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Garcia v. Department of Housing and Community Development

Supreme Judicial Court of Massachusetts, Suffolk

October 11, 2018

ROSANNA GARCIA [1] & others [2]
v.
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT.

          Heard: May 8, 2018.

         Civil action commenced in the Superior Court Department on December 9, 2016. A motion for a preliminary injunction was heard by Douglas H. Wilkins, J., and motions for reconsideration and for a stay of the preliminary injunction were heard by him.

         After consolidation in the Appeals Court of this case with an appeal from an order of a single justice of the Appeals allowing a motion to stay the preliminary injunction, the Supreme Judicial Court granted an application for direct appellate review.

          Samuel M. Furgang, Assistant Attorney General (Kimberly A. Parr, Assistant Attorney General, also present) for the defendant.

          Ruth A. Bourquin (Laura Massie also present) for the plaintiffs.

          Lerae Kroon & Andrea M. Park, for Massachusetts Law Reform Institute & others, amici curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          LENK, J.

         Certain low income families in Massachusetts facing the harsh reality of homelessness are served by an emergency shelter program, run, since 2009, by the defendant Department of Housing and Community Development (DHCD) . This case is before us on an interlocutory appeal by DHCD of a class-wide preliminary injunction concerning its operation of that shelter program. The preliminary injunction in essence prohibits DHCD from following, in certain circumstances, its stated policy regarding the use of motels.

         The plaintiffs are among the roughly 3, 500 people currently served by the emergency assistance (EA) program. Their dire circumstances, affecting their families in different ways, give rise to various shelter needs which the program attempts to address. The DHCD in recent years has greatly expanded the number of shelter beds provided across the State, and has used motel placements as a last resort only when overflow needs require it, or in limited exigent circumstances. The plaintiffs contend that, in the process of reducing its reliance upon motels, DHCD has violated Massachusetts statutes by failing promptly to place families in shelters within twenty miles of their home communities or to restore them to those communities as quickly as possible, and has violated the Americans with Disabilities Act (ADA), among other Federal statutes, by failing promptly to accommodate the plaintiffs' or their children's disabilities.

         Insofar as relevant to the challenged preliminary injunction, this case concerns those plaintiffs who have recognized needs under the ADA for shelter placements different from the ones in which they are currently housed, but whose needs are as yet unmet. These needs include being closer to medical providers or being placed in a non-congregate setting to accommodate a behavioral, dietary, or other disability. While DHCD has approved transfers to placements accommodating those disability needs "when administratively feasible," it has not yet implemented those transfers, despite the willingness of those affected to accept motel placements.

         A Superior Court judge certified the plaintiff class; the class includes every family who is eligible for, and has applied for, emergency shelter, but did not immediately receive a placement that both (1) was within twenty miles of its home community, and (2) satisfied a requested disability accommodation, if any. The judge also certified a subclass, for purposes of the ADA claims, of plaintiffs with a disability or whose child has a disability.

         Before the completion of discovery, the plaintiffs sought a class-wide preliminary injunction directing DHCD to use motels as EA placements to the extent necessary (1) to ensure that children are able to continue school in their home communities, (2) promptly to place families within twenty miles of their home communities; and (3) to meet the reasonable accommodations of class members with disabilities. The judge allowed, in part, the motion for a class-wide preliminary injunction and ordered as follows:

"1. Notwithstanding its policy on motels, DHCD shall treat motels and hotels as available placements when implementing approved ADA accommodation requests in the EA program.
"2. If a hotel or motel placement will meet an approved ADA accommodation request for an EA-recipient household, and DHCD cannot provide that accommodation in any other way, then DHCD must place the household in a hotel or motel on at least an interim basis until it provides the accommodation through an approved contracted shelter, or otherwise."

         The class-wide preliminary injunction applies to a narrow group within the certified sub-class: those EA participants whose ADA accommodation requests had been approved by DHCD, but not yet implemented, and whose requests could be satisfied by a motel placement. The judge denied the motion for a preliminary injunction for all other class members and on all other claims. DHCD's appeal from the class-wide preliminary injunction is before us on a joint request for direct appellate review.

