E-Mail This Article to a Friend FOLLOW-UP Easing up on the homeless BY KRISTEN LOMBARDI

Chalk one up for the homeless. Last Monday, the Massachusetts Department of Transitional Assistance (DTA) rescinded its recently enacted policy of charging families who unsuccessfully appeal their emergency-shelter evictions $100 for every night they stay in shelter beyond the eviction date (see "Gimme Shelter," News and Features, September 19). The move comes less than two weeks after the Massachusetts Law Reform Institute (MLRI), a Boston legal-services organization, filed a class-action lawsuit challenging the DTA shelter-appeal policy, which went into effect on September 1.

"This is a positive step forward," says MLRI attorney Ruth Bourquin, who drafted the legal challenge. "It’s a very good thing for families in shelter."

The MLRI had filed its lawsuit, Patterson et al. v. Wagner, last month in Suffolk Superior Court on behalf of homeless families "harmed or at imminent risk of being harmed by this policy," according to the complaint. The suit alleges that the shelter-appeal fee is illegal because the DTA didn’t seek public comment before enacting it, as required by law. Moreover, it charges that the DTA does not have the authority to create such a regulation under various existing state statutes. On September 25, just two days after the MLRI sued, Suffolk Superior Court judge Geraldine Hines issued a temporary order to prevent the DTA from charging the homeless. On October 6, the department responded to the legal action by presenting the affidavit of Cescia Derderian, the DTA assistant commissioner for field operations, in which she says the department is withdrawing the shelter-appeal policy, "effective immediately."

But the fight isn’t over yet. In the three-page affidavit, Derderian testifies that the department "intends to propose a new regulation (after complying with the applicable provisions) governing recoupment of assistance paid pending appeal if the appeal is subsequently denied." In other words, the DTA concedes that it was wrong to circumvent the regulation-change process, which requires a 21-day comment period. But it’s still committed to the $100-per-night fee. Confirms DTA spokesperson Dick Powers, "We’re not abandoning the policy." Although the DTA "feels it was within its rights" to implement the policy, he explains, "it will go the way of the regulation process." He hastens to add that he "cannot put a timetable" on when that might be.

Asked about the notion that the DTA can’t legally enact the regulation under the existing state laws, which allow the agency to recover only cash-assistance overpayments, he replies, "That’s a matter for the courts to decide."

You can count on that. Bourquin and other homeless advocates have not given up trying to convince the DTA and Governor Mitt Romney — who often touts his pledge to protect the homeless — that the shelter-appeal fee is "not only illegal, but misguided." Yet they’re ready to return to court if the DTA reinstates it as a properly issued regulation. Says Bourquin, "We’ll be right back in court to get the DTA to stop."