Opinion
No. 99-5159-C
Dated: June 1, 2000.
MEMORANDUM OF DECISION AND ORDER FOR JUDGMENT ON CROSS MOTIONS FOR SUMMARY JUDGMENT
This matter is before the court on cross motions for summary judgement brought by the plaintiffs, the Massachusetts Coalition for the Homeless (MCH), the Travelers Aid Society of Boston (TAS), the Central Massachusetts Housing Alliance (CMHA), Glorie Miller, and Sallie Dew and the defendants, the Department of Transitional Assistance (DTA) (the "department"), and Claire McIntire, Commissioner of Transitional Assistance. In this action, the plaintiffs seek a declaratory judgment that two DTA-promulgated regulations contained in 106 CMR 309.040 are facially invalid, and a permanent injunction enjoining the defendants from implementing them. The defendants seek a declaration that the regulations are valid as promulgated.
Although the promulgated regulations were scheduled to be effective November 1, 1999, the defendants agreed to stay their implementation pending the outcome of this case.
106 CMR 309.040 is the regulation by which the DTA administers the Commonwealth's Emergency Assistance (EA) program, a program that provides temporary financial assistance to keep needy families in a home or to pay for temporary shelter. The DTA administers this program under a general grant of statutory authority given by the Legislature as found in G. L. c. 18, § 2 (D) (1994 ed.), which directs the department, inter alia, "to provide benefits to avoid destitution or to provide living arrangements in a home". G. L. c. 18, § 2 (D). The Legislature uses a specific line item (4403-2120) in its annual budget to fund the EA program, and dollar amounts in the line item are conditioned on any proviso(s) that may accompany it.
There are two regulations within 106 CMR 309.040 that are at issue in this case. The first regulation changes and/or clarifies the eligibility criteria for homeless families to receive EA after that family has experienced certain events. The second regulation changes and/or clarifies the conditions under which the DTA may terminate the benefits of those families on EA who abandon a shelter placement without notice.
The core issues are (1) whether the Legislature's statutory grant of authority, as narrowed by specific EA line-item provisos, allows the department to change the eligibility criteria or benefits for EA recipients, and (2) whether the promulgated regulations actually change the eligibility criteria or benefits or merely clarify them. The plaintiffs argue that the regulations are illegal as they exceed the authority granted in both the statute and the provisos. The defendants claim that the challenged regulations fall within its broad statutory authority and that the plaintiffs' challenge should fail on several procedural grounds. A hearing was held on March 10, 2000. Upon consideration of the oral arguments and memoranda of both parties, this Court makes the following rulings of law and final order on the cross motions for summary judgment. For the reasons discussed below, this Court concludes that the plaintiffs' motion for summary judgment isALLOWED in part and DENIED in part; and the defendants'motion for summary judgment is ALLOWED in part and DENIED in part.
BACKGROUND The Statute: The material facts presented by the parties on the record are not in dispute. EA is a joint Federal-State program established under Title IV-A of the Social Security Act, 42 U.S.C. § 601 et. seq. (1994), which provides temporary financial assistance to homeless families. The Massachusetts Legislature charged the department with administering the program pursuant to G. L. c. 18, § 2 (D) as part of a comprehensive financial assistance program . The statute, (G. L. c. 18, § 2) imposes several duties on the department, including the duties, (1) "[to] formulate the policies, procedures, and rules necessary for the full and efficient implementation of programs authorized by the laws of the commonwealth and federal laws in the area of transitional assistance financial assistance[.]" G. L. c. 18, § 2 (B)(a); (2) "[to] provide the range of transitional assistance financial assistance services on a fair, just and equitable basis to all people in need of such services[.]" G. L. c. 18, § 2 (B)(d); (3) "[to] study the economic problems and welfare services in the commonwealth , and make recommendations to the appropriate branches and agencies of government for broadening and improving the scope and quality of welfare services[;]" G. L. c. 18, § 2 (B)(f); (4) "[to] promulgate rules and regulations to establish the levels of benefits available under the program and to ensure simplicity of administration in the best interest of needy recipients[.]" G. L. c. 18, § 2 (D); (5) to provide "temporary shelter as necessary to alleviate homelessness when such famil[ies] ha[ve] no feasible alternative housing available[,]" G. L. c. 18, § 2 (D)(d); and (6) "[to] take all reasonable actions to minimize abuse and errors[.]" (G. L. c. 18, § 2 (D)(d)).
This statute reads, in pertinent part, as follows:
"(D) Subject to appropriation, the department shall administer a program of emergency assistance to needy families with children and pregnant women with no other children, subject to and in accordance with the provisions of the Social Security Act of 1935, as defined in 45 U.S.C. § 606(e), to provide benefits to avoid destitution or to provide living arrangements in a home. The commonwealth shall accept matching funds from the appropriate federal authorities for said program.
"Said program of emergency assistance shall assist eligible families to prevent destitution or to provide living arrangements in the home.
"The department shall promulgate rules and regulations to establish the levels of benefits available under the program and to ensure simplicity of administration in the best interest of needy recipients. Such benefits shall include, but not limited to, the following: —
"(a) for the prevention of the loss of housing, the actual liability up to three times the monthly rental or mortgage liability;
"(b) for the prevention of utility shutoffs or for the resumption of utility services, up to three months of the actual service liabilities;
"(c) for the provision of home heating assistance, up to three months of the actual fuel liabilities;
"The department shall promulgate regulations which would authorize the department to make payments for a fourth month of rent, utility, or fuel arrearages, if the commissioner certifies in writing that the family would otherwise become homeless, or be without utilities or fuel.
"(d) for the prevention of homelessness, temporary shelter as necessary to alleviate homelessness when such family has no feasible alternative housing available, up to the maximum period subject to federal reimbursement; storage of furniture for up to thirty days; moving expenses of up to one hundred and fifty dollars; advance rent payments of one month's rent; and security deposit not to exceed one month's rent. "
The Budget Provisos: Besides G. L. c. 18, § 2, there is language in several provisos in the Fiscal Year (FY) 2000 annual line item appropriation for the EA program that also expresses the Legislature's intent concerning the department's administration of the program.
