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” 1 Bay Area Legal Aid 2 Michael Keys, SBN 133815 [email protected] 3 1 1800 Market Street, 3 rd Floor San Francisco, California 94102 4 T: (415) 982-1300 5 F: (415) 982-4243 6 Attorneys for Petitioner 7 ENDORS ED F ILE\ufffd riorcourl San Francisco oounlY upe rEB 1 3’2020 C\\..ERK Of T HE COURT NE\”t’\\.WEBB – 8 Superior Court of California City and County of San Francisco 9 10 11 12 13 Debra Abney, Petitioner, v. California Department of Health Care Services, Richard Figueroa, Acting Director, California Department of Health Care Services, ) ) Case No.CPf -2 Q – 51 7 O 2 0 ) ‘ – ) Petition for Writs of Administrative Mandate ) (CCP 1094.5) and Ordinary Mandamus }(CCP 1085) ) ) 14 City and County of San Francisco, Human 15 .Services-h-gency of the City and County of ) 16 17 18 19 20 21 22 23 24 25 26 27 28 San Francisco, DOES 1-20\ufffd inclusive, ) Respondents. ) I. Introduction 1 .. California’s Medi-Cal program_ provides critical health care services to low-income residents, including coverage of physician and hospital services, prescription medication , dental services, and mental health services. 2. In order to be eligible.for the Medi-Cal program, an individual must have iponthly, countable income below the program’s allowed subsistence levels. PETITION FOR WRITS OF ADMINISTRATIVE MANDATE (CCP 1094.5) & ORDINARY MANDAMUS (CCP 1085) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Cajifor_nia law proscribes that only income which is \”actually available\” to meet the current needs of a person or family may be counted in determining Medi-Cal eligibility. Income which is not available to meet those current needs may not be counted. 22 Cal. Code of Regs. (\”CCR\”) 50513(a), 50515(a). 4. When determining whether in\ufffdome that is being withheld to pay a tax debt is countable, Respondents do not consider whether that income is actually available to pay for current needs. Instead, Respondents have adopted and are enforcing a policy and practice (\”policy\”) of substituting income counting regulations and rules from the Social Security Administration’s federal Supplemental Security Income \/ \u00b7state Supplementary Program (\”SSI\”) program for the requirements of 50513(a) and 50515(a). See Exhibit \”A\”. 5. The SSI program does not require that income be actually available in order to be counted. Instead, it allows income that is not received by the person to be counted when determining SSI eligibility. See 20 C.F.R. 416.1102; Exhibit A, 9-12. ‘ ‘– 6. In the case of Petitioner Abney, Respondents’ policy has resulted in the counting of $598.20 that is being withheld from payment to Ms. Abney in order to pay a tax debt owed to\u00b7the Internal Revenue Service. As a result, Ms. Abney is not eligible for no-cost Medi-Cal but instead has been assessed an unaffordable monthly share of cost premium of $729. 00 that must be paid before Ms. Abney may receive Medi-Cal covered health care services for any month. 7. (Petitioner Abney seeks a writ of ordinary mandate prohibiting Respondents from failing to decide what income is actually available for purposes of Medi-Cal eligibility based upon the Medi-Cal laws and regulations and from failing to treat income that is withheld 2 PETITION FOR WRITS OF ADMINISTRATIVE MANDATE (CCP 1094,5) & ORDINARY MANDAMUS (CCP 1085) 1 2 3 4 . 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 from the individual to pay a tax debt as unavailable, pursuant to 22 CCR 50513(a) and 50515 (a). 8. Ms. Abney also seeks. an order of administrative mandamus voiding Respondents’ hearing decision and directing Respondents to immediately redeterniine her Medi-Cal eligibility and that.the withheld $598.20 be treated \ufffds unavailable income for purposes of that redetermination. II. Parties 9. Petitioner Debra Abney is 65 years old. Ms. Abney suffers from numerous disabling conditions, including chronic severe pain in her back, legs, and neck, a broken hip, . arthritis, diabetes and untreated cavities and broken teeth resulting in chronic, severe oral pain. 10. Respondents’ illegal policy of counting income that is not actually available to pay for M Abney’s current needs has resulted in her income being wrongly and iHegally determined to be too high for no-cost Medi-Cal and, as a result, her being denied Medi-Cal covered health care services, including needed dental treatment and services. 11. Respondent Richard Figueroa is the acting director of Respondent Department of Health Care Services (\”Department\”), the state agency charged with administering California’s Medi-Cal program. Respondent Figueroa is sued in his official capacity. Respondents Figueroa and Depa.itment have a legal duty to ensure that determinations of countable income for purposes of Medi-Cal eligibility are based upon the requirements of 22 CCR 50513 (a) and 50515 (a) that on income which is actually available for current needs may be counted. PETITION FOR WRITS OF AD1\\1INISTRATIVE MANDATE (CCP 1094.5) & ORDINARY MANDAMUS (CCP 1085) 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12. Respondents City and County of San Francisco and Human Services Agency of the City and County of San Francisco (\”CCSF\”) perform Medi-Cal eligibility determinations on behalf of Respondent Department for residents of San Francisco, California. CCSF performed the income eligibility determination for Petitioner Abney that is the subject of this lawsuit. CCSF has a legal duty to ensure that determinations of countable income fo purposes of Medi-Cal eligibility are based upon the requirements of22 CCR 50513 (a)\\ and 50515 (a) that only income which is actually available for current needs may be counted. 13. DOES I-XX are individuals and entities whose true names are unknown to Petitioner at this time. Petitioner will seek leave of this court to add their true names and.capacities when they have been ascertained. ID. \u00b7 Statutory Framework A. Medi;.Cal Statutory Framework 14. The Medicaid program was established by Congress in 1965 at title XlX of the Social Security Act. The purpose of the Medicaid program is to enable states to furnish \”medical assistance on behalf of families with dependent children and of aged, blind or disabled individuals whose incomes and resources are insufficient to meet the costs of necessary medical services … \” 42 U.S.C. 1396. PETITION FOR WRITS OF ADMINISTRATIVE MANDATE (CCP 1094.5) & ORDINARY MANDAMUS (CCP 1085) 4 1 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 . 27 28 15. California has elected to participate in the federal Medicaid program. Its Medicaid programs, known as ‘.’Medi-Cal\”, is codified at Welfare and Institutions Code 14000 et seq. 1 16. In establishing Medi-Cal, the California Legislature declared its intent to provide \” … for the health care for th.ose aged and other persons.- . . who lack sufficient annual incomes to meet the costs of health care, and whose other assets are so limited that their application toward the costs of such care would jeopardize the person or family’s future minimum self-maintenance and security\” and \”to afford qualifyi;ilg individuals health care and related remedial or preventative services … \”\u00b7 14000. 17. Medi-Cal beneficiaries are entitled to a uniform set of health care services, including I . physician and hospital services, prescription medications, dental services, and mental health treatment services. See 14132. 18. States participating in Medicaid must designate a \”single state agency\” to be responsible for implementing and administering the program. 42 U.S.C. 1396a(a)(5). 19. Respondent Department is the single state agency in charge of administering Medi-Cal. 14100.1. 20. As the single state agency, Respondent Department is responsible for ensuring that the Medi-Cal program is administered in such a manner as to coniply with state Medi-Cal laws and regulations (22 CCR 50004 (b)(2), (3)) and so as to promptly secure for all\u00b7 persons the amount of aid for which they are eligible ( 10500, 10000). 1 Unless otherwise specified, all statutory references will be to the Welfare and Institutions Code . 5 PETITION FOR WRITS OF ADMINISTRATIVE MANDATE (CCP 1094.5) & ORDINARY MANDAMUS (CCP 1085) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Medi-Cal Eligibility Determination Process 21. As California’s designated single state agency, the Department \”is responsible for determining eligibility for all individuals applying for\” Medi-Cal. 42 C.F.R.\u00b7 431.10(b)(3). 22. Medi-Cal eligibility determination activities are undertaken by counties on behalf of the Department. 14154.3(g). 23. The Department must ensure that any agency to which it delegates eligibility determinations performs those determinations in conformity with the requirements of la 42 C.f.R. 431.10 ( c )(3)(i)(A). 24. The Department has delegated the responsibility for determining the Medi-Cal eligibility for residents of San Francisco, California to CCSF. See Exhibit \”A\”. 25. \u00b7 In order to be fmancially eligible for the Medi-Cal program, an individual or family must have income and other fmancial resources that are below Medi-Cal subsistence limits. See 22 CCR 50401 et seq.; 50501 et seq. 26. California law requires that only income which is \”actually available\” to meet \”current needs\” D?-ay be counted when determining Medi-Cal eligibility. Income which is not so available may not be counted. 22 CCR 50513(a); 50515(a). 27. 22 CCR 50513(a) and 50515(a) were adopted pursuant to and in conformity with all requirements of the California Administrative Procedure Act. 28. Respondents have a legal duty to determine countable income in conformity with the requirements of 50513(a) and 50515(a). 22 CCR 50004 (b) (3). PETITION FOR WRITS OF ADMINISTRATIVE MANDATE (CCP 1094.5) & ORDINARY MANDAMUS (CCP 1085) 6 1 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20\u00b7 21 22 23 24 25 26 27 28 2\ufffd Respondents’ Policy of Counting Income Withheld to Collect a Tax Debt 29. Based the requirements of 22 CCR 50513(a) and 50515(a), for 28 years Respondents have excluded a yariety of types of income that are withheld and not actually available to meet current needs. These include coliections of overpayments of entitlement programs, unemployment benefits, retirement plans, pension plans, and annuity benefits. See Respondents’ All County Welfare Directors Letter 92-39. 30. When determining whether income that is withheld to repay a tax debt is countable, Respondents do not base that decision upon the requirements o:f22 CC\ufffd 50513(a) and_ 50515(a). Instead, Respondents have adopted and are enforcing a policy of substituting the income counting requireI?-ents and rules for the Social Security’s SSI program for those of 50513(a) and 50515(a). See Respondents’ Decision, dated December 3, 2019, pages 9-12, a copy of which is attached hereto as exhibit \”A\” and incorporated by reference. 31. The SSI program regulations and rules governing income counting allow income that is not actually received to be counted when determining SSI eligibiiity. 20 C.F.R. 416.1102, 416.1123; see also Exhibit \”A\”, pages 9:J2. 32. Respondents’ challenged policy has not been adopted in accord with the requirements of’ the California Administrative Procedure Act. B. State Administrative Hearing Statutory Framework 33. A Medi-Cal applicant or recipient who is dissatisfied with any action of the county or the Department concerning Meq.i-Cal eligibility has the right to appeal that action in a state administrative hearing. 22 CCR 50951 (a); see also Welf. & Inst. Code 10950. PETlTION FOR WRITS OF ADMINISTRATIVE MANDATE (CCP 1094.5) & ORDINARY MANDAMUS (CCP 1085) 1 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 20 21 22 23 24 25 26 27 34. Within 30 days after the Department has received a copy of the administrative law judge’s proposed decision for the state administrative hearing, Respondent Director must . __) . adopt that decision, decide the matter himself on the record or order a further hearing. Welf. & Inst. Code 10959. C. California Administrative Procedure Act 35. California’s Administrative Procedure Act (\”APA\”) prohibits state agencies from issuing or enforcing regulations unless they were adopted in \u00b7accordance with the AP A. Cal. Go . Code 11340.5. 36. The AP A defines a \”regulation\” as \”every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order, or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure.\” Cal. Gov. Code 11342.600. 3 7. Respondents’ policy is a regulation as defined by the California AP A. \u00b7 38. Respondents have a legal duty to only adopt and enforce regulations for counting incom for purposes of Medi-Cal eligibility that have been promulgated in conformity with the requirements of the California AP A. See Cal. Gov’t Code 11346 et seq .. IV. Relief Sought By This\u00b7 Lawsuit A. CCP 1094.5 _.,\/ 39. Pursuant to California Code of Civil Procedure 1094.5, Petitioner seeks an order finding that Respondents’ administrative hearing deci_sion is arbitrary, capricious and contrary to law and voiding that decision. Petitioner further re.quests that this Court direct PETITION FOR WRITS OF ADMINISTRATIVE 28 MANDATE (CCP 1094.5) & ORDINARY MANDAMUS (CCP 1085) \/ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondents to immediately redetermine her Medi-:Cal eligibility and that the withheld $598.20 be treated as unavailable income for that redetermination. B. CCP 1085 40. Pursuant to California Code of Civil Procedure 1085, Petitioner seeks a writ of ordinary mandate (1) prohibitingRespondents from failing to comply with their duty to determine countable income in conformity with the requirements.of lawfully adopted state Medi-Cal laws and regulations and (2) from failing to treat income that is withheld . for payment of a tax debt as unavailable, pursuant to the requirements of 22 CCR , 50513(a) and 50515 (a). 41, Mandamus is a ,proper legal remedy to correct Respondents’ abuse of discretion in failing to determine countable income for purposes of Medi-Cal eligibility in conformity with the requirements of 22 CCR 50513(a) and 50515(a). V. Factual Allegations . 42. Petitioner Debra Abney is a 65 year old, low-income resident of San Francisco, California. Ms. Abney suffers from a variety of severe .impairments, including chronic severe pain in her back, legs, and neck, chronic severe dental pain as a resuh ofcavities and broken teeth, a broken hip, arthritis and diabetes. 43. Ms. Abney is eligible for a monthly Social Security disability payment of $1,484.50. From that amount, $598.20 is withheld each month to pay a tax debt owed to the Internal Revenue Service. Ms. Abney does not have any control or discretion over the withheld $598.20. That amount is not available to meet her current needs. PETITION FOR WRITS OF ADMINISTRATIVE MANDATE (CCP 1094.5) & ORDINARY MANDAMUS (CCP 1085) 9 1 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 I 18 19 20 21 22 23 24 25 26 27 28 44. At the beginning of 2019, CCSF conducted a review of Ms. Abney’s Medi-Cal eligibili In doing so, CCSF included within Ms. Abney’s countable income the $598.20 that is withheld to pay the IRS tax debt. Exhibit A, pages 2-3. 45. On March 19, 2019, CCSF issued a Notice of Action assessing Ms. Abney with a monthly Medi-Cal share of cost premium of $729.00, effective April 1, 2019. The $729.00 premium must be paid in order for Ms. Abney to be eligible for Medi-Cal health care services in any month. 46. In assessing the $729 .00 monthly premium, CCSF applied and enforced the policy challenged herein of counting income that being withheld to pay a tax debt. Exhibit A, pages 2-3, 9-11. 47. If the withheld $598.20 were not counted, Ms. Abney would be eligible for Medi-Cal with no share of cost. 48. Ms. Abney appealed the share of cost assessment to a state administrative hearing. 49. At the state administrative hearing, Ms. Abney’s attorney argued that state Medi-Cal law precludes counting the $598.20 being withheld to pay a tax debt income because it is not \\ actually available to meet het current needs. Exhibit A, page 2. . 50. At the state hearing, Respondents reaffinned their policy of substituting the SSI income counting provisions in place of 50513(a) and 50515(a). Exhibit A, page 2. 51. In a hearing decision dated December 3, 2019, the administrative law judge (\”ALJ\”) affinned and enforced the challenged policy. Exhibit A, page 12. 52. Respondents adopted the state hearing decision for Ms. Abney pursuant to Welf. & Inst. Code 10959. \u00b7As a result, Ms. Abney is not eligible for Medi-Cal unless she pays a 10 PETITION FOR WRITS OF ADMINISTRATIVE MANDATE (CCP 1094.5) & ORDINARY \u00b7 MANDAMUS (CCP 1085) 1 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 . 24 25 26 27 28 monthly share of cost premium of $729.00.\ufffdSee exhibit \”A\”, pages 1, 12. Such an unaffordable monthly premium amounts to a denial of Medi-Cal eligibility. J 53. Ms. Abney suffer\ufffd from severe chronic dental pain that is the result of cavities and ,broken teeth. As a result, Ms. \u00b7Abney is able to chew food on only one side of her mouth and sometimes cannot chew at all due to pain. Swelling in her mouth also prevents eating proper food. 54. Ms. Abney had x-rays taken of her teeth as a first step in getting dental treatment; however, the dentist told her she had to first pay her monthly share of cost premium before Medi-Cal will cover the needed dental treatments. 55. Ms. Abney cannotafford to pay a share of cost and also pay for the most basic living expenses so she has not been able to obtain Medi-Cal covered dental treatment. 56. Ms. Abney cannotafford private dental insurance or to pay out of pocket for needed dental treatment services. First Cause of Action (Violations of22 CCR 50004(b), 50513(a), 50515(a); and Welf & Inst. Code 10000, 10500 ) 57. Petitioner realleges and incorporates by reference each and every allegation contained within paragraphs 1 – 57. 5\ufffd \u00b7 Respondents’ policy of determining countable income based upon SSI income counting regulations and procedures violates their ministerial duties to determine countable income fo purposes of Medi-Cal eligibility based upon the requirements of Medi-Cal laws and PETITION FOR WRITS OF ADMINISTRATIVE MANDATE (CCP 1094.5) & ORDINARY MANDAMUS (CCP 1085) \/ 11 1 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 regulations (22 CCR 50004 (b)) and to only include that income which is 11actually available 1 1 to meet 11current needs\” pursuant to the requirements of 50513(a) and 50515(a). 59 . . Respondents’ policy is resulting in the assessment of unaffordable monthly share of cost premiums that effectively delay and prevent otherwise eligible persons, such as Ms. Abney, from obtaining coverage of needed health care services ip. violation of Respondents’ duties u:nder 10000 and 10500. Second Cause of Action (Violation of California Administrative Procedures Act) 60. Petitioner realleges and incorporates by reference each and every allegation contained . within paragraphs 1 – 60. 61. Respondents’ challenged policy is a rule,: regulation, order, or standar.d of general application, as defined by as defined by the California Administrative Procedures Act. See Cal .. Gov’t Code 11340.5; 11342.600. 62. California’s Administrative Procedure Act prohibits state agencies from issuing or enforcing regulations unless they were adopted in accordance with the AP A. Cal. Gov. Code 11340.5. 63. Respondents have a legal duty to ensure that all rules, regulations, orders, or standards of general application that are.used to determine countable income for purposes of Medi-Ca eligibility are adopted in accord with the requirements of the California AP A. 64. Respondents’ challenged policy has not been adopted in conformity with the \u00b7 requirements of California’s AP A. 12 PETITION FOR WRITS OF AD:MINISTRA TIVE 28 \u00b7 MANDATE (CCP 1094.5) & ORDINARY MANDAMUS (CCP 1085) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 16 17 18 19 20 21 22 24 25 26 27 28 65. Respondents’ failure to comply with this duty is resulting in their enforcing an illegal underground regulation for purposes or determining countable income and, as sue is a violation of their duty to determine countable income in accordance with lawful Medi-Cal regulations. 22 CCR 50004 (b )(3). Third Cause of Action (Ordinary Mandate – CCP 1085) 66 ( Petitioner realleges and incorporates by reference each and every allegation contained within paragraphs 1 – 66: 67. Respondents have a clear and present ministerial duty to administer the Medi-Cal program based upon Medi-Cal regulations and rules that have been a?o:rted in accord with the California Administrative Procedures Act and to determine countable income in conformity with the requirements of 22 CCR 50513(a) and 50515(a) so as to ensure that all eligible persons promptly receive those health care services for which they are eligible (Welf. & Inst.Code 10000, 10500). 68. Respondents have adopted and are enforcing a policy of substituting regulations and rule \/ on income counting taken from the federal SSI program that have not been adopted under \u00b7 the California APA for the requirements of 50513(a) and 50515(a). By doing so, Respondents are counting income for purposes of Medi-Cal _eligibility that is not actually available to meet current needs. 69. Respondents are breaching their legal duty to determination eligibility in conformity with the requirements of the lawful regulations governing the Medi-Cal program. PETITION FOR WRITS OF ADMINISTRATIVE MANDATE (CCP 1094.5) & ORDINARY MANDAMUS (CCP 1085) 13 1 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70. Petitioner seeks a writ of ordinary mandate (1) prohibiting Respondents from failing to comply with their duty to determine countable income in conformity with the requirements of lawfully adopted state Medi-Cal regulations and (2) from failing to treat income that is withheld for payment of a tax debt as unavailable, pursuant to the requirements of 22 CCR 50513(a) and 50515 (a). 