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February 23, 1996


The opinion of the court was delivered by: GREEN


 For nearly four years, plaintiffs, who are homeless families *fn1" and their advocates, have strived to reform the District of Columbia's system for providing emergency housing assistance to homeless families, contending that the present system violates families' rights under the First and Fifth Amendments to the United States Constitution. *fn2" During the pendency of this case, a number of events have occurred, some of which, such as the institution of the present waiting list system for allocating shelter have, in this Court's view, improved matters. Other events have clearly operated to the detriment of homeless families, most significantly the District's decision to withdraw from the federal Emergency Assistance reimbursement program, which deprived the District of substantial resources with which to house homeless families.

 Following resolution of several claims through dispositive motions, plaintiffs' remaining claims, concerning due process and equal protection, were the subject of a four-day bench trial. Following the trial, the parties submitted extensive proposed findings of fact and conclusions of law. *fn3" Upon consideration of the record and evidence introduced at trial, including the testimony of witnesses whose credibility, demeanor, and behavior the Court has had an opportunity to observe and evaluate, judgment shall be entered in favor of plaintiffs in part and against defendant in part, and in favor of defendant in part and against plaintiffs in part, for the reasons set forth below.


 A. Characteristics and Consequences of Homelessness

 At trial, plaintiffs presented uncontroverted testimony concerning the typical characteristics of homeless families, as well as the effects of homelessness on parents and their children. Homeless families are in a crisis situation, and exist in an extremely vulnerable state. Typically they are destitute, with no financial resources, no housing or inadequate housing, and no means of transportation.

 Many families applying for emergency shelter are homeless because they have been evicted, have been forced to leave an unsafe or overcrowded housing situation, or were fleeing domestic violence or another type of family dispute.

 Homelessness can have devastating mental and physical consequences. Homeless families are exposed to the elements of heat, cold, snow, and rain. They lack basic privacy and facilities necessary for proper hygiene, and often lack proper nutrition. The problem of poor nutrition is especially acute for homeless children, and particularly infants, due to difficulties in refrigeration of formula and lack of privacy for breast feeding.

 Homeless families are at an increased risk of illness. Often they have reduced resistance to illness, and face an increased danger of infectious diseases, upper and lower respiratory illnesses, intestinal infections, and other health problems. Homeless families have a rate of hospitalization many times higher than the general population. Moreover, homelessness adversely impacts pregnancy and prenatal care. Homeless women have a higher incidence of low birth-weight babies and infant mortality than other populations. Homelessness can cause serious psychological problems as well, including depression, the consequences of which obviously can be severe.

 B. The Emergency Shelter Family Program

 The District of Columbia *fn4" , through the Office of Emergency Shelter and Support Services ("OESSS"), operates an emergency shelter program for homeless families. *fn5" OESSS is part of the Department of Human Services ("DHS" or "the Department"), the same department responsible for administering Aid to Families with Dependent Children ("AFDC") and other social services programs. *fn6"

 The regulations governing administration of the emergency shelter program are contained at 29 DCMR Chapter 25, and became effective on January 24, 1992. *fn7" Pursuant to the regulations, families meeting certain criteria are eligible to receive emergency shelter. *fn8" The governing statute and regulations explicitly state that eligibility does not entitle applicants to shelter. Significantly, however, Pamela Shaw testified as corporate representative for the District of Columbia that it is OESSS' policy and practice to provide shelter to all homeless families at the point they are deemed eligible. *fn9" In general, applicants are eligible for shelter if they have no present housing, lack the financial resources to obtain housing *fn10" , and have not been placed in emergency shelter in the previous 365 days. *fn11" 29 DCMR Ch. 25 § 2502. *fn12"

 According to the regulations, at the time of initial application or inquiry, OESSS staff are to "inform the applicant that he or she is required to provide documentation of eligibility that is reasonably available to the applicant." 29 DCMR Ch. 25 § 2503.1. The regulations do not define "reasonably available." Under the regulations, DHS is permitted to require an applicant to provide a variety of information to verify eligibility, id. § 2503.10, including, inter alia, an eviction notice, Social Security number, income and source of income, statements regarding the applicant's need for shelter, information regarding other persons in the family unit, and "other information deemed necessary to establish eligibility." Id. The regulations do not permit OESSS to deny services on the night of initial application due to a lack of available documentation. Id. § 2503.2.