The EA appropriation provides, "that in promulgating, amending, or rescinding regulations with respect to eligibility or benefits under said program, the department shall take into account the amounts available to it for expenditure by this item so as not to exceed the appropriation [;]". St. 1999, c. 127, § 2, item 4403-2120; Fiscal Year 2000 General Appropriation Act. This proviso ("the Dowell proviso") was also in the FY 1995 and FY 1996 budgets, and was the only budget proviso at issue inDowell v. Commissioner of Transition Assistance, 424 Mass. 610, 614 (1997), discussed infra.
The Legislature's FY 2000 EA line item proposal also provides, "that notwithstanding the provisions of any general or special law or this item to the contrary, 30 days before promulgating any such eligibility or benefit change, the commissioner shall file with the house and senate committees on ways and means and with the clerks of the house of representative and the senate a determination by the secretary of health and human services that available appropriations for said program will be insufficient to meet projected expenses and a report setting forth such proposed changes". St. 1999, c. 127, § 2, item 4403-2120; Fiscal Year 2000 General Appropriation Act. This proviso, ("the notice proviso") appeared in the FY 1995 line item for the EA program. It was not at issue in Dowell because the department complied with its notice requirement by notifying the Legislature of a shortfall in the FY 1995 appropriation before changing the regulation. (Plaintiffs' Motion for Summary Judgment, Exhibit P.)
On November 16, 1999, the governor vetoed this "notice" proviso so it does not appear in the final FY 2000 budget. The plaintiffs contend that the gubernatorial veto was unconstitutional thereby adding the notice proviso back into the budget. This Court does not have to reach that claim in its decision. The notice proviso is presented here simply to show the Legislature's intent (which is unaffected by the veto) regarding the administration of the EA program. Dowell v. Commissioner of Transitional Assistance, 424 Mass. 610, 614-615 (1997); Berrios v.Department of Public Welfare, 411 Mass. 587, 593-594 (1992).
The EA line item also provides for the department to "promulgate regulations to prevent abuse in the emergency assistance program . . . [and] said rules and regulations shall include but not be limited to a year to year cross check of recipients to determine if a person has received similar benefits in the previous 36 months". St. 1999, c. 127, § 2, item 4403-2120; Fiscal Year 2000 General Appropriation Act.
Additionally, there is a proviso ("the enforceability proviso") in the FY 2000 line item that directs "that nothing in this item shall give rise to enforceable legal rights in any party or an enforceable entitlement to services other than to the extent that such rights or entitlements exist pursuant to the regulations promulgated by the department ". St. 1999, c. 127, § 2, item 4403-2120; Fiscal Year 2000 General Appropriation Act.
Finally, the last proviso in the FY 2000 line item states "that nothing in the two preceding provisos [the notice and enforceability provisos] shall authorize the department to alter eligibility criteria or benefit levels, except to the extent that such changes are needed to avoid a deficiency in this item $45,416,591". St. 1999, c. 127, § 2, item 4403-2120; Fiscal Year 2000 General Appropriation Act. The FY 1995 budget (the budget at issue in Dowell) did not contain this (the "deficiency proviso"); it was not added to the line item until FY 1996.
The Political Landscape: In the FY 2000 the Legislature appropriated $45,416,591 to the EA program, an increase of more than $7 million over its FY 1999 appropriation. St. 1999, c. 127, § 2, item 4403-2120; Fiscal Year 2000 General Appropriation Act; St. 1998, c. 143, § 2, item 4403-2120; Fiscal Year 1999 General Appropriation Act. The defendants admit there was no projected deficiency in the EA program budget prior to the promulgation. (Defendants' Answer to Further Amended Complaint, ¶ 33.) It also does not appear that the department needed to change the eligibility or benefit criteria to save money, as the Secretary of State's Regulation Filing Statement reflects no financial savings as a result of the changes. (Plaintiffs' Motion for Summary Judgment, Exhibit C.)
The Regulations: The department has promulgated regulations pursuant to the enabling statute. Among the regulations, 106 CMR 309.040 (A)(1)(c)-(e) (last revised July 1998) provides that a household shall not meet the basic eligibility criteria for EA temporary emergency shelter benefits if it rendered itself homeless due to certain types of evictions, including nonpayment of rent, criminal activity, or destruction of the property. In November, 1999 the department promulgated an amendment to that regulation — the language at issue in this case — so that an otherwise eligible household shall not be eligible if any one of these evictions occurred "anytime within the past 12 months, regardless of any intervening housing arrangement". Also among the regulations is 106 CMR 309.040 (A)(1)(f) (last revised July 1998) which provides that a household shall not meet the basic eligibility for EA if it rendered itself homeless by having its temporary emergency shelter benefits terminated for noncompliance, and further provides that such a terminated household will remain ineligible up to 12 months. 106 CMR 309.040 (A)(1). In November, 1999 the department promulgated an amendment to that regulation — also important language in this case — which adds "abandoning the shelter placement as specified in 106 CMR 309.040(D)(1)[;]" as a reason an otherwise eligible household shall not be eligible for EA benefits.
In 1995 the Massachusetts General Court enacted the Welfare Reform Act, substantially overhauling the commonwealth's existing public assistance programs in line with federal welfare reform efforts.
Section 309.040 (A)(1) (Rev. 7/98) of 106 CMR provides: "Homelessness Due to Lack of Feasible Alternative Housing. (A) Conditions for the Provisions of Benefits.
"(1) An EA household shall not be eligible for EA temporary emergency shelter benefits if the EA household has rendered itself homeless:
"(a) for the purpose of making itself eligible for EA;
"(b) for the purpose of obtaining a housing subsidy;
"(c) due to an eviction from private, public and/or subsidized housing for nonpayment of rent;
"(d) due to eviction from private, public, and or subsidized housing because an EA household member(s) engaged in criminal activity(ies);
"(e) due to eviction from private, public and/or subsidized housing for destruction of the property;"
"(f) by having had its temporary emergency shelter benefits terminated for noncompliance as specified in 106 CMR 309.040 (D); or
"(g) by having its temporary emergency shelter benefits terminated for engaging in criminal activity(ies) as specified in 106 CMR 309.040(C)(5).
"An EA household determined ineligible in accordance with 106 CMR 309.040(A)(1)(f) or (g) shall remain ineligible for EA for the remainder if the 12 months from the date of the first authorization of such benefits with in the past 12 months.
