Vermont Legislature SmartTranscripts:

[Rep. Theresa Wood (Chair)]: So, Oh, start again. Okay. Welcome back, folks. This is House Human Services. And this afternoon, we're going to hear from legislative counsel regarding a follow-up to a question we received yesterday around residency and the court limitations on the actions that states can take. And it relates to our discussions that we had last year around age 91 and also this year around five ninety four. So I've asked Katie to review those provisions with us. And thank you for being here this afternoon, Katie.

[Katie (Legislative Counsel)]: Good afternoon, Katie. So I think the questions we'll talk about are, what is a durational residency requirement and why has this Supreme Court set at the fair term constitutional in the context of health and welfare benefits. So as a place to start, what are we talking about when we say duration of residency requirements? It means a condition that's placed upon the receipt of a benefit that an individual has to have been living in the state for a certain period of time before obtaining that benefit from the state. Specifically today, in the context of H-ninety four, we're talking about health and welfare benefits. And the Supreme Court does make a distinction between health and welfare benefits and other benefits that I'll touch on briefly at the end, are called portable benefits. But if it's a benefit that is tied to a life necessity, such as emergency housing or medical care or obtaining some type of food benefit, that's sort of in the category of what we're talking about today. So the court has said that if a state has a compelling interest, It can impose a durational residency requirement on a benefit related to health and welfare, but it hasn't upheld any of the reasons that states have brought forward as compelling reasons. So we have a long list of what the court has said is not a compelling reason, but we don't really have any examples of what would be a compelling reason. And I have a few examples from case law that sort of illustrate that point for you. So one of the most important cases in this area of case law is a case called Shapiro. It's an older case. In this case, the applicants were denied aid to families of dependent children, sort of the precursor to TANF. And they were denied this in their new state of residence for failure to reside in that state for the requisite period of time prior to submitting an application for benefits. And the parfum of that kind of created two classes of citizens, those that had lived there and were eligible for a benefit, and those that hadn't lived there long enough and weren't eligible for the benefit. So specifically, the US Supreme Court held that the state's durational residency requirement created the two classes of needy resident families that constituted an invidious discrimination, denying them of full protection under the laws. So that's a reference to the fourteenth Amendment. And this was in the absence of compelling interest as it deprives individuals of a necessity of life, such as food or shelter. So there the court is saying, you've created two classes of people, this isn't permitted under the equal protection clause. And particularly because this is a benefit related to shelter, those health and welfare benefits, this is problematic. And the reasons you've given don't meet that level of a compelling state interest. So that's one case. We have another case. The court-

[Rep. Theresa Wood (Chair)]: So I just wanna be clear. So the court denied the state's ability to impose a length of time that you must be in the state in order to receive benefits. Exactly, yes, thank you. Go ahead, representative. Because I have

[Rep. Brenda Steady (Member)]: people I want see watching this. So that's why it's not in here, of potential briefs like due to death.

[Katie (Legislative Counsel)]: Because there are constitutional concerns. The Supreme Court has provided fairly strong guidance that this is unconstitutional where it pertains to a benefit regarding a life necessity. And that was in Vermont? In The US.

[Rep. Brenda Steady (Member)]: In The US, yep. Okay, because people are watching this for this reason. I don't just wanna-

[Rep. Theresa Wood (Chair)]: So every state has to comply with that.