 According to the regulations, "the Department shall provide an applicant with an oral and written notice of eligibility determination at the time of the determination." Id. § 2502.4. Applicants who are aggrieved by the Department's decision to deny housing may request a fair hearing from the Department's Office of Fair Hearings, unless the denial of shelter is due to a lack of space. Id. § 2511.1-2. The regulations require applicants to request a hearing within 10 days of a decision on eligibility. Id. § 2511.5. A recommended decision is to be rendered within five days of a hearing, id. § 2511.12; however the regulations do not specify a time frame within which such hearings must take place or by which a final decision must be issued. Finally, the regulations provide for informal administrative review prior to a formal hearing, upon the request of the applicant. Id. § 2512.

 It is undisputed that OESSS does not have a formal policy manual for operating the emergency shelter program. Pamela Shaw testified that the regulations operate as a policy manual. *fn13" Ms. Shaw further testified that she personally trained both current and new OESSS employees regarding OESSS procedures. New employees participate in a 30-day training and orientation program which includes weekly meetings, hands-on training, and observation and evaluation by Ms. Shaw.

 1. Prior System for Allocating Shelter

 The District's system for allocating emergency shelter to families has varied significantly over the years. Between January 1992 and January 1994, the District followed a system whereby applicants were considered and placed on a first-come, first-served basis until all spaces available on a particular day were filled. Families who applied after all available spaces were filled were not provided an individualized eligibility determination, but were issued a pro forma denial for lack of space. *fn14" Applicants were thus required to reapply each day in order to be considered for shelter. *fn15" The system created an incentive for applicants to arrive as early as possible at OESSS in order to be among the first in line when the office opened in the morning. In some cases, families camped out overnight at 25 M Street in order to be among the first in line for shelter.

 2. The Waiting List System

 The system for allocating shelter changed substantially in January 1994, when the District halted its practice of allocating shelter on a daily first-come, first-served basis, and switched to a waiting list system. Under the waiting list system, as reflected in Pl. Exh. 175 and as described by numerous witnesses, applicants are given an application, including a screening form, upon their arrival at the OESSS office. The screening form contains "yes or no questions surrounding the objective aspects of a family's eligibility for shelter." Pl. Exh. 175. OESSS workers review the screening form and application for possible eligibility problems. If potential problems exist, further inquiry is made and a decision on eligibility is rendered. *fn16"

 If no apparent barriers to eligibility exist, the applicant is given a waiting list number and is instructed to telephone a recording at OESSS each day after 10:00 a.m. *fn17" The recording states the waiting list numbers to be served on a given day. It does not recite waiting list numbers called on prior days but not claimed.

 Applicants whose numbers are called are instructed to present themselves at OESSS by 1:00 p.m. that day to be placed. OESSS' policy is to hold a case file open for 14 days from the date a number is called. If an applicant does not present him or herself within 14 days, the file is closed and the applicant is required to reapply for benefits. The 14 day window is not explained on the forms given to homeless family applicants.

 The waiting list system is not free of problems. According to Sister Mary Ann Luby, an outreach worker for WLCH, the recording is not always changed by 10:00 a.m. In addition, on occasion the recording malfunctions. Plaintiffs complain that these problems create difficulties for homeless families, as does the fact that OESSS does not directly contact families when their numbers come up. *fn18" Only about fifty percent of the applicants whose numbers are called actually return to OESSS for placement.

 Eligibility determinations are not performed at the time an applicant is placed on the waiting list. Instead, an eligibility determination is made at the time the applicant's number is called, prior to actual placement into shelter. As a result, families on the waiting list but not yet approved for shelter do not receive services given to families actually placed in emergency shelter. Families placed in shelter receive referrals to other social services, as appropriate, an opportunity to attend classes in the Regional Resource Center, assistance in obtaining permanent housing, and case management services. *fn19" Moreover, because an eligibility determination is not made at the time of application, applicants on the waiting list are not referred to Healthcare for the Homeless, a free medical clinic operated at 25 M Street, S.W. Finally, families placed in emergency shelter receive priority placement on the waiting list for permanent housing maintained by the Department of Public and Assisted Housing ("DPAH") *fn20"

 3. Capacity of the Program

 The District unquestionably does not have the financial resources to serve all eligible families who need emergency shelter. At the time of trial, families waited an average of two months from the time they were placed on the waiting list to be placed in emergency shelter. This wait is no doubt exacerbated by the fact that the number of available shelter spaces has plummeted in recent years, from 495 spaces in the fall of 1994 to 139 spaces at the time of trial.

