Can you please help me understand why children in state custody do not qualify as homeless per the McKinney-Vento Act?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

This question was posted by a homeless advocate.

REPLY:

Several recent Congressional bills have proposed new ways of defining homeless children.  You can find these bills and lists of the actions Congress has taken in connection with them at http://thomas.loc.gov/.   

The proposed Homeless Children and Youth Act of 2011 defines homelessness children and teens as those identified as homeless by school districts, Head Start programs, Runaway and Homeless Youth Act programs (RHYA), and early intervention programs under Part C of the Individuals with Disabilities Education Act. 

 

In January 2009, the following definition was put forth in HR 29.  Homeless children include “…a youth verified as homeless by the director of a program funded under the Runaway and Homeless Youth Act (42 U.S.C. 5701 et seq.), or a designee of the director…a child verified as homeless under section 602 of the Individuals with Disabilities Education Act (20 U.S.C. 1401) by the director or the designee of such program, and the family of such child …and a child verified as homeless under section 637 of the Head Start Act (42 U.S.C. 9832) by the director or designee of such program, and the family of such child.

In August 2008 the House of Representatives passed a revised general definition for homeless person has passed in its proposed amendments to the McKinney-Vento act.  The proposed amended act is available at Part 8 about “Homeless Prevention Activities” subpart C encourages “providing family support services that promote reunification  of (i) youth experiencing homelessness with their families and (ii) children and youth involved with child welfare or juvenile justice systems with their parents or guardiens.”  Clearly, this defnition identifies as “homeless” those children and youth who have guardians or are wards of the state through either the child welfare (foster care) system or the juvenile justice system.  The proposed amendments further call on communities to develop “policies and practices relating to the school selection and enrollment of homeless children and youth to ensure that homeless children and youths and their parents are able to exercise their educational rights…” Section 402 Community Homeless Assistance Planning Boards  (f)(B)(i)(II)(dd) .  (Click on the hyperlink above and scroll down to this section.) 

 

Families experiencing homelessness can view the National Law Center on Homelessness and Poverty’s  many resources about educating homeless children to find out about  the steps of keeping kids in school while making transitions between shelters and other temporary housing arrangements.  Another very informative resource about homeless children’s access to education is The National Association for the Education of Homeless Children and Youth.

 

Until a new definition is added, you may want to read the history of the existing law.

I looked at legislative history for the McKinney-Vento Act to ascertain how Congress came to define “homeless children and youth” as they did.  I have not found any hearing testimony or research reports that demonstrate the origin of their decision to define homeless children in connection with the places where they are located rather than in connection with the adults (private individuals or agencies) who are responsible for them.  Note that homeless adults are also defined based on their lack of “a fixed, regular, and adequate nighttime residence”. Since the definition (which is quoted further down in this message) goes to the trouble of identifying children “awaiting foster placement”, there’s reason to think that Congress must have thought about kids in state custody.  See 42 USC section 11302   See also the NLCHP’s system for determining whether a child satisfies the current definition of homeless.

I think that the only ways to figure out Congress’s reasons for limiting the definition as they did are:

 

1. To do more thorough legislative history research than I did.  I merely skimmed hearing testimonies and House Conf. Report 101-951 (2001) for sightings of the phrase “homeless children”.  You can find Congressional hearings from 1995-present for free on the Web at http://www.gpoaccess.gov/chearings/index.html.   You can find numerous congressional reports and statements about proposed and existing legislation by searching the terms “homeless children” in the Congressional Record http://thomas.loc.gov/home/r101query.html.  Note that this link takes you to the 101st Congress which debated amendments to the McKinney Vento Act.  You can change the number 101 in that Web address or click on the session links on the Congressional Record screen to search in a different session of Congress.  The 106th and 107th Congresses also have a lot of relevant material. 

 

2. To contact your legislators and enlist the help of their legislative aides in tracking down the reason for excluding foster children and kids in other forms of state custody.  Find your representatives and senators.

 

You might find some useful information in one of these articles:

 

Strong, James H. and Virginia M. Helm, Legal Barriers to the Education of Homeless Children and Youth: Residency and Guardianship Issues, Journal of Law and Education v. 20 no. 2 pp. 201-218 (Spring 1991)

 

Ernst, Greg and Maria Foscarinis, Education of Homeless Children: Barriers, Remedies, and Litigation Strategies, Clearinghouse Review vol. 29 no. 7-8 pp. 754-759 (Nov. – Dec. 1995).

 —Ask your public library to get you photocopies of these articles  through Interlibrary Loan.—

 

Clearly, advocates are still trying to convince Congress to broaden the definition of homeless children and youth.  Here is a quotation from Jim Purcell, Executive Director Council of Family and Child Caring Agencies, speaking at the House Committee on Ways and Means, Subcommittee on Income Security and Family Support on February 27, 2008.

 

“We also encourage members to weigh in during the reauthorization of No Child Left Behind (NCLB) law. CWLA has joined together with a number of other groups including some of the advocates for homeless children and families to amend and to increase funding for the McKinney-Vento Homeless Children’s program to clarify current law to assure that foster children are covered by the same protections for homeless children.” 

 

Link to the Child Welfare League of America.

Should you need it for any purpose, though I expect you already have it, here is the definition of “homeless children and youths” from 42 USC Section 11434a:

 

(2) The term “homeless children and youths’–

 

(A) means individuals who lack a fixed, regular, and adequate nighttime residence (within the meaning of section 11302(a)(1) of this title); and

 

(B) includes–

 

(i) children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; are abandoned in hospitals; or are awaiting foster care placement;

 

(ii) children and youths who have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings (within the meaning of section 11302(a)(2)(C) of this title);(iii) children and youths who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings; and (iv) migratory children (as such term is defined in section 6399 of Title 20) who qualify as homeless for the purposes of this part because the children are living in circumstances described in clauses (i) through (iii).

 

 

Do you need an address to get access to government services such as Welfare, Food Stamps, Medicaid, and Social Security Disability?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

Government agencies have to verify residency and citizenship when providing ongoing services to clients. They realize, however, that residency for people who are homeless is in places like lobbies, halfway houses, bus stations, churches, and other people’s houses.  When people have those kinds of non-permanent residences, the agencies have a variety of ways to confirm that somebody is who he claims to be and that he generally resides in the place he claims.

The Social Security Administration, which provides financial support for people who are elderly and disabled, has detailed policies in place for verifying an applicant’s identity.[i] Because that agency is one of the country’s official registrars of citizens,[ii] it has an enormous database of identifying facts about each person here. Using that database, the staff can ask applicants to state their social security number and then answer simple questions including date of birth and parents’ names to establish their identity without having to show an ID card with a street address.

When determining where an applicant can usually be located, Social Security staff are required to “assume that transient or homeless individuals need assistance in providing evidence of their living arrangements.”[iii] This means that the staff will make note of the shelters and other services and places where the applicant reports spending time and will rely on verification from witnesses who regularly see the claimant at any of those places.

There is a specific provision of the Social Security Disability regulations asserting that people are still eligible for the benefits when they are in a homeless shelter.[iv]

Food stamps, Temporary Aid to Needy Families (a.k.a. “TANF” or “cash assistance”), and Medicaid are federally funded public assistance programs that are administered through state agencies rather than through federal branch offices located in those states. All of these are available to homeless people but, because they have state administration, do not follow exact federal identification rules the way the Social Security programs do. Instead, the public assistance or welfare office in each state makes its own rules about how claimants can prove that they are homeless and lack sufficient financial resources to pay for their own food,[v] healthcare, and other basic needs.[vi]

The United States Code has a basic standard for states to follow in establishing their public assistance eligibility requirements. “The State shall require…that each applicant for or recipient of benefits under that program furnish to the State his social security account number and the State shall utilize such account numbers so as to enable the association of the records pertaining to the applicant or recipient with his account number.”[vii] In other words, if someone does not have a street address, his social security number will be used as the fall-back I.D. validation.

Supplemental to that, the Department of Health and Human Services declares in its fact sheet about Medicaid prescription drug coverage for the homeless that “a Post Office Box, an address of a shelter or clinic, or the address where the individual receives mail (e.g. social security checks) may be considered the place of permanent residence.”[viii]

The United States Department of Agriculture, in its regulations about how states can verify the residency of food stamp applicants says that if a homeless person does not have documents showing that he is affiliated with a street address, “the State agency shall use a collateral contact or other readily available documentary evidence…Any documents or collateral contact which reasonably establish the applicant’s residency must be accepted and no requirement for a specific type of verification may be imposed. No durational residency requirement shall be established.”[ix]

The State offices tend to follow these guidelines with minor variations.

Sample laws:

In California, the residency regulation for food stamps says that the welfare department “shall not require an otherwise eligible household to reside in a permanent dwelling or have a fixed mailing address as a condition of eligibility”.[x] If a California applicant declares a shelter as his residence, the local food stamp office has to confirm that the shelter primarily houses people who are homeless, limits the amount of time that people can stay there, and does not have any kind of lease arrangements with people who stay there.[xi] If a California applicant is not affiliated with a shelter, the food stamp office will decide, after interviewing the applicant, what proof of residency to obtain.New York’s regulations merely declare that an application for food stamps will be accepted even if it only has the applicant’s name and signature and no other information, not even an address. Those regulations do not tell how the department will confirm that an applicant is truly homeless.

In Illinois, only one application is needed when requesting cash assistance, medical assistance, and/or food stamps and that application simply asks “Are you homeless? Yes / No”.[xii] The Illinois Administrative Code explains that homeless people applying for assistance through the Department of Human Services can use a friend or relative’s address or the address of a social service agency or the closest DHS office.[xiii]

To find a state’s food stamp address requirement, look in the state health and human services department’s regulations.  Here is a link to a site that lists administrative codes https://www.llsdc.org/state-legislation. Look in the administrative code’s index under “food stamps” or else look to see if there is an entire section or volume of health and human services regulations. Another way to find these regulations is navigating through the state health and human services department’s Web site. http://www.acf.hhs.gov/

Since an address is not merely used for benefit applications, but is also necessary for ongoing correspondence between clients and government agencies, the agencies might recommend that clients who are homeless identify a caseworker or social service agency as their contact person or “authorized representative.”[xiv] That way, there will be a consistent place where mail can be sent and where the client who is homeless knows to check-in. Someone who does not want to deal with an agency can use an address service instead. Here is a post about address services.

Serving as the authorized representative is often a basic job duty of someone who works in a shelter.[xv] Another possibility is that applicants can designate someone to serve as a “representative payee” to receive and deposit checks and generally manage their funds. That relationship clearly involves more than simply providing an address, but that is because it is available to claimants, not on the basis of homelessness, but because they cannot or don’t want to manage money.

A Pennsylvania case cautions about deciding which street address to list when applying for government services. The plaintiff in this case, who later became homeless, had applied for unemployment benefits at an address far away from where he now spent most of his time. He was not allowed to pick-up his benefits check at the office closest to his real location and was instead required to make the long, expensive, time consuming trek to the office near the original address.[xvi] There may be more efficient ways to change an address with a government agency now, and more understanding of the difficulties that homeless people have in documenting their actual whereabouts, but the caution is still worth noting.

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[i] Social Security Administration, Program Operations Manual System (POMS)- Section SI 00601.062. The POMS is available online at http://www.ssa.gov/regulations/.  See also the Fact Sheet on Supplemental Security Income.

[ii] See the background note at the beginning of the Social Security Administration POMS- Section RM 00203-001. “Over time, the SSN has increasingly been used as a multi-purpose identifier by government, business, and other organizations.”

[iii] Social Security Administration, POMS – Section SI 00835.060

[iv] 20 CFR §416.201. Note that this regulation is part of a broader rule stating that people in the care of institutions are not eligible for the benefits. Since homeless shelters do not provide care, they are exempted from that rule.

[v] U.S. Dep’t. of Agriculture, eligibility for the Supplemental Nutritional Assistance Program.  http://www.fns.usda.gov/snap/eligibility  How to apply in each state: https://www.fns.usda.gov/snap/apply-to-accept

[vi] U.S.Dep’t of Health and Human Services, http://www.acf.hhs.gov/programs/ofa/programs/tanf/about  Here is the link to the States’ programs: http://www.acf.hhs.gov/programs/ofa/help

[vii] 42 USC §1320b-7(1)

[viii] U.S. Dept. of Health and Human Services, What Do I Need to Know to About Medicare Prescription Drug Coverage to Help My Homeless Clients?, http://www.cms.hhs.gov/HomelessnessInitiative/Downloads/HomelessFactSheet.pdf

[ix] 7 CFR Ch.II §273.2

[x] California Dep’t of Social Services Food Stamp Regulations 63-401.5

[xi] California Dep’t of Social Services Information Notice # 1-04-04. Available at http://www.dss.cahwnet.gov/getinfo/acin04/pdf/I-04_04.pdf

[xii] Application available at http://www.dhs.state.il.us/page.aspx?item=33698

[xiii] Ill. Adm. Code tit. 89 §10.210 (2006).

[xiv]U.S. Dep’t of Agriculture, An Introduction to the Food Stamp Program, http://www.cms.hhs.gov/apps/firststep/content/foodtips.html ; Wash. Admin. Code 388-408-0050 and 388-460-0005 available at http://apps.leg.wa.gov/wac/

[xv] See, New Hampshire’s homeless resources list http://www.nhhealthykids.com/homeless-resources and the Massachusetts Legal Help list of SNAP facts about ways for homeless people to access food stamps. http://www.masslegalhelp.org/income-benefits/fshomelessness

[xvi] Regoli v. Commw Unemployment Bd. Rev. Unemployment Comp. Bd. Rev., 427 A.2d 1275 (Pa. Commw. Ct., 1981).