BOSTON (SHNS) – Shortly before a court hearing challenging the Healey administration’s allegedly “rushed” changes to the shelter system, officials filed new emergency regulations seeking to enable a temporary hard cap on the number of families that can be housed.

The emergency regulatory amendment surfaced shortly before 2 p.m. alongside a related declaration from Housing Secretary Ed Augustus projecting that Massachusetts is already well beyond the funded capacity for its shelter system with even more demand on the horizon.

Augustus said the $325 million budgeted for the emergency assistance shelter system in fiscal year 2024 “was intended to support 4,100 families.” The current caseload has more than 3,000 families above that level, creating a projected deficiency of $210 million before accounting for additional necessary spending on “wraparound services, school supports, and community supports.”

If the current rate of new entries and exits continues, the number of families in the emergency assistance shelter system would surpass 13,000 by the end of fiscal year 2024, Augustus said.

“It is no longer possible to secure additional space that is suitable and safe for use as shelter beyond a capacity of 7,500 families,” he wrote. “The Commonwealth does not have enough space, service providers, or funds to safely expand shelter capacity any longer.”

Massachusetts is required to provide shelter to some unhoused families and pregnant women under a 1983 “right-to-shelter” law, but Gov. Maura Healey has been warning for weeks that space is about to run out.

With tensions ratcheting up on Beacon Hill and advocates aiming criticism at both Healey and the Democrat-controlled Legislature, the emergency regulations put in writing much of what the Healey administration has projected will happen starting Nov. 1 as unprecedented — and still rising — demand pushes the emergency assistance shelter system to its capacity.

The regulations empower the secretary to implement a limit if circumstances and funding indicate there is no more space available. The Executive Office of Housing and Livable Communities would publish written guidance about steps it will take once the limit is set, including operation of a “shelter placement waitlist” and which families will be prioritized for quicker access to shelter.

Under the emergency regulations, officials could consider a family’s “medical vulnerability” as well as domestic violence risks, among other factors, when deciding whether to place them into shelter or onto a waitlist.

Healey first revealed the new emergency regulations around 11:45 a.m. during a live interview on WBUR’s “Radio Boston,” but the documents themselves did not surface until about 2 p.m. roughly half an hour before a court hearing challenging the administration’s approach to the crisis.

While Healey was preparing to answer questions on the radio, anti-homelessness advocates rallied outside the State House urging the administration to uphold the 1983 law promising shelter to certain families.

“A waiting list is not someplace to sleep. We’re telling families, with a waiting list, that their needs aren’t a priority for the state,” said Kelly Turley, associate director of the Massachusetts Coalition for the Homeless.

Attendees at the event organized by the coalition and the Massachusetts Law Reform Institute took aim not just at Healey but also at House and Senate Democrats, who have not acted on Healey’s nearly seven-week-old request for a $250 million injection into the system that is about to run out of space.

“Legislators, you should be ashamed of yourselves. You’re supposed to take care of us. It’s your job to make sure we get what we need,” said Jiannina Tillman, a mother of three who twice lived in Massachusetts shelters.

Leading Democrats in the House and Senate have said they’re still mulling over the funding request with questions about the long-term outlook for the system. For now, they seem content to let Healey deal with the overflow crisis herself.

“Any temporary policy changes would be better addressed by the Administration through the issuance of an executive order formally declaring a state of emergency, as they have real-time information regarding capacity issues and staffing shortages, and are in constant communication with local officials during this rapidly developing situation,” House Speaker Ron Mariano said in a statement on Monday, emphasizing that he does not plan to seek changes to the right-to-shelter law.

Though most lawmakers have been hesitant to publicly discuss the issue, Rep. Marjorie Decker joined advocates on the State House steps Tuesday, where she called on the governor to halt the changes to the shelter system.

“Whether we have a waitlist, or whether the governor tries to end a policy of a right-to-shelter, is actually not problem solving,” Decker said. “Families, and particularly those with children, are still going to be unhoused, are still going to be unsafe.”

Rep. Marjorie Decker rallies on the State House steps Tuesday, Oct. 31, 2023 with advocacy groups calling for a continued guarantee of the state’s right to shelter for migrant families. (SHNS)

The Cambridge Democrat said she reached out to the governor, asking her to “not end this policy of right-to-shelter.”

Some residents enrolled in shelters fear “getting a 51A,” or being reported for neglecting their children, because of the difficult environment, current and former shelter residents said at Tuesday’s rally.