 Undoubtedly the District's withdrawal from the federal Emergency Assistance reimbursement program effective July 1, 1993, operated to reduce significantly the number of spaces available for eligible families. Moreover, plaintiffs contend that the District's mismanagement of its public housing programs contributes to the inability of OESSS to move families from temporary shelter to permanent housing, thereby freeing up temporary shelter space. According to Patricia Mullahy Fugere, WLCH's Executive Director, at the time of trial, the Department of Public and Assisted Housing had 2360 vacant permanent public housing units. DPAH has been severely criticized for mismanagement of the public housing program.

 In sum, when one considers the substantial delay between application for shelter and eventual placement, and the extremely modest number of emergency shelter units presently available, it is evident that the District does not have emergency shelter readily available to families in need. *fn21"

 C. Documentation Requirements

 Consistently since June 1991 to the present, the District has had a policy of requiring homeless families to provide documentation of their eligibility. The specific documentation requirements have changed over the years.

  Beginning in June 1991, OESSS workers distributed a form to applicants which provided as follows:


"All Applicants for Family Shelter" When applying for shelter -- All applicants will need the following:


*Notarized Statement




Eviction Notice




*Statement of Income (i.e., SSI Income, AFDC Eligibility)




Statement of Earnings/Pay Stub


*Birth Certificates (adults and children)


*Social Security Cards (adults and children)


*Picture ID


*All children must be present at the time of intake

 Pl. Exh. 31A.

 Applicants were not given any materials explaining the document requirements or stating that applicants could still be found eligible for shelter if they lacked documentation.

 As shown in Pl. Exh. 31A, initially OESSS required applicants to supply notarized statements concerning the reasons for their homelessness. Plaintiffs contend, and the Court agrees, that the notarized statement requirement imposed a burden on families, due to the difficulty and expense of obtaining a notarization and the difficulty in traveling to get the statement. *fn22" The District deleted the reference to notarized statements in March 1993. Pl. Exh. 129.

 In or around January 1994, the District began giving applicants the "Family Intake Document Checklist," Pl. Exh. 175, which OESSS staff would mark to indicate which documents were needed to verify an applicant's eligibility. *fn23" The Document Checklist states that documents are to be provided within seven days, and witnesses for plaintiffs testified that applicants were notified to that effect. Chief Supervisor Shaw testified on behalf of defendant that the seven-day requirement was not strictly enforced but rather was a means of expediting an eligibility determination once the applicant's waiting list number was called. However, no information concerning the consequences (or lack thereof) of failing to provide the documents is contained on the Document Checklist or other materials in the application packet.

 1. Effect of Lack of Documents on Receiving Shelter

 The parties' positions differ on the issue of whether shelter applicants may receive shelter if they lack the requisite documentation. Pamela Shaw testified that families are given contingent shelter placements even if they do not satisfy all the documentation requirements. *fn24" Plaintiffs insist, on the other hand, that OESSS staff strictly enforce the documentation requirements, require applicants to produce all the information listed on the Document Checklist, and do not accommodate families who cannot obtain the documentation. Frank Trinity testified that he recalled "one or two" conditional placements in his experience.

 The evidence presented from plaintiffs' sample of the OESSS case files actually supports the District's position. In four of the 859 case files evaluated, the case file indicated that an applicant was denied shelter for lack of documentation to verify eligibility. In 61 case files, however, applicants were placed contingent on verification. Thus, the Court finds that applicants who lack documents are, as a general rule, provided shelter contingent on providing documentation.

 Plaintiffs contend that the District denies shelter on the grounds of failure to cooperate and assist in the eligibility verification process, which plaintiffs maintain is simply a code for lack of documentation. Plaintiffs complain that "failure to assist" does not differentiate between inability to assist and refusal to assist, and they contend it is improper to deny families for inability to assist in providing documentation. In contrast, Ms. Shaw testified on behalf of the District that applicants would not be denied shelter for an inability to provide documentation, but only a refusal to provide documentation. She did not elaborate further or provide specific examples to bolster her testimony.

