NLADA Comments to HUD Regarding Confidentiality and Homelessness Assistance Stimulus

NLADA has been working with the Department of Housing and Urban and Development (HUD) for the past several months around the issue of client confidentiality with respect to homelessness assistance stimulus money. This issue arose after a number of legal aid programs applying for funds under the Homelessness Prevention and Rapid Re-Housing Program (HPRP) of the American Recovery and Reinvestment Act (ARRA) were being mandated by their state and local authority administering ARRA funds to participate fully in the Homeless Management Information System (HMIS). In order to receive HPRP funds, many programs feel that client-specific information had to be released that is protected by the attorney-client privilege. NLADA addressed these concerns on behalf of legal services organizations in its June 11, 2009 memorandum to the HUD General Counsel, Helen Kanovsky.

HUD responded to the NLADA memorandum in an August 6, 2009 letter stating that HMIS data is received by HUD from local Continuum of Care programs in an aggregated form and thus does not, at the HUD level, include personally identifiable client information that would compromise the attorney-client privilege. HUD concluded that "based on their review of HMIS reporting requirements, the data standards used by HMIS for the HPRP do not impose a requirement to collect information that is confidential, attorney-client privileged or that would over-ride an attorney's rules of professional responsibility."

On August 14, HUD issued a response to a Frequently Asked Question (FAQ) around reporting requirements for grantees and subgrantees of HPRP funding. This FAQ clearly states that legal services providers are to be treated similarly to domestic violence programs in that they can provide aggregate data (rather than individualized client-specific data) to local Continuums of Care. Please click here to view this FAQ.

After discussing HUD's response with several legal aid programs around the country, NLADA submitted a follow-up letter to HUD General Counsel Kanovsky on September 30, 2009. In this letter, NLADA shared a continuing concern from legal aid providers about client information received directly by Continuum of Care organizations, pre-aggregated form, that reveals confidential or privileged information about clients being served. We recommended that HUD issue a directive to Continuum of Care organizations that would define confidential fields that are protected under the rules of professional responsibility. NLADA suggested that these confidential fields include the client's name, social security number, address and date of birth. To avoid duplicate counting of recipients, we suggested further that HUD devise a process of identifying individuals, such as assigning unique client identifiers, without using the above-mentioned confidential fields.

HUD abides by the August 14 FAQ and has indicated to NLADA that it serves as the primary guidance on the issue of protecting client-level information by allowing legal services providers to submit aggregate data to CoCs. To date, HUD has not issued any other guidance on the matter. NLADA has heard from a number of programs since our September 30 correspondence to the HUD general counsel that HUD has directed CoCs to accept aggregate data, without identifying client-level information, from legal aid programs. Similarly, a number of programs report having success with negotiating new informational protocols.

In an effort to build a record of this information against recalcitrant CoCs, please contact Don Saunders, vice president of Civil Legal Services, (d.saunders@nlada.org), or Hillary Evans, civil associate, (h.evans@nlada.org), with successful examples of CoCs complying with this FAQ or other experiences, good or bad, regarding this issue. We are particularly interested in any comparable data base examples that have been accepted that can be shared with colleague programs to use with their local CoC's.