Testimony by Camille Zentner, Supervising Attorney, before the Senate Task Force on the Delivery Of Social Services in New York City
April 16, 2015
Senator Avella and Members of the Task Force: Thank you for the time to speak today and for the opportunity to submit recommendations concerning ways to improve the delivery of social services in our City. My name is Camille Zentner and I am a supervising attorney with the New York Legal Assistance Group (NYLAG) working in our public benefits practice. NYLAG is a nonprofit law office dedicated to providing free legal services in civil law matters to low-income New Yorkers. NYLAG serves immigrants, seniors, the homebound, families facing foreclosure, renters facing eviction, low-income consumers, those in need of government assistance, children in need of special education, domestic violence victims, persons with disabilities, patients with chronic illness or disease, low-wage workers, low-income members of the LGBT community, Holocaust survivors, and veterans, as well as others in need of free legal services.
We encounter New Yorkers directly impacted by the housing affordability crisis in our City in all of our areas of practice. In my work in particular, where public assistance recipients receive a maximum safety net survival benefit amounting to less than half of the federal poverty level, which includes shelter allowance, we serve clients with the intertwined problems of food scarcity, housing instability and homelessness. An adult recipient of public assistance with one dependent child is maximally eligible for the basic shelter allowance of $283, an amount that would not rent even a private room for this family in any of our five boroughs. This testimony will focus on the deficiencies of the current public assistance related housing supports and NYLAG’s client stories and struggles related to housing stability, as well as some related public assistance problems that impact directly on clients having and maintaining homes for themselves and their families.
I. FOCUS ON EVICTION
According to a November 2014 report of the City’s Independent Budget Office, the share of New York City families entering the shelter system because of eviction tripled between 2002 and 2010, amounting to 32% of the intake at municipal shelters, an underinclusive percentage that considers only families with eviction documents at intake and does not include any families improperly or uncoded shelter entry reason. By the end of 2012, eviction at 28% remained the most common reason for shelter entry over the other major housing barriers of overcrowding and domestic violence related issues. This report also found that “more than half of the families entering the city’s shelter system lived in buildings that registered with the state as having rent-regulated apartments or were operated by the New York City Housing Authority . . . immediately prior to shelter, with the largest share coming from regulated housing.”
a. Increase the Public Assistance Shelter Allowance Levels
One critical component of enabling public assistance recipient families to find safe housing and avoid eviction from public or private housing is an increase of the public assistance shelter allowance, an allowance that has not been changed since very minimal increases in 2003. A family of three in New York City that includes a minor dependent child in the public assistance household will receive a maximum of $400 in shelter allowance. NY Soc. Serv. Law §131-a; 18 NYCRR § 352.3(a). In addition to New York State’s constitutional obligation to provide “aid, care and support of the needy,” statutory law requires the State to provide adequate allowances for legally responsible relatives to support the physical and emotional well-being of minor dependent children. N.Y. Const. art. XXVII, § 1; N.Y. Soc. Serv. Law §350(a). Without adequate housing or even the potential for adequate housing under the current shelter allowance scheme, New York State grossly fails to meet its obligations.
|Household Size||Without Children||With Children|
New York City and State incur great financial as well as human expense in not providing anywhere near a reasonable shelter allowance for City residents; the City and State bear the burden of a multitude of costs associated with homelessness, including paying shelters and increased medical spending.
b. Adjust FEPS to Allow More Families to Afford Fair Market Rents
The Family Eviction Prevention Supplement (FEPS) provides many households that include public assistance recipient members and minor dependent children with arrears help to prevent eviction and with an ongoing subsidy to help families pay ongoing rental obligations. FEPS is often the only option for public assistance families being threatened by eviction, and the program has helped many New Yorker City families avoid eviction and maintain housing. However, these subsidies are issued on top of the shelter allowance but still fail to bring the total shelter grant anywhere near the current fair market rent in NYC. For instance, in the Bronx, where more families entered the shelter system than from any other borough during the period of the Independent Budget Office’s 2002 through 2012 study, the current fair market rent is $1249 for a one-bedroom apartment, according to the U.S. Department of Housing and Urban Development. However, the maximum shelter grant under the FEPS program, which is the sum of the shelter allowance and the FEPS amount, is only $750 for a family of two.