"A household that fails to cooperate with housing search services provided by a staff member from an agency under contract or agreement with the Department and then becomes homeless is presumed to have rendered itself homeless for the purpose of making itself eligible for EA. For purposes of this section, the housing search requirements specified in 106 CMR 309.040(B)(7) and 106 CMR 309.040(C)(1)(d) shall apply."
The regulations were transmitted in State Letter 1182 and were to be enforced beginning 11/1/99. It changed 106 CMR 390.040 (A)(1) (Rev. 11/99) to now read:
"(c) due to an eviction from public and/or subsidized housing for nonpayment of rent anytime within the past 12 months, regardless of any intervening housing arrangement;
"(d) due to eviction from private, public and/or subsidized housing because an EA assistance unit member(s) engaged in a criminal activity anytime within the past 12 months, regardless of any intervening housing arrangement;
"(e) due to eviction from private, public and/or subsidized housing for destruction of the property anytime within the past 12 months, regardless of any intervening housing arrangement."
"(f) by having had its temporary emergency shelter benefits terminated for noncompliance, engaging in criminal activities, or abandoning the shelter placement as specified in 106 CMR 309.040(D)(1); or
"(g) by having failed to cooperate with housing search services provided by an agency under contract or agreement with the Department and then becoming homeless. An EA assistance unit which fails to cooperate with such housing search services and then becomes homeless is presumed to have rendered itself homeless for the purpose of making itself eligible for EA."
An EA assistance unit determined ineligible in accordance with 106 CMR 309.040(A)(1)(f) shall remain ineligible for EA for the remainder of the 12 months from the date of the first authorization of such EA benefits within the past 12 months." (Emphasis added to highlight changes.)
Additionally, the department promulgated a regulation under 106 CMR 309.040 (D) (last revised in July 1995) which describes the situations under which the department can terminate a family's EA benefits. In November, 1999 the department added a section to that regulation — the language also at issue in this case — allowing the department to terminate a family's EA benefits when "the EA assistance unit abandons the temporary emergency shelter placement without notifying the shelter or the Department". 106 CMR 309.040 (D)(d).
Section 309.040 (D) (Rev. 7/95) provides: "(D) Termination of Temporary Emergency Shelter Benefits.
"(1) An EA household shall have its temporary emergency shelter benefits terminated when:
"(a) an EA household meets the conditions specified in 106 CMR 309.040(C)(5); or
"(b) an EA household had previously been determined to be noncompliant in accordance with 106 CMR 309.040 (C); and
"(c) the EA household is again noncompliant for one or more of the reasons specified in the 106 CMR 309.040 (C).
"For the purposes of 106 CMR 309.040(D)(1)(c), an EA household whose first instance of noncompliance was that the EA household rejected three opportunities for safe, permanent housing, the EA household shall have its temporary emergency shelter terminated if the EA household either rejects one additional opportunity for safe, permanent housing or is determined to be in noncompliance with one or more of the other reasons specified in 106 CMR 309.040(C)."
"(2) The EA household shall be sent a timely notice in accordance with 106 CMR 309.070."
Section 309.040 (D) (Rev. 11/99) now reads: "(D) Termination of Temporary Emergency Shelter Benefits.
"(1) An EA household shall have its temporary emergency shelter benefits terminated when:
"(a) the EA assistance unit is asked to leave a temporary shelter because a member(s) of the EA assistance unit has engaged or is engaging in a criminal activity that threatens the health, safety and/or security of other guests and/or the staff of the temporary emergency shelter;
"(b) an EA assistance unit is again determined noncompliant for one or more of the reasons specified in 106 CMR 309.040 (C);
"(c) the EA assistance unit whose first instance of noncompliance was that the EA assistance unit rejected three opportunities for safe, permanent housing, and the EA assistance unit either:
rejects one additional opportunity for safe, permanent housing, or
is determined noncompliant with one or more of the other reasons specified in 106 CMR 309.040(C); or
"(d) the EA assistance unit abandons the temporary emergency shelter placement without notifying the shelter or the Department.
"(2) An EA assistance unit that becomes ineligible for Emergency Assistance benefits due to income in excess of the TAFDC Eligibility Standard while in a temporary emergency shelter shall be granted an additional 60 days of shelter placement to relocate after its temporary emergency shelter benefits are terminated.
"(3) The EA household shall be sent a timely notice in accordance with 106 CMR 309.070." (Emphasis added to highlight regulation at issue. The department added paragraph (3), granting an additional 60 days of shelter placement for certain ineligible families who have their EA benefits terminated. The plaintiffs do not challenge the validity of this paragraph.)
This new termination regulation serves as the foundation to 106 CMR 309.040 (A)(1)(f) discussed supra making EA households who abandon a shelter placement without notice ineligible for EA benefits for up to 12 months.
The Plaintiffs: The named plaintiffs, Glorie Miller and Sallie Dew, are homeless persons whose families stand to be denied or lose EA temporary shelter benefits should the regulations be declared valid. The organizations, Massachusetts Coalition for the Homeless, Inc. (MCH), Traveler's Aid Society of Boston, Inc. (TAS) and Central Massachusetts Homeless Alliance, Inc. (CMHA), represent homeless families across Massachusetts. MCH is a statewide non-profit organization whose stated mission is to prevent and ameliorate homelessness. TAS is a non-profit corporation that provides emergency shelter to homeless families, including Glorie Miller's. It is the primary shelterer in Greater Boston for families denied shelter by the DTA. CMHA is a non-profit organization that advocates for shelter rights for homeless families in central Massachusetts. These organizations have a combined total of 825-830 shelter spots for families. All three organizations advocate directly with the DTA on behalf of families denied EA benefits under department regulations.
Glorie Miller ("Miller"), a member of MCH, is a single homeless mother of three children. She and her children resided in a subsidized Boston apartment until they were evicted for non-payment of rent in March 1999. In May 1999, the family moved to North Carolina to live with Miller's mother. In October 1999, Hurricane Floyd destroyed the mother's home, so the family returned to Massachusetts to live with Miller's cousin. When those arrangements didn't work out, Miller applied for EA shelter benefits in November 1999. On January 5, 2000, the DTA denied her benefits and Miller appealed. TAS provided Miller and her family with shelter after the denial. On January 26, 2000, a hearing officer approved her for EA benefits under the July 1998 version of the regulation, finding that Miller's current homelessness was not "due to" her eviction. 106 Code Mass. Regs. § 309.040 (A)(1)(c). Under the November 1999 version of the regulation, Miller would not have been eligible for EA benefits until March 2000. Proposed 106 Code Mass. Regs. § 309.040(A)(1)(c). (Miller Affidavit; Appeal No. 271074, ¶ 8.)
