Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF CORRECTIONS

OF THE STATE OF MONTANA

In the matter of the adoption of NEW RULE I pertaining to Rental Vouchers for Re-entering Offenders

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION

TO: All Concerned Persons

1. On January 16, 2020, at 11:00 a.m., the Department of Corrections will hold a public hearing in the 3rd Floor EOC Conference Room at the Montana Department of Corrections, 5 South Last Chance Gulch, Helena, MT 59620, to consider the proposed adoption of the above-stated rule.

2. The Department of Corrections will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Corrections no later than 5:00 p.m. on January 14, 2020, to advise us of the nature of the accommodation that you need. Please contact Kurt Aughney, Department of Corrections, 5 South Last Chance Gulch, P.O. Box 201301, Helena, Montana, 59620; telephone (406) 444-0348; fax (406) 444-4920; TDD/Montana Relay Service (406) 444-4290; or e-mail [email protected] or [email protected].

3. The rule as proposed to be adopted provides as follows:

NEW RULE I RENTAL VOUCHERS – OFFENDER ELIGIBILITY – RENTAL VOUCHER DISBURSEMENTS (1) Eligibility for rental voucher assistance to offenders re-entering the community on parole is based on the criteria in 46-23-1041, MCA, and this rule.

(2) The term "unable to secure" suitable living arrangements, as used in 46-23-1041, MCA means that at the time of applying/being referred for rental voucher assistance, the offender has insufficient personal funds in the inmate trust account system (53-1-107, MCA) to pay:

(a) non-recurring re-entry expenses specified in (3); and

(b) three months of recurring monthly living expenses specified in (4).

(3) Non-recurring re-entry expenses are:

(a) street clothing;

(b) Montana driver license/ID fees;

(d) a telephone; and

(e) a landlord-required cleaning/damage deposit, if applicable.

(4) Recurring monthly living expenses are:

(a) food and housekeeping supplies;

(b) personal care;

(d) telephone service;

(e) vehicle fuel or city bus fare;

(f) utilities (water, sewer, gas, and electric);

(g) supervision fee; and

(h) child support – actual court ordered or CSED ordered.

(5) For purposes of calculating offender financial eligibility for rental voucher assistance under (3) and (4), the department will use:

(a) current data pertaining to the cost for Montana driver licenses/IDs found at: https://dojmt.gov/driving/driver-licensing/;

(b) current data pertaining to average fair market rent (FMR) for a one-bedroom unit in the Montana county where the offender will reside as set out in the Housing and Urban Development (HUD) Fair Market Rent (FMR) Documentation System found at: https://www.huduser.gov/portal/datasets/frm.html#YYYY. (Substitute current calendar year for YYYY); and

(c) current cost data from the U.S. Census Bureau's Consumer Price Indexes for all Urban Consumers (CPI-U) found at: https://www.census.gov/library/publications/2011/compendia/statab/131ed/prices.html.

(6) Subject to the requirements in (7), designated department staff shall refer all offenders reentering the community on parole to the department's programs and facilities bureau for a rental voucher eligibility determination using a form prescribed by the department. A determination of ineligibility based on the objective criteria set out in 46-23-1041, MCA and this rule, is not subject to the grievance procedure. The legislature intended that rental voucher assistance (SB 65 2017) not constitute a right or an entitlement program.

(7) Eligibility for rental voucher assistance requires that, subject to Board of Pardons and Parole approval of the offender's release plan, an offender be:

(a) sentenced to prison as defined in 53-30-101(3)(c), MCA, and reentering the community directly from prison; or

(b) a DOC commit incarcerated in a prison as defined in 53-30-101(3)(c), MCA, on a secure placement request and reentering the community directly from prison; or

(c) an offender reentering the community directly from a residential treatment program to which the offender was conditionally paroled from prison, i.e., paroled by the Board of Pardons and Parole on condition that the offender satisfactorily complete the residential treatment program.

(8) A referral for rental voucher assistance must be made before an offender specified in (7) is released from the prison facility on parole or on conditional parole. For inmates being released from the prison facility on conditional parole to a treatment facility for completion of the treatment program, the department may preliminarily determine rental voucher eligibility at the time the referral is received but defer making a final determination until the treatment program is satisfactorily completed and the department receives data/information pertaining to the offender's treatment completion and/or release plan that was unavailable for inclusion in the referral when made.

(9) An offender paroled from prison on condition of satisfactory completion of a pre-release program is not eligible for rental voucher assistance because pre-release is a residential program and participants are required to be gainfully employed and to save money for re-entry during their pre-release program participation.

(10) For purposes of this rule, "suitable housing" or "suitable living arrangements" means sanitary and habitable housing appropriate for long-term or permanent occupancy by a lessee having an arm's length relationship with a lessor. A sober living home may constitute "suitable housing" for a reentering offender diagnosed with a substance use disorder notwithstanding that the sober living home is operated as a membership organization and payment due from residents is termed a membership fee rather than rent. The terms "suitable housing" or "suitable living arrangements" do not include temporary respite housing such as homeless shelters, hotels, motels, or the home of a reentering offender's family member if the family member does not regularly rent the subject premises to non-relatives in arm's length transactions. An offender who is ineligible for rental voucher assistance due to the temporary nature of housing as described herein may qualify for transitional assistance. Transitional assistance differs from rental voucher assistance and is outside the scope of this rule.

