BOSTON (SHNS) – A Superior Court judge will likely make a decision by Wednesday on whether Gov. Maura Healey’s administration can cap the number of people housed under the state’s right-to-shelter law.

At an emergency court hearing Tuesday afternoon, Judge Debra Squires-Lee sought more information from Lawyers for Civil Rights Boston, who filed the lawsuit against the Executive Office of Housing and Livable Communities and Secretary Ed Augustus, and Assistant Attorney General Kim Parr, who represented the administration.

LCR filed the class action lawsuit on Friday, seeking a temporary restraining order to stop the state from “undermining” its right-to-shelter law by implementing a cap on the number of people the state’s shelter system can accommodate, a change that would effectively no longer guarantee housing for qualified families protected under the law.

On Oct. 16, Healey said that the system will not “have enough space, service providers or funds to safely expand beyond 7,500 families.” Parr said Tuesday that the administration expects to hit that number by the end of the week.

Once the system reaches the limit Healey set, the governor said those looking for shelter will be screened and placed on a waitlist if not immediately offered housing.

“Given the emergency nature of the shelter program, this is a lot like the fire department creating a waitlist for families with ongoing house fires. Delay in emergency services amounts to denial in services,” LCR attorney Jacob Love said in his opening statement Tuesday.

LCR argues that state law requires an opportunity for public input before state agencies make changes to benefits programs, and that the emergency assistance program in particular calls for the Legislature to be given 90 days’ notice in advance of any changes. No such formal notice was given, Love said.

The administration filed an emergency regulatory amendment just before the court hearing, which gives Augustus the ability to set a hard cap on the number of families that can be housed.

Squires-Lee said she received the new regulations six minutes before the hearing started.

The judge delayed her decision, saying she wanted to give LCR an opportunity to read through and respond to the administration’s new regulation, and also sought more information from Parr relative to the cost of continuing to accept every qualified family into shelter for the typical 90-day notice duration. Lawyers will file additional affidavits over the next day, they said, before Squires-Lee makes her decision.

“The 90-day notice requirement has not been met,” Love said during the hearing. “There is no formal report justifying the changes. There is no formal report making a finding from the secretary, as far as we’re aware, that there is a budget deficiency in the commonwealth.”

Squires-Lee drilled down into the question of whether there was a deficiency, asking whether the state could prove the current budgeted amount to fund the emergency assistance system was enough to continue admitting every qualified family over the next 90 days.

The administration says the $325 million originally allocated in the fiscal year 2024 budget for the EA program falls short of what will be needed by the time the next fiscal year begins in July due to the unprecedented demand for shelter units.

“Even if the number of families sheltered in the EA program remained constant at last Friday’s levels through the end of FY24, the program would exhaust its appropriation and exceed it by an additional $210 million,” says EOHLC’s response to the lawsuit.

When the budget was drafted earlier this year, projections suggested that shelter caseload would be around 4,100 people, Parr said. As of Tuesday, there were 7,389 families in the system, according to state data.

Administration officials anticipate that the number of families in the system could grow to 13,471 by June 2024.

“The plaintiff’s request won’t maintain the status quo. Plaintiff’s request will require the agency to continue adding new shelter units to continue bringing additional families into the system. And unfortunately, there’s no money to do that right now,” Parr said.

The judge replied, “Well, except for the money appropriated that was supposed to last for 4,100 placements throughout the entire year. Right? So what are you telling me in terms of the amount of funds available right now?”

Squires-Lee asked Parr exactly how much of the $325 million originally appropriated in the annual state budget was still available for the EA program to use.

Parr said she did not have the exact number of when, with the current amount appropriated, the EA system would run out of money.

“I guess what I’m trying to figure out is, if we were to put a short stay in place, for example, to allow the plaintiffs to deal with this regulation, the emergency regulation and perhaps bring forward any arguments they might have… if we put that in place, what period of time are you telling me that the agency will run out of money, period, full stop, given the influx that is currently happening,” Squires-Lee said.

The assistant attorney general responded, “I’m sorry, your honor. I don’t know I can estimate that precisely. But what we can say is any delay in implementing these measures will drive the line item further into deficiency.” She added that the administration will soon file additional affidavits to “give the court the assurance that you’re looking for.”

Parr argued that allowing the caseload to increase further will cause available money to run out sooner — and could leave everyone in the EA system without funding for housing and services. Waiting 90 days to implement a cap would only continue to increase the number of people in the system and use up more funds more quickly, she said.

Responding to LCR’s argument that the Legislature is legally required to receive a 90-day notice, Parr said lawmakers have been aware of the issue.

“This is no surprise to the Legislature or to the people of Massachusetts. The executive branch has emphasized financial constraints and an acute spike in shelter demand many times in recent months and weeks. If you look at the public record, you’ll see the governor issued a state of emergency because of this crisis in August 2023. The governor set up an incident command to address this, the Legislature is presumably aware of all that,” Parr said.

She added that Healey filed a supplemental budget in September “specifically requesting $250 million in additional funds to support family shelter and related services.”

Squires-Lee responded, “I take you at your word, I’m sure the Legislature is well aware” before continuing her line of questioning.

Love maintained that Augustus did not give the Legislature formal notice of the changes to the right-to-shelter law, nor of the massive funding deficiency the program faces.

LCR did not have a response to the emergency regulations that were filed with the court just minutes before the hearing started, and Love said they had not yet had a chance to review them. 

Oren Sellstrom, litigation director for the Boston-based advocacy group, would not respond to a reporter’s question after the hearing on if the last-minute regulations were fair.

“But it does show that the process was very rushed in a way that is very problematic,” Sellstrom said.

The regulatory amendment gives Augustus the power to implement a shelter capacity limit if circumstances and funding show there is no more space available in the emergency assistance system. 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.

The regulatory change creates a pathway for the administration to make changes to the policy and “provide flexibility for the secretary to respond,” Parr said.

Alongside the new emergency regulations, Augustus also filed an emergency declaration outlining new authority the regulations give him, including the ability to cut off how long a family can stay in shelter with 30 days’ notice.

Given the last-minute nature of the regulatory changes, Squires-Lee gave LCR more time to respond to the amendment, and how it may affect his argument.

Squires-Lee said she would make her decision “by tomorrow,” which will be Nov. 1 — the same date after which Healey originally said the state could no longer guarantee shelter.