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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 ...

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