Sallie Dew ("Dew"), a member of MCH, is a single homeless mother with one child. The department provided her with EA benefits and with them, she and her daughter lived at a shelter in Waltham. In September 1999, Dew left the shelter because she thought conditions there were unsafe and the treatment of the residents was inappropriate. After leaving the shelter, Dew stayed with a relative for several weeks but was forced out because of overcrowding. In November 1999, she turned to the department to obtain EA benefits again. On December 16, 1999 the department issued Dew a denial and a termination notice, both of which it later rescinded. The termination notice was rescinded because it was based on the November 1999 regulations that the department agreed to stay pending the outcome of this case. Dew appealed the denial, the department rescinded it and placed Dew and her daughter in a Springfield shelter. On December 21, 1999, the department issued Dew yet another termination notice which Dew also appealed. On January 6, 2000, a hearing officer reinstated her EA benefits, finding that the termination was unlawful because the department lacked the grounds under the July 1998 regulation. 106 Code Mass. Regs. § 309.040 (D)(1). Under the November 1999 regulation, Dew could have been found to have abandoned her shelter placement without notice thereby terminating her benefits and making her ineligible for 12 months. Proposed 106 Code Mass. Regs. § 309.040(D)(1)(d). (Dew Affidavit; Appeal No. 270840, ¶ 9.)
DISCUSSION
Summary judgment shall be granted when, after viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community National Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass. R. Civ. P. 56 (c). A party moving for summary judgment in a case who does not bear the burden of proof at trial may demonstrate the absence of a triable issue either by submitting affirmative evidence negating an essential element of the non-moving party's case, or by showing the non-moving party has no reasonable expectation of proving an essential element of its case at trial. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). To be successful, a party need not submit affirmative evidence to negate one or more elements of the other party's case, but may satisfy its burden by demonstrating that proof of that element is unlikely to be forthcoming at trial. Flesner v.Technical Communications Corp., 410 Mass. 805, 809 (1991). Summary judgment is a "device to make possible the prompt disposition of controversies on their merits without a trial if in essence there is no real dispute as to the salient facts, or if only a question of law is involved. Community National Bank v. Dawes, 367 Mass. 550, 553 (1976).
Procedural Issues
Declaratory Relief. As an initial matter, this Court must consider whether the plaintiffs are entitled to declaratory relief pursuant to G. L. c. 231A, § 1. To be entitled to such relief, the plaintiffs must show that an actual controversy exists and that they have legal standing, both associational and individual, to bring a claim. District Attorney for Suffolk Dist. v. Watson, 381 Mass. 648 (1980). The defendants argue that the plaintiffs lack an actual controversy and lack standing to request declaratory relief. As explained below, this Court finds that both of the named plaintiffs and two of the three organizational plaintiffs are eligible to sue in this Court for declaratory relief.
Actual Controversy. Where the material issue involves a dispute over an official interpretation of a statute as well as the validity of a regulation promulgated pursuant to that interpretation, a justiciable controversy exists. Massachusetts Assoc. of Independent Ins. Agents Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 293 (1977). Here the plaintiffs challenge the department's interpretation of both the EA statute and the EA budget proviso. They believe the department's new EA regulations, which were promulgated as a result of these interpretations, are invalid. The defendants dispute this and argue that the regulations are a valid exercise of its power pursuant to the statute. Here, an actual controversy exists over the interpretation of the EA statute and the validity of the department's two new regulations.
Standing. It is a well established principle in this Commonwealth that "only persons who have themselves suffered, or who are in danger of suffering, legal harm can compel the courts to assume the difficult and delicate duty of passing upon the validity of the acts of [another] branch of government". Animal Legal Defense Fund, Inc. v. Fisheries and Wildlife Board, 416 Mass. 635, 638 (1993), quoting Kaplan v. Bowker, 333 Mass. 455, 459 (1956). The plaintiffs must demonstrate by way of specific factual allegations that they are directly affected as to some personal interest. Animal Legal Defense Fund, Inc. v. Fisheries Wildlife Board, 416 Mass. 635, 638 (1993); Doe v. The Governor, 381 Mass. 702, 705 (1980). Therefore, the individual plaintiffs must demonstrate that the new regulations put them in danger of suffering a legally recognizable injury.
Viewed in the light most favorable to the plaintiffs (as the non-moving party on this particular issue presented for summary judgment), it is clear that the new regulations put the named plaintiffs and TAS in danger of suffering an injury to a personal interest. In Glorie Miller's and Sallie Dew's cases they are in danger of losing eligibility for EA benefits. Their affidavits show that they would be denied EA benefits if the new regulations were declared valid. (See Footnote 11, supra). In TAS's case it is in danger of housing more families at its own expense. An affidavit from a TAS officer states it is currently housing Glorie Miller at its own expense and expects to have to house more families at its own expense should the regulations take effect. (Plaintiffs' Exhibits to Plaintiffs' Motion for Summary Judgment, Exhibit I.) Based on these affidavits this Court finds that both named plaintiffs and TAS have standing to pursue this claim.
MCH and CMHA may acquire "associational standing" if they can show "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organizations' purpose; and (c) neither the claim asserted not the relief requested requires the participation of individual members in the law suit". Hunt v. Washington Apple Advertising Co., 432 U.S. 333, 343 (1977).
MCH and CMHA clearly satisfy parts (b) and (c) of the Hunt test. The organizations need only show "mere pertinence between litigation subject and organizational purpose" to establish the "germanence" requirement of the second prong of the test. Humane Society of the United States v.Hodel, 840 F.2d 45, 58 (D.C. Cir. 1988). These organizations exist to advocate on behalf of the homeless. The case involves eligibility of homeless families to qualify for EA benefits. The interests the organizations seek to protect are quite pertinent to the organizations' purposes. As for the third prong of the test, since the organizations seek declaratory and injunctive relief rather than damages, its members do not need to participate directly in the litigation. Alaska Fish Wildlife Federation v. Duke, 829 F.2d 933, 938 (9th Cir. 1987).