71.As a\u00b7Medi-Cal recipient and a person affected by Respondents’ policy, Petitioner Abney has a direct and\u00b7beneficial interest in ensuring that the program is administered in a lawful manner. 72. Petitioner lacks a plain, speedy and adequate remedy at law except by way of ordinary mandate pursuant to CCP 1085. Fourth Cause of Action (Administrative Mandamus – CCP 1094.5) 73. Petitioner realleges and incorporates by reference each and every allegation contained within paragraphs 1 – 73. 74. Petitioner Abney is entitled to have her Medi-Cal eligibility determined in accordance with the requirements of 22 CCR 50513(a) and 50515(a). 75. The $598.20 that is being withheld from Ms. Abney to repay a tax debt owed to the Internal Revenue Service is not actually available to Ms. Abney to meet her current need Ms.) Abney has no control or discretion over this amount. 76. Respondents’ failure to determine Ms. Abney’s countable income in conformity with the requirements of 22 CCR 50513(a) and 50515(a) is arbitrary, capricious, and contrary t law and should result in this court issuing its order voiding Respondents’ hearing decision 14 PETITION FOR WRITS OF ADMINISTRATIVE MANDATE (CCP 1094.5) & ORDINARY MANDAMUS (CCP 1085) 1 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 (exhibit \”A\”) and directing that her eligibility be immediately redetermined and that the $590.20 being withheld to pay a tax debt be treated as unavailable income for that redetermination of eligibility. 77. Petitioner requests that Respondents immediately prepare a transcript of the administrative hearing for this matter, file the transcript with the court and provide Petitioner’s counsel with a copy. Wherefore, Petitioner prays as follows: 1. For a preliminary and permanent injunction and a writ of ordinary mandate \\ . finding that Respondents have failed and are continuing to fail to comply with their duty to determine countable income based upon lawful Medi-Cal regulations and rules and prohibiting Respondents from failing to take those steps necessary to ensure that income which is withheld to pay a tax debt is treated a unavailable income pursuant to 22 CCR 50513(a) and 50515(a). 2. For a writ of administrative mandamus voiding Respondents’ hearing decision (exhibit \”A\”) and directing that Respondents immediately conduct a redetermination of Ms. Abney’s Medi-Cal eligibility and that the redetermination treat as unavailable income the amount being withheld to repay the Internal Revenue Service tax debt. 3. For costs of this lawsuit, including reasonable attorney’s fees and expenses, as permitted by law. 24 Dated: February 5, 2020 25 Micha 1 Keys Bay Area Legal Aid 26 27 28 _PETITION FOR WRITS OF ADMIN1STRATIVE MANDATE (CCP 1094.5) & ORDINARY MANDAMUS (CCP 1085) 15 1 VERIFICATION 2 I, the undersigned, declare: 3 That I am a petitioner in the above-entitled action; that I have reviewed the foregoing 4 Petition For Writs of Ordinary and Administrative Mandate and that !’certify that the factual 5 allegations contained therein are correct and true to the best of my knowledge . 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 _ 24 25 26 27 28 I declare under penalty of perjury that the foregoing is true and correct. Executed on January 27, 2020 at San Francisco, California. Exhibit A California Department of Social Services Hearing No. 104590813 In the Matter of Claimant(s): Debra Abney 1693 OAKDALE A VE, SAN FRANCISCO, CA 94124-2324 Pursuant to the authority of the Dtrector, I adopt the attached final decision. ‘ Arlana Spikener Administrative Law Judge CDSS State Hearings Division Hearing lnformatio.n \u00b7 Hearing Date: Release Date: Aid Pending: Issue Codes: Language: DECISION Adopt Date: December 03, 2019 September 26, 2019 11:15 AM December 04, 2019\u00b7 NIA \u00b7 438-2,502-2 ENGLISH Decision Cover Page ‘ State of California ! CDSS State Hearings Division SUMMARY \u00b7\u00b7, Hi. )g No. 104590813-730 Page 1 \”The Claimant is not eligible to receive California Medical Assistance Program (Medi-Cal) benefits with no share of cost under the Aged and Disabled (A&D) Federal Poverty Level (FPL) program, because her cou_ntable income exceeds the eligibility limit for those programs. However, the Claimant is eligible to receive Medi-Cal benefits with a share of cost of $729.00 per month effective April 1 , 201 9. [438-2] [502-2] FACTS On March 1 9, 201 9, San Francisco County (County) mailed the Claimant a Notice of Action informing her that she was approved for Medi-Cal benefits with a SOC of $729.00 monthly, effective April 1 , 201 9. On June 1 0 , 201 9, the Claimant filed a request for hearing to challenge the new share of cost. On J uly 1 5, 201 9, the Claimant’s Attorney also filed a request for hearing to challenge the new share of cost. On September 26, 21 09, the state hearing was held . The Claimant and her Attorney participated in the telephonic hearing and the County appeals representative appeared for the County. The County appeals representative prepared and submitted a Statement of Position, which was received into the administrative record , along with all of its attachments. . The Attorney prepared and submitted a Statement of Position on behalf of the Claimant which was received . into the administrative record, along with al\ufffd of its attachments. At the hearing the County appeals representative testified that the Claimant had received Medi\u00ad Cal benefits with zero share of cost under the Aged & Disabled Fed.era! Poverty Level program (A&D FPL program) since November 1 , 201 1 . The County appeals representative testified tliat the Claimant had an Medi-Cal Family Budget Unit (MFBU) of one. The County appeals representative testified that the Claimant receives $1 ,484.50 monthly from Social Security Administration (SSA) Retirement, Survivors and Disability Benefits and she pays $1 35.00 monthly for her Medicare Part B premium. The County appeals representative testified that the Claimant submitted an SSA award letter which indicated $598.20 is withheld from each payment to pay a debt to the Internal Revenue Service (IRS). \/’ The County appeals representative testified that based on the Claimant’s gross monthly income of $1 ,484.50, the Claimant is not eligible for zero share of cost under the Medi-Cal Aged & Disabled Federal Poverty Level program, because her countable income exceeds the program’s income limit. The County appeals representative testified that the County recalculated the Claimant’s budget for April 201 9, and determined the Claimant is not eligible for the zero share of cost program because of the amount of her monthly unearned income. The_ County appeals representative testified that the County calculated the Claimant’s ineligibility for continued zero share of cost under the Medi-Cal Aged & Disabled Federal Poverty Level program (A&D FPL program) as follows: \\ State of California CDSS State Hearings Division Gross Unearned Income (SSA Income) Less Income Deduction Remaininq Unearned I ncome Less Disreqard for Qualified Individuals Net Nonexempt Income Proqram Income Limit Net Income is greater than the Program Income Limit \u00b7,, HeL }, No. 104590813-730 Page 2 $1 ,484.50 -$1 55.50 $1 ,329.00 -$230.00 $1\” ,099.00 $1 ,041 .00 . NOT ELIGIBLE The County appeals representative testified that the County calculated the Claimant’s share of cost of $729.00, effective April 1 , 201 9 in the Medi-Cal program as follows: Gross Unearned lncome.(SSA) $1 ,484.50 Less Income Deduction -$155.50 Net Nonexempt Income $1 ,329.00 Less Maintenance Need -$600.00 Share of Cost . $729.00 The County appeals representative testified that all income, whether available or not, is counted \u00b7 in the budget. The County appeals representative testified that unearned income is counted, and that withheld amounts from unearned income, whether voluntary or not, to repay a tax debt, or to meet a legal obligation , are still considered unearned income received by the individual. The Attorney testified that IRS debt should _be allowed as a deduction. The Attorney testified that the income is not available as \”available income\” fs defined under 505 1 3. The Attorney testified that if income is garnished from a Claimant by the IRS, that income is not available to th\u00b7e Claimant to meet her needs. The Attorney argued the Claimant was down to half of her monthly income due the IRS garnishment and the money is not available to her. The Attorney argued that garnished income is not available income to the Claimant. The Claimant testified that she cannot afford to buy her prescriptions and she has medicaf conditions. Following the hearing the CouQtY was allowed to submit statutory authority for the parties to . \u00b7 consider that specifically stated IRS garnishment did not qualify as ‘unavailable’ income. On September 26, 201 9, the County submitted the Social Security Program Operations Manual System, Garnishment or Other Withholding (20 CFR 416. 1 1 23(b)(2)); the authority expressly lists Federal, State or local income taxes, as items which may be withheld from income, but are still considered received income. Based on a preponderance of the evidence in the administrative record, it is found that_ the Claimant has not received Supplemental Security Income\/State Supplementary Payment (SSI\/SSP); that she receives SSA income in the amount of $1 ,484.50 monthly, as her sole\u00b7 monthly income: The finding is based on the Courity appeals representative testimony \u00b7 regarding the Claimant’s monthly income, and the income verifications received into the administrative record, and the testimony of the Attorney regarding the Claimant’s income and source of income. State of California He, g No. 104590813-730 CDSS S’tate Hearings Division Page 3 It is further found that specific amounts are garnished\/deducted from the Claimant’s unearned income for her IRS debt repayment or for her Medicare Participated B premium payment from her unearned income monthly, and that the IRS repayment deduction is involuntary. It is found that the Claimant has not received Supplemental Security Income\/State Supplementary Payment (SSI\/SSP); that \u00b7she receives SSA income in the amount of $ 1 ,894.00 monthly and that she has no medical expense deductions. These findings are made based on the credible testimony of the County appeals representative, and the Authorized Representative regarding the Claimant’s income, and on the verification of income in the administrative record. LAW The California Department .of Health Care Services (DHCS) issues Medi-Cal regulations and these regulations are found in Title 22, California Code of Regulations (CCR). All further references, unless otherwise specified, are from the CCR. ( 50005) For purposes of this decision, W&IC is the abbreviation for the Welfare and Institutions Code: Pickle Amendment ABO persons may be eligible for zero SOC Medi-Cal benefits if they meet all the following conditions: 1 . The perso\ufffd receives Title I I Social Security, i .e. , RSDI. 2. The person has received, and been. entitled to receive, RSDI (formerly OASDI) and SSI\/SSP in the same month in any month since April 1 977. 3. The person has been discontinued from SSI\/SSP for any reason,. 4. The person has received an RSDI cost-of-living adjustment (COLA) in any month since SSI\/SSP was discontinued. 5. The person would be eligible to receive SSI\/SSP benefits if the RSDI COLAs received after SSI\/SSP ineligibility are disregarded. (Pickle Handbook, 1 5; p. 1 5-1 , implementing Lynch v. Rank) I n the Pickle eligibility determination, the person must have \”received’ both RSDI (formerly OASDI) and SSI\/SSP in the same month. This requirement has been interpreted as follows: ( 1 ) I f Title XVI (SSI\/SSP) and\/or Title I I (RSDI) ben are awarded retroactively, Pickle elig ibil ity may be determined from the last date of actual SSI\/SSP eligibility and the first date of entitlement to RSDI benefits. (2) Those who received SSI\/SSP, but were later found by the SSA to be ineligible for those benefits are not potential Pickle eligible. (3) Actual receipt of SSI\/SSP is required, but only\u00b7 entitlement to, rather than actual receipt of RSDI is needed to meet Pickle eligibility requirements. (Pickle Handbook, 2, p. 2-1 ) \” State of California } CDSS State Hearings Division A&D FPL Program Eligibility He, )g No. 104590813-730 Page 4 Effective January 1 , 2001 , the State has established an A&D FPL Program which will provide zero SOC Medi-Cal benefits to those persons who qualify. The basics of the program, are as follows: Qualified individuals\/couples need to be aged or disabled\u00b7 and not in Long-Term Care. Eligibility of qualified individuals will be determined using the income and property \u00b7 medically needy rules. . . If qualified individuals have other family members applying for Medi-Cal benefits, qualified members will be ineligible member(s) of the other family member’s Medi-Cal Family Budget Unit (MFBU). All ineligible family members’ income will be used and be considered a part of the MFBU for purposes of determining the maintenance need size. Blind applicants or beneficiaries (under Title XVI or XIX) will be referred to the State Programs-Disability in order to determine if they meet disability criteria. January Social Security Cost -of-Living Allowance increases should \u00b7be temporarily di\ufffdregarded until the effective FPL \u00b7increases are issued (generally in April) . Disabled individuals in the A&D FPL program are not subject to an age l imitation and as such children who are disabled need to b\ufffd evaluated for this program. (All-County Welfare Directors Letters (ACWDLs) No. 00-57, November 14, 2000; 00-68, \u00b7′—- December 29, 2000; and 02-38, June 28, 2002) The law which authorized the A&D FPL program provides, in pertinent part, the following: (c) An aged or disabled individual shall satisfy the financial eligibility requirement of this program if both the following conditions are met: ( 1 ) Countable income, as determined in accord with (42 United States Code (USC) 1 396a(h1)) does not exceed an income standard equal to 1 00 percent of the applicable federal poverty level, plus $230 for an individual or, in the case of a couple, $31 0, provided that the income standard so determined shall not be less \u00b7 than the SSI\/SSP payment level for a disabled individual or, in the case of a couple, the SSI\/SSP payment level for a disabled couple. (2) Countable resources, as determined in accord with 42 USC 1 396a(m) do not exceed. the maximum levels established in that section. (d) The financial eligibi lity requirements provided in subdivisions (c) may be adjusted upwards to reflect the cost _of living in California, contingent upon appropriation in the annual Budget Act. (f) For purposes of calculating income under this section during any calendar year, increases in social security benefit payments under Title I I of the Social Security Act (42 USC 401 et seq.) arising from cost-of-living adjustments shall be disregarded commencing in the month that these social security benefit payments are increased by the cost-of-Jiving adjustment through the month before the month in which a change in State of California He, ‘,\\g No. 104590813-730 , Page s CDSS State Hearings Division the federal poverty level requires the departmentto modify the income standard described in subdivision (c) . (g) Notwithstanding any other provision of law, the program provided for pursuant to this section shall be implemented only if, and to the extent that, the department determines that federal financial participation is available. (h) \u00b7 Subject to subdivision (g), this section shall be implemented commencing January 1 , \u00b7 200 1 . (W&IC 1 4005.40) In determining eligibility for the A&D FPL Program, count the income of the applicant and the applicant’s spouse. (All-County Welfare Directors Letter Nd. 01 – 18 , March 1 6 , 200 1 ) Gross unearned income includes Social Security payments, annuities, pensions, retirement benefits, disability, veteran’s benefits, unemployment insurance, gifts or contributions, loans which do not require repayment, inheritan<;:e of liquid assets, dividends and interest payments, etc. ( 50507(a)) Health care premiums and all other medically needy deductions are allowable deductions in the A&D FPL program, except for the IHSS deduction. (ACWDL No. 02-38, June 28, 2002) Health insurance premiums shall be deducted from income if paid by and purchased for any person in the family. Health insurance premiums paid less than monthly shall be averaged on a monthly basis, except that the premium for Part B Medicare shall be deducted for' those months in which the beneficiary actually makes the payment. ( 50555.2) Once the State has begun its \"buy-in\", a Medi-Cal beneficiary cannot then pay his\/her own Medicare Part B premium in order to qualify for the A&D FPL program. (ACWDL No. 02-38, June 28, 2002) MN Program Rules governing the MN program are the same rules used for the A&D FPL program, pursuant to All County Welfare Directors Letter 00-57. These rules include all property determinations, income deductions, and allocations (including those to Public Assistance [PA] or other PA spouses), and exemptions. (ACWDL 08-42, September 23, 2008) There shall be a deduction of $20 from the combined nonexempt unearned income of all ABO M N persons and the spouse or parent of these persons. ( 50549.2) Effective April 1 , 201 7, the Federal Poverty Level (FPL) for one person is $1 ,005. (ACWDL No. 1 7- 1 0, March 3, 201 7) I n order to be certified and receive a Medi-Cal card under the Medically Needy (MN) program, the person shall be determined eligible and meet income and SOC requirements specified iri these regulations. ( 50653(d)) When an MFBU does not include a person in Long-Term Care, net nonexempt income is determined for members of the MFBU. From the net income, the appropriate maintenance need is subtracted in order to determine the SOC. ( 50653(a)) The SOC shall cover a one-mcinth period and be determined as follows for MFBUs which do not include a person in L TC: \\ State of California He, ,\ufffd No. 104590813-730 CDSS State Hearings Division Page 6 (A) Determine the net nonexempt income available to the members of the MFBU. \u00b7 (8) Round the total net nonexempt income determined in (A) to the nearest dollar, with amounts ending in 50 cents or more rounded to the next higher dollar. (C) Determine the appropriate maintenance need for the MFBU in accordance with Section 50603. (D) Subtract the combined maintenance need from the total rounded net nonexempt income. The remainder, if any, is the share of cost. ( 50653(a)(1 )) The Medi-Cal maintenance need for a MFBU of one person is $600. ( 50603; ACDWL No. 95- 1 9, March 23, 1 995) The SOC shall be determined: \u00b7 1 ) At the time of application, reapplication or restoration. 2) When there is a c\ufffdange in income, family composition or any other factor affecting the share of cost. lh these instances, the share of cost shall be determined in accordance Section 50653.3 and 50655.5. ( 50653) Qualified Medicare Beneficiary (QMB) Net non-exempt income for the 0MB, SLMB or Ql-1 programs shall be determined in accordance with all the applicable provisions of Article 8 and Article 1 0, except that the heal.th insurance premiums as specified under Section 50555.2 are not allowed. ( 50570) The DHCS policy as to implementation of this program is set forth in ACWDL No. 90-02 , January 8, 1990; Medi-Cal Eligibility Procedures Manual (MEPM) SF, issued as part of ACWDL No. 9 1 -09, February 7 , 1 991 , referencing ACWDLs 90-02 , 90-29, 90-7 1 and 90-73 . For Qualified Medicare Beneficiaries (QMBs) , the DHCS shall pay the premiums, deductibles, and coinsurance for elderly and d isabled persons entitled to benefits under the Title XVI I I of the Social Security Act, when the person's income does not exceed the FPL, and resources do not exceed 200% of the SS I Program standard . (Welfare and Institutions Code (W&IC) 1 4005 . 1 1 ) DHCS shall also pay applicable additional prem iums, deductibles and coinsurance for drug coverage , as offered to categorically needy recipients , as defined in W&IC 14050 . 1 and Title XIX of the Social Security Act. (W&IC 1 4005. 