(11) Rental vouchers shall be issued by the department directly to an eligible reentering offender's landlord on behalf of the offender. Rental vouchers may not be issued in advance, i.e., no more than one rental voucher for one month's rent may be issued and outstanding at any given time. The three-month maximum rental voucher benefit under 46-23-1041, MCA, is not a guarantee of three months' rent to the offender or to the landlord. An offender may become ineligible during the three-month period following re-entry by reason of revocation of the offender's community supervision or other circumstances. No landlord-tenant relationship or any other contractual relationship exists between the department and the landlord arising from issuance of rental vouchers on behalf of eligible offenders reentering the community. No agency relationship exists between the department and an eligible offender on whose behalf the department issues rental vouchers to landlords. The department is not liable for any delinquent rent, property damage, condition or cleanliness of the unit upon being vacated by an offender, theft of property, or other claims or demands of the landlord against the offender tenant. The department shall provide a written notice to prospective landlords on a form prescribed by the department containing information about the rental voucher program including the relevant parameters stated herein.

(12) Rental voucher payments made by the department on behalf of an eligible offender shall only be made upon the department's receipt of an invoice or statement clearly identifying the offender, the address of the offender's rental unit, and the landlord-lessor's mailing address to which rental vouchers shall be mailed.

(13) The rental voucher program applies only to the initial housing secured by an offender upon reentry to the community from prison or from a treatment program as provided in this rule, unless:

(a) the offender moves to a second housing unit before the three-month maximum voucher benefit period has been exhausted;

(b) there has been no gap between vacating the first housing unit and taking possession of the second; and

AUTH: 46-23-1002, MCA

IMP: 46-23-1002, 46-23-1041, MCA

REASON: The 2017 Montana Legislature adopted SB 65 authorizing the department to provide rental vouchers to parolees re-entering the community in statutorily specified circumstances for a limited time period. The authorization was codified as 46-23-1041, MCA. SB 65 also amended 46-23-1002, MCA, to give the department authority to adopt rules for administering the rental voucher program. During the 2019 legislative session, funding was appropriated to the department in HB 2 for the rental voucher program.

NEW RULE I is reasonable and necessary to establish: a) offender eligibility criteria within the parameters set by the legislature; b) a means of implementing the rental voucher program; and c) a mechanism for disbursing the rental vouchers in a fiscally responsible manner on behalf of eligible offenders.

NEW RULE I defines "unable to secure" suitable housing in terms of having insufficient personal funds on hand to meet specified non-recurring initial reentry expenses and three months of specified recurring monthly living expenses including rent. In the experience of the department's probation and parole officers, it generally takes approximately three months for a reentering offender to secure stable employment and receive at least one full month's paycheck. The department reasoned that an offender's financial ability to pay rent when released is an illusory indicator of housing security if after paying rent the offender will have insufficient residual funds to meet non-recurring reentry expenses and other recurring monthly living expenses for three months. The eligibility criteria were established to avoid setting offenders up for failure and homelessness due to inability to sustain their living arrangement during the critical three months following re-entry. The average cost of rental housing varies widely from county to county in Montana. For purposes of calculating financial eligibility for rental voucher assistance, the department will use current HUD datasets for the Fair Market Rent (FMRs) Documentation System, specifically, the Montana statewide FMRs for a one-bedroom apartment, to obtain data related to the average cost of rent in the county in which the offender will live. The HUD data can be found at: https://www.huduser.gov/portal/datasets/fmr.html#2019. When an eligible offender finds "suitable housing" in that county, the rental voucher will be in the amount of the offender's actual rent and not the county average. Therefore, value of the rental voucher benefit will vary from offender to offender even when the offenders reside in the same county. Housing options are limited for reentering offenders, and creating an artificial ceiling on the rent payable under the rental voucher program would exacerbate the problem. The rental voucher benefit is limited to three months and an offender may need to keep looking for more affordable housing before the period expires to ensure housing sustainability when the assistance is no longer available.

NEW RULE I also defines "suitable housing" as housing intended to be long-term or permanent thereby placing homeless shelters, hotels, and motels outside the scope of the definition. The department believes that housing offered to offenders by family members is generally intended to be a temporary arrangement. That conclusion would be supported if the family member does not regularly rent the premises to non-relatives in arm's length business transactions.

The rule allows the department to issue rental vouchers directly to a landlord on an eligible offender's behalf without creating either: 1) a landlord-tenant or other contractual relationship between the department and the landlord; or 2) an agency relationship between the department and an offender who is eligible for rental voucher assistance. The department must be fiscally responsible. Paying the landlord directly on an offender's behalf rather than paying the offender will help to ensure that rental voucher funds are not diverted by the offender for unauthorized purposes.

Ineligibility of pre-release center residents/participants for rental voucher assistance is self-explanatory in the rule text itself.

4. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Kurt Aughney, Department of Corrections, 5 South Last Chance Gulch, P. O. Box 201301, Helena, Montana 59620; telephone (406) 444-0348; fax (406) 444-4920; or e-mail [email protected], and must be received no later than 5:00 p.m., January 24, 2020.

5. Lorraine Schneider, Staff Attorney, Department of Corrections, has been designated to preside over and conduct the hearing.

6. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies the department division or program for which the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 4 above or may be made by completing a request form at any rules hearing held by the department.

7. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was contacted by letter sent as attachment to an email on May 9, 2019.

8. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption of the above-referenced rule will not significantly and directly impact small businesses.

/s/ Colleen E. Ambrose /s/ Reginald D. Michael

Colleen E. Ambrose Reginald D. Michael

Rule Reviewer Director

Department of Corrections

Certified to the Secretary of State December 17, 2019.