To satisfy the first prong of the Hunt test, MCH and CMHA must show that at least one of its members has standing to bring this action.Warth v. Seldin, 422 U.S. 490, 511 (1975). In their affidavits, Glorie Miller and Sallie Dew both claim to be members of the Massachusetts Coalition for the Homeless. (Plaintiffs' Exhibits to Plaintiffs' Motion for Summary Judgment, Exhibits K L.) In this case, Miller and Dew both have standing as individuals. As members of MCH, they also confer standing on that organization as well. The record before this Court, however, lacks factual allegations of a real and specific individual to support CMHA's claim of standing. In her affidavit, the CMHA officer states that CMHA is often successful in persuading the department (on appeal) that evicted families who had, but lost, an intervening housing arrangement were not homeless due to the eviction. (Plaintiffs' Exhibits to Plaintiff's Motion for Summary Judgment, Exhibit J.) She also stated that CMHA pays to shelter homeless families that have been denied EA benefits. To have standing, however the complaint must allege a grievance on the part of a real and specific individual. Doe v. The Governor, 381 Mass. 702, 705 (1980). While this Court recognizes the meaningful work of CMHA in aiding homeless families in Central Massachusetts, its failure to name a real and specific individual bars it from having standing in this case. Id. Right of Action. The defendants also claim that the plaintiffs incorrectly rely on the budget provisos to claim a right of action. In the plaintiffs' motion to further amend their complaint, allowed by this Court, the plaintiffs seek to infer a private cause of action directly from 106 CMR 309.040 as it existed on October 31, 1999, prior to the new regulations taking effect. "Yet, in inferring a private right of action from an agency regulation alone, we run the risk of joining with the executive to revise and go substantially beyond the will of the Legislature." Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 546 (1998). However, a private cause of action can be inferred from an agency regulation where there is some indication from the Legislature supporting such an inference. Id. In this case the legislative support for such an inference is found in the words of the "enforceability proviso" contained in the EA line item of the FY 2000 budget. In that proviso the Legislature makes it clear that there is nothing in the budget line item that gives rise to enforceable legal rights, "other than to the extent that such rights or entitlements exist pursuant to the regulations promulgated by the department ". St. 1999, c. 127, § 2, item 4403-2120; Fiscal Year 2000 General Appropriation Act. (emphasis added.) Turning to 106 CMR 309.040 as it appeared on October 31, 1999, homeless families are entitled for EA benefits if their homelessness is due to lack of feasible alternative housing. This entitlement gives them a private right of action, a point that the defendants concede. (Defendants' Memorandum in Support of Their Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment, p. 10.)
In sum, each of the defendants' procedural challenges fails as a matter of law. There exists an actual controversy, all of the plaintiffs except for CMHA have the requisite standing, and there also exists a private right of action based in the department's own regulation.
Merits
This Court now turns to whether the plaintiffs' have presented undisputed facts establishing that the Legislature's purpose, as found in the language and intent of both the statute and the annual budget, conflicts with the language of the promulgated regulations at issue in this case so as to invalidate either or both of them.
A party who questions the facial validity of a regulation bears the formidable burden of "proving on the record 'the absence of any conceivable ground on which [the rule] maybe upheld'". Dowell v.Commissioner of Transitional Assistance, 424 Mass. 610, 612 (1997), quoting Purity Supreme, Inc., v. Attorney General, 380 Mass. 762, 776 (1980). Administrative regulations are not to be declared void unless their provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate, and enforcement of such regulations should be refused only if they are plainly in excess of legislative power. Dowell, at 613; Berrios v. Department of Public Welfare, 411 Mass. 587, 595-596 (1992). Where an administrative agency's regulation is inconsistent with the Legislature's enabling statute, the regulation is invalid. Bureau of Old Age Assistance of Natick v.Commissioner of Public Welfare, 326 Mass. 121, 124 (1950). ("[A]n administrative board or officer has no authority to promulgate rules and regulations which are in conflict with the statutes or exceed the authority conferred by the statutes by which such board or office was created.") See Telles v. Commissioner of Insurance, 410 Mass. 560, 564 (1991); Arlington Housing Authority v. Secretary of Communities Development, 409 Mass. 354, 357 (1991). The standard for determining such a conflict is whether the Legislature's intent can be achieved in the face of the regulation. Town of Milton v. Attorney General, 372 Mass. 694, 696 (1977); A. Cella, Administrative Law Practice, § 742, p. 126, FN 7 (1986 Ed.).
To determine the Legislature's intent regarding the EA program, this Court starts with the statute, "the principle source into legislative purpose". Massachusetts Hospital Association v. Department of Medical Security, 412 Mass. 340, 342 (1992). A statute is to be construed:
with the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.
Champigny v. Commonwealth, 422 Mass. 249, 251 (1996), quoting Telesetsky v. Wight, 395 Mass. 868, 872-873 (1985), quoting Commonwealth v. Galvin, 388 Mass. 326, 328 (1983).
The intent can also be garnered from provisos that accompany line item appropriations in the Legislature's annual budget proposal. The Legislature is not barred from using the annual state budget to provide the department guidance concerning the administration of a program called for by a statute. Massachusetts Coalition For The Homeless v. Secretary of Human Services, 400 Mass. 806, 817 (1987). See Dowell v.Commissioner of Transitional Assistance, 424 Mass. 610, 614 (1997);Berrios v. Department of Public Welfare, 411 Mass. 587, 594 (1992);Woods v. Executive Office of Communities Development, 411 Mass. 599, 604 (1992).
The EA enabling statute and the annual line item appropriation for the EA program are considered together. "Provisions of legislation addressing similar subject matter are to be construed together to make an harmonious whole consistent with the legislative purpose and to avoid rendering any part of the legislation meaningless." Dowell 424 Mass. at 613, quotingHealey v. Commissioner of Public Welfare, 414 Mass. 18, 25-26 (1992).