1 1 (b)) The four QMB requirements are: 1 . A QMB must be elig ible for Medicare Part A (Hospital Insurance) 2 . A QMB must have income less than 1 00% of the federal poverty level. . State of California CDSS State Hearings Division -\ufffd, He, ,b No. 104590813-730 Page 7 3. A QMB must have property valued at $4,000 or less if a single person, or $6,000 or less if married \u00b7 and living with a spouse. \u00b7 4 . A QMB must meet certain other Medi-Cal program requirements, such as California residency. (ACWDL Nos. 97-34, 09-52, 12-01 ) The Q M B limit has been 1 00% of the FPL since 1 996. (ACWDL No. 97-34, August 5 , 1 997) \u00b7 Specified Low-Income Beneficiary (SLMB) A Specified Low Income Medicare Beneficiary (SLMB) is ineligible as a QMB solely due .to excess income. The SLMB program is limited to the payment of the Medicare Part B premium. It does not pay Medicare Part A premium, or the Part B deductibles or coinsurance. The SLM B's Medicare Part B premium will be purchased under the State buy-in process. To be eligible, a SLMB must: - Be entitled to Medicare Part A and B; - Have no more than twice the Medi-Cal property limit ($4,000 for one person, $6 ,000 for a couple) ; - Have income bel_ow 1 20% of the FPL; and Be a citizen or alien who would be eligible for full scope Medi-Cal benefits if he or she were eligible for a regu lar Medi-Cal program , except for excess income or property. (Med i-Cal Eligibi lity Procedures Manual 5J-1 ; ACWDL 09-52 ; ACWDL 1 2-01 ) The SLMB income level (1 20% of the FPL) effective April 1 , 201 7 for one person is $1 ,206 .00 . (ACWDL 1 7-1 0) Qualifying Individuals Program (Ql-1 ) . The Balanced Budget Act of 1 997 established a new Medi-Cal program which pays some or all of the Medicare Part B premium for those elig ible to the Qualifying Individuals (QI) program. The Q I program is divided into the Ql-1 and Ql-2 programs. (The Ql-2 program was sunsetted effective December 3 1 , 2002) If an ind ividual has income under 1 00% of the Federal Poverty Level (FPL) and meets other elig ibi l ity criteria such as residency and resource l imits, the individual is eligible under the QMB program . If an otherwise elig ible individual has income between 100% and 1 20%of the FPL , the individual is elig ible for the SLMB program. \u00b7 If an otherwise elig ible individual has income of at least 1 20% but less than 1 35% of the FPL, - the individual is eligible under the Q l-1 program . The Ql-1 program wi ll pay the fu ll Part B Medicare premium. ( - ', State of California )----- CDSS State Hearings Division ', Ht. \ufffdg No. 104590813-730 Page 8 (ACWDL No. 98-47, October 22, 1 998, referencing ACWDLs 97-45 and 98-1 5; ACWDL No. 03- 02 and 09-52; ACWDL No. 1 2-01 ) Counties must review medically needy applications and eligibility redeterminations to determine if there is eligibility for the Qualified Medicare Beneficiary (QMB) program. If the individual is not eligible as a QMB due to income, counties must evaluate the individual for either the Specified Low I ncome Medicare Beneficiary (SLMB) or the Qualified Individual (QI) program, so that the DHCS can claim funding for the state payment of Medicare Part B payments. While federal law prohibits a QI from being eligible for any other M\u00b7edicaid program, medically needy individuals with an SOC may be eligible for QI in those months the SOC is not met. (All-County Welfare Direc\ufffdors Letters No. 99-61 , November 1 7, 1 999) The 01-:1 Program is limited to the payment of the Medicare Part B premium. It does not pay the Medicare Part A premium or the Part B deductibles or copayments. To be eligible, a Ql-1 must: - Be entitled to Medicare Part B (which included doctor's services, outpatient hospital care, diagnostic tests, durable medical equipment, ambulance services, and other health .services and supplies); \u00b7 - Have income at or above 1 20% of the FPL and up to but not including 1 35% of the FPL; have no more than twice the Medi-Cal property limit ($4,000 for one person, $6,000 for a couple); - Be a citizen or alien who would be eligible for full scope Medi-Cal benefits if he or she were eligible for a regular Medi-Cal program, except for excess income or property. Ql-1 , Other _Medi-Cal Coverage: 1 . An individual may not be determined eligible for the Ql-1 program if he or she is eligible for any other zero share of cost Medi-Cal prc;>gram, such as SSI cash based Medi-Cal, or ABO-MN with no share of cost. \u00b7 2 . A 01-:1 with a share of cost is not considered eligible for the share of cost program until the share of cost is met. Therefore, the Ql-1 may be reported to MEDS in both the Ql-1 \u00b7and the share of cost aid code in the same month. (Medi-Cal Eligibility Procedures Manual 5J-5(B. 1 )) The Ql-1 program provides the state payment of the Medicare Part B premium for individuals with income below 1 35% of the FPL. The Ql-1 program was scheduled to sunset on December 31 , 2002. That sunset date has b’een extended several times. The Q l-1 program sunset date was again extended, this time to March 31 , 2014. Counties are to continue accepting applications and determining eligibil ity for the Ql-1 program until the DHCS notifies them that the Ql-1 program has been discontinued. (ACWDL No. 09-1 1 , July 31 , 2008; ACWDL No. 1 2-1 8, June 8, 201 2; ACWDL No. 1 3-04, February 1 , 201 3; CMCS Informational Bulletin, \” Medicaid Provisions in Recently Passed Federal Budget Legislation, December 27, 201 3). 41 6.1 1 23 How we count unearned income. – ‘ State of California ) CDSS State Hearings Division Ht )g No. 104590813-730 Page 9 (a) When we count unearned income. We count unearned income at the earliest of the following points: when you receive it or when it is credited to your account or set aside for your use. , We determine your unearned income for each month. We describe exceptions to the rule on how we count unearned income in paragraphs (d), (e) and (f) of this- section. (b) Amount considered as income. We may include more or less of your unearned income than you actually receive. ( 1 ) We include more than you actually receive where another benefit payment (such as a social security insurance benefit) (see 41 6. 1 12 1 ) . has been reduced to recover a previous overpayment. You are repaying a legal obligation through the withholding of portions of your benefit 1amount, and the amount of the debt reduction is also part of your unearned income. Exception: We do not include more than you actually receive if you received both SSI benefits and the other benefit at the time the overpayment of the other benefit occurred and the overpaid amount was included in figuring your SSI benefit at that time. Example: Joe, an SSI beneficiary, is also entitled to social security insurance benefits in the amount of $200 per\” month. Hqwever, because of a prior overpayment of his social security insurance benefits, $20 per month is being withheld to recover the overpayment. In figuring the amount of his SSI benefits, the full monthly social security insurance benefit of $200 is included in Joe’s unearned income. However, if Joe was receiving both benefits when the overpayment of the social security insurance benefit occurred and we th_en included the overpaid amount as income, we will compute his SSI benefit on the basis of receiving $1 80 as a social security insurance benefit. This is because we recognize that we computed h is SSI benefit on the basis of the higher amount when he was overpaid. (2) We also include more than you actually receive if amounts are withheld from unearned income because of a garnishment, or to pay a debt or other legal obligation, or to make any other payment such as payment of your Medicare premiums. (3) We include less than you actually receive if part of the payment is for an expense you had in getting the payment. For example, if you are paid for damages you receive in an accident, we subtract from the amount of the payment your medical, legal, or other expenses connected with the accident. If you receive a retroactive check from a benefit program other than SSI, legal fees connected with the claim are subtracted . We do not subtract from any taxaole unearned income the part you have to use to pay personal income taxes. The payment of taxes is not an expense you have in getting income. (4) In certain situations, we may consider someone else’s income to be available to you, whether or not it actually is . (For the rules on this process, called deeming, see 416 . 1 1 60 . through 416. 1 1 69.) . (c) In-kind income. We use the current market value (defined in 41 6. 1 1 01) of in-kind unearned income to determine its value for SSI purposes. We describe some exceptions to this rule in 41 6. 1 1 3 1 through 41 6. 1 147. If you receive an item that is not fully paid for and are responsible for the balance, only the paid-up value is income to you . Example: You are given a $1 500 automobile but must pay the $1 000 due on it. You are receiving income. of $500. \\ State of California ) CDSS State Hearings Division .\” H6 Jg No. 104590813\ufffd730 Page 10 (d) Retroactive monthly social security benefits. We count retroactive monthly social security benefits according to the rule in paragraph (d)(1 ) of this section, unless. the exception in paragraph (d)(2) of this section applies: ( 1 ) Periods for which SSI payments have beeri made. When you file an application for social security benefits and retroactive monthly social security benefits are payable on that application for a period for . which you also received SSI payments (including federally\u00ad administered State supplementary payments) , we count your retroactive monthly social security benefits as unearned income received in that period. Rather than reducing your SSI payments in months prior to your receipt of a retroactive monthly social security benefit, we will reduce the retroactive social security benefits by an amount equal to the amount of SSI payments (including federally-administered State supplementary payments) that we would not have paid to you if your social security benefits had been paid when regularly due rather than retroactively (see 404.408b(b)). If a balance is due you from your retroactive social security benefits after this reduction, for SSI purposes we will not count the balance as unearned income in a subsequent month in which you receive it. This is because your social security benefits were used to determine the amount of the reduction. This exception to the unearned income counting rule does not apply to any monthly social security benefits for a period for which you did not receive SSI. (2) Social security disability benefits where drug addiction or alcoholism is a contributing factor material to the determination of disability. If your retroactive social security benefits must be paid in installments because of the limitations on paying lump sum retroactive benefits to \u00b7 disabled recipients whose drug addiction or alcoholism is a contributing factor material to the determination of disability as described in 404.480, we will count the total of such retroactive social security benefits as unearned income in the first month such installments are paid, except to the extent the rule\u00b7 in paragraph (d)(1 ) ofthi;s section would provide that such benefits not be counted. (e) Certain veterans benefits. ( 1 ) If you receive a veterans benefit that includes an amount paid to you because of a dependent, we do not count as your unearned income the amount paid to you because of the dependent. (2) If you are a dependent of an individual who receives a veterans benefit and a portion of the benefit is attributable to you as a dependent, we count the amount attributable to you as . your unearned cash inGome if- (i) You reside with the individual who receives the veterans benefit, or (ii) You receive your own separate payment from the Department of Veterans Affairs. (f) Uniformed service compensation. We count compensation for services performed as a member of a uniformed service (as defined in 404. 1 330 of this chapter) as received 1n the month in which it is earned. \u00b7 \u00b7 (Reporting and recordkeeping requirements in paragraph \u00b7 (b) have been approved by the Office of Management and Budget under control number 0960-01 28) [45 FR 65547, Oct. 3, 1 980, as amended at 47 FR 4988, Feb. 3, 1 982; 47 FR 1 3794, Apr. 1 , 1 982; 50 FR 48574, Nov. 26, 1 985; 55 FR 20599, May 1 8, 1 990; 56 FR 3212, Jan. 29, 1 991 ; 59 FR 59364, Nov. 1 7, 1 994; 60 FR 8152, Feb. 1 0, 1 995; 71 FR 45378, Aug. 9, 2006] ‘ State of California He. lg No. 104590813-730 CDSS State Hearings Division Page 11 CONCLUSION The regulations provide that, to be eligible to receive Medi-Cal benefits with a zero SOC under the Pickle Amendment program, the Claimant must be Aged, Blind and Disabled and have received SSI\/SSP benefits since April 1 997. It is undisputed that Claimant has never received SSI\/SSP benefits. It is concluded t)lat the County correctly determined the Claimant is not eligible to receive Medi-Cal benefits with a zero SOC under the Pickle Amendment program as she has never received SSI\/SSP benefits. Under the A&D FPL program, the Claimant may be eligible for zero SOC Medi-Cal benefits if her income, less any applicable deductions, is below the FPL. Under the regulations, applicable deductions include $20 for any income, $230 for a standard disregard for an individual, and the actual amount paid by Claimant for her Medicare premium or other health insurance, including medical, vision or dental insurance. Here, the Claimant’s social security income of $1 ,484.50 must be counted which is then subject to limited deductions and allowances. In this case, these consist of the $20.00 any income deduction and the $230 income disregard for an individual. The Claimant pays a Medicare Part 8 premium. After the allowable amounts are subtracted, the remainder of the $1 ,484.50 exceeds the $1 ,041 .00 FPL income limit for an individual. Therefore, it is concluded the County correctly determined the Claimant is not eligible to receive Medi-Cal benefits with a zero share of cost under this program as her net non-exempt income exceeds the income limit for this program. Under th_e Medi-Cal MN program, the Claimant’s income of $1 ,484.50, less the $1 55.50 income deduction $600 maintenance allowance set by law, leaves $1 ,329.00 as the Claimant’s Medi\u00ad Cal share of cost. Therefore, it is concluded the County correctly determined the Claimant is eligible to receive Medi-Cal benefits with a $729.00 Share of cost under this program. While the $729.00 share of cost may impose a substantial hardship on the Claimant, there is no authority for the County, The Department of Health Care Services; or this Administrative Law Judge to consider the Claimant’s tax garnishment in\/excess of the $600.00 maintenance need allowance set by the legislature to determine the Claimant’s share of cost Accordingly, the Claimant’s Medi-Cal share of cost must be set at $729.00 per month, effective April 1 , 201 9. It is noted that any health insurance premium, including that for Medicare Part B, paid by the Claimant would be deductible from her monthly income in determining eligibility for no share of cost under the A&D FPL program and also in determining her share of cost under the Medically Needy program. Therefore, the Claimant may want to consider purchasing additional medical, vision or dental insurance that could make her eligible for zero share cif cost under the A&D Federal Poverty Level program or otherwise reduce her share -of cost under the Medically. Needy program. ,- , Pursuant to Title 20 CFR 41 6. 1 1 23, amounts withheld from unearned income for I RS debt or Medicare premium payments, whether voluntary or involuntary, are considered unearned income received by the individual, and thus counted in the benefit determination. Here, the Attorney argues the amount garnished from the Claimant’s unearned income should not be considered available income to the Claimant, because she does not actually receive the . much needed income. Although, the argument is pragmatically correct, the regulations do not allow for the interpretation, where the regulation specifically states such amounts shall be considered received unearned income. It is therefore determined that the amount withheld for the Claimant’s IRS debt is not subject to deduction or exemption, and must be considered as ‘received’ in determining the Claimant’s \u00b7,, State ofCalifornia Ht )g No. 104590813-730 CDSS State Hearings Division Page 12 Medi-Cal share of cost. The Administrative Law Judge independently reviewed the verification \u00b7 of income attached to the Statement of Position, and determined the verification of SSA income includes the monthly benefit amount, the source of the income, and the itemized deductions therefrom. The Administrative Law Judge also independently reviewed the County’s calculation for the Claimant’s Medi-Cal share of cost in the amount of $729.00 monthly, effective April 1 , 2019 , and found the calculations to be correct. Thus, the County action establishing the Claimant’s Medi-Cal share of cost in the amount of $729.00 monthly, effective April 1 , 201 9 is sustained. The Claimant is encouraged to seek out additional medical insurance to bring down his countable income in the Aged & Disabled Federal Poverty Level program, as the Claimant . appe\u00b7ars to miss out on eligibility for zero share of cost by les\u00b7s than $60.00. The Claimant is encouraged to speak to a County worker about his options. ORDER The claim is denied. ”

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” 1 2 3 4 5 6 7 \\ ANTHONY KIM (Bar No. 286032) ELENA CASTILLO (Bar No. 231829) SANG BANH (Bar No. 227831) DARRELL MOORE (Bar No. 136845) INLAND COUNTIES LEGAL SERVICES Inc. 10565 Civic Center Dr. Suite 200 Rancho Cucamonga, CA 9173 0 Telephone: (951) 248-4720 Facsimile: (909) 980-4871 Email: [email protected] 8 MELISSA A. MORRIS (Bar No. 233393) LAUREN HANSEN (Bar No. 268417) 9 PUBLIC INTEREST LAW PROJECT 449 15th Street, Suite 301 10 Oakland, CA94612 ll Telephone: (510) 891-9794 Facsimile: (510) 891-9727 12 Email: [email protected] 13 14 (Additional counsel on following page) Attorneys for Petitioners 15 PAUL BANDA and BOBBI MORRISON 16 DEC 18 20i9 17 18 19 20 21 22 23 24 25 26 27 28 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO PAUL BANDA and BOBBI MORRISON Petitioners, vs. COUNTY OF SAN BERNARDINO; SAN BERNARDINO COUNTY BOARD OF SUPERVISORS; SAN BERNARDINO COUNTY TRANSITIONAL ASSISTANCE DEPARTMENT; and GILBERT RAMOS, Director of the San Bernardino County Transitional Assistance Department, in his official capacity, Respondents. Case No.: C\\V DS .1 9 3 G lJ C 9 ASSIGNED FOR ALL PURPOSES TO: VERIFIED PETITION FOR WRIT OF MANDATE (Code Civ. Proc., 1085; 1060; 1094.5; 1094.6) VERIFIED PETITION FOR WRlT OF MANDATE 1 2 3 4 5 6 ALEXANDER PRIETO (BarNo. 270864) ROBERT D. NEWMAN (Bar No. 86534) WESTERN CENTER ON LAW & POVERTY 3701 Wilshire Boulevard, Suite 301 Los Angeles, CA 9001 0 Telephone: (213) 235-2617 Facsimile: (213) 487-0242 Email: [email protected] \/ I 7 (Counsel for Petitioners continued from previous page) ‘ 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDATE 2 2 1. INTRODUCTION …. ( ‘ Petitioners PAUL BANDA and BOBBI MORRISON challenge San Bernardino County’s 3 failure to operate its General Relief (\”GR\”) program in conformity with state law. GR is the 4 state-mandated public benefits program of last resort for low-income residents of the County 5 who have no other means of supporting themselves. 6 2. The Welfare and Institutions Code requires counties to provide aid to all indigent 7 residents without other means of support ( 17000) and to provide assistance to people in need in a 8 \”prompt and humane\” manner, so \”as to encourage self-respect [and] self-reliance\” ( 1 0000). A 9 county must also administer GRin a manner that is reasonably necessary to effectuate the legitimate 10 purposes of this state mandated program and ”to secure for every person the amount of aid to which he 11 is entitled\” ( 1 0500). 12 3. However, San Bernardino County violates these mandates by administering a GR program 13 that unlawfully denies eligible GR applicants and recipients the benefits they need to meet their 14 most basic needs. From imposing onerous and unnecessary application requirements, to 15 unlawfully excluding applicants who are homeless, to denying and terminating benefits without 16 notice or opportunity for a hearing, the County’s GR program imposes barriers to access at every 17 stage of applying for and receiving benefits. 18 4. As a result of the County’s unlawful policies and practices, only 203 residents of San 19 Bernardino County were receiving GRas of September 2019. 20 5. Further, by excluding homeless people (who are disproportionately living with 21 disabilities) from receipt ofGR, and by failing to provide reasonable accommodations to people 22 with disabilities in its GR Program, the County unlawfully discriminates against people with\u00b7 23 disabilities, in violation of state and federal law. Gov. Code, 11135; Welf. & Inst. Code, 24 10000. 25 6. Respondents’ practices have caused serious harm to Petitioners PAUL BANDA and 26 BOBBI MORRISON, who have been denied aid that they need and to which they are entitled, 27 and to an estimated thousands of other indigent County residents similarly harmed by the 28 Respondents’ policies and practices. VERIFIED PETITION FOR WRIT OF MANDATE 3 1 7. Petitioners seek a peremptory writ of mandate to compel the County to bring its program 2 into compliance with state and federal law. 3 PARTIES 4 A. 5 8. Petitioners Petitioner PAUL BANDA is, and was at the time of his application for General Relief 6 benefits, a resident of San Bernardino County, California. Mr. Banda has a direct beneficial 7 interest in Respondents’ performance of their legal duties alleged below. Mr. Banda also has a 8 beneficial interest as a citizen of California since this lawsuit involves questions of public right 9 and seeks to enforce public duties. 10 9. Petitioner BOBBI MORRISON is, and was at the time of her application for General 11 Relief benefits, a resident of and taxpayer in San Bernardino County, California. Ms. Morrison . 12 has a direct beneficial interest in Respondents’ performance of their legal duties alleged below. 13 Ms. Morrison also has a beneficial interest as a citizen of California since this lawsuit involves 14 questions ofpublic right and seeks to enforce public duties. 15 B. 16 10. Respondents Respondent COUNTY OF SAN BERNARDINO (\”County\”) is a political body of the 17 State of California and, pursuant to Welfare and Institutions Code section 17000, is statutorily 18 required to \”relieve and support all incompetent, poor, indigent persons, and those incapacitated 19 by age, disease, or accident.\” 20 11. Respondent BOARD OF SUPERVISORS OF SAN BERNARDINO COUNTY is the 21 legislative body charged by law with adopting standards of general assistance aid and care for 22 the County’s indigent residents pursuant to Welfare and Institutions Code section 17000.5. 23 12. Respondent SAN BERNARDINO COUNTY TRANSITIONAL ASSISTANCE 24 DEPARTMENT (\”TAD\”) is the department ofthe County that is responsible for administering 25 San Bernardino County’s GR program. 