         The judge concluded that DHCD likely had violated three regulations promulgated under the ADA. The first requires public entities to provide reasonable accommodations in order to avoid discrimination on the basis of disability. See 28 C.F.R. § 35.130(b)(7) (2017). The judge assumed that, where DHCD has made an individualized determination to transfer a family in order to accommodate a disability "when administratively feasible," the shelter bed where the family resides in the interim becomes "ADA noncompliant." The judge then concluded that such shelter beds are not "available," within the meaning of DHCD's statutory mandate, which permits the use of motels when a shelter bed is not available. "[W]e are cognizant that time presses sharply on a family with children struggling against destitution," Smith v. Commissioner of Transitional Assistance, 431 Mass. 638, 652 (2000), and do not doubt that disability needs among homeless families require urgent accommodation. The judge erred, however, in concluding that any delay in providing an ADA accommodation is a per se violation of law.

         The judge concluded also that DHCD likely violated ADA regulations that prohibit public entities from providing services or siting facilities in a manner that has the effect of discriminating on the basis of disability. See 28 C.F.R. § 35.130(b)(1), (4) (2017). This conclusion, however, was premised on a factual predicate that is not supported by the record.

         As a result, we conclude, based on the preliminary record, that the plaintiffs have not shown a likelihood of succeeding on their claim that DHCD's motel policy violates the ADA by discriminating on the basis of disability. See Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980). Accordingly, the order of preliminary injunction shall be vacated and the matter remanded for further proceedings.[3]

         1. Background.

         a. The EA program.

         General Laws c. 23B, § 30, requires DHCD to "administer a program of emergency housing assistance to needy families with children and pregnant wom[e]n with no other children ... at locations that are geographically convenient to families who are homeless or at-risk of homelessness." As stated, approximately 3, 500 families are served by the EA program; according to DHCD, it is the only Statewide emergency shelter program in the country.

         DHCD must administer the EA program "[s]ubject to appropriation." Id. The Legislature appropriates funds for the program through two budgetary line-items, one of which contains a number of provisos; these provisos have the force of law. See St. 2017, c. 47, § 2, line items 7004-0100, 7004-0101; Opinion of the Justices to the Senate, 375 Mass. 827, 834 n.2 (1978). The transfer proviso states, "if the closest available placement is not within [twenty] miles of the household's home community, the household shall be transferred to an appropriate shelter within [twenty] miles of its home community at the earliest possible date." St. 2017, c. 47, § 2, line item 7004-0101. The placement proviso similarly directs that, "an eligible household that is approved for shelter placement shall be placed in a shelter as close as possible to the household's home community." Id. Pursuant to the education proviso, DHCD shall make "every effort" "to ensure that children receiving services . . . shall continue attending school in the community in which they lived before receiving services."[4] Id. Finally, the "motel proviso" requires that "funds shall be expended for expenses incurred as a result of families being housed in hotels due to the unavailability of contracted shelter beds."[5] Id. The authorizing statute also mentions the use of motels in the EA program. See G. L. c. 23B, § 30.

         DHCD has promulgated regulations to implement the EA program. See G. L. c. 23B, § 30 (A); 760 Code Mass. Regs. §§ 67.00 (2012). Under DHCD's regulations, "[a]n EA household shall be placed in a family shelter when such shelter is available." 760 Code Mass. Regs. § 67.06(3) (b) (1) . "The EA household will be placed in an interim placement, such as shelter beyond [twenty] miles or a hotel/motel, only if appropriate [DHCD]-approved family shelter space is not available," and will be transferred to an approved family shelter within twenty miles of its home community at the "earliest date" possible. 760 Code Mass. Regs. § 67.06(3)(e)(1).

         The majority of the funding appropriated for the EA program is committed at the beginning of each fiscal year to pay for the cost of family shelters and related services. Because the amount authorized under the budget for a given fiscal year typically is insufficient to cover these costs for one full year, DHCD historically has entered into nine-month contracts with shelter providers, with the expectation that the Legislature will approve an increase in appropriation for the line item;[6] in the past, DHCD has entered into shelter contracts as short as three days in length due to delays in enacting supplemental budgets.

         The EA program makes use of three types of family shelters, and uses motels when family shelter beds are unavailable. Congregate shelters serve multiple families and have professional support staff, as well as cooking facilities and common spaces. Scattered-site shelters and co-shelters are apartments leased by DHCD service providers. When DHCD contracts with shelter providers, it pays for a fixed number of each type of shelter unit for a fixed period of time, and is responsible for those costs regardless whether all of the units are ultimately used.

         The EA program previously was administered by the Department of Transitional Assistance. That department utilized motels as shelter overflow capacity; it temporarily ended the use of motels between 1996 and 1999, as well as from 2004 through 2007. When DHCD became responsible for administering the EA program in 2009, 842 EA families were placed in motels. According to DHCD, the executive branch has been committed to ending the use of motels since the 1990s, but overflow motel space was necessary to meet increased demand for emergency shelter during the "Great Recession" of 2007-2009.

