A year after the city settled a major lawsuit over the treatment of homeless families, the Department of Homeless Services is still turning away families for whom it is supposed to offer emergency shelter, say advocates, the city comptroller and the applicants themselves.

The biggest problem with family applications, they say, is that workers at the Prevention, Assistance and Temporary Housing (PATH) center in the south Bronx, where families with children apply for shelter, consistently overlook evidence indicating eligibility. Families often have to re-apply many times before finally being sheltered.

The Legal Aid Society claims this violates a Dec. 2008 agreement (negotiated in September, finalized in December) to settle the decades-long litigation known as the McCain case. That agreement established the right to emergency shelter for families with children, and specifically outlined steps that the city’s homeless services agency must take to fulfill that right.

“Regrettably, while the litigation has been settled, the errors and the suffering continue,” said Steven Banks, attorney-in-chief at the Legal Aid Society. “It is at this point only a matter of time before we are going to have to return to court to enforce the underlying order.”

Advocates have focused on one particular city statistic they say indicates a pattern of errors: almost 40 percent of families who were ultimately accepted during fiscal year 2009, and during prior years, had to apply more than one time. This shows that eligible families are first turned away, they say.

Department of Homeless Services (DHS) Commissioner Robert Hess interprets this statistic differently. Intake workers are accepting new information on subsequent applications and recognizing that families’ situations change, Hess says. “I would say that is a strength in the system.”

Immediate needs

This is how the system is supposed to work: A family applying to PATH undergoes a screening for domestic violence, health and other concerns. Then, intake workers investigate its housing situation for the past two years. They try to determine if the family has a safe alternative to the shelters.

A family will be placed in a shelter while homeless services workers determine if it is eligible, a decision they must make within 10 days. If they find that the family has other places to live or if the family doesn’t cooperate with the investigation, they will deny the application and the family must move out. Families may appeal to a state administrative law judge.

If a denied family who was found to have alternative housing re-applies within 90 days of being denied it must show some “material change” in its situation to receive another 10 days of provisional, “immediate needs” shelter.

In October 2007 DHS eliminated one exception to this rule which allowed families to be sheltered for the night if they were reapplying after 5 p.m., even though their situations had not changed and they allegedly had other housing options.

The policy since then has been to reject these families reapplying after 5 p.m. unless they demonstrated a significant change. City statistics show that over 1,000 families were denied “immediate needs” shelter under these circumstances during fiscal year 2009.

Patrick Markee, senior policy analyst at the Coalition for the Homeless, says that DHS was turning away such re-applying families just after the rule changed in 2007, leading to some sleeping in churches or in extreme cases on the streets. But he says that in the months leading up to fall 2008 negotiations with Legal Aid, intake workers began to allow families to at least stay for the night.

The good will between the city and advocates helped bring about the settlement.

“Today marks the beginning of a new era,” Mayor Michael Bloomberg announced in 2008, when the settlement was first reached, “an era in which the need for court oversight is over and we can all move forward in our shared commitment to effectively meeting the needs of homeless families."

One year later, some mothers say they are in a continual loop of reapplying. Tracy Kirk, 23, and her 2-year-old daughter rode a bus from their shelter on 111th Street in Manhattan to the PATH center in the South Bronx one day in late November. Pushing her daughter’s pink stroller with application papers in hand, Kirk explained that it was her 10th time applying for regular, longer-term shelter.

“It’s an ongoing thing,” she said in front of the center, as the temperature dropped on a recent night around 7 p.m. Her daughter yanked on the stroller, her braids swinging. “It’s sad. I’m dead tired,” Kirk says.

She had been living with her aunt, when arguments between the two boiled over and she was asked to leave. Kirk says homeless services workers have contacted her aunt and asked when Kirk lived with her. The dates her aunt gave don’t match the dates that Kirk gave, she says, while pointing to a letter from DHS stating “non-cooperation.”

That’s one thing preventing her from being admitted into longer-term shelter. However, Kirk and her daughter have continuously been re-admitted to the 10-day immediate needs shelter.
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No perfect system

Hess points out that families have the ability to appeal DHS rulings to independent state administrative law judges, and that in fiscal year 2009 those judges upheld DHS eligibility rulings 96 percent of the time.