Further, the FEPS rent caps and other eligibility rules make it even more difficult for families to secure and maintain their apartments, and the household composition rules create complications in family living situations and public assistance budgeting that can lead to more benefits problems, loss of benefits, and loss of the subsidy entirely. NYLAG suggests three main changes to the FEPS program: 1. An increase in the actual subsidy; 2. An increase in the rent cap; and 3. An incremental broadening of the categories of eligible households.
i. Increase the FEPS Subsidy
The current FEPS rules provide an eligible family of three with a subsidy of $450 on top of the family’s $400 shelter allowance, if maximally eligible, for a total of $750 for the three person family’s shelter grant.
FAMILY EVICTION PREVENTION SUPPLEMENT CHART
|Household Size||Shelter Allowance (SA) Maximum||FEPS||SA + FEPS = Total Shelter Grant||Shelter Expense (Rent) Limit|
A three- person family receiving the public assistance total grant would have only $389 to spend on their electronic benefits card monthly, if the family were maximally eligible for public assistance. This NYC family would need to spend $200 out of this $389 allowance toward the rent, leaving $189 remaining to provide for the remainder of the family’s needs, including any applicable utilities or other household expenses, in addition to other household necessities like clothing, school supplies, transportation, hygiene needs, and other necessary survival expenses. Additionally, when there is earned or other income in a household, or a family member is sanctioned, the first part of a family’s minimal grant to be reduced is the family’s shelter allowance, reducing the total shelter grant sent directly to landlord or primary tenant for New York City households, often beginning or driving the cycle of inability to cover full rent expenses and pushing a family toward eviction proceedings for non-payment.
NYLAG recommends increasing the FEPS subsidy to allow recipients to compete for apartments renting at or near fair market value in the City. In doing so, the FEPS program would be in line with more successful and lasting subsidy programs, such as the Section 8 voucher program, which keeps pace with fair market rents and keeps families in their homes.
ii. Increase the Maximum FEPS Program Maximum Shelter Expense (Rent)
Even where a family may be able to survive and maintain housing because they have enough earned or other income to make up the difference between the inadequate FEPS amount and the FEPS lease rate, the family will find it difficult to secure an apartment to rent at or under the FEPS rent caps. In the City’s increasingly competitive market, there is little incentive for a landlord to reduce the lease rent to the FEPS rent cap levels: The rent cap for a family of two looking for a FEPS-eligible apartment in the Bronx is $900, with the HUD figure for a one bedroom at the above-cited $1249. The rent cap for the a three-person family is $1050, still $200 less than the fair market rent for a one bedroom that could not even accommodate this family size.
For the FEPS program to be more successful and better contribute to preventing eviction, the rent caps and subsidies need to help families compete in the rental market and afford fair market rental housing. Because the FEPS structure is already in place, these improvements would likely require fewer immediate administrative resources in creation and coordination with the City than other additionally necessary longer-term strategies for eviction and homelessness prevention.
c. Broadening Other FEPS Eligibility Rules to Serve and House More Families
Aside from the monetary rent caps and subsidies, the FEPS program could broaden its reach to families at risk of eviction by loosening its rules regarding the definition of families facing eviction. Currently, the FEPS program requires families to be in court proceedings to be even considered for the subsidy. If the program were to broaden the definition of families at risk of eviction in order to help families before they were taken to court, families would not have to go through the housing court process, and the City and State would avoid many costs associated with litigation and enforcement in court.
Additionally, FEPS rules could better serve families with aging children and members who become eligible for disability benefits. In order to be eligible for FEPS, households must include at least one minor dependent child and a public assistance recipient. Often, children who make the household eligible for FEPS because of age or receipt of public assistance benefits, age out of being a minor dependent child, consider leaving the household to go to school, or begin to receive federal disability benefits instead of public assistance. In all of these instances, a household would become ineligible without a minor dependent child or public assistance recipient member, and the household’s FEPS would be abruptly terminated, throwing the family into housing crisis, arrears, and likely directly back into housing court without the FEPS option.
In order to serve these families who received the supplement and remain in dire need of the rental support when current eligibility ends, NYLAG recommends that the FEPS program consider a grace period for families with children aging out or household members losing public assistance or creating new eligibility categories that allow the participation of families with SSI-recipient member children and adults only and allow participation of families that include children up to the age of 21 years old to be the qualifying child for purposes of the subsidy.