In this case, General Law c. 18, § 2 (D) is a comprehensive statute which directs the department, inter alia, to "subject to appropriation" to administer a program of temporary financial emergency assistance for eligible families "to avoid destitution or to provide living arrangements in a home". G. L. c. 18, § 2 (D). The statute authorized the department to "promulgate policies, procedures and rules necessary for the full and efficient implementation of a [transitional assistance financial assistance] program", including the EA program. G. L. c. 18, § 2 (B)(a). It also gives the department the authority to "promulgate rules and regulations to establish the levels of benefits available under the [EA] program and to ensure simplicity of administration in the best interest of needy recipients[.]". G. L. c. 18, § 2 (D). These provisions, standing alone, have been called a "generous grant of rulemaking authority" by the Supreme Judicial Court.Dowell 424 Mass. at 614.
Budget provisos for the EA program are also sources of legislative purpose. In its budget proposal for fiscal year 2000, the Legislature used the Dowell proviso to instruct the department "that in promulgating, amending, or rescinding regulations with respect to eligibility or benefits under said [EA] program, the department shall take into account the amounts available to it for expenditure by this item so as not to exceed the appropriation[.]". St. 1999, c. 127, § 2 item 4403-2120 Fiscal Year 2000 General Appropriation Act. It is reasonable to assume that in the plain language of this Dowell proviso, the Legislature only meant to allow the department to expand eligibility as long as it stayed within budget, and not to "under spend" its budget. "[There is a] maxim of statutory construction which suggests that a statutory expression of one thing is an implied exclusion of other things omitted from the statute", unless to follow this maxim would "frustrate the general beneficial purpose of the legislation". Harborview Residents' Committee, Inc., v. Quincy Housing Authority, 368 Mass. 425, 432 (1975). Here, given the general beneficial purpose of the EA statute to prevent homelessness, and language in the statute which tasks the department, inter alia, (1) to formulate rules for the "full and efficient implementation" of the EA program (G. L. c. 18, § 2 (B)(a)) and (2) to "make recommendations for broadening and improving the scope and quality of welfare services[;]" (G. L. c. 18, § 2 (B)(b)), it does not follow that the Legislature would grant the department authority to promulgate rules in order to "under spend" its budget.
Thus far in the analysis there is nothing in the statute or in the Dowell proviso to prevent the department from establishing eligibility criteria, as long as it does not go over budget. Dowell 424 Mass. at 615. However, there are two more budget provisos at issue in this case that were not at issue in Dowell, the so-called notice and deficiency provisos. The notice proviso states that 30 days before "promulgating any such eligibility or benefit change", the commissioner shall determine the available EA budget is insufficient to meet the demand and file a report with the House and Senate, "setting forth such proposed [eligibility or benefit] changes". St. 1999 c. 127, § 2, item 4403-2120; Fiscal Year 2000 General Appropriation Act. It is reasonable to assume that with this proviso the Legislature intended to reserve for itself at least the opportunity to give final approval of department-promulgated EA eligibility changes. It is also logically indicates that the Legislature, faced with a short-fall, wanted the opportunity to appropriate more money to the program or "provide some other solution to the dilemma". Massachusetts Coalition for the Homeless v. Secretary of Human Services, 400 Mass. 806, 819 (1987), rather than to cut eligibility or benefits of a program that exists to prevent the homelessness of needy families. "The [act] is to interpreted in the light of its purpose, and, so far as may be, to promote the accomplishment of its beneficent design." Neff v. Commissioner of the Department of Industrial Accidents, 421 Mass. 70, 73 (1995), quoting Young v. Duncan, 218 Mass. 346, 349 (1914).
To reiterate, although the notice proviso was vetoed by the governor on Nov 16, 1999, it is presented here to show the Legislature's intent in appropriating money for the EA program, intent which is unaffected by the veto.
The deficiency proviso states that nothing in either the notice or enforceability provisos shall authorize the department to "alter eligibility criteria or benefit levels except to the extent that such changes are needed to avoid a deficiency." St. 1999, c. 127, § 2, item 4403-2120; Fiscal Year 2000 General Appropriation Act. It is reasonable to assume that the Legislature intended to narrow the department's authority to change eligibility criteria to only those times where the department would need to cut eligibility or benefits to avoid going over budget. Simple compliance with the notice requirements would not authorize the change in the absence of a deficiency, and neither would absence of a private right of action. It is clear from the budget provisos that the Legislature intended to narrow the department's grant of rulemaking authority concerning eligibility or benefit changes. It is well established that a proviso narrows the scope of an enabling statute.
[W]here a provision, general in its language and objects is followed by a proviso, the proviso is strictly construed, as taking no case out of the provision that does not fairly fall within the terms of the proviso, the latter being understood as carving out of the provision only specified exception, within the words as well as within the reason of the former.
Woods v. Executive Office of Communities and Development, 411 Mass. 599, 605 (1992).
The language of the line item is more fully illuminated when viewed in the light of the substantial fiscal appropriation it accompanied. The Legislature's FY 00 budget recommendation for the EA program contained over a $7 million increase over the previous year's budget recommendation. It is reasonable to conclude that the Legislature, having substantially increased the EA budget and having inserted the deficiency proviso into the appropriation, intended to narrow the EA enabling statute by restricting the department's authority to change eligibility or benefits for the EA program. "The Legislature is the arbiter of the allocation of public funds, and its judgment concerning the most appropriate way in which to solve the problems of homeless families must be respected". Massachusetts Coalition for the Homeless, 400 Mass. at 823.
This Court rejects the defendants' argument that, even with the budget provisos, the department still retained a broad grant of rulemaking authority. That argument renders meaningless the budget provisos that restrict the department's authority to change eligibility or benefits. "An intention to enact a barren or ineffective provision is not lightly to be imputed to the Legislature." Neff, 421 Mass. at 75-76, quotingInsurance Rating Board v. Commissioner of Insurance, 356 Mass. 184, 189 (1969). This Court also rejects the defendants' argument that the Supreme Judicial Court (SJC) in Dowell has already firmly established that the department can change the eligibility or benefit criteria for the EA program, even with budget provisos. While the statute is essentially the same now as it was then, there are two budget provisos — the notice and deficiency provisos — that are at issue in this case and were not at issue in the case before the SJC in Dowell. Both expressly limit the department's authority to change eligibility or benefits and they appear in FY 00 budget recommendation. This Court assumes the Legislature is aware of pre-existing law. Prudential Insurance Company of America, Inc., v. Boston, 369 Mass. 542, 546 (1976). It also assumes that "new legislation alters existing law". Gross v. Prudential Insurance Company of America, Inc., 48 Mass. App. Ct. 115, 121 (1999), quotingMorrison v. Lennett, 415 Mass. 857, 863 (1993).