[Katie (Legislative Counsel)]: Yes. I'll go through a few other cases if it's helpful and interesting. Okay, the court overturned the California statute that imposed a durational residency requirement limiting TANF benefits to the amount the recipient would have received in their prior state of residency. Though the recipient, through the recipient's first year of residency in California. That was another case where the US Supreme Court said the state didn't meet the burden of showing that it was a compelling state interest. Specifically the court said a classification that had the effect of imposing a penalty on the exercise of the right to travel violated the equal protection clause unless shown to be necessary to promote compelling government interest. Right to travel embraces the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same state. So that's another example. And then I have an example from a, those so far have been sort of welfare related benefits. There is a case also related to medical In that case, the court addressed the imposition of a durational residency requirement prior to the receipt of health related benefits. And in that case, the court overturned an Arizona statute that requires citizens to reside in a county for a year as a condition for receiving non emergency hospitalization or medical care at the expense of the county. County. And there, the US Supreme Court held that medical care is as much a basic necessity of life as an indigent as welfare assistance to an indigent as welfare assistance. So therefore, barring a compelling state interest, a classification that penalizes a person exercising their constitutional right to an interstate migration by imposing limitations on the access to basic needs could not be justified. So as I said, there's a list of arguments that states have made as their justification for wanting to put these durational residency requirements, and all of them have been rejected by the court. So to give you a flavor of what some of those rejected reasons were, have necessary, state said that the durational residency requirement was necessary for planning the state welfare budget. Another argument was it created an objective residency test. Third argument was the purpose was to minimize fraud. Fourth, it would encourage new residents to quickly enter the workforce. Another reason was that states had the durational residency requirement to discourage migration of indigenous citizens into the state. And another rationale was sustaining viability for state programs. So those are all reasons that the court has rejected, that states have tried to advance as a rationale for having a durational residency requirement. And the US Supreme Court has said that that doesn't meet the standard. So in evaluating whether an instance of government discrimination is permissible, the court uses what was called a strict scrutiny standard, which requires a governmental entity creating the discrimination to articulate the compelling government interest for establishing the law or policy, and to be able to demonstrate that the law or policy is narrowly tailored to achieving that specific interest. So in all of these cases that burden wasn't met by the states. And then I just did want to distinguish, I said I would do this at the beginning from, we're talking about benefits related to health and welfare. The court has sort of taken a different path with regard to state benefits that it calls portable benefits. And the courts tend to be more permissible of having a durational residency requirement. That's different from what we're talking about in age 94. Those are benefits where somebody comes into the state and can take the benefit out of the state with them. And the examples the court has given are in state tuition at a university that they can come into the state, receive the benefit, but take their education out of state with them. And the other example is divorce, that you can come into the state, receive the benefit and then leave the state afterwards. So those are, durational residency is more permissible in most cases, but that is not what we're talking about with regard to health and welfare benefit. Go ahead, Ripson, Along

[Rep. Brenda Steady (Member)]: the same lines, so after what we just heard, on the new bill it says return home program. Mhmm. So you're saying the person Vermont could pay for this person to go back home to Florida. Mhmm. And then when they come back in December, if they come back in December, they can't be denied the the winter cold weather exception because we can't deny it. Even though we paid their way to go back home for a summer vacation.

[Katie (Legislative Counsel)]: I see what you're saying. Yeah.

[Rep. Brenda Steady (Member)]: We're just using that for an example.

[Katie (Legislative Counsel)]: So what this says is a person can't, cannot be a requirement that a person lives in the state for a certain amount of time in order to receive a benefit related to health and welfare. So yes, if somebody was in the state and they were in search of a benefit pertaining to a life necessity and they were otherwise eligible for the program, then the state couldn't use the length of time that they had been in the state to prohibit them from receiving that benefit. So,

[Rep. Brenda Steady (Member)]: along with return home, so if we pay $1,000 for them to buy home, they can come back and still get the benefit. We can't have them sign something saying, we're gonna pay you a thousand dollars to go to your home state. But if you come back to Vermont, you can't get the free hotel.

[Rep. Theresa Wood (Chair)]: So could be I get and the way to ask it

[Rep. Brenda Steady (Member)]: a different way. I understand what a different way for me.

[Rep. Theresa Wood (Chair)]: Can can can receipt of a benefit so let's just use this return home concept. Can that be conditional upon not returning to Vermont? I think I know the answer to that.

[Rep. Brenda Steady (Member)]: No. They can return to Vermont.

[Rep. Theresa Wood (Chair)]: No. I'm not done. Or not returning to Vermont to then receive and apply for one of those benefits that would be, so emergency weather assistance or I'm

[Katie (Legislative Counsel)]: sort of thinking this through as you're asking it. I mean, if they were to sign something, they would sort of be waiving constitutional right away. I don't think it And that doesn't feel like it would be permissible. But I'm kind of doing that off the top of my head.