 To support their allegations that OESSS improperly denies applicants shelter for a lack of documentation under the pretense of "failure to assist," plaintiffs presented statistical evidence on the number of such denials in 1992 and 1993. While important evidence of the practice at the time, the Court does not find the evidence on this point particularly probative in light of its dated nature. In addition, the evidence suffers from internal weaknesses, as detailed in the margin. *fn25"

 Plaintiffs did present contemporary examples of two applicants who apparently were denied shelter for failure to provide documentation. *fn26" However, plaintiffs' evidence is insufficient to establish that applicants are typically denied contingent placements when they lack the requisite documentation. *fn27"

 2. Burdensomeness of Documentation Requirements

 Plaintiffs contend that the District's documentation requirements impose unnecessary hardships on homeless families and may deter families from applying for emergency shelter. *fn28" Frank Trinity, former WLCH staff attorney, frequently informed DHS of his belief that the documentation requirements were too onerous. Additionally, plaintiffs' expert, Dr. Yvonne Rafferty, testified that she was not aware of a locality which imposed greater documentation requirements than the District of Columbia, and she contrasted the District's system with that of New York City, where minimal or no documentation is required and families in need are given shelter on demand. *fn29" In addition to challenging the overall burdensomeness of the requirements, plaintiffs focused on a number of specific issues, which are set forth below.

 a. Lack of Coordination Within DHS

 One of plaintiffs' most serious criticisms of the present system concerns OESSS' failure, when making eligibility determinations, to utilize information already provided to other offices within DHS by applicants who are AFDC recipients. Homeless families seeking emergency shelter are typically single female heads of household with one or more children, and most are recipients of AFDC. *fn30" Plaintiffs contend that OESSS' failure to verify information through an applicant's AFDC file, or through a computer system known as the Automated Client Eligibility Determination System ("ACEDS"), constitutes an unreasonable burden in violation of due process.

 Plaintiff Franzin Melton's testimony is illustrative of this point. When she applied for emergency shelter, Ms. Melton was required to provide proof of income, as well as Social Security cards and birth certificates for herself and her minor daughter. The documents were required even though Ms. Melton had an identification card from the AFDC program that included her name, date of birth and Social Security number. Ms. Shaw confirmed that OESSS requires Social Security cards for applicants and their children even though an applicant's AFDC identification card would contain the applicant's Social Security number.

  In order to obtain AFDC, recipients provide verification to DHS of their Social Security number, their birth, the number of children in the family, the family relationship involved, and their income. Birth certificates are required to be in a family's AFDC file. Thus, plaintiffs contend that much of the information required by OESSS could be easily verified in a simple telephone conversation or facsimile transmittal between OESSS and other DHS staff.

 In response to plaintiffs' criticisms, the District contends that due to short staffing, AFDC personnel are not always available to take a telephone call to verify information in a particular file. In addition, defendant correctly points out that a determination of eligibility for AFDC is not the same as a determination of eligibility for shelter; accordingly, the mere fact that someone receives AFDC does not automatically qualify them for shelter.

 Another potential means of coordination highlighted by plaintiffs is the ACEDS computer system, utilized by DHS, which contains, inter alia, names of all family members and their relationships, Social Security numbers, income information, and information about public benefits being received. The system can be searched by name, alias, or Social Security number. Despite the fact that the information is available on ACEDS, OESSS requires independent proof of family status. In part, this is because OESSS does not presently have full access to ACEDS. Moreover, Ms. Shaw testified that OESSS has concerns about the accuracy of the information on the system, which has not been verified in all cases.

 b. Other Burdensome Aspects of the Documentation Requirements

 1. Requirement that Children be Present at Intake

 Plaintiffs' witnesses testified that OESSS requires all children to be present at the time of initial application, which they contend imposes an undue hardship on homeless families and inappropriately keeps homeless children from school. *fn31" Particularly during the period of time in which applicants were required to reapply on a daily basis, the Court agrees that this requirement would be burdensome.

 In response to plaintiffs' allegations, Ms. Shaw testified that OESSS did not require children to be present at the time of application, but rather, at the time the family was actually placed in housing. However, she conceded that the language on forms previously utilized by OESSS, stating that "All children must be present at the time of intake," could be confusing. The forms presently used by OESSS do not include any reference to children being present at the time of intake, and plaintiffs presented no evidence of this being official OESSS policy at this time.

 2. Writs of Eviction

 Plaintiffs assert that to the extent an applicant claims eviction as their reason for homelessness, OESSS requires proof that a writ has been actually executed by the U.S. Marshal. Plaintiffs presented cases in which families were denied emergency shelter when they presented a writ of eviction but had not yet been physically evicted. For example, Michelle D. was denied eligibility because she produced a writ of eviction but not a Marshal's notice of the date the eviction would take place. Pl. Exh. 107. Cynthia Blount was denied shelter in 1993 because she had only an eviction notice but had not yet been physically evicted.