In sum, taken as a "harmonious whole" the statute and the budget provisos, combined with the substantial increase in appropriations for the EA program, can be reasonably interpreted to narrow the department's authority to change the conditions of eligibility or benefits for homeless families to qualify and maintain emergency assistance only to those instances when the department is faced with a deficiency in its EA budget. Next, this Court needs to determine whether the intent of the Legislature is in conflict with the face of the regulation. In other words, if the regulations at issue in this case change the eligibility criteria or benefits levels for the EA program, then the regulations are not valid as they conflict with the Legislature's intent. Regulations are not to be declared void unless their provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate, and enforcement of such regulations should be refused only if they are plainly in excess of legislative power. Berrios, 411 Mass. at 595-596. The defendants argue that the regulations reflect mere clarifications of existing regulations, while the plaintiffs argue that the regulations represent changes in eligibility or benefits, since the new regulations would exclude whole classes of homeless families that would otherwise be eligible for benefits. This analysis turns on the meaning of the terms "eligibility", "benefits" and "criteria". In the absence of an express definition, the meaning of a word or phrase is a question of law and such language is afforded ordinary meaning to obtain a workable result. Bronstein v. Prudential Insurance Company of America, Inc., 390 Mass. 701, 704 (1984); Gross, 48 Mass. App. Ct. at 117. According to Black's Law Dictionary, (Fifth Ed., 1979), "eligible" is defined as "fit and proper to be chosen; qualified to be elected[.]", "benefit" is defined as "advantage gain [or] interest[.]", and "change" is defined as "an alteration; a modification or addition[;]".
The next step in the analysis would be to determine if the department was faced with a deficiency in the funding for the EA program. The defendants admit, however, that no deficiency existed. Therefore, the analysis jumps to whether the promulgated regulations changed eligibility or merely clarified them.
These definitions provide the Court with a workable result. If the eligibility regulations at issue in this case alter, modify or add to the conditions under which families, otherwise fit and proper or qualified, could be chosen to be denied emergency assistance, then that would amount to a prohibited eligibility change. Likewise, if the benefit regulation at issue in this case alter, modify or add to the conditions under which families would be denied a gain or interest, then that would amount to a prohibited benefit change. To determine whether this is true, this Court examines each of the promulgated regulations in turn.
106 CMR 309.040 (A)(1)(c)-(e): The existing regulation provides that a household shall not meet the basic eligibility criteria for EA shelter benefits if it rendered itself homeless due to one of three enumerated types of evictions — nonpayment of rent, criminal activity, or destruction of the property. The newly promulgated amendment renders an otherwise eligible family ineligible if any of these kinds of evictions occurred, "anytime within the past 12 months, regardless of any intervening housing arrangement". Proposed 106 CMR 309.040 (A)(1)(c)-(e) (emphasis added). This Court rejects the defendants' argument that the amendment is a mere clarification that gives hearing officers a limit as to how far they can reach back to determine whether or not the present homelessness was "due to" the eviction. That could be a valid argument if the department had only added the "within the past 12 months" clause to the regulation. What is troublesome is the "regardless of any intervening housing arrangement" clause. This clause excludes families, like Glorie Miller's, who tried but were unsuccessful through no fault of their own to obtain feasible housing arrangements. In their brief, the defendants' state their view of the purpose for the amendment:
[t]he Department has a strong interest in seeing that recipients retain their public housing units. To that end, the challenged regulatory clarification serves to encourage recipients in public or subsidized housing to maintain their status. Individuals should not believe that they can lose public housing slots and then automatically turn to EA shelter benefits to resolve crises they have created. By eliminating immediate availability of EA to individuals, who, through eviction, have lost their housing units, the Department's new regulation over time will serve to encourage individuals in public housing to do what is necessary to retain their tenancies, lest they lose other forms of support as well.
(Defendants' Memorandum in Support of Their Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment, p. 13, ¶ 3.) (emphasis added). The problem with the amendment — as well as the defendants' reason for it — is that it excludes EA benefits for 12 months to families who are left homeless regardless of any intervening housing arrangement, even ones the families had no control over. It leaves the family without the EA safety net for 12 months from the time of the eviction even if the current homelessness was not as a result of the original eviction. The affidavit of the MCH Homeless Policy Coordinator states that MCH has often been successful on appeal in persuading the department's hearing officers that homeless families who had been evicted, but who also had intervening housing were not homeless "due to" the eviction. (Plaintiffs' Motion for Summary Judgment, Exhibit H.)
The defendants make much of the argument that the amendment merely clarifies the term "due to", yet there is no need for a clarification. A clarification means, "to make clear or easier to understand". American Heritage Dictionary, 2d College Ed., 1985. There is nothing before this Court that the individuals charged with interpreting the regulations — the DTA hearing officers — are confused about the term "due to". In fact, in the Department of Transitional Assistance fair-hearing decisions submitted to this Court, the hearing officers consistently translated the term "due to" to mean directly caused by or immediately preceding.
Both the plaintiffs' and defendants' submitted copies of various fair-hearing decisions in support of their positions. Of the three decisions that the defendants' submitted, only one was used as the other two decisions were incomplete (one had no signature of the hearing officer, the other was missing its last page).
(Plaintiffs' Motion for Summary Judgment, Exhibits F G; Defendants' Memorandum in Support of Their Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment, Exhibit D.)
In sum, there is nothing in the record to persuade this Court that the department's new 106 CMR 309.040 (A)(1)(c)-(e) is anything but a change to the eligibility criteria for homeless families to qualify for the EA program. It modifies the conditions under which families, otherwise fit and proper or qualified, could be chosen to be denied emergency assistance because it excludes those families who had intervening housing arrangements which they lost through no fault of their own. Such regulations in conflict with the Legislature's intent and, thus, invalid as promulgated.
