National Alliance on Mental Illness
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Rules Docket Clerk
Office of General Counsel
Room 10276
U.S. Department of Housing and Urban Development
451 7th Street, S.W.
Washington, DC 20410

Re: Docket Number FR-4495-P-01

I am writing on behalf of the National Alliance for the Mentally Ill (NAMI) to provide comments on the Department of Housing and Urban Development's (HUD) proposed rule on "One Strike Screening and Eviction for Drug Abuse and Other Criminal Activity" (Docket Number FR-4495-P-01, Federal Register 40262-40280, July 23, 1999).

NAMI is the nation's largest national organization -- 208,000 members -- representing persons with serious brain disorders and their families. Through NAMI's 1,200 offices and affiliates in all 50 states, we support education, outreach, advocacy and research on behalf of persons with serious brain disorders such as schizophrenia, bipolar disorder, major depression, severe anxiety disorders and major mental illnesses affecting children. Access to decent, safe and affordable housing is a high priority for NAMI's consumer and family membership. Stable housing is the most critical element of recovery for most adults with severe mental illness.

NAMI's membership knows first-hand that successful outcomes with respect to mental illness treatment are not possible without stable housing. Moreover, experience has taught our consumer and family membership that the ability to obtain and retain stable housing can be made all the more difficult when an individual with a severe mental illness such as schizophrenia or bipolar disorder has a co-occurring substance abuse problem. NAMI's consumer and family membership also knows from experience that lack of access to stable housing too frequently results in the "criminalization" of mental illness.

Over the past three decades, we have witnessed the failure of a massive social experiment in public mental health policy known as "deinstitutionalization." This policy was designed to close outdated and inhumane public psychiatric hospitals and transfer former patients into the community where they would receive housing and support services in a less restrictive and less costly environment. Unfortunately, this policy failed in many parts of the country as states and localities neglected to meet their end of this social contract. The result was (and still is) that too many adults with severe mental illness were left on their own without access to treatment, housing and supports.

NAMI believes that the most profound consequence to society resulting from the failure to provide adequate psychiatric treatment in the community has been the "criminalization" of mental illness. In many communities across the country, jails and prisons have been turned into psychiatric hospitals of last resort. The very symptoms of untreated schizophrenia and bipolar disorder (delusions, hallucinations, confused thought patterns) can readily lead to consumers committing misdemeanor and non-violent felony offenses. This phenomenon is all the more likely to occur when an individual has a co-occuring drug or alcohol abuse problem.

Inevitably, too many adults with severe mental illness end up cycling repeatedly through the criminal justice and homeless service systems, never receiving effective, integrated treatment services for their mental illness and their substance abuse disorders. This failure of public treatment systems, in turn, leaves many consumers with a criminal record and a history of unsuccessful attempts at substance abuse recovery. It is easy to see how their ability to access and retain stable housing is difficult, if not impossible. NAMI is therefore very concerned about the recent shift in federal housing policy intended to limit access to public and assisted housing on the basis of substance abuse and criminal history.

At the outset, I would like to make clear that NAMI shares the goals established by Congress and HUD in both the Housing Opportunity Program Extension Act (P.L. 104-120) and the Quality Housing and Work Responsibility Act of 1998 (P.L. 105-276) -- namely enhancing the safety and environment of public housing, Section 8 and federally supported assisted housing (particularly Section 811, a federal program intended and designed to serve individuals with severe mental illness). We know that adults with severe mental illnesses are among the poorest citizens in our country (monthly SSI cash benefits average only about 24 percent of median income levels) who rely heavily on these public resources for housing assistance. Individuals with severe mental illnesses are just as likely as all other public and assisted housing tenants and Section 8 holders to have their "health, safety or right to peaceful enjoyment of the premises" disrupted when someone is illegally or inappropriately placed in affordable housing. At the same time, NAMI believes that every effort should be made to ensure that tenants with severe mental illnesses be given reasonable accommodation to access and retention of housing as part of their efforts to attain recovery.

NAMI would like to offer the following comments on HUD's proposed regulations. In doing so, NAMI recognizes that Congress clearly established a national policy that leaves little room for discretion and flexibility for HUD, housing authorities, owners and landlords in trying to help individuals access and retain housing if there is a history of interaction with the criminal justice system or treatment for chemical dependency. At a minimum, this lack of flexibility runs counter to the spirit of the Americans With Disabilities Act (ADA) and the Fair Housing Amendments Act of 1988 - federal civil rights laws that are built on the foundation of "reasonable accommodation" for an individual's disability. Nevertheless, NAMI would like to offer the following specific comments about several areas where we believe that the proposed rules exceed statutory requirements set forth by Congress.

1. Drug abuse by applicants; obtaining information from a drug treatment facility
Section 960.204 appears to closely follow the statutory authority set forth by Congress. For example, the regulations reference only disclosure of information from drug treatment programs. NAMI supports this view and believes that the legislative history makes clear that Congress in no way intended for any of these disclosure rules to apply to records related to mental illness treatment services, e.g. psychiatrists, community mental health centers, etc. However, in one specific area, NAMI believes that HUD may have strayed from congressional intent.

In the statute, Congress made clear that the request for use and handling of information from drug treatment programs must adhere to existing federal law and regulations that govern the confidentiality of alcohol and drug abuse patient records (specifically, 42 U.S.C. 290dd-2 and 42 C.F.R. Part 2). These protections, both in statute and regulation, authorize treatment programs to disclose protected information in a limited number of circumstances, including consent. For example, Section 2.3(b)(1) of the regulations provides for a bar disclosure, except in a limited number of circumstances such as consent. However, the regulations clearly state that in circumstances where the prohibition on disclosure is removed, disclosure is not compelled; i.e., "the regulations do not require disclosure under any circumstances."