One NYLAG client, Mr. B, receives Supplemental Security Income (SSI) because of multiple debilitating impairments. He lives with and cares for his 16 year old daughter, also an SSI recipient, and his 19 year old son, a public assistance recipient. Mr. B was in eviction proceedings largely because of an erroneous adverse public assistance determination that stripped his family of their FEPS benefit for almost a year. When the public assistance mistake was corrected and benefits were restored via NYLAG’s advocacy and Fair Hearing representation, Mr. B had already signed a stipulation agreeing to move out of his apartment. Mr. B proactively sought an apartment at the FEPS level because of FEPS rules that would allow Mr. B to get FEPS for a move. With limited physical and financial resources, Mr. B found an apartment in the Rockaways and negotiated his rent from the market $1450 to the FEPS cap of $1050 for his three-person household. Despite his initiative and meeting other eligibility criteria, Mr. B’s FEPS was held up and only approved after two months of vigorous advocacy because he was no longer in court and had initiated and completed the move on his own, apparently outside of the FEPS rules; this delay caused the new landlord to doubt both our client and the subsidy.
Now Mr. B faces additional challenges: his 19 year old son wants to go to school and doesn’t want to do exactly what his father tells him, including consistently comply with the public assistance work requirements. Unfortunately, because of the FEPS rules, a penalty on Mr. B’s adult son – a sanction—strips the whole family of their FEPS grant. If the family is able to get through for the next two years, Mr. B’s daughter will then no longer be considered a child for purposes of the FEPS grant, and the family will lose their FEPS eligibility and their apartment. Broadening the FEPS eligibility categories or offering this family a grace period and housing search support or another subsidy is necessary to keep Mr. B and his family in their home.
Another client, Ms. A, receives public assistance and lives with her 15 year old son, an SSI recipient, and two adult children, who are also public assistance recipients. Ms. A’s older adult child did not go away to college because she feared her family would lose their housing were she to leave and lose her portion of the subsidy. Her second adult child does not always comply with the public assistance rules. Frequently, these two children are threatened with sanctions or sanctioned, usually erroneously, occasionally lawfully, reducing the entire family’s public assistance grant, positioning them always on the edge of eviction. The best solution for Ms. A might be to get her own apartment with her minor dependent child; however, with a FEPS rent cap of $900 for a household of two, Ms. A cannot find an apartment to accommodate herself and her 15 year old son. She fears she will live on this edge of losing her housing interminably; she’s currently in court on the third eviction proceeding against her and she is scared.
Changing FEPS would change the lives of Mr. B and Ms. A, and a multitude of other New Yorkers constantly on the edge of housing crises. Please consider supporting changes to keep these families in their homes.
d. Sanction and Conciliation Bill and Policy Reform
Currently, sanction issues and fair hearings scheduled to adjudicate the merit of HRA’s proposed sanctions on public assistance recipients account for many of the benefits reductions and hearing traffic that our clients and our office experience. Approximately 68%, or 12,235 of the 17,975 average of recipients in employment-related sanction status each month last year across the State were New York City public assistance recipients.
Sanctions are pro-rata reductions on public assistance benefits. The reduction takes a public assistance household member’s benefits off the case via a reduction of household size to account for the loss of the benefit portion of a household member allegedly not complying with the work rules. This means that a three-person household would receive two-thirds of the benefits of a three-person household during the duration of the sanction on the allegedly non-compliant household member. For instance, a three-person maximally eligible household receiving $789 in total monthly public assistance benefits ($400 in shelter allowance and $389 in the food and other allowance), would be reduced to $526 monthly. For the same three-person household maximally eligible for public assistance that also receives FEPS, the benefits, including the FEPS, would all be pro-rated, and the family would receive $826 out of the prior total of $1239 ($850 in shelter allowance and FEPS plus $389 for food and other). This FEPS-recipient household would then be left with less than the normal shelter grant to pay a $1050 rent, without any cash assistance for any other family necessities.
HRA’s position, based on analysis of its own data, is that “there is a connection between [HRA adverse benefits] action and applications for shelter.” HRA found that during 2012 and 2013, a total of 50,045 individuals were sanctioned and that almost 14% of the total sanctioned recipients applied for DHS shelters after the sanction was implemented. Further, 96.3% of these applications of sanctioned recipients included children. Sanctions can devastate families already struggling to meet their daily needs even without causing further housing instability, but as HRA demonstrates with its data, sanctions frequently contribute to a family losing housing altogether. The loss of a stable home and secure base make it even harder for City residents to comply with public assistance requirements unrelated to eligibility, and then to try to comply after the end of the duration of a sanction.