26 13. Respondent GILBERT RAMOS is the current Director of TAD. Petitioners sue Mr. \u00b7 27 Ramos in his official capacity only. Mr. Ramos is responsible for the enforcement, operation, 28 and execution of laws pertaining to TAD’s administration of the County’s GR program. VERIFIED PETITION FOR WRIT OF MANDATE 4 1 2 3 14. STATUTORY AND FACTUAL BACKGROUND General Relief Background and Statutory Framework GR is a monthly aid grant for extremely low-income members of the community who 4 have no other source of cash income to meet their subsistence needs. GR functions as a safety ne 5 of last resort, primarily for single indigent adults without children. Many individuals who are 6 eligible for GR are people with disabilities who are awaiting approval of Supplemental Security 7 Income (SSI) or Social Security disability benefits, a process that can take years. Many 8 individuals who are eligible for GR are homeless or at risk of imminent homelessness. 9 15. All local regulations implementing a GR program must be consistent with state law and 10 necessary to effectuate the purposes of the program. Welf. & Inst. Code 11000. 11 16. Welfare and Institutions Code section 1 7000 mandates that each county in California 12 shall relieve and support its indigent and disabled residents who cannot support themselves. 13 17. Welfare and Institutions Code section 10500 requires the County to assist GR applicants 14 to secure the amount of aid to which they are entitled. 15 18. Welfare and Institutions Code section 10000 requires that aid be provided promptly and 16 humanely, and without discrimination based on any characteristic listed or defined in 17 Government Code section 11135, which prohibits discrimination based on a variety of factors, 18 including disability. 19 San Bernardino County’s General Relief Program 20 19. San Bernardino County has an extraordinarily low GR caseload when compared to other 21 counties with similar populations and demographics. According to data collected by the 22 California Department of Social Services (CDSS), the County provided General Relief to just 23 203 county residents in September 2019. At that time, San Bernardino County had a population 24 of approximately 2,171,000, with 16 percent of residents living below the poverty level. In 25 comparison, Riverside County had 4,791 recipients with a population of2,451,000. Alameda 26 County had a GR caseload of over 9,192 recipients with a population of 1,667,000 people. 27 28 VERIFIED PETITION FOR WRIT OF MANDATE 5 Sacramento County had 4,126 on its GR caseload, with a population of 1,541,000 people. Tulare 2 County, which has a population of only 466,000, had 778 people on its GR caseload. 1 3 Burdensome Application and Recertification Processes 4 20. The County’s GR application and recertification policies create many unnecessary 5 barriers to establishing and maintaining eligibility for GR. These barriers make it incredibly 6 difficult-and in many cases impossible-for eligible individuals without any other means of 7 support to access the County’s benefit oflast resort. 8 21. Petitioners are informed and believe and on that basis allege that the County’s GR 9 application requires multiple in-person office visits, and that the County requires GR applicants 10 to sit through a lengthy orientation process before they are even allowed to submit their 11 application paperwork. 12 22. Many of the documents the County requires applicants to submit are not essential to 13 determining GR eligibility and may be extremely difficult to obtain for GR applicants, many of 14 whom are homeless. For example, the County’s GR Policy Handbook indicates that applicants 15 must provide a Social Security card, a DMV identification, and a birth certificate. The County 16 required all of these documents from Petitioner Bobbi Morrison, even though she was already 17 receiving CalFresh benefits from the County and the County had, therefore, already verified her 18 identity. 19 23. The County does not consider an applicant to be eligible for GR benefits until they have 20 turned in all of the required documents and verifications, and it does not pay benefits back to the 21 initial date of application. 22 24. The County requires individuals who are separated or divorced from their former spouses 23 to submit documentation of the legal separation or divorce before their application is complete. If 24 an applicant is separated from their spouse but is not divorced or legally separated, the County 25 imputes the spouse’s income and resources to the applicant and will not consider the application 26 until the County receives application materials and verifications from the spouse-even where 27 1 General Relief data is for September 2019 from GR 23 7 General Relief and Interim Assistance Report 28 received from CDSS on November 18, 2019. All other demographic data is from https:\/\/www.census.gov\/quickfacts VERIFIED PETITION FOR WRIT OF MANDATE 6 the applicant has not lived with their spouse for years, has no way of contacting their spouse, and 2 receives no financial support from their spouse. Although the policy has narrow exceptions for 3 certain victims of domestic abuse and applicants whose spouses are incarcerated, the verification 4 requirements create significant and potentially insurmountable barriers to obtaining GR. 5 25. On information and belief, the County does not provide assistance in obtaining the 6 documents and verifications that it requires of GR applicants. 7 26. The County also requires all GR applicants to apply for all potentially available public 8 benefits, including Medi-Cal, CalFresh, cash aid, and Supplemental Security Income (SSI), 9 before it will approve them for GR. If an individual cannot provide an award letter for the other 1 0 benefits, a denial letter for the other benefits, or verification that the application for the other 11 benefits is still pending within 90 days of approval of their GR benefits, then the County 12 discontinues their GR. , 13 27. The County also imposes work requirements on applicants prior to approval of their 14 application. Employable GR applicants are required to comply with work requirements on the 15 day after they apply for benefits, and before being approved for aid, or face denial of their 16 applications. 17 28. On information and belief, both the work requirements themselves and the reporting 18 requirements create significant barriers to obtaining and maintaining GR benefits, and they do 19 not result in gainful employment for most people. 20 29. After the County approves a GR application, it requires the GRrecipient to reestablish 21 eligibility every month by completing a \”GR 7\” form and providing corresponding verifications 22 regarding income, property, residence, and resources. The County requires these verifications 23 even where they are irrelevant to the individual’s ongoing receipt of GR. 24 30. On information and belief, the County requires recipients to submit monthly third-party 25 verifications of their housing expenses and does not allow recipients to self-certify those 26 expenses. 27 28 VERIFIED PETITION FOR WRIT OF MANDATE 7 1 31. The County’s GR Handbook and staff training materials instruct workers not to accept 2 the GR 7 after the last day of the month in which the report is due, and it provides no opportunity 3 for a person to turn in the GR 7 late, even if they have good cause for late filing. 4 Due Process Violations 5 32. In both policy and practice, the County denies applications for GR benefits without 6 providing written notice to the applicant, and without providing the applicant with an opportunity 7 to appeal the denial. 8 33. If an applicant who has begun the application process fails to submit the GR 2 form, the 9 \”Statement of Facts Supporting Eligibility to General Relief’, the County’s policy is to deny 10 benefits without sending any written notice to the applicant. 11 34. The County does not have any policy to allow applicants to demonstrate a good cause 12 reason for failing to submit requested forms or verifications. 13 35. Likewise, the County does not provide any written notice of termination or opportunity 14 for a hearing in certain terminations of GR benefits. If an individual who is receiving GR misses 15 the monthly deadline to file their GR 7 form or does not submit all the verifications that the 16 County requires, the County’s policy is to cut off their GR benefits without any notice, and 17 without opportunity for a hearing. 18 Grant Amount Less Than Statutory Minimum Grant Level 19 36. Welfare and Institutions Code section 17000.5 authorizes counties to provide a GR 20 21 22 23 24 25 26 27 28 benefit that is less than the amount needed to meet the actual needs of GR recipients only if the benefit is at least a certain amount that is tied to the CalWORK.s Maximum Aid Payment (MAP). Section 17000.5 (a) specifically provides: The board of supervisors in any county may adopt a general assistance standard of aid … that is 62 percent of a guideline that is equal to the 1991 federal official poverty line and may annually adjust that guideline in an amount equal to any adjustment provided under Chapter 2 (commencing with Section 11200) of Part 3 for establishing a maximum aid level in the county. San Bernardino may reduce this amount by an additional 3%. Welf. & Inst. Code 17000.5 ( e )(2). VERJFIED PETITION FOR WRJT OF MANDATE 8 1 37. The County’s grant amount does not meet the actual needs of GR recipients for food, 2 clothing, and shelter. 3 38. Applying 17000.5’s formula to the MAP required the County to have had a total benefit 4 amount for a single individual that was at least $358.90 from October 2018 to September 2019, 5 and requires a total benefit amount of at least $504.40 ongoing as of October 1,2019. 6 39. 7 40. The County’s maximum GR grant for an individual is $280. The County’s GR payments for households of two or more are likewise smaller than the 8 amounts required by section 17000.5. 9 41. The County allocates its GR grant among four categories of need: housing, utilities, food, 1 0 and personal and incidental. The amounts allocated to these categories are taken from the 11 County’s maximum GR grants by household size. For example, for a single individual, the 12 maximum grant of$280 is allocated as follows: 13 Rent: $170 14 Utilities: $35 15 Food:$66 16 Personal and Incidental: $9 17 42. Additionally, the County has a policy of not paying GR for any month where the monthly 18 benefit amount \u00b7calculated by the County is less than $10. 19 Unlawful Resource Limits 20 43. According to the County’s policies, applicants and recipients are ineligible for GR if they 21 have more than $50 in liquid assets. 22 44. 23 45. Further, the County imposes a $500 asset limit on personal property. Vehicles are subject to the $500 personal property limit, although the County’s policy 24 \u00b7 includes a $3000 exemption for vehicles that are needed to seek or maintain employment or to 25 access medical care. 26 46. The County does not provide an exemption beyond the $3 000 for vehicles used for work 27 or for vehicles that have special accessibility features. If such vehicles exceed $3500, the 28 applicant must choose between keeping their vehicle or qualifying for GR. VERIFIED PETITION FOR WRIT OF MANDATE 9 4 7. Likewise, the County does not provide any exemptions for cars used for shelter. If a GR 2 applicant lives in their car but cannot prove that they use it for work or medical appointments, 3 the County applies the $500 personal property limit, and, if the vehicle is worth more than $500, 4 the applicant is ineligible for GR. 5 48. As a result, GR applicants who live in their cars must choose between maintaining their 6 sole source of shelter and qualifying for GR. 7 49. The County’s policies also presume that resources that an individual had in the past will 8 be available in the future, regardless of whether they are actually available. Under the County’s 9 policies, when a person receives lump sum income that causes the household net income to be 10 greater than the maximum grant, the County deems the individual ineligible for GR for a fixed 11 period oftime, regardless of whether the resource is actually available to support the individual 12 in future months. 13 Denial of Ongoing Benefits to Homeless Recipients 14 50. The 2019 San Bernardino County Homeless Count identified 2,607 homeless persons in 15 the County, a 23.1% increase over the 2018 count.2 Nearly three quarters of those individuals 16 were unsheltered. 17 51. However, San Bernardino County has a deficit of over 65,000 affordable rental homes 18 relative to its existing need. 3 19 52. GR is a critically important benefit for individuals who are homeless and who have no 20 other means of supporting themselves. GR benefits, though modest, can help someone find a 21 room-or even just a couch-to rent, to get a motel room, or to pay the registration on the car 22 that they use for both transportation and shelter. But, because affordable housing is scarce, many 23 people experiencing homelessness are unable to find permanent shelter. 24 53. The County requires applicants who are homeless to obtain housing by the end of their 25 first full month of receiving aid as a condition of ongoing eligibility for GR. If a person cannot 26 2 See San Bernardino 2019 Homeless Count and Subpopulation Survey Final Report (April2019) at p. 7, 2 7 available at http:\/ \/wp.sbcounty.gov\/dbh\/sbchp\/wp-content\/uploads\/sites\/2\/20 19\/05\/20 19-homeless-count- and-survey-report.pdf. 28 3 See California Housing Partnership, San Bernardino County Housing Need Report 2019 (May 2019), available at https:\/\/chpc.net\/resources-library\/. VERIFIED PETITION FOR WRIT OF MANDATE 10 produce written verification of a permanent residence, the County discontinues aid to the 2 individual, even though they are still in need of assistance. 3 54. This policy effectively disqualifies nearly all homeless residents of the County from 4 receiving GR for more than one month, and acts as a deterrent to those seeking aid. 5 Disqualification Categories Not Authorized by Statute 6 55. 7 GR. 8 56. The County excludes individuals who are \”awaiting felony prosecution\” from receiving Similarly, the County excludes adults who are ineligible for\” … CalFresh assistance due 9 to time limits, sanctions, or Intentional Program Violations.\” 10 57. These exclusions are not authorized by statute. 11 Denial of Access to People with Disabilities 12 58. On information and belief, San Bernardino County residents who are eligible for GR are 13 disproportionately living with disabilities. 14 59. In the County’s most recent point-in-time homeless count, 18.5% of respondents 15 identified as having a chronic or life-threatening health condition, and 19.7% identified as having 16 a mental health problem.4 17 60. By excluding homeless individuals from receipt of GR, the County disproportionately 18 excludes people with disabilities from the program. 19 61. On information and belief, many of the County’s policies and practices that exclude 20 County residents who are homeless from receiving GR benefits have a significant and 21 disproportionate impact on persons with disabilities, preventing full access to the GR program. 22 62. On information and belief, the County does not provide reasonable accommodations to 23 people with disabilities in the administration of its GR program. 24 63. On information and belief, the County does not have policies or procedures to ensure 25 that GA applicants and recipients with disabilities are able to obtain reasonable accommodations. 26 27 4 See 2019 Homeless Count, supra, at 12. In contrast, only 7.6 of the population under age 65 in the 28 County has a disability. See https :\/ \/www.census.gov\/ quickfacts\/fact\/table\/sanbernardinocountvcalifornial AFN120212. VERIFIED PETITION FOR WRIT OF MANDATE 11 1 64. On information and belief, individuals who are unable to comply with County rules due 2 to mental, intellectual, or physical disabilities lack a way to request a reasonable accommodation 3 or modification of program requirements and are likely to be prevented from applying for relief, 4 improperly denied assistance, or terminated from aid. 5 Unlawful Sanctions 6 65. Under Welfare and Institutions Code section 17001.5(a), a County may only terminate or 7 sanction a GR recipient for failure to comply with program requirements if the failure is willful 8 or a third negligent failure. 9 66. The County sanctions employable applicants and recipients if an individual fails to meet 10 the \”employable requirements and linkage criteria,\” regardless of whether that failure was 11 willful. Upon information and belief, the County does not conduct an inquiry about whether 12 conduct was willful or negligent. 13 Denial of Benefits to Paul Banda 14 67. Paul Banda is a senior who is a veteran of the United States Marine Corps. Mr. Banda has 15 been a resident of San Bernardino County since January 2019. 16 68. Mr. Banda is living with both physical and mental disabilities. His physical impairments 17 include mobility limitations and pain in both his knee and his back due to injuries. He also 18 experiences symptoms of depression and anger, for which he is receiving mental health 19 treatment. 20 69. Mr. Banda last worked as a prep cook but had to stop working in 2014 when he ruptured 21 a disc in his back. 22 70. Mr. Banda is unable to work because of his disabilities and does not have any means of 23 supporting himself. 24 71. Mr. Banda receives CalFresh benefits from the County, but they are insufficient to meet 25 his nutritional needs. 26 72. 27 73. Mr. Banda has been homeless since September 2019 and currently lives in his car. Mr. Banda has applied for GR in San Bernardino County on three separate occasions 28 since January 2019 but has never received GR. VERIFIED PETITION FOR WRIT OF MANDATE 12 1 74. Mr. Banda first applied for GR on January 18, 2019. The County required Mr. Banda to 2 return to the TAD office to submit three separate County forms (GR 2, GR 61, and GR 7 for 3 December 20 18), plus his Social Security card, rent receipts, proof of having applied for SSI and 4 Veteran’s benefits, a copy ofhis divorce decree from 2015, bank statements, birth certificate, an 5 vehicle registration. The County gave Mr. Banda a deadline of February 1, 2019, to submit all of 6 these documents, and informed him that application documents must be completed in person at 7 the TAD office. 8 75. Mr. Banda did not have access to all the required documents; some were in storage in 9 another part of the County, while others were not in his possession at all and had to be obtained 10 from third parties. 11 76. Mr. Banda’s physical and mental disabilities, and his lack of financial resources, further 12 limited his ability to obtain the verifications that the County required. 13 77. The County did not assist-nor offer to assist-\u00b7 Mr. Banda to obtain the required 14 verification’s. 15 78. The County denied Mr. Banda’s January 18 application for GR based on his alleged 16 failure to submit a GR 2 form, the County’s \”Statement of Facts Supporting Eligibility to 1 7 General Relief.\” 18 79. The County did not send Mr. Banda any written notice of denial. Nor did it provide him 19 with any opportunity to reopen his application or to demonstrate good cause for his alleged 20 failure to submit the GR 2 form. 21 80. The County’s denial of benefits to Mr. Banda without notice was consistent with the 22 County’s policy of failing to provide notice to applicants. 23 81. Mr. Banda applied for GR a second time on July 9, 2019. The County required Mr. 24 Banda to submit documentation of his finances, including third-party verifications from two 25 friends who had made one-time loans to Mr. Banda in June 2019. 26 82. Mr. Banda obtained and submitted the documentation the County required. Mr. Banda’s 27 two friends sent third-party verifications to the County regarding the one-time loans they had 28 made to Mr. Banda. However, the County determined that it had not received verification from I VERIFIED PETITION FOR WRIT OF MANDATE 13 1 Mr. Banda’s friend Mike regarding the nature of an $80 payment made to Mr. Banda in June 2 2019. 3 83. Mr. Banda’s file at the County includes a notice dated July 30, 2019, denying GR 4 benefits to Mr. Banda. The notice’s stated basis for denial is: \”You failed to provide written 5 statement of loan received 6\/2019.\” 6 84. However, Mr. Banda did not receive the July 30 notice, nor any other written notice 7 denying his July 9, 2019, application for GR benefits. 8 85. On or about August 13, Mr. Banda learned in a phone call with a County worker that the 9 County had denied his application. The County worker did not advise Mr. Banda of his right to 1 0 appeal the denial, instead telling him he could begin the application process over again. 11 86. On that call, Mr. Banda told the County worker that he had not received a written notice 12 of the denial. 13 87. 14 88. 15 89. The County did not resend the denial notice to Mr. Banda. Mr. Banda applied for GR a third time on August 27, 2019. The County again denied Mr. Banda’s application. The County’s notice of denial, dated 16 September 18,2019, simply states the reason for denial as: \”Your resources (property) exceeded 17 the allowable limit.\” The notice includes no information about what the allowable limit is nor 18 what resources were alleged to exceed it. 19 90. A letter sent from the County to Mr. Banda’s attorneys, dated September 25, 2019, stated 20 that Mr. Banda’s application was denied because \”[a] bank statement and Doctors note was not 21 returned\”, contradicting the above notice’s given reason for denial. 22 91. The County’s file regarding Mr. Banda’s app’Iication indicates that it denied him because 23 the value of his car, a 2004 Chevy Tahoe, which he uses for both transportation and shelter, is 24 allegedly more than $500. 25 92. Mr. Banda appealed the County’s denial of his applications for GR benefits both in a 26 letter from his attorneys on September 26, 2019, and on the County’s appeal form, submitted 27 October 9, 2019. 