         DHCD contracts with motel providers at a per diem rate for a specific number of days, subject to room availability, and only pays if a motel room is actually used. Beginning in September, 2013, DHCD has expanded its family shelter capacity, thereby reducing reliance on motels. DHCD views family shelters as a superior form of placement due to their relative safety and the ease with which DHCD can provide support and services in family shelters. From September, 2013, through June, 2017, DHCD added 1, 664 new family shelter units, an eighty-two per cent increase in the Commonwealth's family shelter capacity. Nearly thirty per cent of the increase took place in Boston, which is the area of greatest need. The number of families in the EA system who were placed in motels dropped from approximately 500 in June, 2016, to forty-two in July, 2017. At the time of filing, DHCD had a contract with only one motel.[7]

         As a matter of policy, DHCD no longer assigns new EA families to motel placements, other than under a "rare exception." While the record does not contain a definition of "rare exception," in its brief, and at oral argument, DHCD has acknowledged that it cannot entirely take motels off the table, as it were, and may need to place a family in a motel when the family is physically unable to access any vacant shelter units.

         b. Disability accommodation in the EA system.

         Title II of the ADA requires a public entity, such as DHCD, to provide reasonable accommodations to persons with disabilities where necessary to avoid discrimination. See 42 U.S.C. §§ 12131-12132; 28 C.F.R. § 35.130(b)(7). Once a family is deemed eligible for the EA program, DHCD asks whether any family member has a disability. DHCD also inquires as to factors affecting a family's placement needs; this inquiry includes whether the family has any needs related to disability. If a family indicates that one or more of its members has a disability, DHCD provides the family a form to request a disability accommodation. The family can request a number of accommodations including, inter alia, transfer to a location closer to a medical provider; permission to have a service animal; non-congregate housing for a child whose disability requires a private environment; and physical modifications, such as a wheelchair ramp or grab bars.

         After receiving a request for an ADA accommodation, DHCD either makes a determination within thirty days, or engages in an "interactive process" with the EA participant to determine a reasonable accommodation. DHCD approves a variety of accommodations, including requests for transfers to particular locations and to non-congregate housing, "when administratively feasible, taking into account the availability of placements and the level of need as compared to other granted accommodations of other participants." The record indicates that when DHCD approves such a transfer, it notifies the EA family that the transfer will take place "when administratively feasible."

         c. Prior proceedings.

         The named plaintiffs filed their first amended complaint in December, 2016, on behalf of themselves and all others similarly situated. The complaint contains claims that the DHCD (1) failed immediately to place families "who are eligible for immediate placement," in violation of St. 2016, c. 133, § 2, line item 7004-0101; (2) "failed to place" families as "close as possible" to their home communities, to "transfer families to within [twenty] miles of their home communities 'at the earliest possible date, '" and to use "'best efforts' to ensure children can continue in school in their prior community," in violation of St. 2016, c. 133, § 2, line item 7004-0101; (3) has engaged in "discrimination against families that include a qualified person with a disability" due to the insufficient number of family shelter units that can accommodate their disability needs in their home communities, in violation of the ADA and "related [S]tate and [F]ederal laws"; (4) has violated Title VIII of the Civil Rights Act of 1964, 42 U.S.C. §§ 3604(f), and the Fair Housing Act and related provisions, 42 U.S.C. §§ 3608(e)(5), 12705, and 1437; and (5) has failed to administer the EA program in a manner that is "fair, just and equitable," in accordance with G. L. c. 23B, § 30. The complaint asserts that the alleged violations are "occurring in substantial part because the [d]epartment has failed to create enough shelter units in the areas of highest demand and is exacerbating the problem by refusing to use motel rooms to keep families close to their prior communities or to otherwise accommodate the family's needs." The plaintiffs sought class certification, damages, and declaratory and injunctive relief.

         In June, 2017, putative class member Maria Prodoscimo successfully moved to intervene; she sought preliminary individualized injunctive relief directing DHCD to transfer her family to a location without stairs in the Greater Boston area. The judge preliminarily found[8] that DHCD had been informed that Prodoscimo's son was scheduled to receive knee surgery that July, that his medical provider recommended that he take residence in a ground-floor apartment, that Prodoscimo's counsel accordingly had requested an ADA accommodation, and that DHCD had not responded to the request. The judge ordered DHCD to transfer the Prodoscimos, by the following day, to a placement that did not require the use of stairs, within the Greater Boston area, and to use a motel if necessary. The judge discussed the question "whether DHCD may adopt a policy refusing to ...


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