Legislative committee objects to Vermont DCF emergency housing rule on prioritization and resource test

The Legislative Committee on Administrative Rules voted Feb. 13 to object to parts of the Department for Children and Families’ (DCF) permanent rule implementing General Assistance emergency housing, citing concerns that the rule’s resource-exhaustion requirement and prioritization approach conflict with legislative intent.

The committee’s action applies to the permanent rule filed as 24 P 42 and specifically named sections discussed during the meeting. Damien Leonard of Legislative Council explained the committee’s options before the vote: “The committee has 3 options today. The first option is to approve the rule. The second option is to object to the rule … and the third option for the committee is to vote to neither approve nor object.”

The rule replaces prior emergency rules and follows Act 113, which the committee and public commenters said left operational questions about verification, prioritization and resource testing unresolved. DCF Commissioner Chris Winters told LCAR members the agency adopted prioritization and resource-testing elements because of constrained capacity and budget. “We have a limited number of hotel rooms available to us,” Winters said, describing a drop in partner hotel rooms from about 1,800 at peak to roughly 1,425. He said that limited capacity and budget growth for the program over recent years forced DCF to adopt policies to focus scarce resources on people at highest risk.

Deputy Commissioner Gray told the committee that about 700 households who meet eligibility categories have not been offered hotel placements this winter. “So right now, we have about 700 households that are eligible. They meet 1 of the eligibility categories, but we've not been able to offer so far this winter,” Gray said. Gray and Winters described the department’s reasoning for proposing a single resource test after Act 113 merged two previous eligibility groups: historically, catastrophic cases (up to 84 days) had a resource test and the vulnerable-population category (up to 28 days) did not; Act 113 combined those groups without expressly resolving the resource-test question.

Advocates urged LCAR to object. Brenda Siegel, executive director of End Homelessness Vermont, described people who she said have been turned away and urged removing the resource-exhaustion requirement. “The resource test is a 0 resource test, and there is, I don't think, any single one of us that can live on 0,” Siegel said, adding that the test can prevent people from building the small savings often required to secure permanent housing. Leah Burdick of the Elder Law Project at Vermont Legal Aid asked LCAR to use its authority under 3 V.S.A. § 842(b)(2) to object, arguing the rule’s requirements are contrary to legislative intent.

Committee members expressed divided views but several said the resource test in particular appeared inconsistent with the legislature’s direction and the task force established by Act 113, which the committee heard had a charge to explore ways for participants to save toward more permanent housing. Senator Seth Bongard said he could not reconcile the resource-exhaustion requirement with the goal of enabling people to save for housing: “I can't make that make sense. … I believe that the spend down is not consistent with” the legislative intent described by members.

After discussion, Representative Trevor Swirl moved to object to the rule (24 P 42), identifying the challenged provisions by section number. The committee voted by voice to object; members were told the objection triggers a two-week response period during which DCF may respond or amend the rule before LCAR decides whether to certify the objection to the Secretary of State. Damien Leonard reminded members that an objection does not prevent the rule from taking effect but shifts the burden in any subsequent legal challenge to the agency to prove consistency with legislative intent.

The committee and witnesses also discussed operational details reported by DCF: an 80-day-per-year limit that had been used in prior cycles, a 1,100-room non-adverse-weather cap used last fall (with adverse-weather expansions in winter), and differences between hotel placements and shelter beds. DCF representatives said the program’s annual cost rose substantially over the past decade and that negotiations tied to the state budget often require annual rule changes. Committee members were told the House Budget Adjustment Act proposal would remove a room cap for the rest of the fiscal year if enacted, a change that could require future rule amendments.

The committee scheduled a follow-up two weeks later to consider the agency’s written response; LCAR’s staff advised that the agency is required by law to respond within that period. The committee adjourned after taking the objection vote.