28 VERIFIED PETITION FOR WRIT OF MANDATE 14 93. The September 26,2019, letter from Mr. Banda’s attorneys, sent before Mr. Banda had 2 received the September 18, 2019 denial notice, also requested that the County, as a reasonable 3 accommodation of his disabilities, provide a list of any documentation required to complete his 4 application for GR benefits, and additional time to provide the documentation as a reasonable 5 accommodation of his disabilities. 6 94. The County did not respond to Mr. Banda’s reasonable accommodation request, 7 effectively denying it without engaging in an interactive process with Mr. Banda. 8 Mr. Banda’s October 9, 2019, appeal also included a civil rights complaint regarding the 9 County’s failure to provide a reasonable accommodation of his disabilities. 10 95. 11 96. The County held a hearing regarding Mr. Banda’s appeal on October 30, 2019. The Program Integrity Division of TAD issued a written hearing decision dated 12 November 25, 2019, which denied Mr. Banda’s appeal. 13 97. In the decision, the Hearing Officer determined that the County had no jurisdiction over 14 Mr. Banda’s January 2019 application for benefits. The Hearing Officer upheld the County’s 15 denial of Mr. Banda’s July 2019 application based on a finding that the County had not received 16 third-party verification regarding the $80 loan that Mr. Banda had received in June. The Hearing 17 Officer upheld the County’s denial of Mr. Banda’s August 2019 application based on a finding 18 that he has a vehicle that exceeds the County’s $500 allowable resource limit, even though Mr. 19 Banda testified at the hearing that he uses his vehicle as his sole source of shelter and needs it for 20 transportation. 21 Denial of Benefits to Bobbi Morrison 22 98. Petitioner Bobbi Morrison has multiple physical and mental disabilities; the symptoms of 23 these disabilities were exacerbated by injuries from a recent car accident, which have required 24 multiple surgeries and physical therapy. Ms. Morrison is unable to work because of her 25 disabilities. 26 99. Ms. Morrison does not own a vehicle. 2 7 1 00. Ms. Morrison currently receives GR in the amount of $41 per month. This amount is 28 insufficient to meet her basic needs. VERIFIED PETITION FOR WRIT OF MANDATE 15 1 101. Ms. Morrison applied for GR benefits on July 11, 2019. On July 16, County staff 2 informed her that, to complete her application, she would need to provide a variety of 3 documents, including: a Social Security card, a proof of citizenship\/alien status, a medical 4 authorization form proving her disabled status, a copy of her lease and proof of the utility 5 assistance she receives from San Bernardino County, her June and July utility bills, a letter from 6 the Social Security Administration issued within the last 30 days regarding the pending status of 7 her SSI application, a photo ID card, and proof of divorce or legal separation. The County 8 required Ms. Morrison to obtain these documents even though the County had already collected 9 much of the requested information to verify her identity and eligibility for CalFresh benefits, 10 which she has been receiving from the County since 2014. 11 102. One of the most onerous verification requirements was the County’s requirement that Ms. 12 Morrison demonstrate that she had filed for dissolution of her marriage, even though she and her 13 ex-spouse had been separated for 13 years; they do not live together; her husband was abusive; 14 and she feared retribution for initiating dissolution proceedings. The County did not help Ms. 15 Morrison to obtain the required documents or with the dissolution ofher marriage. It did not 16 offer her the option to self-certify that her ex-husband no longer supported her. 17 103. Ms. Morrison was not able to complete submission of all the documents that County 18 required until late August 2019. The County’s application process required her to attend at least 19 three separate in-person meetings at the County’s Ontario office. These trips were very 20 burdensome considering Ms. Morrison’s disabilities and lack of reliable transportation, but the 21 County did not provide her with any alternative means of completing her application. 22 104. On or about September 13, 2019, Ms. Morrison received a Notice of Action, dated 23 September 12, 2019. The Notice of Action denied Ms. Morrison GR benefits for August 2019 on 24 grounds that her benefits for that month were less than $10. 25 105. The Notice indicated that Ms. Morrison’s benefits ongoing would be $41 per month. This 26 figure was calculated using the County’s $280 maximum grant amount for an individual. 27 106. As a condition of receiving ongoing benefits, Ms. Morrison must submit a GR 7 monthly 28 report to the County every month. Along with this report she must submit a proof of her utility VERIFIED PETITION FOR WRIT OF MANDATE 16 1 payment. This requirement has already caused at least one delay in Ms. Morrison receiving 2 benefits because the County did not properly process one of her GR 7 reports even though she 3 submitted it to the TAD office in Ontario. 4 107. The County did not pay Ms. Morrison benefits retroactive to her date of application, July 5 11, 2019. 6 108. The County’s failure to pay Ms. Morrison benefits retroactive to her date of application 7 was the result ofthe County’s policy of not treating applications as received until the applicant 8 has submitted all required forms and verifications, even if the process takes more than a month. 9 109. Ms. Morrison filed an appeal of(1) the County’s denial ofretroactive benefits and (2) its 10 unlawfully low benefit amount on September 26,2019. 11 110. The County held a hearing on Ms. Morrison’s appeal on October 29,2019. 12 111. The Program Integrity Division of TAD issued a written hearing decision dated 13 November 14,2019, which granted in part and denied in part Ms. Morrison’s appeal. The 14 Hearing Officer determined that Ms. Morrison’s monthly benefit amount was properly 15 calculated. However, the Hearing Officer determined that her date of application was August 21, 16 20 19, not August 27, and instructed TAD to recalculate her benefits for August 2019. 17 A Writ of Mandate Is Necessary 18 112. The barriers to accessing the GR program experienced by Mr. Banda and Ms. Morrison 19 are emblematic of the systemic legal deficiencies that pervade the program. 20 113. Petitioners sought to resolve these systemic deficiencies prior to filing of this action 21 through multiple letters to the County, but the County has not taken action to remedy the GR 22 program’s legal violations, and these violations persist. 23 114. As a result of the violations described above, Petitioners estimate that the County has 24 unlawfully denied or reduced aid to thousands of individuals. 25 115. As persons eligible for GR, Petitioners have a directand beneficial interest in 26 Respondents’ performance of their duties set forth herein. 27 116. Petitioners have no plain, speedy, and adequate remedy in the ordinary course oflaw 28 other than the issuance by this Court of a writ of mandamus pursuant to the authority set forth in VERIFIED PETITION FOR WRIT OF MANDATE 17 2 3 4 5 Code of Civil Procedure sections 1 084 et seq. A writ of mandate is necessary for Petitioners to enforce their rights and Respondents’ duties as set forth above. FIRST CAUSE OF ACTION Administrative Mandamus (Code Civ. Proc. 1094.5 and 1094.6) (Petitioner Paul Banda Against All Respondents) 6 117. Petitioners incorporate by reference each and every allegation of the preceding 7 paragraphs as though fully set forth herein. 8 118. This verified Petition is brought under, and authorized by, Code of Civil Procedure 9 section 1094.5, which permits filing a petition to review the proceedings conducted by TAD. 10 119. The November 25,2019, decision upholding the County’s denials ofMr. Banda’s three 11 applications for GR was an abuse of discretion because the County failed to proceed in the 12 manner required by law by, among other things: 13 a. Issuing findings that were not supported by the evidence in the record; 14 b. Erroneously concluding that there was no jurisdiction over the denial of Mr. Banda’s 15 Jm;mary 18, 2019 application; 16 c. Upholding the denial of Mr. Banda’s July 9, 2019 application based the alleged 17 failure of a third party to return a document, in violation of state law governing the 18 General Assistance program; 19 d. Upholding the denial of Mr. Banda’s August 27, 2019 based on a resource limit and 20 policies regarding counting of resources that are contrary to state law governing the 21 General Assistance program; 22 e. Ignoring the issues of reasonable accommodation and discrimination complaint on th 23 basis of disability raised in Mr. Banda’s appeal; and 24 f. Upholding the denials despite the County’s failure to provide the notice required by 25 law. 26 120. Mr. Banda has exhausted all of his administrative remedies and has no other plan, 27 speedy, or adequate remedy at law. 28 VERIFIED PETITION FOR WRIT OF MANDATE 18 1 2 3 SECOND CAUSE OF ACTION Administr~tive Mandamus (Code Civ. Proc. 1094.5 and 1094.6) (Petitioner Bobbi Morrison Against All Respondents) 4 121. Petitioners incorporate by reference each and every allegation of the preceding 5 paragraphs as though fully set forth herein. 6 122. This verified Petition is brought under, and authorized by, Code of Civil Procedure 7 section 1094.5, which permits filing a petition to review the proceedings conducted by TAD. 8 123. The November 14, 2019, decision denying Ms. Morrison’s appeal was an abuse of 9 discretion because the County failed to proceed in the manner required by law by, among other 10 things: 11 a. Calculating her benefits. based on a maximum grant amount that is contrary to. 12 Welfare and Institutions Code section 17000.5; and 13 b. Failing to award Ms. Morrison benefits retroactive to the date of her application, as 14 required by state law. 15 124. Ms. Morrison has exhausted all ofh~r administrative remedies and has no other plan, 16 17 18 19 20 speedy, or adequate remedy at law. THIRD CAUSE OF ACTION For a Writ of Mandate Directing Respondents to Implement General Relief Application and Recertification Processes Consistent with General Relief Statutes (Code Civ. Proc., 1085; Welf. & Inst. Code, 10000, 10500, 11000,17000 et seq.) (All Petitioners Against All Respondents) 21 125. Petitioners incorporate by reference each and every allegation of the preceding 22 paragraphs as though fully set forth herein. 23 126. The County’s GR application process requires applicants to attend multiple in-person 24 appointments at the TAD office in order to submit their application. 25 127. The County requires applicants to provide documents and verifications that are 26 unnecessary, duplicative, or even contradictory before it will consider their application for GR. 27 28 VERIFIED PETITION FOR WRIT OF MANDATE 19 1 128. Obtaining and submitting the required documents and verifications is extremely 2 burdensome and sometimes impossible for GR applicants, as experienced by both Mr. Banda and 3 Ms. Morrison. 4 129. The County also requires individuals to apply for other benefits before it determines 5 whether they are eligible for GR, and it requires \”employable\” individuals to comply with 6 onerous work requirements and reporting requirements related to work activities before 7 approving their applications. 8 , 130. After the County approves a GR application, it requires the GR recipient to reestablish 9 eligibility every month by completing\u00b7 a \”GR 7\” form and providing corresponding verifications, 10 many of which are irrelevant to the recipient’s ongoing eligibility for GR. 11 131. In this reporting process, the County requires recipients to obtain verification from third 12 parties regarding certain income and expenses, and it terminates their benefits ifthose third 13 parties do not provide the required verifications. 14 132. The County instructs workers not to accept the GR 7 monthly recertification form after 15 the last day of the month in which the report is due, and it provides no opportunity to submit the 16 GR 7 late with good cause. 17 13 3. These application and recertification requirements are not necessary to carry out the 18 purpose of the GR statutes, but they impose burdens that prevent eligible persons from 19 successfully applying for and receiving GR. 20 134. The County’s burdensome application and recertification requirements have deprived Mr. 21 Banda, Ms. Morrison, and other GR applicants and recipients from GR benefits to which they are 22 entitled. 23 135. By maintaining the above application and recertification requirements the County is 24 violating its duties to support all indigent residents not supported by other means ( 17000), to 25 administer aid promptly and humanely ( 1 0000), and to secure the aid to which applicants are 26 entitled without eliciting information not necessary to carry out the GR statutes ( 1 0500). 27 136. Unless compelled by this Court, Respondents will continue to refuse to perform said 28 duties and continue to violate the law, and continue to cause harm. VERIFIED PETITION FOR WRIT OF MANDATE 20 2 3 4 FOURTH CAUSE OF ACTION For a Writ of Mandate Compelling Respondents to Provide Due Process to GR Applicants and Recipients (Code Civ. Proc., 1085; Cal. Const., art. I, 7; U.S. Const., 5th & 14th Amends.; Welf. & Inst. Code, 10000, 11000) (All Petitioners Against All Respondents) 5 13 7. Petitioners incorporate by reference each and every allegation of the preceding 6 paragraphs as though fully set forth herein. 7 138. Under the Due Process Clause of the California Constitution, Article 1, secti_on 7, and the 8 Fifth and Fourteenth Amendments to the United States Constitution, the right to GR benefits is a 9 fundamental right and entitlement, and it may not be denied, reduced, suspended, or terminated 10 without due process of law, including meaningful, specific, comprehensible, and timely notice of 11 adverse action, sufficient to allow the recipient a meaningful opportunity and time to respond. 12 139. Applicants and recipients are also entitled to a timely hearing to challenge any adverse 13 action under the California Constitution, Article 1, section 7, and the Fifth and Fourteenth 14 Amendments to the United States Constitution. 15 140. In certain instances, including when an applicant allegedly fails to submit a GR 2 form 16 during thei~ application process, the County denies GR applicants without any notice to the 1 7 applicant. 18 141. The County also terminates GR benefits without providing any written pre-termination 19 notice or opportunity for a pre-termination hearing if a recipient does not timely submit their 20 monthly GR 7 report and corresponding verifications. 21 142. The County denied Mr. Banda’s due process rights by failing to provide written notice or 22 opportunity to appeal when they denied his applications for GR benefits. 23 143. At all times relevant to this action, Respondents have had clear, mandatory duties and 24 prohibitions imposed by the California Constitution, Article I, section 7, the Fourteenth 25 Amendment to the United States Constitution, and Welfare and Institutions Code sections 10000 26 and 11000. 27 28 VERIFIED PETITION FOR WRIT OF MANDATE 21 1 144. Unless compelled by this Court to refrain from acts as required by law, Respondents will 2 3 4 5 6 7 continue to refuse to perform said duties arid continue to violate the law, and Petitioners will be injured as a result. FIFTH CAUSE OF ACTION For a Writ of Mandate Compelling Respondents to Provide All Aid for Which GR Applicants and Recipients Are Eligible, Retroactive to Their Dates of Application (Cal. Const., Art. 1, 7; Welf. & Inst. Code, 10000, 10500, 11000, 11056) (All Petitioners Against All Respondents) 8 145. Petitioners incorporate by reference herein each and every allegation of the preceding 9 paragraphs as though fully set forth herein. 10 146. The County has a policy of not paying GR benefits retroactive to the date of application. 11 14 7. The County has failed and continues to fail to pay retroactive benefits after indigent, 12 eligible applicants have been improperly denied or discontinued from aid because of 13 Respondents’ unlawful eligibility procedures, policies, and practices. 14 148. Petitioners and other GR applicants and recipients have been deprived of retroactive 15 benefits to which !hey are entitled as a result of the County’s unlawful policies and practices. 16 149. At all times relevant to this action, the County has had clear, mandatory duties to pay GR 17 applicants and recipients all the aid to which they are entitled, pursuant to imposed by California 18 Constitution, Article 1, 7 and Welfare and Institutions Code sections 10000, 11000, and 11056. 19 150. Unless compelled by this Court to refrain from acts as required by law, the County will 20 21 22 23 24 25 continue to refuse to perform said duties and continue to violate the law, and continue to cause harm. SIXTH CAUSE OF ACTION For a Writ of Mandate Directing Respondents to Increase Their GR Benefit Amounts to the Minimum AmountsRequired by State Law (Code Civ. Proc., 1085; Welf. & Inst. Code, 10000, 10500, 17000, 17000.5) (All Petitioners Against All Respondents) 26 151. Petitioners incorporate by reference each and every allegation of the preceding 27 paragraphs as though fully set forth herein. 28 VERIFIED PETITION FOR WRIT OF MANDATE 22 152. The County’s monthly GR payment amounts are not sufficient to meet the basic needs of 2 OR recipients. 3 15 3. Therefore, to provide a sufficient standard of aid, the County must pay at least the 4 amount set forth in Welfare and Institutions Code section 17000.5(a). 5 154. The County’s monthly GR payments for households of all sizes are considerably less 6 than the amount required by section 17000.5(a) and are, therefore, unlawfully low. 7 155. The County allocates its GR grants into portions for housing, utilities, food, and personal 8 needs. Because the total grant from which these portions are allocated is unlawfully low, the 9 portions are, likewise, unlawfully low. 10 156. The County calculated Ms. Morrison’s monthly GR grant based on its policy of 11 unlawfully low grant amounts. 12 157. By paying unlawfully low grant amounts to GR recipients, and by maintaining a policy o 13 paying GR grant amounts that are unlawfully low, the County violates its mandatory duties 14 under Welfare and Institutions Code sections 10000, 10500, 17000, and 17000.5. 15 158. Unless compelled by this Court, Respondents will continue to refuse to perform said 16 duties and continue to violate the law, and continue to cause harm. 17 18 19 20 SEVENTH CAUSE OF ACTION For a Writ of Mandate Directing Respondents to Eliminate Resource Limits That Are Inconsistent with State Law (Code Civ. Proc., 1085; Welf. & Inst. Code, 10000, 17000) (All Petitioners Against All Respondents) 21 159. Petitioners incorporate by reference each and every allegation of the preceding 22 paragraphs as though fully set forth herein. 23 160. Further, while the County has discretion in setting resource limits for its GR program, it 24 may not set limits that are so low as to be inconsistent with its duties to relieve and support 25 indigent residents and to administer its programs promptly and humanely. 26 161. The County’s resource limits, including its $50 liquid asset limit and its application of a 27 $500 personal property limit to vehicles, including vehicles that are being used as shelter, 28 VERIFIED PETITION FOR WRIT OF MANDATE 23 1 deprive indigent members of the community of GR benefits, in violation of the County’s 2 mandatory duties under Welfare and Institutions Code sections 10000 and 17000. 3 162. Further, the County’s treatment oflump sum payments presumes the availability of 4 resources in future months-regardless of whether those resources are actually available. This 5 policy denies GR benefits based on resources that are not actually available, in violation of the 6 County’s mandatory duties under Welfare and Institutions Code sections 10000 and 17000 et 7 seq. 8 163. Unless compelled by this Court, Respondents will continue to refuse to perform said 9 duties and continue to violate the law, and continue to cause harm. 10 11 12 13 EIGHTH CAUSE OF ACTION For a Writ of Mandate Directing Respondents to Provide Ongoing Benefits to Homeless Recipients (Code Civ. Proc., 1085; Welf. & Inst. Code, 10000, 10500, 17000, 17000.5, 17001.5) (All Peti~ioners Against All Respondents) 14 164. Petitioners incorporate by reference each and every allegation of the preceding 15 paragraphs as though fully set forth herein. 16 165. The County requires GR applicants who are homeless to obtain housing by the end of 17 their first full month of receiving aid to continue to be eligible to receive GR. 18 166. The County requires a verification of permanent residence, including a lease agreement, 19 utility bill, or rent statement\/receipt to verify that housing was obtained within 30 days. 20 167. If a GR recipient is unable obtain housing or to produce the required documentation 21 within the first 30 days of their receiving benefits, the County terminates GR benefits on the 22 basis of that individual’s continued homelessness. 23 168. At all times relevant to this action, Respondents have had clear, mandatory duties and 24 prohibitions imposed by Welfare and Institutions Code sections 10000, 10500, and 17000 et seq. 25 169. By terminating aid to otherwise eligible GR recipients on the basis oftheir homelessness, 26 the County violates these mandatory duties. 27 170. Unless compelled by this Court, Respondents will continue to refuse to perform said 28 duties and continue to violate the law, and continue to cause harm. VERJFIED PETITION FOR WRJT OF MANDATE 24 2 3 4 NINTH CAUSE OF ACTION For a Writ of Mandate Directing Respondents to Stop Denying General Relief Aid Based on Ineligibility Categories Not Authorized by Statute (Code Civ. Proc., 1085; Welf. & Inst. Code, 17000) (All Petitioners Against All Respondents) 5 1 71. Petitioners incorporate by reference each and every allegation of the preceding 6 paragraphs as though fully set forth herein. 