When the matter reached the single justice, it was too late to order the department to fulfil its duty to make reasonable efforts to eliminate the need for removal, but it was not too late to ensure that the department fulfilled its duty to make it possible for the child to return safely to his father or to attempt to hasten the time when that reunification would become practicable. See generally Smith v. Commissioner of Transitional Assistance, 431 Mass. 638, 653, 729 N.E.2d 627 (2000), quoting Correia v. Department of Pub. Welfare, 414 Mass. 157, 170 n.14, 605 N.E.2d 1233 (1993) (judge did not abuse discretion "in ordering steps she could have found were necessitated by the department's 'fail[ure] to rectify the problems with its policies and procedures, [such that] a more specific order, detailing particular steps to be taken, [was] appropriate' "). Where a judge grants the department temporary custody but determines that reasonable efforts were not made by the department prior to removal, the department is ineligible for Federal reimbursement for the child's foster care maintenance payments for the duration of the child's stay in foster care.
However, if the agency "fails to rectify the problems with its policies and procedures, a more specific order, detailing particular steps to be taken, [becomes] appropriate." Correia v. Department of Pub. Welfare, 414 Mass. 157, 170 n. 14 (1993), citing Massachusetts Coalition for the Homeless v. Secretary of Human Servs., supra at 823. The question here is whether the injunctive orders of May 13 and May 20 were an abuse of the judge's discretion because she did not allow the department sufficient opportunity to meet its statutory obligations, or were instead warranted because the department failed timely to rectify the impingements on rights caused by the impermissible regulations.
While the judge appropriately observed the narrow scope of judicial review under G.L.c. 30A, § 14, the department's stated reasons for denying benefits place an unreasonable burden of proof on the applicant in a setting where the department is supposed to be helpful, albeit with watchful eye for overreaching or fraud to its constituents. As the court observed in Correia v. Department of Pub. Welfare, 414 Mass. 157, 164 (1993), "[a]lthough the department has broad discretion to implement the program as it chooses, . . . denials for arbitrary and technical reasons rise to the level of unreasonableness." According to G. L. c. 18, § 2(B)( d), which describes the department's obligations in the implementation of its programs, the department has an obligation to provide assistance "on a fair, just and equitable basis."
It is, in substance, the state law counterpart to the federal "equitable treatment" requirement in 45 C.F.R. § 233.10(a)(1). Thus, in Correia v. Department of Public Welfare, 414 Mass. 157 (1993), the Court held that when the DPW implements an assistance program in an unreasonable way, or denies benefits for arbitrary reasons, the DPW violates G.L.c. 18, § 2(B)(d). Id. at 164.
In establishing such eligibility criteria, the department still must fulfil its obligation under G.L.c. 18, § 2 (B)(d), to provide assistance "on a fair, just and equitable basis." See, e.g., Correia v. Department of Pub. Welfare, 414 Mass. 157, 164 (1993). The judge held that the challenged regulation violates that statutory obligation because it "results in a denial of [EA] benefits to many families who are not at 'fault'" for their homelessness.
See Wright v. Califano, 587 F.2d 345, 354-356 (7th Cir. 1978); Holmes v. New York City Hous. Auth., supra at 265; Dealy v. Heckler, 616 F. Supp. 880, 886 (W.D. Mo. 1984). See also Ressler v. Pierce, supra; Correia v. Department of Pub. Welfare, 414 Mass. 157 (1993) (applicants for public assistance entitled to due process protection); L.H. Tribe, American Constitutional Law § 10-9, at 690 n. 37 (2d ed. 1988) ("[I]t would be inconsistent with any intelligible rationale underlying due process protection to deny all procedural safeguards to the new applicant where the law provides that all individuals meeting certain objective criteria are entitled to, say, welfare"). For a person in the plaintiff's position, public housing is very likely to be housing of last resort and, it is self-evident that the availability of such housing is of critical importance.
These policies and procedures are entitled to deference. See Correia v. Department of Pub. Welfare, 414 Mass. 157, 169 (1993). Although the hospital did restrict the defendant to its buildings and grounds, it did so in accordance with promulgated policies and procedures.
According to the Appellant, the lack of specificity in the notice and the regulations violates his due process rights. See, Goldberg v. Kelly, 397 U.S. 254, 267 (1970); Avanzo v. Fallon, 625 A.2d 208, 211 (R.I. 1993); Carey v. Quern, 588 F.2d 230, 232 (7th Cir. 1978); Baker-Chaput v. Cammett, 406 F. Supp. 1134, 1139 (D.N.H. 1976); and Correia v. Mass. Dept. of Public Welfare, C.A. No. 92-2468B, slip op. (Suffolk Cty. Superior Ct., Mass. 8/17/92 (granting preliminary injunction), aff'd on other grounds, 605 N.E.2d 1233, 414 Mass. 157 (1993). Additionally, the Appellant argues, the appeals officer abused his discretion at the hearing by failing to allow the Appellant additional time to get further documentation of his medical condition, despite the hearing officer's duty to "develop the record" pursuant to DHS Manual § 110.50.
Nuclear Metals, Inc. v. Low-Level Radioactive Waste Management Board, 421 Mass. 196, 211 (1995) (citations omitted). See also Dowell v.Commissioner of Transitional Assistance, 424 Mass. 610, 612-613 (1997);Correia v. Department of Public Welfare, 414 Mass. 157, 165 (1993). Here, if the Commissioner's interpretation of G.L. c. 175, § 113H "is contrary to the plain language of the statute and its underlying purpose," it must be rejected.
On the other hand, "[t]he deference which an agency decision is due does not extend to an unreasonable interpretation of its regulations." Salaam, 43 Mass. App. Ct. at 44 (citing Correia v. Dep't of Pub. Welfare, 414 Mass. 157, 165 (1993)). Galeas argues that the hearing officer should have considered that she slapped the victim in defense of her three-year-old son.