[Rep. Brenda Steady (Member)]: I'm saying I don't think it would be permissible, but

[Rep. Theresa Wood (Chair)]: Well, that's why we're asking. That's why we have an attorney

[Rep. Brenda Steady (Member)]: Somebody's vacation to go home to the cold weather company. Be careful about

[Katie (Legislative Counsel)]: the language that we're using when we're saying that's not

[Rep. Theresa Wood (Chair)]: a bad language. We We don't know why. Well, some could be. The intent behind 94 the provision in is that I think there was probably an intent to try to deal with the issue of perception that people are coming to Vermont specifically to receive cold weather benefit, have shelter in the winter, and to say, here's an option for you to return to your home state, maybe where you have family connections or friends or other support systems. So those are all things that we would need to consider if that part of the five ninety four were to go forward, and we'll have some discussion about that. So we don't know people's intent and we haven't even talked about what a program like that might entertain. I think somebody else had her hand up first. Yes, go ahead, Representative Bishop.

[Rep. Doug Bishop (Member)]: You went through a list of reasons or interests that the states have tried to advance that the court has rejected. You went through that relatively quickly, there's one I just wanna make sure I have the language on. It says something related to preventing, state can't prevent Indigenous people from entering the state or

[Rep. Brenda Steady (Member)]: something like Migration, if Right, you

[Katie (Legislative Counsel)]: so state had tried to advance the compelling argument that the purpose of the durational residency requirement was to discourage immigration of citizens into the state. And that was rejected as a reason for the state having a durational requirement.

[Rep. Theresa Wood (Chair)]: So in your opinion, Katie, looking at H594 and 91 for that matter, but looking at the purpose of those bills, would the you say Supreme Court's ruling would apply in the case of content of those bills as they're currently constructed? In other words, that we could not apply a durational residency requirement.

[Katie (Legislative Counsel)]: Yes, I agree. Because those benefits and those programs are related to health and welfare, I would say they fall in line with these other cases that have prohibited a durational residency requirement.

[Rep. Theresa Wood (Chair)]: Representative Eastes, did you have a question? It seemed like you did before. Okay. Okay. Representative Bishop and then represent Steady, did

[Rep. Brenda Steady (Member)]: you have another question? Well, I was just looking for the amount of money that we're using for the return of home hospital.

[Rep. Theresa Wood (Chair)]: Oh, okay. Go ahead. No, go ahead.

[Rep. Brenda Steady (Member)]: It'll come up when we get there. Okay, Representative Bishop.

[Rep. Doug Bishop (Member)]: I'm trying to make sure I understand the interplay a of state that tried to advance the idea of minimizing fraud and that was

[Katie (Legislative Counsel)]: rejected by Probably the school of money? This

[Rep. Doug Bishop (Member)]: bill has fraud prevention provisions in it, so once someone is given a benefit, the state can appropriately implement fraud prevention provisions. They just can't set up a program to reject an applicant on a general basis there could be fraud.

[Katie (Legislative Counsel)]: Yeah, so this, I would say, is distinct from what we're talking about here because there isn't a durational residency requirement in the bill. So if Vermont were to set up a durational residency requirement, if and when it was challenged, the argument that the state gave was, well, put this in place to prevent fraud. The court, if it was falling in line with these other cases, would say, no, that's not a compelling argument. But if there is a program in place and it's not limited by a durational residency requirement, the state still has the ability to sort of audit what's happening in that program to prevent fraud.

[Rep. Theresa Wood (Chair)]: I wanna make sure that people are clear about this. So honestly, so we don't have to revisit it again multiple times as we talk about the bill. So that's why taking a little bit of extra time to make sure that everybody is clear that we cannot impose residency requirements for length of time for people to access emergency housing. That's the spiel. But frankly, it applies to most everything that we deal with in this committee. Are there further questions or any clarifications? Go ahead, Representative Bishop.

[Rep. Doug Bishop (Member)]: The US Supreme Court rulings are the law of the land, is there any case law from the Supreme Court that's applicable?