By contrast, the HUD-proposed rule (Section 960.204(d)(3)) ignores this standard by actually requiring a drug treatment facility to provide information requested by the PHA. While this section of the proposed rule prefaces this requirement with a reference to the confidentiality statute (i.e., "subject to Section 543 of the Public Health Service Act (42 U.S.C. 290dd-2)"), that reference appears to mean that disclosure must be based on a consent form that complies with the confidentiality regulations. NAMI believes that it is inherently inconsistent for HUD to mandate that a drug treatment program disclose information (i.e., information that it is entitled to not disclose) while requiring the same program only to disclose information consistent with the confidentiality law.

The Congress was fully aware of the standard in Section 2.3(b)(1) under the confidentiality regulations when they enacted both P.L. 104-120 and P.L. 105-276, and nothing in either statute indicates congressional intent to override Section 2.3(b)(1), or any other provision of the confidentiality law or regulations. These standards have been in place for 25 years and are widely accepted in the substance abuse treatment field. They should not be undermined by federal housing law, especially since housing authorities have so many other probative sources of information about prospective tenants. People participating in treatment should be protected to the greatest extent possible. NAMI urges HUD to delete this section from the regulations.

2. Drug and alcohol abuse; owner discretion
Section 5.860(a) appears to reflect the statutory requirement that individuals may demonstrate rehabilitation through participation in, or successful completion of, a supervised drug or alcohol rehabilitation program, or by demonstrating that they have otherwise been rehabilitated. This final standard reflects Congress' understanding that some individuals can, and do, achieve recovery through means other than a supervised drug or alcohol rehabilitation program. This is especially the case for adults with co-occurring mental illness and chemical dependency who may be participating in an integrated treatment program overseen by a public mental health agency or community mental health center.

By requiring proof of rehabilitation, Section 5.860(b)(2) does not appear to reflect the three prongs of Section 5.860(a) by omitting "being otherwise rehabilitated." To the extent that individuals are required to provide proof of rehabilitation, they should be permitted to meet that requirement in any of the three ways that qualify as rehabilitation. Further, NAMI believes that HUD should further define the third prong ("being otherwise rehabilitated") by specifically referencing participation in integrated treatment plans overseen by mental health providers. This same concern would apply to proposed Sections 882.518(b)(5)(ii)(B), 960.203(f)(3), 966.4(f)(12)(vi)(B)(2), and 982.553(c)(2)(ii).

NAMI would also like to note the confusing nature of Sections 5.860(a) and (b)(1) of the regulations when applied in a way that violates the Fair Housing Amendments Act and (in the case of PHAs) Title II of the Americans With Disabilities Act. These provisions of the proposed rule appear to permit a PHA to exclude individuals in recovery from substance abuse indefinitely, even if they have been in recovery for a long period of time and pose no present threat to the premises or other tenants. Such individuals would be protected against discrimination under the FHA and the ADA.

3. Prohibiting admissions of drug criminals
Section 5.853(c) of the proposed rules would permit an owner to exclude an individual who has been evicted for drug-related criminal activity for a reasonable time, but not less than three years from the judicial determination authorizing eviction. This provision appears to exceed the requirement in the statute (42 U.S.C. Section 13661(a)) granting the owner discretion to set a reasonable period of exclusion. The statute fixes that period, absent proof of rehabilitation, at three years. NAMI urges HUD to consider adhering to the statutory three-year requirement so that an owner's cannot arbitrarily establish a longer exclusion period in cases where there is no evidence that a prospective tenant would interfere with the health, safety or quiet enjoyment of other tenants. This is especially necessary in cases where a public or non-profit agency is seeking to place a client in a housing unit and has an ongoing obligation to provide monitoring of treatment services. The experience of NAMI's membership makes clear that, for individuals with co-occurring disorders, stigma and discrimination are nearly certain to result in owners seeking substantially longer exclusionary periods.

4. Evidence of criminal activity
Section 5.858 of the proposed rules permit an owner to deny housing, or to evict, an individual for criminal activity by his or her family member, even if there was no arrest or criminal conviction. NAMI believes that this provision exceeds the statutory and regulatory standards in the public housing law (42 U.S.C. Section 1437(d)(1)(6) and 24 C.F.R. Section 966.4(1)(5), which authorize exclusion only if the alleged criminal activity "threatens the health, safety or right to peaceful enjoyment of the premises by other tenants . . . ." This is the same standard as that proposed in Section 5.857.

Without requiring proof of a nexus between the alleged criminal activity and the threat it poses to other tenants, owners and housing authorities could exclude individuals and families on the basis of alleged crimes that are of no consequence to other tenants. Adults with severe mental illness and their families are especially vulnerable to discrimination under this provision because of the ill person's propensity to be charged with non-violent offenses that are associated with the "criminalization" of mental illness; e.g., vagrancy, loitering, etc. NAMI therefore urges HUD to adopt the statutory standard and limit the circumstances for exclusion to instances where proven criminal activity has a direct impact on other tenants.

On behalf of NAMI's 208,000 consumer and family members and 1,200 affiliates, thank you for considering our comments on these important proposed regulations.

Sincerely,

Andrew Sperling
Director of Public Policy

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