“People are getting 51As filed on them for minor infractions such as, they’re downstairs doing laundry, they leave their kid in their room. There’s a 51A filed because your children are not being supervised… So I look at this legislation right now and I ask — who files a 51A at them?” Tillman said, pointing at the State House. “They’re leaving children out there on the street.”

The change comes at a time when cold weather is settling in and Thanksgiving is approaching. In Boston, the city on Wednesday will start implementing a tent ban for those living in makeshift street shelters.

“Tomorrow when families are starting to be put on a waiting list, Boston is going to implement a ban on tents and encampments. We’re telling families: you can’t stay in shelter and you can’t stay outside. If you stay outside, you’re at risk of getting a 51A and having the Department of Children and Families take your children away,” Turley said.

While she touted her housing policy proposals, Healey directed most of her focus Tuesday toward hope for federal, not state legislative, action.

“I continue to call for relief from the federal government. We need help with staffing, we need help with funding. And again, it’s a federal problem that we’re having to deal with as states,” she said. “People have stepped up admirably, and the Legislature has provided significant funding towards this already. Yes, I’ve sought [$250 million] additional supplemental funding, but we really need help from the federal government here.”

On multiple occasions, Healey pitched her policy-heavy $4.1 billion housing bond bill as a way to address some of the underlying factors exacerbating the shelter crisis. She noted that although a significant increase in migrant arrivals has strained the system, about half of the families in emergency shelters are Massachusetts residents facing homelessness.

“The reason we have families, Massachusetts families, in shelter right now is because they can’t afford rent, they can’t afford housing in Massachusetts,” she said.

Healey filed her housing bond bill on Oct. 18. Lawmakers sent it to the Housing Committee for review, where it remains pending with no public hearing scheduled. Legislative leaders have not laid out a timeline for action.

As of Tuesday, there were 7,389 families in the system, according to state data.

Healey has said the state will not be able to accommodate more than 7,500 families in the emergency shelter system and will launch a waitlist for those who cannot be placed immediately.

“The waitlist will start, as I said before, once we reach the expected capacity of 7,500,” Healey told WBUR. “At that point, we’ve been clear as well with the public that there’ll be a triaging system, there’ll be a waitlist that will be brought on board.”

To get some people out of the shelter system and open up more space, the administration on Monday announced it plans to offer mobile vouchers to about 1,200 families that have been in shelters for more than 18 months. Families can use those vouchers to pay for any housing that meets state sanitary standards.

“They’ll be able to take advantage of it right away,” Healey said Tuesday about the vouchers. “I mean, it’s always a matter of finding the housing, which gets back to the point I’m trying to make here: that we as a state need more housing. You talk to any family out there, you talk to any business out there, you talk to anybody who is in Massachusetts but trying to make decisions about whether they’re going to stay in Massachusetts, or employers, whether they’re going to remain in Massachusetts or locate elsewhere, you talk to the number of folks who are sitting in emergency shelter right now — I mean, we need housing as a state, and it’s why I went bold.”

Turley, who also spoke with WBUR’s “Radio Boston” on Tuesday, warned that families currently ineligible for emergency assistance shelter are forced to double or triple up with family and friends, or instead to sleep in cars, campgrounds and emergency rooms.

“Massachusetts does have a very low rate of so-called street homelessness for families, so we don’t usually see families staying in places like the Boston Common, but that’s because for 40 years, we’ve had this right to shelter,” Turley told WBUR. “We’re very scared about what will happen to families and where they’ll go.”

“Radio Boston” host Tiziana Dearing later played a clip of those remarks from Turley to Healey and asked the governor: “What do you expect is going to happen for families who find themselves low on the waitlist? Where will they go? What can the state do for them? And are you worried about them?”

“Of course I’m worried. I’m worried about any family in our state who is experiencing housing insecurity,” Healey replied. “My heart aches for moms and dads out there in particular who have kids and they don’t have a roof over their head. Of course I’m worried about that. I’m also trying to deal with a situation [with] something that I don’t think any advocate had predicted or seen before, and that was the arrival of 40 or 50 families a day from the border into Massachusetts, families seeking housing.”

“We have worked really hard to make sure that they find housing in hotels and motels. They are in our schools, they’re getting access to services,” Healey continued. “And again, I’m just so grateful to all the service providers and the teamwork, the partnership, out there, but the fact of the matter remains we’re seeing an unprecedented capacity strain on personnel, on infrastructure and on funding.”