Montana Administrative Register Notice 20-4-65 No. 6   03/27/2020    
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In the matter of the adoption of NEW RULE I pertaining to Rental Vouchers for Re-entering Offenders






TO: All Concerned Persons


1. On December 27, 2019, the Department of Corrections published MAR Notice No. 20-4-65 pertaining to the public hearing on the proposed adoption of the above-stated rule at page 2290 of the 2019 Montana Administrative Register, Issue Number 24.


2. The department has adopted the following rule as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:



(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) through (13) remain as proposed.


3. The department thoroughly considered the comments that were received. A summary of the comments and the department's responses are as follows:


COMMENT #1: One comment was received from within the department concerning (10) of the proposed new rule. The commenter expressed concern about inclusion of the phrase "sanitary and habitable" in the definition of suitable housing on the grounds that the phrase could mistakenly imply that the department will perform or will require a landlord to obtain a formal, regulatory-quality inspection such as one that a sanitarian or building codes inspector might conduct.


RESPONSE #1: The comment is well-taken. The department is not qualified or mandated to conduct an inspection and determine whether a housing unit is sanitary or habitable in any formal or technical sense or in conformity with any regulatory standards. The department only has supervisory authority over offenders. The department considered substituting alternative language in (10) but has chosen to simply remove the phrase "sanitary and habitable" and not replace it. All alternative phraseology that the department considered presented either a risk of an offender's unwarranted reliance on the department to determine that a proposed housing unit is safe, or, a risk of discouraging landlords from making much-needed, serviceable housing units available on the market.


COMMENT #2: One commenter raised four concerns about the proposed new rule. First, the commenter stated that 46-23-1041(2), MCA, requires voucher monies be available to pay reentering offenders' substance abuse, mental health, and sex offender treatment expenses as well as educational and employment programming expenses. Second, the commenter stated that (5) of the proposed new rule unlawfully engrafts an eligibility criterion onto the statutory criteria by limiting the amount of rental voucher funds to the price of a one-bedroom unit when two-bedroom units might be more common in the rental market. Third, the commenter deemed (9) of the proposed new rule to conflict with 46-23-1041, MCA, because nothing in the statute makes persons re-entering the community from pre-release centers ineligible for rental voucher assistance. Fourth, the commenter expressed a general concern that the proposed new rule is contrary to the legislative intent set in 46-23-1040(3), MCA, regarding supportive housing grants and the department's responsibility to coordinate with local government and agencies to identify all available housing options.


RESPONSE #2: The department appreciates the opportunity to respond to each of the commenter's concerns.  RESPONSE to FIRST CONCERN: The commenter appears to misapprehend the purpose of 46-23-1041, MCA, as a whole and (2) in particular. Rental voucher assistance is only available to a re-entering offender who will be engaged in community programming of the types set out in 46-23-1041(2), MCA, which are intended to diminish the likelihood of recidivism. Rental vouchers only provide the reentering offenders with housing for a limited time while they are availing themselves of the community programming.  Once offenders re-enter the community, they can apply for Medicaid assistance for substance abuse and mental health treatment services, or, if employed, private insurance may be available to meet those needs. Other resources outside of the department's programs may be available to meet education and vocational training needs of eligible persons. Section 46-23-1041, MCA puts a box around the legislative appropriation to implement that statute, i.e., funds are available solely for rental assistance for so long as appropriated funding is available for that purpose. RESPONSE to SECOND CONCERN: Rental voucher assistance is based on an offender's financial circumstances while still in confinement. Once eligibility is established prior to release in accordance with the rule, the one-bedroom rental rate becomes irrelevant and rental voucher assistance will issue in the amount of the re-entering offender's actual rent. RESPONSE to THIRD CONCERN: As stated in the rule, pre-release is a residential program lasting, on average, 200 days.  Pre-release center (PRC) participants work in the community at their jobs. Their circumstances are distinguishable from the financial circumstances of offenders still in confinement. Only the latter group of offenders is eligible for rental voucher assistance under 46-23-1041, MCA. RESPONSE to FOURTH CONCERN: The comment is not primarily directed at or related to the proposed new rule. The public has expressed confusion about supportive housing grants as distinguished from rental voucher assistance and so the department will address the comment to that extent. Both the supportive housing grant program and the rental voucher program were created by SB 65 in the 2017 legislative session. The supportive housing grant program was codified in Title 44, chapter 7, MCA under the jurisdiction of the Montana Board of Crime Control. The supportive housing grant program was funded by the 2017 Montana Legislature and grants were awarded by the board. No grant funds were provided for the supportive housing grant program in the 2019 legislative session. By contrast, the rental voucher program was codified in Title 46, chapter 23, part 10, MCA in 2017 under the jurisdiction of the Montana Department of Corrections, Probation and Parole Division.  The rental voucher program was not funded by the Montana Legislature in 2017, but a general appropriation was provided to the department in the 2019 legislative session (HB 2) to fund the rental voucher program. No grant funds are involved in the rental voucher program. The remainder of the commenter's fourth concern is outside the scope of this rulemaking and is not addressed.  



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

Colleen Ambrose                                        Reginald D. Michael

Rule Reviewer                                             Director

                                                                     Department of Corrections


Certified to the Secretary of State March 17, 2020.


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