7 172. The County has a policy of denying GR benefits to all individuals who are \”awaiting 8 felony prosecution.\” 9 173. -The County has a policy of denying GR benefits to all individuals who are timed off of or 1 0 sanctioned on CalFresh. 11 174. The GR statutes do not permit counties to deny GR to otherwise eligible individuals on 12 these grounds. 13 175. By excluding categories of otherwise eligible individuals from receiving GR, the County 14 violates its mandatory duties under Welfare and Institutions Code section 17000. 15 176. Unless compelled by this Court, Respondents will continue to refuse to perform said 16 duties and continue to violate the law, and continue to cause harm. 17 18 19 20 TENTH CAUSE OF ACTION For a Writ of Mandate Compelling Respondents to Comply with Their Duty Not to Discriminate on the Basis of Disability (Code Civ. Proc., 1085; Gov. Code, 11135; Welf. & lost. Code, 10000) (All Petitioners Against All Respondents) 21 177. Petitioners incorporate by reference each and every allegation of the preceding 22 paragraphs as though fully set forth herein. 23 178. Government Code Section 11135 states in relevant part that: 24 25 26 27 No person in the State of California shall, on the basis of … mental disability, physical disability, [or] medical condition … be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state. Gov. Code 11135 (a). 28 179. On information and belief, the County uses state funds to administer its GR program. VERIFIED PETITION FOR WRlT OF MANDATE 25 180. Further, Welfare and Institutions Code section 10000 requires that GR benefits be 2 provided without discrimination based on any characteristic listed or defined in Government 3 Code section 11135. 4 181. Petitioners are persons with disabilities for purposes of Government Code section 1113 5. 5 182. At all times relevant to this action, the County has had clear, mandatory duties imposed 6 by Government Code section 11135 and Welfare and Institutions Code section 10000. 7 183. Because homeless residents of the County are disproportionately living with disabilities, 8 the County’s failure to provide GR benefits to otherwise eligible individuals who are homeless, 9 including homeless\u00b7 individuals who use their vehicles for shelter, has a discriminatory effect on 1 0 people with disabilities. 11 184. The County’s duty not to discriminate on the basis of disability under Government Code 12 section 11135 includes a duty to provide reasonable accommodations in policies and procedures. 13 185. If an individual with a disability requests a reasonable accommodation that is necessary 14 because of disability-related symptoms or impairments, the County has a mandatory duty to 15 grant the accommodation unless it would create an undue financial or administrative burden or 16 would fundamentally alter the program being provided. 17 186. If a requested reasonable accommodation would create an undue burden or fundamental 18 alteration, the County must engage in an interactive process with the person with a disability to 19 determine whether alternative accommodations would meet the person’s disability-related needs 20 without imposing an undue burden or fundamental alteration. 21 187. The County ignored Paul Banda’s request for reasonable accommodation, effectively 22 denying it without engaging in any interactive process with Mr. Banda. 23 188. On information and belief, the County does not have any reasonable accommodation 24 policy that applies to the administration of its GR program. 25 189. On information and belief, the County has a policy and practice of not providing 26 . reasonable accommodations in the administration of its GR program. 27 190. Respondents’ actions and inactions as alleged herein fail to ensure that applicants and 28 recipients with disabilities have meaningful access to the GR program, and have a discriminatory VERIFIED PETITION FOR WRIT OF MANDATE 26 1 effect on people with disabilities, by disproportionately denying or reducing aid. Accordingly, 2 Respondents have violated and continue to violate their mandatory duty to administer their GR 3 program in a nondiscriminatory manner. 4 191. Unless compelled by this Court, Respondents will continue to refuse to perform said 5 duties and continue to violate the law, and continue to cause harm. 6 7 8 9 ELEVENTH CAUSE OF ACTION For a Writ of Mandate Directing Respondents to End Use of Unlawful Sanction Standard (Code Civ. Proc., 1085; Welf. & Inst. Code, 17000; 17001.5) (All Petitioners Against All Respondents) 10 192. Petitioners incorporate each and every allegation of the preceding paragraphs as though 11 fully set forth herein. 12 193. Welfare and Institutions Code section 17001.5(a) sets forth specific requirements for 13 when a County may terminate or sanction a GR recipient for failure to comply with program 14 requirements, including a requirement that a failure be willful or a repeated negligent failure 15 before a sanction can be imposed. 16 194. The County sanctions GR recipients after the first failure to comply, regardless of 17 whether that failure was negligent or willful, in violation of state law, in violation of its 18 manddtory duties under Welfare and Institutions Code section 17000 and 17001.5. 19 195. Unless compelled by this Court, Respondents will continue to refuse to perform said 20 duties and continue to violate the law, and continue to cause harm. 21 REQUEST FOR RELIEF 22 WHEREFORE, Petitioners request that this Court: 23 1. Issue an administrative writ of mandate under C.C.P. sections 1094.5 and 1094.6 24 ordering that Respondents: 25 a. Set aside the hearing decision denying Ms. Morrison’s appeal, recalculate her 26 monthly GR benefit based on a maximum GR grant of $504.40, and issue retroactive 27 benefits based upon this amount; and 28 VERIFIED PETITION FOR WRIT OF MANDATE 27 1 2 3 2. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. Set aside the hearing decision denying Mr. Banda’s appeal issue retroactive benefits to Mr. Banda based upon his previous applications for GR. Issue a peremptory writ of mandate ordering that Respondents: a. Not impose unduly burdensome application and recertification requirements on GR applicants and recipients, including allowing for self-certification of certain facts (e.g., separation or divorce), elimination or reduction of in-person application requirements, and elimination of the monthly GR 7 reporting requirement; b. Not require an individual to perform work activities prior to their approval for GR benefits; c. Not require an individual to apply for other benefits prior to their approval for GR benefits; d. Provide written notice and opportunity for a hearing in all denials of GR benefits; e. Provide pre-termination notice and opportunity for a hearing prior to all terminations of GR benefits; f. Pay GR benefits retroactive to the date of application; g. Pay GR benefits retroactively to all applicants and recipients who have been unlawfully denied the full benefit amounts to which they are entitled; h. Amend GR grant amounts to provide a sufficient standard of aid consistent with Welfare and Institutions Code section 17000.5; 1. Increase or eliminate resource limits for vehicles to ensure that GR applicants are not forced to give up a vehicle that is used for transportation and\/or shelter as a condition of qualifying for GR; j. Increase or eliminate the $50 liquid asset limit; k. Not deny or terminate GR benefits to individuals who are homeless on the basis of their homelessness; 1. . Eliminate the blanket \”awaiting felony prosecution\” category of ineligibility for GR applicants and recipients; VERIFIED PETITION FOR WRIT OF MANDATE 28 m. Cease using time-out from or sanctions on CalFresh as categories of ineligibility for 2 GR; 3 n. Provide reasonable accommodations to applicants, recipients, and other individuals 4 with disabilities; 5 o. Revise or eliminate sanctions for failure to comply with work activity requirements so 6 that those sanctions conform to applicable state statutes; 7 p. Restore to Petitioners and other affected GR applicants and recipients all GR benefits 8 due, which Respondents have wrongfully withheld and retained based upon the facts 9 alleged herein, with statutory interest thereon as required by law; and 10 q. Take all steps reasonably necessary to ensure program-wide compliance with the 11 foregoing, including the issuance of necessary notices to affected applicants and 12 recipients, training for affected County workers, revised regulations, monitoring of 13 worker compliance, reports to the Court, and any other steps that the Court deems 14 reasonably necessary. 15 3. 16 4. 17 18 Grant Petitioners an award of reasonable attorneys’ fees and costs; and Such other and further relief as the Court may award. 19 DATED: December fl2019 Respectfully submitted, 20 21 22 23 24 25 26 27 28 INLAND COUNTIES LEGAL SERVICES PUBLIC INTEREST LAW PROJECT WESTERN CENTER ON LAW & POVERTY By: VERIFIED PETITION FOR WRIT OF MANDATE 29 1 VERIFICATION 2 I, Paul Banda, am one of the Petitioners in the above action. I have read the foregoing 3 PETITION FOR WRIT OF MANDATE. To the extent that the Petition is based upon facts that 4 are known to me, I verify that they are true, and otherwise, I am informed and believed that all 5 facts herein are true. 6 I declare under penalty of perjury under the laws of the State of California that the 7 foregoing is true and correct. 8 Executed in Fontana, San Bernardino County on December\/1:_, 2019 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Paul Banda VERIFIED PETITION FOR WRIT OF MANDATE 30 1 VERIFICATION 2 I, Bobbi Morrison, am one of the Petitioners in the above action. I have read the 3 foregoing PETITION FOR WRIT OF MANDATE. To the extent that the Petition is based upon 4 facts that are known to me, I verify that they are true, and otherwise, I am informed and believed 5 that all facts herein are true. 6 I declare under penalty of perjury under the laws of the State of California that the 7 foregoing is true and correct. 8 Executed in Ontario, San Bernardino County on December (‘t, 2019 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDATE 31 ”

pdf Barry v Lyon, SNAP/Food Stamp federal fleeing felon case

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Barry v. Lyon, SNAP federal fleeing felon case.pdf

” 1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0208p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________ WALTER BARRY, by his next friend Elaine Barry, on behalf of himself and all others similarly situated; DONITHA COPELAND; KENNETH L. ANDERSON; WESTSIDE MOTHERS, Plaintiffs-Appellees, v. NICK LYON, in his official capacity as Acting Director, Michigan Department of Human Services, Defendant-Appellant. \u2510 \u2502 \u2502 \u2502 \u2502 \u2502 \u2502 \u2502 \u2502 \u2502 \u2502 \u2502 \u2518 No. 15-1390 Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 5:13-cv-13185\u2014Judith E. Levy, District Judge. Argued: October 6, 2015 Decided and Filed: August 25, 2016 Before:COLE, Chief Judge; DAUGHTREY and DONALD, Circuit Judges. _________________ COUNSEL ARGUED: Joshua S. Smith, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Jacqueline Doig, CENTER FOR CIVIL JUSTICE, Flint, Michigan, for Appellees. ON BRIEF: Joshua S. Smith, William R. Morris, Kristin M. Heyse, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Jacqueline Doig, Katie Linehan, CENTER FOR CIVIL JUSTICE, Flint, Michigan, Miriam Aukerman, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Grand Rapids, Michigan, for Appellees. Martha Jane Perkins, NATIONAL HEALTH LAW PROGRAM, INC., Carrboro, North Carolina, Valerie R. Newman, STATE PLANNING BODY, Detroit Michigan, Thane M. Rehn, MUNGER, TOLLES & OLSON LLP, San Francisco, California, for Amici Curiae. > Case: 15-1390 Document: 62-2 Filed: 08\/25\/2016 Page: 1 No. 15-1390 Barry v. Lyon Page 2 _________________ OPINION _________________ MARTHA CRAIG DAUGHTREY, Circuit Judge. This class action challenges Michigan’s fugitive-felon law and policy, under which any person with an outstanding felony warrant is disqualified automatically from receiving food assistance under the federal Supplemental Nutrition Assistance Program (SNAP). This federal program is overseen by the U.S. Department of Agriculture and administered by the states. The plaintiffs contend that Michigan’s implementation procedure is invalid and that the notices regarding termination of benefits sent by the authorized Michigan administrator, the defendant here, violate the SNAP Act, 7 U.S.C. 2011 2036c, and the Due Process Clause of the Fourteenth Amendment. The district court granted summary judgment to the plaintiffs, finding that Michigan’s fugitive-felon policy violated the Act and that the state’s notification procedure denied the recipients due process. On appeal, the state renews its claims that the plaintiffs lack standing, that mootness should have deprived the district court of authority to hear the case, and that there is no private right of action under the SNAP Act. The state also argues that the Michigan law disqualifying fugitive felons is valid under SNAP and that its method of notifying applicants of their disqualification is procedurally valid. We find no merit to these arguments, or to several other lesser claims raised on appeal, and we therefore affirm the district court’s opinion. FACTUAL BACKGROUND SNAP and Fleeing Felons Under SNAP, an individual is ineligible to receive benefits if he or she is fleeing to avoid prosecution, or custody or confinement after conviction . . . for a crime, or attempt to commit a crime, that is a felony under the law of the place from which the individual is fleeing. . . . 7 U.S.C. 2015(k)(1)(A). Section 2015(k)(2) requires the Secretary of Agriculture to define fleeing and actively seeking to ensure that State agencies use consistent procedures established by the Secretary that disqualify individuals whom law enforcement Case: 15-1390 Document: 62-2 Filed: 08\/25\/2016 Page: 2 No. 15-1390 Barry v. Lyon Page 3 authorities are actively seeking for the purpose of holding criminal proceedings against the individual. Id. 2015(k)(2). On September 10, 2015, the Secretary finalized the rule that was first proposed in 2011 to define these terms.1 Clarification of Eligibility of Fleeing Felons Final Rule, 80 Fed. Reg. 54,410 (Sept. 10, 2015). It became effective on November 9, 2015. Id.; 7 C.F.R. 273.11(n) (2015). Previously, the states had been left to implement the fleeing felon disqualification on their own. Michigan’s provision barred public assistance to any individual subject to arrest under an outstanding warrant arising from a felony charge against that individual. Mich. Comp. Laws 400.10b.2 To effectuate this provision, Michigan developed an automated program, the fugitive felon interface, that compares the list of public-assistance recipients with a list of outstanding felony warrants maintained by the Michigan State Police in the Law Enforcement Information Network (LEIN). Mich. Comp. Laws 400.10c. When the program identifies a match, it automatically closes the SNAP recipient’s file and generates a notice of case action informing the recipient of the termination of benefits. The notice reads: You or a member of your group is not eligible for assistance due to a criminal justice disqualification. Please contact your local law enforcement agency to resolve. 3 A Michigan Department of Health and Human Services (MDHHS) memo directs employees not to disclose information about a recipient’s fugitive-felon status when asked about a criminal- 1The rule provides four criteria for identifying a fleeing felon: 1. There is a felony warrant for the individual. 2. The individual is aware of the warrant or should reasonably have expected it to issue. 3. The individual has taken some action to avoid being arrested or jailed. 4. Law enforcement is actively seeking the individual. 80 Fed. Reg. at 54,411. A state agency may adopt this test or, alternatively, may adopt the criteria set forth in the Stipulation of Settlement in Martinez v. Astrue, No. 08-CV-04735-CW (N.D. Cal. Aug. 11, 2009), which provides that an individual is disqualified only if a law enforcement officer presents an outstanding felony warrant for escape, flight to avoid, or flight-escape. 7 C.F.R. 273.11(n)(1)(ii). Actively seeking means that a law-enforcement agency intends to enforce the warrant within 20 to 30 days. 7 C.F.R. 273.11(n)(3). 2Despite the change in the federal rule defining eligibility, 400.10b remains unchanged, as does 400.10c regarding automatic disqualification. 3The text of this portion of the notice was later changed to Please have the disqualified member of your group contact a local law enforcement agency such as a police department, sheriff’s department or the Michigan State Police to resolve. The law enforcement agency will require you to provide picture identification. Case: 15-1390 Document: 62-2 Filed: 08\/25\/2016 Page: 3 No. 15-1390 Barry v. Lyon Page 4 justice disqualification but, instead, to direct the recipient to contact local law enforcement to resolve the warrant. In the meantime, the would-be recipient remains ineligible for assistance as long as he or she is subject to arrest under an outstanding warrant. Plaintiffs Plaintiff Walter Barry is a mentally-disabled man who lives in Detroit with his mother, Elaine Barry. His history with the SNAP program well illustrates the difficulties that the bare- bones Michigan system can produce, and we therefore set it out here in some detail. In 2012, Walter was awarded $186 per month in food assistance, but in December of that year he received notice that beginning February 1, 2013, his benefits would be terminated due to a criminal justice disqualification. The notice instructed him to contact his local law enforcement agency to resolve the issue and informed him that he had the right to a hearing. Elaine submitted the form to request a hearing on Walter’s behalf and, in an effort to resolve the criminal-justice disqualification, she took Walter to the Detroit Police Department. There, Officer Turner fingerprinted him and provided a written statement confirming that Walter had no criminal history with that department. At Walter’s MDHHS hearing on January 31, 2013, an administrative law judge found that MDHHS could not establish the basis for Walter’s criminal- justice disqualification and ordered Walter’s benefits reinstated immediately. The matter appeared to be resolved, and because his benefits were to have been terminated starting on February 1, but his hearing and reinstatement occurred on January 31, Walter did not miss any food assistance payments. However, on May 16, 2013, MDHHS Office of Inspector General employee Robin Thomas submitted a statement indicating that she personally had verified through LEIN that Walter was subject to a felony warrant issued on September 2, 1989, by the Detroit Police Department. In a hearing summary dated May 22, 2013, Walter’s MDHHS caseworker wrote that there was still an outstanding warrant for this client as of 5\/13\/13 and the worker had to follow procedure and close the case again. As a result, Walter once again received a notice that his benefits would be terminated\u2014this time effective June 1, 2013\u2014due to a criminal-justice disqualification. Elaine again requested a hearing, noting in her request that an ALJ had already found MDHHS in error. Before a hearing could occur, Walter received yet another notice on Case: 15-1390 Document: 62-2 Filed: 08\/25\/2016 Page: 4 No. 15-1390 Barry v. Lyon Page 5 June 14, 2013, informing him that his benefits would be terminated on July 1 due to a criminal- justice disqualification. Walter filed the instant case in federal court on July 24, 2013, at which time he had not yet received a hearing on his May 2013 request and had not received his food benefits for July 2013. The day after Walter filed his complaint in federal court, attorneys from the Michigan Attorney General’s office advised him that he would receive his July food assistance benefits that day, and he did. The Attorney General’s office also provided Walter’s attorney with information about the warrant in his name and instructed her that Walter should go to the Detroit Police Department to be fingerprinted. Walter was told that he could receive a password to provide in case he was stopped on this warrant in the future. On August 7, 2013, Elaine again took Walter to the Detroit Police Department, and once again Officer Turner issued a statement regarding Walter’s lack of criminal history. The next day, Officer Turner discovered the case number related to the warrant in question and issued another statement declaring specifically that Walter was not the person wanted in that case. It turned out that Walter’s felony warrant resulted from his brother Darryl’s use of Walter’s name as an alias when Darryl was arrested some 25 years earlier. When Elaine learned that Darryl had used Walter’s name, she intervened to ensure that Darryl went to court under his own name. Prior to Walter’s second hearing, scheduled for September 16, 2013, an attorney for the state sent notice to the ALJ assigned to his case, indicating that a hearing was unnecessary and that the case could be dismissed because MDHHS was cancelling the termination of benefits based on information received that the warrant was not valid. Walter’s attorney objected to the dismissal because there was no indication that the underlying problem had been resolved or that MDHHS had changed its policy. The hearing took place as scheduled on September 16, 2013, and the attorney for the state argued on behalf of MDHHS that the ALJ had no jurisdiction because there was no longer an adverse action against Walter, given that the agency had placed an override in its system