106 CMR 309.040 (A)(1)(f): The existing regulation provides a household shall not meet the basic eligibility criteria for EA shelter benefits if it has its temporary shelter benefits terminated for reasons specified in 106 CMR 309.040 (C) or (D) including noncompliance, engaging in criminal activities, or failing to cooperate with housing search services. 106 CMR 309.040 (A)(1)(f)-(g). The newly promulgated regulation adds, "abandoning the shelter placement" without notice as a reason that otherwise eligible homeless families would be denied new EA benefits for up to 12 months. Proposed 106 CMR 309.040 (A)(1)(f). This regulation excludes a class of families — those who leave a shelter without notice — who would be otherwise qualified to be chosen for EA benefits. Such is an eligibility change not authorized by the Legislature. As a result, this regulation is also invalid as promulgated.
106 CMR 309.040 (D)(1)(d): Under the existing termination regulation, families who are already qualified and receiving benefits can be terminated from the EA program for reasons specified in 106 CM.R. 309.040 (C) including noncompliance without good cause, engaging in criminal activities, or failing to cooperate with housing search services. The newly promulgated regulation, 106 CMR 309.040 (D)(1)(d) adds the provision that families may also be terminated by abandoning a temporary shelter placement without notice. The defendants argue that the department may already rely on other existing regulations to terminate EA benefits for families who abandon shelter placements, and that 106 CMR 309.040 (D)(1)(d) only serves to make that policy explicitly clear to recipients. The plaintiffs argue that the department cannot promulgate the new termination regulation because it changes the eligibility criteria of homeless families. The issue here is whether a termination of shelter benefits for a family who abandons a shelter placement is a benefit change for the purposes of this analysis. This Court finds that the termination regulation is not a benefits change, but merely a clarification of an obvious policy. A benefits change would be an action by the department that alters, modifies or adds a condition under which families could be denied a gain or interest. Here, by abandoning the shelter, the needy family alters its own interest in receiving EA benefits. A family who leaves a shelter without notice terminates the benefit, not the department. It is obvious that the department need not pay for a shelter that the family has abandoned it, and in fact it now does not pay for such an arrangement. Currently, it uses other, less clear regulations (availability of alternative feasible housing and refusal of a shelter placement) to rightfully terminate these benefits. This regulation simply clarifies this existing policy.
The plaintiffs' argument is not precise. 106 CMR 309.040 (D)(1)(d) does not change eligibility criteria to qualify for EA benefits; rather it adds a reason under which the department may terminate existing EA benefits. In the interests of accuracy, 106 CMR 309.040 (A)(1)(f), discussed above, is the regulation that changes the eligibility criteria for households to re-apply for EA after they abandon a shelter placement. It appears that in the past, the department has "linked" termination regulations found in section (D) to those eligibility criteria found in section (A). For instance, criminal activity is a reason for termination of benefits under 106 CMR 309.040 (D)(1)(a) and a condition affecting eligibility to re-apply for EA benefits under 106 CMR 309.040 (A)(1)(g). It seems natural in this case therefore to "meld" arguments regarding termination together using 106 CMR 309.040 (D)(1)(d) when 106 CMR 309.040 (A)(1)(f) is the more accurate cite.
This regulation is even more reasonable given the procedural safeguards that the termination regulation affords those who abandon shelter and the department's duty to provide benefits other needy families who desire emergency assistance.
In sum, 106 CMR 309.040 (D)(1)(d) is not a benefit change but a clarification of an existing, obvious policy. If a family is found through the fair-hearing process to have abandoned a shelter placement, they alter their own interest in the EA benefit. The department should not continue to pay for a shelter placement that is abandoned. This termination regulation is therefore valid as promulgated.
This Court rejects the defendants' argument that the department's interpretation of the statute is entitled to deference. In general, an administrative agency is given substantial deference in interpreting a governing statute. Massachusetts Hospital Association v. Department of Medical Security, 412 Mass. 340, 345 (1992). However, an erroneous interpretation of a statute by an administrative agency is not entitled to deference. Woods v. Executive Office of Communities Development, 411 Mass. 599, 606 (1992). Since the eligibility regulations at issue in this case were erroneously promulgated by the department in excess of its grant of authority, particularly given the Legislature's accompanying provisos, the department's interpretation is not accorded deference here.
In conclusion, department regulations 106 CMR 309.040 (c)-(f) are invalid and unenforceable as in conflict with the legislative purpose of the enabling statute as narrowed by the budget provisos. The plaintiffs are therefore entitled to summary judgment as to those regulations. 106 CMR 309.040 (D)(1)(d) is valid as promulgated. The defendants are therefore entitled to summary judgment as to that regulation. In light of this decision, this Court need not reach the plaintiffs' other claims, specifically whether the challenged regulations will be applied in a fair, just and equitable manner. Since the department consented to stay implementation pending the outcome of this case, the evidence before this Court warrants only a facial challenge to these regulations.
ORDER
For the foregoing reasons, it is hereby ORDERED that the plaintiffs' motion for summary judgment is ALLOWED in part and DENIED in part; and the defendants' motion for summary judgment is ALLOWED in part and DENIED in part. It is further ORDERED that a Final Judgment shall issue containing declaration that:
Department of Transitional Assistance regulations 106 CMR 309.040 (A)(1)(c)-(f) as revised on 1 November 1999 are invalid and unenforceable as they conflict with the Legislature's purpose for the Emergency Assistance program as found in the enabling statute G. L. c. 18, § 2 (D) as narrowed by the budget provisos in line item 4403-2120.
The defendants and their agents and successors in office are enjoined from implementing 106 CMR 309.040 (A)(1)(c) as revised on 1 November 1999, unless and until such an eligibility change is required to avoid a deficiency in budget line item 4403-2120.
The defendants and their agents and successors in office are enjoined from implementing 106 CMR 309.040 (A)(1)(d) as revised on 1 November 1999, unless and until such a eligibility change is required to avoid a deficiency in budget line item 4403-2120.
The defendants and their agents and successors in office are enjoined from implementing 106 CMR 309.040 (A)(1)(e) as revised on 1 November 1999, unless and until such a eligibility change is required to avoid a deficiency in budget line item 4403-2120.
The defendants and their agents and successors in office are enjoined from implementing 106 CMR 309.040 (A)(1)(f) as revised on 1 November 1999, unless and until such a eligibility change is required to avoid a deficiency in budget line item 4403-2120.
Department of Transitional Assistance regulation 106 CMR 309.040 (D)(1)(d) as revised on 1 November 1999 is valid as promulgated.
_____________________________ John C. Cratsley Justice of the Superior Court
DATED: