The federal government has a policy of “Housing First,” in which conditions of abstinence are not to be required in providing housing to homeless people. However, according to a July 25 advisory from the Department of Housing and Urban Development (HUD), a copy of which was obtained by ADAW, HUD is giving landlords four reasons for which homeless people must be excluded from multifamily residences paid for with HUD money, three of which apply to substance use disorders (SUDs). According to the advisory, landlords must establish standards that prohibit admission of:

  1. 1. Any household containing a member(s) who was evicted in the last three years from federally assisted housing for drug-related criminal activity. The owner may, but is not required to, consider two exceptions to this provision:
    • a. The evicted household member has successfully completed an approved, supervised drug rehabilitation program; or
    • b. The circumstances leading to the eviction no longer exist (e.g., the household member no longer resides with the applicant household)
  2. 2. A household in which any member is currently engaged in illegal use of drugs or for which the owner has reasonable cause to believe that a member’s illegal use or pattern of illegal use of a drug may interfere with the health, safety, and right to peaceful enjoyment of the property by other residents;
  3. 3. Any household member who is subject to a state sex offender lifetime registration requirement; and
  4. 4. Any household member if there is reasonable cause to believe that member’s behavior from abuse or pattern of abuse of alcohol may interfere with the health, safety, and rights to peaceful enjoyment by other residents. The screening standards must be based on behavior, not the condition of alcoholism or alcohol abuse.

Sally Friedman, an attorney with the Legal Action Center in New York City, said the advisory gives further clarity to the latitude landlords are given in deciding what applicants to accept. “It's telling them that they can establish preferences for homeless families and other categories of residents even if they are not specifically cited in the guidance as examples of the type of preference they can set,” she told ADAW.

The press office of HUD was not able to provide an official for an on-the-record interview. However, on background, a HUD official said that the paradigm shift from evicting people for drug use to Housing First was a direct result of these people recycling through housing, homelessness, emergency rooms and jails.

Balance between safety and rights

Richard Cho, policy director for the United States Interagency Council on Homelessness (USICH), said that the federal government’s official strategic plan to combat homelessness, called Opening Doors, explicitly identifies “Housing First” as a core strategy. “This policy says that people should not be excluded from housing on the basis of past or current substance abuse,” Cho told ADAW. USICH, which consists of 19 federal agencies, has a Housing First checklist that includes materials put out by the Substance Abuse and Mental Health Services Administration (SAMHSA), which include “consistent messaging that Housing First is the administration’s policy and position,” said Cho.

It is a violation of the Americans with Disabilities Act to discriminate against people with current or past alcohol abuse, or with past illegal drug use. The ADA allows discrimination against current illegal drug users.

Cho tried to explain the rationale for the HUD policy. “Several years ago there was legislation that required the owners of HUD-assisted housing to have some way to mitigate against drug-related crime,” he said. “The intent of the original guidance was to encourage owners of multifamily housing to increase opportunities for people experiencing homelessness, and to give them a fair bit of flexibility in how they adopt it.”

While HUD claims its policies are consistent with Housing First, which encompasses not using addiction as a basis of screening people out or evicting them, at the same time “there is a legitimate concern around trying to make sure that those properties are safe” for all of the families living there, said Cho. The clear implication is that if landlords had to rent to people with SUDs, they would rather not have the HUD vouchers at all. “We’re trying to increase housing, but also recognize that housing owners have legitimate concerns about the harmful effects of substance use,” Cho said.

The guidance includes a section that clearly acknowledges the balance between Housing First and safety of property and other tenants. In the paragraph that follows the four exclusions listed above, property owners are asked to consider the consequences of screening out or evicting people for SUDs.

    Owners may also establish additional screening criteria, as outlined in HUD Handbook 4350.3. However, owners should bear in mind the length of their waiting lists and the cost to applicants for screening when considering additional criteria. In addition, some of these criteria can be a barrier for vulnerable populations, including people who are homeless, to accessing the programs. For example, an owner may have strict policies related to criminal backgrounds, and previous rental housing history which can have the effect of screening out the most vulnerable people experiencing homelessness who are more likely to have past convictions, past evictions, or previous debts, due to a variety of reasons, including mental illness and substance use disorders.

The notice also stresses that landlords may not use one set of admission/eviction criteria for the homeless and another for other applicants for housing.

SAMHSA’s TIP 55

The rationale behind Housing First is clearly laid out in SAMHSA’s Treatment Improvement Protocol (TIP) 55, “Behavioral Health Services for People Who Are Homeless.” SAMHSA pays for treatment for people with mental illness or SUDs who are homeless, and in this TIP, outlines how difficult it is for people with these conditions to pursue recovery while they are homeless — hence, Housing First. But as H. Westley Clark, M.D., director of SAMHSA’s Center for Substance Abuse Treatment, says, TIP 55 is a clinical, not a policy, document. “SAMHSA’s view in TIP 55 is that access to housing should not be conditioned on the receipt of services,” Clark told ADAW. “However, SAMHSA does not pay for housing per se. The HUD vouchers pay for housing.”

The primary function of TIP 55, said Clark, “is to facilitate the acquisition of clinical acumen on the part of clinicians and providers and to promote greater empathy for clients who are experiencing homelessness.” The criminal justice system is the largest single source of referral into substance abuse treatment, he said. Therefore, the landlord should take into consideration whether there is treatment available prior to deciding not to offer housing, he added.

“Clinical acumen and empathy on the part of the clinician and the provider can assist a person experiencing homelessness to overcome the barriers of discrimination associated with prior criminal drug-related acts or active substance use in the context of HUD-funded housing,” said Clark.

But the HUD regulations “apply to those involved in drug-related criminal activity, those currently engaged in illegal use of drugs, those who are registered sex offenders and those whose behavior from alcohol abuse interferes with the health, safety and rights to peaceful enjoyment by other residents,” said Clark. The HUD guidelines “recognize that too strict enforcement of the regulations can result in screening out the most vulnerable people experiencing homelessness,” he said.

“Given the limitations of the ADA with regard to substance use, TIP 55’s focus on the clinical context of a person who is experiencing both substance use and homelessness can be of assistance,” said Clark. Advocates for someone experiencing homelessness who has a current SUD can offer the fact of current treatment “as evidence that risk in the situation is minimal,” said Clark, adding that this “reduces the possibility of interference with the health, safety and rights to peaceful enjoyment of the property by other residents.”

For the USICH Housing First checklist, go to http://www.usich.gov/usich_resources/fact_sheets/the_housing_first_checklist_a_practical_tool_for_assessing_housing_first_in/.

For the USICH “Opening Doors” document, go to http://www.usich.gov/opening_doors/.

For SAMHSA’s TIP 55, go to http://store.samhsa.gov/shin/content//SMA13-4734/SMA13-4734.pdf.

The HUD advisory can be found at http://1.usa.gov/161aAJU.


Bottom line

There is a conflict between the “Housing First” policy of the federal government and the Housing and Urban Development policy allowing landlords to keep homeless people with substance use disorders out.