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

Produced by Massachusetts Law Reform Institute
Reviewed September 2018

Under the new 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:

  1. Exposure to felony or misdemeanor crimes or violent physical conduct perpetrated in the housing situation by a member of the primary tenant’s household that cannot be addressed by law enforcement or alternative dispute resolution, repeated exposure to such conduct by a regular guest of the primary tenant, that is likely to result in significant harm to the EA household;
  2. 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;
  3. 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
    1. Condemnation of the unit due to presence of physical conditions through no fault of the EA household; or
    2. 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:
      1. Lack of a supply of hot and cold water or inability to access water for personal use;
      2. Lack of heat from September 16th through June 14th;
      3. Lack of, or inability to control, electricity of lighting for personal use, or inability to dim lights for nighttime sleeping;
      4. Unsanitary conditions that result in the accumulation of garbage that may draw rodents, cause accidents, or otherwise create or spread disease; or
    3. 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 Which families qualify as "homeless enough" for EA?

The presence of a significant 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 What if you do not have proof of your eligibility when you apply for EA? and How long does it take to be placed in EA shelter?

Note

An October 2016 DHCD new 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, DHCD 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.

Advocacy Tips

  • Many families are not eligible for EA 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.
  • To qualify for “chronic couch surfing” a family must provide verification that it has recently moved from place to place in an irregular pattern, not staying in any place for more than a week or two. See Housing Stabilization Notice 2016-03.
  • If you were denied for not meeting one of the four categories of EA eligibility, you may become eligible once your family has engaged in "irregular housing" (chronic couch surfing) or has stayed in a place not meant for human habitation. You may reapply for EA at any time, including after you have been forced into one of these situations.
  • Families who are doubled-up with a host family in public or subsidized housing should be cautious 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 actual eviction. If possible, families who 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
  • Cars, emergency rooms, parks, police stations, church basements, office conference rooms, streets and sidewalks, and hallways of buildings qualify as places “not meant for human habitation.” In order for a family to be eligible based on staying in such places, the children in the family must have slept in these places with the adults.
  • Waivers. EA regulations allow the DHCD Undersecretary 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 DHCD’s Undersecretary Janelle Chan ([email protected]), Assistant Undersecretary Jane Banks ([email protected]), Associate Director Ita Mullarkey ([email protected]), and Legal Counsel Adrian Walleigh ([email protected]).
  • Many families report that when they tell DHCD that they are sleeping in a place not meant for human habitation, such as a car, DHCD 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 DHCD or DCF may call or visit them to find out if you can stay with them. DHCD may find you ineligible for EA or HomeBASE if your family or friends say you can stay with them for longer than another 48 hours.
  • DHCD 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).

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