[Katie (Legislative Counsel)]: Was realizing on the Supreme Court, I would have to do a deeper dive to see if there's something on point that I could do that.

[Rep. Doug Bishop (Member)]: Don't spend too much time.

[Katie (Legislative Counsel)]: I'm gonna give you, but if

[Rep. Doug Bishop (Member)]: you find something, I'd be curious.

[Rep. Theresa Wood (Chair)]: It doesn't matter, it supersedes.

[Rep. Brenda Steady (Member)]: Right, US supersedes, anything Vermont might have

[Rep. Doug Bishop (Member)]: said. This is very helpful, I didn't understand this, it's very helpful to have this background because as I will be talking to people in my community about why there are, why we don't have the capacity to do things which many people I hear in just community talk is this sounds so reasonable to just have a blockade there to keep people from kind of into the state. Live near border area, yeah. Which there's a lot of assumption that the reason that this costs so much is because people are coming here for these benefits but we're not able to, Vermont is not able to supply a durational requirement in order to receive benefits.

[Rep. Theresa Wood (Chair)]: Vermont or any other state.

[Rep. Doug Bishop (Member)]: Or any other any other state is not, yeah. That's what

[Rep. Theresa Wood (Chair)]: was gonna say.

[Rep. Brenda Steady (Member)]: He just sounds much better. The return, so if this did get implemented, there would be some really good data after 2007 to say how many recipients took advantage of this. If they returned home and then it would have to be strict data, whoever went home and then came back. You would have to ask the department to track

[Katie (Legislative Counsel)]: that Or in could we put it in here? That's how you would ask them.

[Rep. Theresa Wood (Chair)]: Okay, great. I mean, there are things to consider like, you know, use as a, what I would call a pilot, so of short duration so you could track data. There are options that if we think that that should be part of what we spend some of this money on, then we have some options. Another option is that we don't include it. There's options for us to consider as we dive into the language. Thank you. Sure. Are there any other questions about this particular issue as we try to navigate this? And then, yeah, that's I think it. Looks like everybody's got their questions answered, Katie.

[Rep. Brenda Steady (Member)]: So thank you. Thank you very much. Appreciate it. Okay.

[Rep. Theresa Wood (Chair)]: So Okay, our our scheduling has been kind of topsy-turvy today because of well, what I explained earlier today, but I'll explain it to the viewing public for this afternoon that we had witnesses that needed additional time to prepare testimony. And, of course, we prefer to have them come prepared. And so that's the department was scheduled to be here, and they asked to come next week. So they are scheduled in for next week, and we'll see them at that point in time. So what I am encouraging you to do is to meet as budget teams for your departments and to kind of think about and formulate the questions that you'll need to be thinking about. I think in general, have some expertise in those areas. So while we haven't seen the presentation from those departments yet, we already know from BAA that there's a number of things to follow-up on. And even from last year's budget, there's a number of things for us to follow-up on. So I encourage you to meet as hunker off into a corner here someplace or find a quiet space and do that for the next period of time between now and when we're on the floor. And I have some other meetings coming up after the floor. So we are going to have individual and teamwork time after the floor. So you will see that appear in our agenda so that you're going to have to be meeting with departments, you're going to have to set up time to meet with departments and all that kind of stuff. So I want you to be able to have that time. And the first department that we're going to hear from on the budget is going to be the health department, which is slated tentatively for when, Lori? Or they've confirmed, so I think they're locked in.

[Lori (Committee Assistant)]: Tomorrow we won.

[Rep. Theresa Wood (Chair)]: So the health department team of Eric and Zon will be the first to dive, dive, dive. I know he hears his name, his head pops up just like that. So allegedly, right? So we're going to be using YouTube as a spotlight for tomorrow. So we're going to be expecting some really good questions for the health department tomorrow. I'm just yanking with you a little bit. I'm not putting it I'm not and plus and plus we have Zon who is is got a floor report for tomorrow. So he's gonna be all wired up. Duty. Okay. Alright, folks. So you have this time to work on your budget issues and other issues that you maybe need to consider at this point in time and the same with after floor. Okay. Alright. So Laurie, that concludes us for right now.