But families typically aren’t represented by lawyers at these hearings, so they are disadvantaged, counters Banks at Legal Aid. Also, many of the families who lose their hearings are subsequently found eligible, Banks says. Advocates say this shows that important evidence was originally overlooked.

“The reality is that no system is perfect. There is always a chance to make a mistake,” Hess says.

Comptroller William Thompson’s office agrees. In October it released the results of an audit of the family admissions process that examined the cases of 32 families reapplying to the system. For seven of the 32 cases, the comptroller found that DHS did not adhere to its procedures for determining eligibility. This led to families being “delayed or denied assistance for which they may have been eligible,” the report said.

Unclear procedures and poor training of workers were the main findings in the report, while it also acknowledged that intake workers sometimes failed to follow specific guidelines.

“It’s bound to happen in a system when people are so overloaded and workers are under such tight deadlines,” said John Talbutt, assistant to the president of Social Service Employees Union Local 371, which represents workers at the PATH center. He says the city hasn’t hired enough workers to handle the high number of families applying and that investigators make some errors when they can’t sufficiently focus on a family’s case.

Of the more than 18,000 families who applied during fiscal year 2008, the group of 32 cases the comptroller’s office examined is too small to make any broad comments about the process, says Hess, who challenged the audit’s methodology.

DHS’ response to the comptroller’s report, which was released less than one month before the mayoral election, was confrontational. Some of the intake workers who were audited went so far as to sign affidavits criticizing the comptroller’s staff members’ behavior.

“It would be wrong to chalk the comptroller’s report up to a politicized environment, though,” says Banks, “when in fact the report highlights the kinds of problems our clients have been experiencing.”

One of the families examined by the auditors, a group of two adults and two children, had applied 23 times before finally being deemed eligible. Homeless Services maintained it could not verify the length the family stayed at some of the previous 10 residences it had listed. By the 23rd application, DHS still couldn’t verify one of the locations, it acknowledged, but deemed the family eligible anyway.

Burden of proof

Many of the cases reviewed by the auditor involved this problem of verifying past residence. The audit recommends better guidelines for family intake workers so they know specifically what they must do to help families obtain proof of residence. This stipulation – to assist families with obtaining documents – is also one of the settlement’s conditions.

“The city should be working with the families,” says Markee. “Instead, the burden of proof is directly on families in crisis.”

One of Markee’s clients was a man with two sons, one in elementary school and one in junior high, who couldn’t live with their mother because she had a medical condition, he says. Even though his client had a doctor’s letter documenting the mother’s condition and saying the kids could not live with her, Homeless Services maintained that her house was a viable option.

Markee had an outreach team accompany the man to the mother’s house, but she turned them away. “If the mother isn’t going to open the door,” he says, “that housing isn’t really available.”

Medical conditions, threats of domestic violence and child welfare issues are specific circumstances DHS must consider when evaluating families’ eligibility, according to the 2008 settlement agreement.

“We’re following the guidelines,” says Hess, “but no system is perfect. We work extraordinarily hard to get it right, to get every decision right.” He points to the strides that his agency has made since the Giuliani administration, when some families slept on the floor of the Emergency Assistance Unit, the predecessor to PATH which was plagued by long waits.

It was during those times that Banks and the Legal Aid Society persisted with litigation against the city, bringing the administration to court each time it violated a judge’s order from 1986 that New York city and state must provide emergency shelter to all homeless families with children.

“This is a system that has been through 25 years of litigation,” says Commissioner Hess. “The system has been completely transformed and it’s time to recognize that. It’s time to tell the whole story.”

Yet “systemic non-compliance” is the specter that hangs over DHS right now. If the court were to determine that the city is not complying with settlement rules on a broad scale, then it could extend the requirements beyond Dec. 2010, when they are set to expire.

Regardless, Banks says the city is violating the underlying order to provide shelter to needy families and it can sue on that basis.

“By nature we’re optimists,” he says, “and one would hope by continually calling the violation of the settlement to the attention of the city further court litigation could be averted. But if it can’t, we’ll have no choice but to go to court. We’re going to have to evaluate the situation over the coming weeks.”

- Mike Reicher