Proposed legislation, S.3596 (Savino) (same as A.4250 (Wright)), would dramatically improve the ability of public assistance recipients and HRA to immediately redress both Agency error and isolated instances of non-compliance with good cause before damage, sometimes irreparable, to the well-being of the family occurs as a result of a sanction and substantial loss of benefits to NYC residents. The bill focuses on preventing sanctions from occurring in the first place, by delineating specific checks for workers to follow as first steps toward determining whether an instance of non –compliance was both willful and without good cause, the legal standard for implementation of this type of sanction-based benefit reduction. For instance, the bill guides the pre-sanction analysis to ensure that the allegedly non-compliant individual was not and should not be exempted entirely from the specific work requirement at issue and does not need an accommodation to comply with the requirement. Further, the bill gives recipients a reengagement opportunity after an isolated instance of alleged non-compliance, which better meets the work participation rates and employment training and goals than the current system that oversanctions and terminates participation after one allegation of non-compliance. The bill would also require the sanction to last until compliance, instead of for a set amount of time as is currently the case, meeting the goals of causing some cost to non-compliant participants to further incentivize compliance and maximizing participation and training and benefits stability for recipient families.
The legislation would also have vast impact on fair hearing requests, dispositions, and overall cost of hearing administration. During the period of April 1, 2013 through March 31, 2014, NYC public assistance recipients requested 20,464 hearings on employment related sanctions alone. HRA has vastly improved its backlogged hearing calendar by resolving many of these sanction-related hearings via a coordinated but temporary pre-hearing disposition plan with the State. But the counterproductive policies of punishment the current law and rules perpetuate for isolated instances of non-compliance and the durational penalization of recipients eager and willing to comply, will be recurring until this bill or a similar measure is adopted. Recipients will continue to request hearings on sanction issues, relying on the State to administer and adjudicate issues that would better be resolved at City and center level in the first instance, and relying on the State to bear great financial cost in the holding of these thousands of hearings. The hearing process and procedures themselves would also benefit, reducing hearing officer workload and offer more instances of only issues of debated and debatable fact and legal questions coming before OTDA’s hearing officers.
Please consider NYLAG’s recommendations to increase the public assistance shelter allowance, improve the benefits of and access to FEPS, and support the sanctions and conciliation bill. Thank you again for your invitation and action on behalf of New York City residents in need of social services.
Camille Zentner, Supervising Attorney
New York Legal Assistance Group
 Id at 10.
 Fair Market Rent by county engine available at http://www.huduser.org/portal/datasets/fmr/fmr_il_history/select_Geography.odn, data sets provided by the U.S. Department of Housing and Urban Development via http://www.huduser.org/portal/home.html.
 See, e.g., City Policy Directive 14-04-ELI, Revision to Family Eviction Prevention Supplement, detailing the FEPS numbers and rules.
 For New York City Section 8 Voucher payment standards, see http://www.nyc.gov/html/nycha/html/section8/voucher_payment.shtml.
 See 2014 Statistical Report on the Operations of New York State Public Assistance Programs, page 52, available at https://otda.ny.gov/resources/legislative-report/2014-Legislative-Report.pdf.
 See 18 NYCRR 385.12 for regulations regarding durational sanctions and pro rata reductions. See City Policy Directive 14-04-ELI, Revision to Family Eviction Prevention Supplement, detailing the FEPS numbers and rules, including regarding pro rata reductions. This pro rata reduction of the FEPS benefit is an improvement of prior FEPS programming, which had required that the FEPS be discontinued entirely upon the implementation of a sanction on any household member.
 See Testimony by Steven Banks, Commissioner of HRA, for the 2015 City Council Executive Budget Hearing, May 19, 2014, page 5, available at http://www.nyc.gov/html/hra/downloads/pdf/news/testimonies/2014/may_2014/HRA_Executive_Budget_Testimony_2015.pdf .
 Id. pages 5-6.
 Report provided by HRA to advocates during 2014 Fair Hearing Resolution working group meetings, available upon request from Camille Zentner, NYLAG attorney.