 Ms. Shaw testified that if an applicant's reason for homelessness was eviction, OESSS required documentation showing that an eviction had occurred or that a writ had been executed. If an applicant did not have such documentation, OESSS staff would check a daily list of evictions prepared by the Marshal's Service. If an applicant's name appeared on that list, that was considered sufficient evidence of the reason for homelessness. However, Ms. Shaw did not contradict plaintiffs' fundamental allegations concerning the writ requirement.

 3. Birth Certificates

 OESSS requires applicants to submit long-form birth certificates in order to verify the relationship between parents and children. If an applicant does not have birth certificates for each adult and child, the applicant must obtain the certificate from the Office of Vital Statistics within DHS. Obtaining a birth certificate is both a time consuming and expensive process, particularly if an applicant or the applicant's children were born out of state. According to the uncontroverted testimony of plaintiffs' witnesses, birth certificates cost $ 16.00 each in the District of Columbia, plainly a significant expense for a homeless family. Fee waivers are obtainable in some but not all cases.

 Significantly, birth certificates are obtained from DHS, the same department that oversees OESSS. Moreover, AFDC recipients typically have submitted birth certificates as part of the AFDC application process, meaning that the birth certificates should appear in their AFDC file.

 4. Social Security Cards

 OESSS requires applicants to submit Social Security cards or a printout from a Social Security office to demonstrate their eligibility for emergency shelter. For applicants who do not have Social Security cards for themselves or their children, this requirement plainly requires a trip to a Social Security office and could entail a wait. As previously discussed, information on Social Security numbers is provided to DHS by AFDC recipients, and AFDC identification cards contain the recipient's Social Security number.

 5. Civil Protection Orders

 Plaintiffs contend that OESSS requires a civil protection order as proof of homelessness in instances where applicants are homeless as a result of domestic violence. Witnesses testified that such a requirement places applicants in a potentially difficult and dangerous situation. Pamela Shaw contradicted plaintiff's allegations, stating that OESSS strongly recommends that victims of domestic violence obtain civil protection orders for their own protection, but that OESSS does not require such an order to establish eligibility for shelter.

 D. The Appeals Process

 As previously stated, the regulations governing the emergency shelter program provide for administrative review and hearings upon request for applicants who are determined to be ineligible for shelter. The regulations require that a request for a fair hearing must be made within 10 days of receiving actual written notice of the denial. The regulations further state that the Office of Fair Hearings shall render a recommended decision within five days of the hearing, but the regulations do not contain time frames for administrative review, the actual hearing, or issuance of the final hearing decision.

 The OESSS utilizes a "Notice of Eligibility Determination for Emergency Overnight Shelter" form to notify applicants of their eligibility (or ineligibility) for shelter. Pl. Exh. 175A. The form states that if an applicant is not satisfied with the decision, she may request an administrative review of her case within 24 hours of receipt of the notice. The form further states that the administrative review decision will be provided within 24 hours of the request for review.

 Additionally, the Notice of Eligibility Determination states that applicants who are not satisfied with the decision of their administrative review may, within 10 days of the decision, request a fair hearing. The form states that "a hearing decision will be rendered within 2 business days of your request."

 Plaintiffs established at trial that administrative reviews do not generally occur within 24 hours of a request, nor are decisions rendered within 24 hours thereafter. *fn32" Nor are decisions rendered within two days of a request for a fair hearing. The District concedes that the time frames stated on the Notice of Eligibility Determination are not followed, but contends that the time frames are simply erroneous. *fn33" The District maintains that there is no legal requirement that administrative reviews occur within 24 hours; rather, that time frame was an internal goal created by OESSS. Moreover, the District insists that applicants who request fair hearings receive such hearings.

 As proof of plaintiffs' claim that the District lacks an effective appeal mechanism, Scott McNeilly, staff attorney for WLCH, testified that in his experience, he was never successful at obtaining a fair hearing on behalf of any of his clients, despite seven or eight requests for such hearings. McNeilly referred to a number of WLCH case files, summarized below. *fn34" APPLICANT DATE OF REQUEST OUTCOME Jacqueline 12/2/94 Counsel lost contact with E. client (per 2/27/95 letter). Sharon K. 9/23/94 Hearing scheduled for 2/2/95; outcome unclear Vivian W. 6/30/94 No indication that hearing was ever scheduled Troven M. 12/5/94 Resolved informally 12/18 Elizabeth 10/27/94 Settled 12/20/94; hearing had M.G. been scheduled for 12/16/94


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