act create a new provisional placement status. Pursuant to this new status the Act sets out that an individual or family for whom an alternative placement is identified shall vacate the shelter within 24 hours of notice of termination. This provision relates to a finding of ineligibility. However this provision specifically disallows the existing right to a pre-termination hearing.
- Section 2 (c) creates a new 8b(g)(2) and (3) which establishes that an individual or family could be terminated from provisional placement status for failure to participate in or cooperate with the unified assessment or referral process. In this circumstance as well, there is no right to a pre-termination hearing.
- Section 2 (d) removes the right to a pre-termination hearing for those who receive transitional or permanent supportive housing with no right to a pre-termination hearing.
- Section 2 (h) creates a new section 22 (2)(F) which states that two offers of Rapid Rehousing are deemed per se appropriate. As a result of this language, shelter residents would be denied the right to appeal based on factors (appropriateness of the housing offered) that would be grounds for appeal of any other housing placement.
Two other areas that raise specific legal concerns are discussed below. Amber Harding, an attorney at Washington Legal Clinic for the Homeless and Megan Whyte De Vasquez of Washington Lawyers’ Committee for Civil Rights and Urban Affairs- both testified that the section below is a clear violation of the Federal Fair Housing Act:
- Section 2 (i) sets out that a provider may discharge a client from a supportive housing placement only when the client has:
(1) “Transferred or relocated to another program or facility due to, but not limited to, incarceration or institutionalization for at least 60 days”
“Institutionalization” is a disability related term which is underscored by the fact that the term is used in addition to the term “incarceration”. Language that allows termination of participants for institutionalization is on its face, a violation of the Fair Housing Act and of Title II of the Americans with Disabilities Act. Further, nursing homes, hospitals and mental health institutions may not release patients into homelessness. Thus, this provision would likely extend the institutionalization of a person with a disability who loses his or her housing under these circumstances in violation of the requirements of Olmstead.
Finally, Tamaso Johnson of the DC Coalition Against Domestic Violence questioned whether there might be a conflict between certain provisions and Federal law: Shelters receiving federal funds related to domestic violence are mandated to provide “voluntary” services. Conditioning shelter on mandatory escrow payments for those receiving shelter from a such a site, may be in violation of 42 U.S.C. 10408(d)(2), Family Violence Prevention and Services.
Thank you for your consideration of this. I look forward to hearing from you. Because of Chairman Mendelson’s request that we move this forward expeditiously, it would be a great help to us if you could provide a written response within a week.
Councilmember Jim Graham