9. What kind of health and safety risk is serious enough to be eligible under category number 4?

Under the regulations, 760 CMR 67.06(f)6, children who are sleeping in a doubled-up housing situation are at a significant enough health and safety risk to qualify under 760 CMR 67.06(1)(a)4.c, only if  the family is subject to:

a.  Exposure to felony or misdemeanor crimes by a member of the primary tenant’s household that cannot be addressed by law enforcement or alternative dispute resolution, or repeated exposure to such conduct by a regular guest of the primary tenant, that are/is likely to result in significant harm to the EA household;

b.  Exposure to mental health issues by a member of the primary tenant’s household that are likely to result in significant harm to the EA household and cannot be addressed by a referral to mental health treatment before such harm occurs;

c.  Exposure to substance abuse by a member of the primary tenant’s household that is likely to result in significant harm to the EA household and cannot be addressed by a referral to substance abuse treatment before such harm occurs; or 

d.  

(i)   Condemnation of the unit due to presence of poor physical conditions through no fault of the EA household; or

(ii) The housing is not meant for human habitation, which means it has physical conditions that the landlord cannot or will not remedy before significant harm occurs to the family members. Those conditions are:

i. Lack of a supply of hot and cold water or inability  to access water for personal use;

ii. Lack of heat from September 16th through June 14th;

iii.   Lack of or inability to control electricity of lighting for personal use, or inability to dim lights for nighttime sleeping; 

iv.  Unsanitary conditions that result in the accumulation of garbage that may draw rodents, cause accidents, or otherwise create or spread disease; or

(iii). The housing situation is only an irregular overnight sleeping situation, and the irregularity of the family’s sleeping situation is persistent.

Note: An “irregular housing situation” based on frequent moves is sometimes referred to as “chronic couch surfing.” An irregular overnight sleeping situation also includes staying in a non-EA funded, time-limited shelter. These families should be eligible for EA at the end of their time-limited stay. 

See generally 760 CMR 67.06(1)(a) – (f) and policy memos discussed at the end of Question 8.

The presence of a significant enough health and safety risk must be verified by the Department of Children and Families (DCF) or other agency. 760 CMR 67.06(1)(e)3. and 4. However, if the family appears eligible based on their own statements, the family should be placed in shelter pending the health and safety assessment and collection of other verifications. See Questions 12 and 13.

Note: An October 2016 EOHLC policy memo states that if child(ren) stayed the previous night with the primary tenant and the family provides written proof that the children cannot stay another night with the primary tenant or other “persuasive evidence” that they have no feasible alternative housing, EOHLC should request an urgent health and safety assessment and provide a non-EA placement until the health and safety assessment is complete. See Housing Stabilization Notice 2016-03, page 7, at https://www.mass.gov/files/documents/2016/10/vk/hsn2016-03.pdf.

Advocacy Tips

• Many families are not eligible for EA shelter under categories 1 – 3 of 760 CMR 67.06(1)(a)(current or former domestic abuse, fire, flood or natural disaster, or narrow categories of qualifying evictions) and therefore must show that the housing situation in which they are doubled up with others exposes them to crimes, violent physical conduct, or mental health or substance abuse, that the place they are staying qualifies as a “housing situation not meant for human habitation,” or that they have been engaged in “irregular housing" or chronic couch surfing.
• The Legislature included language starting in the FY20 budget directing EOHLC to provide shelter to otherwise eligible families who have not yet stayed in places not meant for human habitation. EOHLC has not issued guidance about how field offices should implement this requirement, and has stated that no new guidance is required. However, families in this situation are regularly denied placement. If a family is otherwise eligible and has no place to go they should be placed in shelter pending a DCF health and safety assessment. G.L. c. 23B, § 30(B), as amended by St. 2020, c. 41, § 2 at 7004-0101.Families should be explicit with EOHLC that they have nowhere to stay that night.
• To qualify for “irregular housing,” your family must provide verification that you have recently moved from place to place in an irregular pattern, not staying in any one place for more than a week or two.  See Housing Stabilization Notice 2016-03, https://www.mass.gov/files/documents/2016/10/vk/hsn2016-03.pdf
• If you were denied for not meeting one of the four categories of EA eligibility, you may become eligible once your family has had “irregular housing” (engaged in chronic couch surfing), or once your family will have to stay (or has stayed) in a place not meant for human habitation because you have no place to go that night. Under the budget language for FY20-FY23, EOHLC should not deny you if staying in a place not meant for human habitation would make you eligible AND you have nowhere to go that night. You may reapply for EA at any time.
• Families are routinely discouraged from applying or completing an application by being told they will not qualify, without being given a written denial. Families only have a right to appeal if they receive a paper denial, so you should insist on being allowed to finish the application and receive a denial. If EOHLC refuses to let you complete an application you should see a legal advocate.
• Families who are doubled-up, or couch-surfing, with a host family should be careful about encouraging the host’s landlord to issue a Notice to Quit because it will not necessarily lead to EA eligibility and may put the host family at risk of eviction. If possible, families that are couch-surfing should provide a letter from their host stating that the family can no longer stay with them. A letter from the landlord is not necessary, even if EOHLC asks for one.
• Waivers. EA regulations allow EOHLC to approve a waiver of the rules based on “good cause.” 760 CMR 67.10. Families at risk of staying in a place not meant for human habitation can ask for a waiver to be placed earlier by emailing EOHLC Division of Housing Stabilization Director, Deputy Director of Field Operations Ezequiel Lopes (alvina.brevard@mass.gov), and Legal Counsel Adrian Walleigh (adrian.walleigh@mass.gov). 
• Many families report that when they tell EOHLC that they are sleeping in a place not meant for human habitation, such as a car, EOHLC threatens to report them to DCF by filing a “51A” petition against them for “abuse and neglect.” DCF cannot lawfully take your children away from you just because you are experiencing homelessness. 110 CMR 1.00. If you are threatened in this way, contact an advocate.
• Tell your family and friends that someone from EOHLC or DCF may call or visit them to find out if you can stay with them. EOHLC may deny your eligibility for EA or HomeBASE if your family or friends say you can stay with them.
• EOHLC may deny your application if you refuse to let DCF contact the family or friend you have been staying with. If you agree to the visit but the other family refuses to talk to DCF, you should not be denied EA. See DCF and DHCD Health and Safety Initiative Administrative Plan (2012), www.mass.gov/files/documents/2016/07/oe/healthandsafetyassessmentinitiativeadministrativeplan.pdf.