Heard: May 8, 2018.
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.
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
M. Furgang, Assistant Attorney General (Kimberly A. Parr,
Assistant Attorney General, also present) for the defendant.
A. Bourquin (Laura Massie also present) for the plaintiffs.
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.
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.
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.
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.
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.
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
"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."
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.
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.
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
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
The EA program.
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.
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." 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." Id. The authorizing statute
also mentions the use of motels in the EA program. See G. L.
c. 23B, § 30.
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. §
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; in the past, DHCD has entered into
shelter contracts as short as three days in length due to
delays in enacting supplemental budgets.
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.
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.
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.
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.
Disability accommodation in the EA system.
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.
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."
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
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 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 ...