to rescind the notices terminating Walter’s assistance. But the judge noted that the override was not a resolution compliant with MDHHS policy and reversed the state’s termination decision because MDHHS did not prove the existence of a felony warrant against Walter. Case: 15-1390 Document: 62-2 Filed: 08\/25\/2016 Page: 5 No. 15-1390 Barry v. Lyon Page 6 Nevertheless, as of September 16, 2013, there still was a warrant in Walter’s name. In early October 2013, an email from a Wayne County email address indicated that the case against Walter was dismissed in 1989, that there was no outstanding warrant, and that the warrant information would be removed from LEIN. But, on September 3, 2014, Elaine received a call from the MDHHS Office of Inspector General who told her that Walter had outstanding warrants that disqualified him from receiving assistance. Elaine took Walter back to the Detroit Police Department for the third time. Officer Turner checked LEIN and found that Walter’s name still was in the system. Officer Turner provided a fourth statement regarding Walter’s lack of criminal history. Defense counsel represented at a hearing in district court on November 14, 2014, that all of Walter’s warrants had been resolved, but there is no evidence in the record supporting or refuting that assertion. Plaintiff Donitha Copeland experienced nearly as much difficulty in establishing her eligibility for food assistance as did Walter Barry. In September 2012, Copeland had applied and was approved for $200 of food assistance per month. In November 2012, she filed a report with the Detroit Police Department indicating that she had been the victim of identity theft. The next month she received a notice that her benefits would be terminated on February 1, 2013, due to a criminal-justice disqualification. She reapplied in February 2013 but was denied. Copeland contacted the local sheriff’s office and learned there was a warrant for her arrest in Kalamazoo for writing bad checks, even though she had never been to Kalamazoo. She then contacted the Kalamazoo sheriff’s office to advise that her identity had been stolen and to ask whether she could turn herself in to the Detroit police because she did not have the means to travel to Kalamazoo to resolve the situation. The sheriff advised her not to turn herself in to Detroit authorities because she could end up sitting in jail for a long time before she was transported to Kalamazoo. Eventually, Copeland obtained a pro bono criminal attorney and was able to travel to Kalamazoo so that she could turn herself in. After spending eight hours in jail, she was released on bond and was scheduled for a pretrial hearing. She returned to Kalamazoo for the hearing, again with the assistance of her attorney, and the charges were dismissed after photographic evidence established that she was not the person who had written the bad checks. Copeland moved to Alaska in 2014 for seasonal employment but intended to return to Michigan Case: 15-1390 Document: 62-2 Filed: 08\/25\/2016 Page: 6 No. 15-1390 Barry v. Lyon Page 7 in November 2014 and expected to apply for food assistance again when she did so. It is not clear whether she actually has returned or reapplied. Plaintiff Kenneth Anderson, who requires oxygen 24 hours a day for chronic obstructive pulmonary disease (COPD) and is unable to walk unassisted, had been questioned in 2009 about drugs found in his home that belonged to his nephew. He was not arrested at that time, nor was he told that there was a warrant for his arrest. Anderson subsequently received approximately $200 per month in food assistance, but his case was closed in mid-2012 for failure to provide required paperwork. When he reapplied for food assistance in December 2012, his application was denied due to a purported criminal-justice disqualification. He spoke with his MDHHS caseworker, who told him that he had an outstanding felony warrant, issued in January 2013 for possession of heroin in 2009. Despite repeated attempts to reinstate his benefits, Anderson apparently still has an outstanding criminal warrant in his name and is not receiving food assistance. Plaintiff Westside Mothers is a non-profit organization that advocates for the interests of public assistance applicants and recipients in connection with public assistance programs administered by MDHHS and the Social Security Administration. It educates its members and the public about government benefits and what to do if assistance is denied, and it furnishes advocacy and representation services for its members. Westside Mothers has 450 to 500 dues- paying members, including Donitha Copeland. Here, the group challenges Michigan’s policies, alleging that they inhibit the growth and functioning of the organization. PROCEDURAL BACKGROUND As previously noted, in the amended complaint that became the operative pleading in this case, the plaintiffs challenged the automatic fugitive-felon disqualification in Michigan Compiled Laws 400.10b as a violation of their statutory rights under the federal SNAP Act and alleged that the disqualification notices violated both the Act and the Due Process Clause. After hearing oral argument on cross-motions for summary judgment, the district court granted judgment to the plaintiffs, certifying the class and holding that the state’s policy violated the SNAP Act and the Constitution. The court also issued an injunction requiring the state to refrain Case: 15-1390 Document: 62-2 Filed: 08\/25\/2016 Page: 7 No. 15-1390 Barry v. Lyon Page 8 from automatic disqualifications based solely on the existence of a felony warrant and to provide adequate notices in the event of valid disqualification. Both the district court and this court denied the state’s motions for a stay, and the district court has continued to enforce the injunction, although the record before us does not contain information regarding the state’s compliance. Nor does the record on appeal or the docket in the district court indicate any action by the MDHHS to implement the new rule in 7 C.F.R. 273.11(n), which clarifies disqualification of fugitive felons under the SNAP Act and has been in effect since November 2015. DISCUSSION Threshold Issues: Standing and Mootness The state argues that the plaintiffs lack constitutional standing to bring suit and contends that the named plaintiffs’ claims are moot. To uphold the constitutional requirement that federal courts hear only active cases or controversies, as required by Article III, section 2 of the federal constitution, a plaintiff must have a personal interest at the commencement of the litigation (standing) that continues throughout the litigation (lack of mootness). See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). Standing is a threshold question in every federal case, and we review jurisdictional challenges based on standing de novo. Miller v. City of Cincinnati, 622 F.3d 524, 531 (6th Cir. 2010). Plaintiffs have standing if they suffer a concrete, particularized, and actual or imminent injury that is caused by a defendant’s conduct and is likely to be redressed by a favorable decision. Lujan, 504 U.S. at 560 61. If the plaintiff ceases to have standing such that a live case or controversy no longer exists, the case becomes moot. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). An exception to the mootness doctrine exists for cases that are capable of repetition, yet evading review. Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007). This exception applies if the challenged action is too brief to be litigated fully before it concludes and if there is a reasonable expectation that the same complaining party will be subject to the same action again. Id. at 462. The party asserting the exception bears the burden of proof. Lawrence v. Blackwell, Case: 15-1390 Document: 62-2 Filed: 08\/25\/2016 Page: 8 No. 15-1390 Barry v. Lyon Page 9 430 F.3d 368, 371 (6th Cir. 2005). Recurrence of the issue need not be more probable than not; instead, the controversy must be capable of repetition. Id. (citing Honig v. Doe, 484 U.S. 305, 319 n.6 (1988)). In this case, counsel for the state conceded at oral argument on the summary-judgment motion that plaintiff Walter Barry had standing at the commencement of the suit, which is the relevant time period for determining standing. See Laidlaw, 528 U.S. at 189 (defining standing as [t]he requisite personal interest that must exist at the commencement of the litigation ). Although the state now attempts to breathe life back into this issue, the effort at resuscitation plainly fails. The state has a somewhat stronger argument in regard to mootness, pointing out that at the time of oral argument in the district court, Barry was receiving food assistance. But the district court found that Barry could reasonably expect to encounter additional difficulties with his benefits, based on the repeated problems he had faced in the past, including unjustified terminations or threats of termination. The record fully supports this conclusion and is a sufficient basis on which to conclude that the violation involved was capable of repetition but evading review. The state argues on appeal, as it did below, that Kenneth Anderson lacks standing because his harm resulted from the erroneous LEIN information and his failure to request an administrative hearing to challenge the LEIN information or to take other steps to correct the erroneous warrant in his name, rather than from the state’s action in disqualifying him. We find the state’s attempt to abdicate responsibility unpersuasive, however. The plaintiffs were injured at the time the agency denied or terminated their food benefits and provided inadequate notice. Hence, the plaintiffs’ injuries are fairly traceable to the defendant’s fugitive-felon law and policies. See Lujan, 504 U.S. at 560. The state offers no argument to support a claim of mootness as to this plaintiff. The district court correctly found that Donitha Copeland had standing at the commencement of this action but that the question of mootness in connection with her claims was a closer one, given her relocation to Alaska during the pendency of the case. Additionally, she no longer was listed as a fugitive felon as of September 2014. But the district court also noted that Copeland’s absence at the time was potentially temporary and that she could be Case: 15-1390 Document: 62-2 Filed: 08\/25\/2016 Page: 9 No. 15-1390 Barry v. Lyon Page 10 subject to a fugitive-felon disqualification on her return to Michigan because the felony warrant lodged against her had been dismissed without prejudice and could be reinstated or because her identity has been stolen and could be used again to commit a felony, resulting in issuance of another warrant in her name. Although the district court was faced with a good deal of uncertainty surrounding Copeland’s circumstances, the chain of potential events does not have to be air-tight or even probable to support the court’s finding of non-mootness. Instead, it is sufficient that Copeland possibly could have found herself once again in the same situation she faced when this suit was filed. Honig, 484 U.S. at 319 n.6; see also Roe v. Wade, 410 U.S. 113, 125 (1973) (holding that end of pregnancy did not moot the case because the plaintiff was capable of becoming pregnant again). The district court held that Westside Mothers lacked independent standing but had associational standing, which exists if an association’s members have standing; if the interests at stake are relevant to the organization’s purpose; and if the claims and relief do not require the participation of individual members. Laidlaw, 528 U.S. at 181. Westside Mothers meets the second requirement because it advocates for public assistance and protests its unjustified denial. And it meets the third requirement because the declaratory and injunctive relief sought pertains to the state’s policy as a whole and does not require the participation of individual members to resolve. The possible missing link is Copeland, the only named plaintiff shown by the record to hold membership in the association. Based on our decision that she has standing, we hold that the organization has standing also. The Plaintiffs’ Right of Action under SNAP The state argues on appeal, as it did below, that neither the SNAP Act nor the Supremacy Clause creates a private right of action for the plaintiffs to enforce. This contention raises issues of statutory interpretation, which we review de novo. Ammex, Inc. v. United States, 367 F.3d 530, 533 (6th Cir. 2004). To show that a statutory provision creates a federal right for a particular class of persons, enforceable under 1983, a plaintiff must demonstrate: (1) that Congress intended the provision Case: 15-1390 Document: 62-2 Filed: 08\/25\/2016 Page: 10 No. 15-1390 Barry v. Lyon Page 11 to benefit the plaintiff, (2) that the protected right is sufficiently definite for courts to enforce, and (3) that the statute imposes a binding obligation on the states using mandatory, rather than precatory, terms. Blessing v. Freestone, 520 U.S. 329, 340 41 (1997); Harris v. Olszewski, 442 F.3d 456, 461 (6th Cir. 2006). Once a plaintiff demonstrates that a statute confers an individual right, the right is presumptively enforceable by 1983. Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002) (footnote omitted). However, the defendant may rebut this presumption by showing that Congress did not intend private enforcement of that right; such intent may be found in the language of the statute or inferred from Congress’s creation of an incompatible comprehensive enforcement scheme. Harris, 442 F.3d at 461. We are directed by case law to analyze the specific statutory provisions at issue. See John B. v. Goetz, 626 F.3d 356, 362 (6th Cir. 2010) (holding that the private-right-of-action analysis focuses on the individual provision of the statute at issue, not the statute as a whole); see also Blessing, 520 U.S. at 342 45 (explaining that the Supreme Court’s rights-creation analyses have focused on a specific statutory provision or right, not on whether an entire statute creates rights, in general). The relevant SNAP provisions at issue here are 7 U.S.C. 2014(a) and 2020(e)(10), both of which grant certain rights of assistance to eligible households participating in the Act’s supplemental nutrition program. The first provision, 7 U.S.C. 2014(a), grants a right to food assistance to households that meet federally-established eligibility criteria: Assistance under this program shall be furnished to all eligible households who make application for such participation. The district court correctly found that this language reflects legislative intent to create a privately enforceable right of action, rejecting the state’s argument that use of the term household indicates that Congress did not intend to confer a private right on an individual. As the district court noted, in the context of the SNAP Act, a household is, in effect, the individual with enforceable rights because SNAP benefits are issued to households, not to individuals. Moreover, the statutory term eligible households identifies a class of beneficiaries with individual entitlements to food assistance, which entitlements are amenable to judicial remedy \u2014intrinsic attributes of a Case: 15-1390 Document: 62-2 Filed: 08\/25\/2016 Page: 11 No. 15-1390 Barry v. Lyon Page 12 privately enforceable statutory right as recognized in Westside Mothers v. Olszewski, 454 F.3d 532, 543 (6th Cir. 2006).4 The other statutory provision relied on by plaintiffs, 7 U.S.C. 2020(e)(10), substantially buttresses our analysis of 2014(a). It creates certain due-process rights to SNAP beneficiaries: The State plan . . . shall provide . . . for the granting of a fair hearing and a prompt determination thereafter to any household aggrieved by the action of the State agency under any provision of its plan of operation as it affects the participation of such household in the supplemental nutrition assistance program . . . . We need only note that we have held that a virtually identical provision in the Medicaid Act creates a privately enforceable right. In Gean v. Hattaway, 330 F.3d 758 (6th Cir. 2003), we reviewed 42 U.S.C. 1396a(a)(3), which reads: A State plan for medical assistance must . . . provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness. Focusing on the state’s obligation to provide a fair hearing, we noted that the judiciary regularly determines whether an individual has been afforded procedural due process rights, and we concluded that a right to a fair hearing is not so vague and amorphous that its enforcement is beyond the abilities of a competent judiciary. Gean, 330 F.3d at 773. As a result, we held, it is proper for plaintiffs to bring their claim for enforcement of their Medicaid rights under 1983. Id. The same analysis of the SNAP statutes in this case obviously leads to the same result, i.e., that the plaintiffs and similarly situated SNAP beneficiaries possess the right of private enforcement, as the district court held. The Right to Receive Benefits The SNAP Act disqualifies fleeing felons from food assistance if they are fleeing to avoid prosecution or confinement after conviction . . . for a crime, or attempt to commit a crime, that is a felony under the law of the place from which the individual is fleeing, or are violating a condition of probation or parole, and if they are individuals whom law enforcement 4In Westside Mothers, we distinguished the broad and nonspecific language of 42 U.S.C. 1396a(a)(30), which describes the Medicaid program to be implemented by the states, from the provision regarding specific notifications to be provided to Medicaid recipients under 42 U.S.C. 1396a(a)(43)(A). The former provision creates no right of private enforcement, but merely sets up ‘a yardstick for the Secretary to measure the systemwide performance of a State’s [Medicaid] program.’ 454 F.3d at 543 (quoting Blessing, 520 U.S. at 330). The latter creates a privately enforceable right, subject to redress under 1983. Case: 15-1390 Document: 62-2 Filed: 08\/25\/2016 Page: 12 No. 15-1390 Barry v. Lyon Page 13 authorities are actively seeking for the purpose of holding criminal proceedings against them. 7 U.S.C. 2015(k)(1) and (2). But despite the fact that the statute also forbids the state agencies implementing the Act from impos[ing] any other standards of eligibility as a condition for participating in the program, 7 U.S.C. 2014(b), Michigan denies food assistance to an otherwise eligible household merely upon receiving information that a member of the household is subject to arrest under an outstanding warrant arising from a felony charge. Mich. Comp. Laws 400.10b(1). Under 400.10(c), the state uses an automated program to compare the list of public assistance recipients with information regarding outstanding felony warrants in the hands of Michigan law enforcement agencies. And, although the state statute directs MDHHS to take all reasonable and necessary measures using the available technology to ensure the accuracy of this comparison before notifying a local office of an outstanding felony warrant or extradition warrant, Mich. Comp. Laws 400.10c(1), there is no directive to determine whether the putative felon is being actively sought for prosecution before his or her name is deleted automatically from the list of eligible recipients. The district court correctly found that Mich. Comp. Laws 400.10b and the policy implementing it violated 7 U.S.C. 2014(b) and 2020(e)(5) by adding requirements for disqualification not found in 2015(k), i.e., the existence of an outstanding felony warrant, without more, and entered summary judgment for the plaintiffs. The court recognized, by analogy to identical provisions in the Social Security Act, that fleeing to avoid prosecution incorporates an element of intent, noting, for example, that [c]ourts . . . have found the mere existence of an outstanding felony warrant insufficient to show that a person is fleeing and therefore disqualified from receiving SSI benefits. Barry v. Corrigan, 79 F.Supp.3d 712, 750 (E.D. Mich. 2015) (citing Fowlkes v. Adamec, 432 F.3d 90, 96 (2nd Cir. 2005) ( The statute does not permit the Commissioner to conclude simply from the fact that there is an outstanding warrant for a person’s arrest that he is fleeing to avoid prosecution. )). The court was equally correct in finding that the state had deprived the plaintiffs of their right to assistance under the SNAP Act based on what was missing from Michigan law, i.e., the conditions precedent to valid disqualification under federal law: the felon in question must be (1) actively fleeing (2) to avoid prosecution for a crime that is a felony under the law of the Case: 15-1390 Document: 62-2 Filed: 08\/25\/2016 Page: 13 No. 15-1390 Barry v. Lyon Page 14 place from which the individual is fleeing, and the authorities must be (3) actively seeking to prosecute him or her for the offense.5 The district court correctly declared invalid the Michigan fugitive-felon policy and the portions of Michigan statutes on which the policy was based, entered summary judgment for the plaintiffs, and enjoined the state from automatically disqualifying plaintiffs and other class members from receiving SNAP benefits based solely on an outstanding felony warrant. The Right to Notice and a Hearing The district court also determined that the form of the disqualification notice sent by the state was inadequate under the Due Process Clause of the Fourteenth Amendment and 2020(e)(10) of the SNAP Act and its implementing regulations, 7 C.F.R. 273.10(g) and 273.13(a). All the plaintiffs in this case received the same notice, giving as the reason for their disqualification: You or a member of your group is not eligible for assistance due to a criminal justice disqualification. Please contact your local law enforcement agency to resolve. The state argues on appeal, as it did below, that the notices were adequate to comply with due process. The district court’s grant of summary judgment and its resolution of legal questions are reviewed de novo, and the district court’s factual findings are accepted unless they are clearly erroneous. TransAmerica Assurance Corp. v. Settlement Capital Corp., 489 F.3d 256, 259 (6th Cir. 2007). The state does not challenge the district court’s statement of the constitutional due- process standard applicable here: The notice must comprise ‘(1) a detailed statement of the intended action . . . (2) the reason for the change in status . . . (3) citation to the specific statutory section requiring reduction or termination; and (4) specific notice of the recipient’s right to appeal.’ Barry, 79 F.Supp.3d at 741 (citing Garrett v. Puett, 707 F.2d 930, 931 (6th Cir. 1983)). The court found that the fourth factor had been met but that the first and second were the 5The district court also found that preemption principles provided a second, independent basis for finding Michigan’s law and policy invalid. Because we conclude that the court’s initial determination was correct, we pretermit discussion of the alternative ground. Case: 15-1390 Document: 62-2 Filed: 08\/25\/2016 Page: 14 No. 15-1390 Barry v. Lyon Page 15 crux of the issue and were lacking. It did not reach a conclusion regarding the third factor, but that one, too, appears to be missing.6 The district court’s analysis of the first and second Garrett factors is persuasive and thorough: The notices state the intended action\u2014denial or reduction of benefits. For example, the May 16, 2013 notice sent to Barry provides, under the heading Intended Action, a summary of benefits\u2014in this instance, listing Food Assistance Program. The notice shows the relevant action as closed and states, [y]our ongoing benefit has been cancelled but you will continue to receive benefits through the day before the period listed above. The reason given for the action is simply You or a member of your group is not eligible for assistance due to a criminal justice disqualification. This fails to indicate whose conduct is at issue. It also fails to indicate which of the five types of criminal justice disqualifications applied by [MDHHS] is being invoked. From at least 2012 to mid-2013, the notices referred to section 203 of the BEM, where five types of criminal justice disqualifications from public assistance benefits were listed. In June 2013, [MDHHS] placed the fugitive felon disqualification in its own section of the BEM (204). But the notices thereafter continue to use the general phrase criminal justice disqualification. Thus, a notice recipient must still be able to (1) determine that BEM 204 refers to the Bridges Eligibility Manual, section 204, (2) determine that the relevant type of criminal justice disqualification can be found there, and (3) get access to the BEM. Even if a notice recipient locates a copy of the BEM and determines the type of disqualification, he or she still does not know anything about the outstanding warrant\u2014not the underlying charge, nor which law enforcement agency issued the warrant. The recipient thus has no basis for making an informed decision whether to contest the disqualification, nor what issues need to be addressed at a hearing. Defendant maintains that notice recipients could call the [MDHHS] contact person and number listed on the notice to receive further information regarding their disqualification. But defendant cannot satisfy due process by requiring notice recipients to call elsewhere. See Boatman v. Hammons, 164 F.3d 286, 290 (6th Cir. 1998). Moreover, in this instance such a call would be fruitless: [MDHHS] staff are instructed not to disclose ‘Fugitive Felon’ status information to the individual. 6The third factor does not appear to be met here because the notice cited only to the BEM, not to the specific statutory section. Although this document does contain citations to the statute, successfully tracking down this information would, as the district court noted, require the recipient of a notice to figure out that BEM means Bridges Eligibility Manual and then to acquire a copy of the relevant section. Case: 15-1390 Document: 62-2 Filed: 08\/25\/2016 Page: 15 No. 15-1390 Barry v. Lyon Page 16 Defendant further maintains that notice recipients can obtain the necessary information by contacting law enforcement. This is potentially as ineffective as contacting [MDHHS], as the named plaintiffs’ experiences shows. Law enforcement may not be able to determine which warrant is causing the disqualification, as happened in Barry’s case. He discovered the existence of the first outstanding warrant only through defendant’s intervention. * * * * * Defendant relies primarily on Rosen v. Goetz, 410 F.3d 919, 930-31 (6th Cir. 2005), for the proposition that due process does not require notices to include specific, individualized reasons for benefit denial, reduction, or termination. But defendant’s reliance is misplaced: the Rosen court held the notices in that case adequate because the very facts the plaintiffs claim are missing [sc. from the termination notices] are supplied by the State through a second letter that follows the Termination Notice and that the Termination Notice itself references and brings to the attention of recipients. 410 F.3d at 931. While defendant is technically correct that the notice itself does not need to include specific, individualized reasons for the agency action, those details must nonetheless be provided in some form. See id. ( Due process does not require ‘reasonably calculated’ notice to come in just one letter, as opposed to two. ). Unlike in Rosen, they were not provided here. * * * * * The notice here similarly fails to inform recipients what they must do to lift the disqualification. If a recipient resolves the disqualification, benefits are automatically reinstated only if other household members are active \u2014 i.e., continue to receive the type of assistance from which the notice recipient has been disqualified. Otherwise, a disqualified individual must not only resolve the criminal justice disqualification with law enforcement, but must also reapply for benefits. The notice fails to communicate this information. The notice also fails to make clear whether a hearing request is necessary to resolve disqualifications, even if the issue is resolved with law enforcement. Barry, 79 F.Supp.3d at 742-44 (citations to the district court record omitted). It is sufficient to note that none of the state’s arguments on appeal call into question any part of the district court’s well-analyzed decision. Because we agree that the notices sent by the state violated the recipient’s constitutional right of due process, we need not address their invalidity under the SNAP Act, although we note that the analysis would be the same. Case: 15-1390 Document: 62-2 Filed: 08\/25\/2016 Page: 16 No. 15-1390 Barry v. Lyon Page 17 Injunctive Relief The state next complains that the district court erred by granting a permanent injunction without addressing the well-established four-factor test that requires a plaintiff seeking injunctive relief to establish: (1) that it has suffered an irreparable injury; (2) that remedies available at law . . . are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). The result, the state argues, is that upon review, we may do no more than speculate about the basis for the district court’s decision. To the contrary, however, we think speculation is wholly unwarranted, given the district court’s thorough and detailed 97-page explanation of why the injunction was appropriate\u2014indeed, why it was necessary\u2014and precisely what action the state was required to undertake. The opinion may not have set out the equitable factors explicitly but, more importantly, the district court fully complied with the non-equitable requirements of Federal Rule of Civil Procedure 65(d)(1), pursuant to which [e]very order granting an injunction and every restraining order must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail\u2014and not by referring to the complaint or other document\u2014the act or acts restrained or required. The opinion likewise complied with Federal Rule of Civil Procedure 52(a)(1) and (2), which provides that [i]n an action tried on the facts without a jury, including the grant or denial of an interlocutory injunction, the district court must find the facts specially and state its conclusions of law separately. Rather than complain that the four factors of the traditional equitable test were not explicitly articulated, the state should have set out which of the four areas purportedly were not covered in the court’s opinion, so that we might review any deficiency. In the absence of a specific argument that would establish error on the part of the district court, we find none. Class Certification A district court’s decision to certify a class is reviewed for abuse of discretion. Beattie v. CenturyTel, Inc., 511 F.3d 554, 559 (6th Cir. 2007). The district court maintains substantial discretion in determining whether to certify a class, as it possesses the inherent power to manage Case: 15-1390 Document: 62-2 Filed: 08\/25\/2016 Page: 17 No. 15-1390 Barry v. Lyon Page 18 and control its own pending litigation. Reeb v. Ohio Dept. of Rehab. & Corr., 435 F.3d 639, 643 (6th Cir. 2006). A district court abuses its discretion when it relies on erroneous findings of fact, applies the wrong legal standard, misapplies the correct legal standard when reaching a conclusion, or makes a clear error of judgment. Beattie, 511 F.3d at 560 (internal quotation marks and citation omitted). In this case, the district court certified both a class7 and a subclass8 and, the record reflects, applied the correct legal standards when it analyzed whether the proposed classes were ascertainable, whether the numerosity, commonality, typicality, and adequacy requirements of Federal Rule of Civil Procedure 23(a) were met, and whether the defendant acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole, as required by Rule 23(b)(2). The state does not contend otherwise. Instead, the state’s arguments against class certification rely principally on its perception that the inaccurate LEIN information and the plaintiffs’ failure to challenge it were the sources of the plaintiffs’ harm, not any state action. The district court correctly rejected this argument, ruling that [t]he injuries plaintiffs allege\u2014 inadequate notice and disqualification without a determination that they are fleeing to avoid prosecution and are actively sought by law enforcement\u2014are legally cognizable injuries, and that what defendant terms the ‘real’ harm\u2014erroneous LEIN records\u2014caused no harm to 7[A]ll past, present, and future applicants for, or recipients of, benefits administered by the Michigan Department of Human Services (DHS) under the \uf0b7 Food Assistance Program (FAP) \uf0b7 Family Independence Program (FIP) \uf0b7 State Disability Assistance Program (SDA) \uf0b7 Child Development and Care Program (CDC), and \uf0b7 Refugee Assistance Program (RAP) public assistance programs, who have suffered or will suffer actual or threatened denial, termination, or reduction of public assistance benefits based on DHS’ determination that the applicant \/ recipient or a member of the applicant \/ recipient’s household is ineligible based on a criminal justice disqualification, and who receive or have received a written notice at the time of denial issued by DHS informing the applicant \/ recipient of the criminal justice disqualification. 8All past, present, and future applicants for, or recipients of, Michigan’s Food Assistance Program benefits, who have suffered or will suffer actual or threatened denial, termination, or reduction of Food Assistance Program benefits based on DHS’s policy of disqualifying individuals as fugitive felons, without a finding that the individual is intentionally fleeing from justice to avoid prosecution, or custody or confinement after conviction, and\/or without finding that the individual is actively sought by law enforcement, for a crime that is a felony. Case: 15-1390 Document: 62-2 Filed: 08\/25\/2016 Page: 18 No. 15-1390 Barry v. Lyon Page 19 plaintiffs until defendant used the LEIN records to disqualify plaintiffs from food assistance benefits . . . . In other words, the question of whether the disqualification is lawful is different from the question of whether the LEIN records are accurate. Barry, 79 F.Supp.3d at 730. On appeal, the state presses the same contentions that the district court rejected, including many arguments previously addressed in our analyses of standing and mootness, above. We decline to reiterate our legal conclusions in this regard. To the extent that the subclass includes persons who are actually felons who are intentionally fleeing and are actively being sought for prosecution, they might now lack substantive claims but could still advance a due process argument. That possibility does nothing to undermine the district court’s class certification. Procedural Motions Finally, the state assails several rulings by the district court in connection with the state’s motion to reconsider the court’s grant of summary judgment and with the plaintiffs’ motions to strike exhibits attached to the motion to reconsider. The district court struck three of the four exhibits, finding, first, that they constituted new evidence that could have been presented before the court announced judgment and, additionally, that they would not affected the outcome even if they had been timely proffered. There was no abuse of discretion involved in any of these procedural rulings. See Seay v. Tenn. Valley Auth., 339 F.3d 454, 480 (6th Cir. 2003) ( We review the decision to grant or deny a motion to strike for an abuse of discretion, and decisions that are reasonable, that is, not arbitrary, will not be overturned. ) The state also complains that the district court relied on a novel hearsay theory when it concluded that one of the affidavits the state submitted in support of the motion for reconsideration constituted hearsay and could not be considered. Apparently the defendant reasons that because Federal Rule of Civil Procedure 56(c)(1)(A) requires a motion for summary judgment to be accompanied by affidavits, the affidavits submitted in support of summary judgment cannot be deemed to be hearsay. However, we have recognized that if such affidavits contain hearsay, they may not be considered unless the hearsay evidence could be presented in an admissible form at trial. See N. Am. Specialty Ins. Co. v. Myers, 111 F.3d 1273, 1283 (6th Cir. 1997). Here, the district court did not abuse its discretion by striking evidence it deemed to Case: 15-1390 Document: 62-2 Filed: 08\/25\/2016 Page: 19 No. 15-1390 Barry v. Lyon Page 20 be inadmissible hearsay. The state also complains for the first time on appeal that the district court did not also find the plaintiffs’ affidavits to contain hearsay, but the state raises this argument much too late to be considered here. See Bailey v. Floyd Cnty. Bd. of Educ. By and Through Towler, 106 F.3d 135, 143 (6th Cir. 1997) ( It is well-settled that this court will not consider arguments raised for the first time on appeal unless our failure to consider the issue will result in a plain miscarriage of justice. ). Nor did the district court abuse its discretion in denying the state’s motion for reconsideration. The court determined that none of the issues was properly before it but nevertheless addressed each of the issues raised and rejected them on the merits. The procedural and substantive reasons given by the district court for denying reconsideration were valid, and the state has failed to provide any argument supporting its bare assertion that the district court’s refusal to grant reconsideration was an abuse of discretion. CONCLUSION For the reasons set out above we AFFIRM the district court’s judgment. We also REMAND the case to allow the district court to continue to enforce the permanent injunction and to consider any relevant action by the state in light of the Secretary’s Clarification of Eligibility of Fleeing Felons Final Rule, 7 C.F.R. 273.11(n), which took effect on November 9, 2015. For the district court’s benefit, we note that the new rule will not render this case moot, because it is still possible that a recipient of SNAP benefits might have those benefits wrongfully terminated. Case: 15-1390 Document: 62-2 Filed: 08\/25\/2016 Page: 20 ”

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” ATTORNEY OR PARTY WITHOUT ATTORNEY (Na\”!_e,,_ State Bar n11mber, and address): Rob;’rt Capistrano (70382), Mayah1Kshmi H. Watts (246566), Eric Berkowitz ( 116634), Cynthia L. Chagolla (293184), BAY AREA LEGAL AID 1735 Telegraph Oakland, CA 94612 TELEPHONENO.: (510) 663-4744 FAX NO.: (510) 633-4740 ATTORNEY FOR (Name): Cynthia Brown and Marcos Espinosa-Tapia suPER10R couRr oF CALIFORNIA, couNTY oF Contra Costa srnEET ADDREss: 725 Court Street MAILING ADDRESS: c1TYANDZ1PcoDE: Martinez and 94553 BRANCH NAME: Martinez Branch CASE NAME: Brown, et al. v. Lightbourne CIVIL CASE COVER SHEET Complex Case Designation CM-010 FOR COURT USE ONLY 38 0 Unlimited D Limit&d D Counter D Joinder (Amount (Amount JUDGE: demanded demanded is Filed with first appearance by defendant exceeds $25,000) $25,000 or less) (Cal. Rules of Court, rule 3.402) DEPT: Items 1-6 below must be completed (see instructions on page 2). 1. Check one box below for the case type that best describes this case: Auto Tort Contract D Auto (22) D Breach of contract\/warranty (06) D Uninsured motorist (46) D Rule 3.740 collections (09) Other PI\/PD\/WD (Personal Injury\/Property Damage\/Wrongful Death) Tort D Asbestos (04) D Product liability (24) D Medical malpractice (45) D Other PI\/PD\/WD (23) Non-Pl\/PD\/WO (Other) Tort D Business tort\/unfair business practice (07) D Civil rights (08) D Defamation (13) D Fraud (16) D Other collections (09) D D Insurance coverage (1_8). ….. . Other contract (37) Real Property D Eminent domain\/Inverse condemnation (14) D Wrongful eviction (33) D Other real property (26) Unlawful Detainer D Commercial (31) D Residential (32) D Drugs (38) D Intellectual property (19) D Professional negligence (25) Judicial Review D Other non-Pl\/PD\/WO tort (35) D Asset forfeiture (05) Employment D Petition re: arbitration award (11) D Wrongful termination (36) 0 Writ of mandate (02) D Other employment (15) D Other judicial review (39) Provisionally Complex Civil Litigation (Cal. Rules of Court, rules 3.400-3.403) D Antitrust\/Trade regulation (03) D Construction defect (10) D Mass tort (40) D Securities litigation (28) D Environmentalrroxic tort (30) D Insurance coverage claims arising from the above listed provisionally complex case types (41) Enforcement of Judgment D Enforcement of judgment (20) Miscellaneous Civil Complaint 0 RIC0(27) D Other complaint (not specified above) (42) Miscellaneous Civil Petition D Partnership and corporate governance (21} D Other petition (not specified above) (43) 2. This case LJ is LL! is not complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the factors requiring exceptional judicial management: a. D Large number of separately represented parties b.D Extensive motion practice raising difficult or novel issues that will be time-consuming to resolve c. D Substantial amount of documentary evidence 3. Remedies sought (check all that apply): a.O monetary 4. Number of causes of action (specify): 2 5. This case D is 0 is not a class action suit. d. D Large number of witnesses e. D Coordination with related actions pending in one or more courts in other counties, states, or countries, or in a federal court f. D Substantial postjudgment judicial supervision b.[2] nonmonetary; declaratory or injunctive relief c. Opunitive 6. If there are any known related cases, file and serve a notice of related case. (You may usce form CM-015.) Date: ~ e… rf= I I Z o I ~ ~ f_a~d P. C:~tSf~, ‘ (TYPOR PRINT NAME) ATURE OF PARTY OR ATTORNEY FOR PARTY) NOTICE Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220J Failure to file may result in sanctions. File this cover sheet in addition to any cover sheet required by local court rule. If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all other parties to the action or proceeding. Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes onlv. Pa e 1 of 2 Form Adopted for Mandatory Use Judicial Council of California CM-01 O [Rev. July 1, 2007] CIVIL CASE COVER SHEET Cal. Rules of Court, rules 2.30, 3.220, 3.400–3.403, 3.740; Cal. Standards of Judicial Administration, std. 3.10 www.courtinfo.ca.gov CM-010 INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET To Plaintiffs and Others Filing First Papers. If you are filing a first paper (for example, a complaint) in a civil case, you must complete and file, along with your first paper, the Civil Case Cover Sheet contained on page 1. This information will be used to compile statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet. In item 1, you must check one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1, check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action. To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party, its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court .. To Parties in Rule 3.740 Collections Cases. A \”collections case\” under rule 3.740 is defined as an action for recovery of money owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney’s fees, arising from a transaction in which property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general time-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections case will be subject to the requirements for service and obtaining a judgment in rule 3.740. To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the plaintiff’s designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that the case is complex. CASE TYPES AND EXAMPLES Auto Tort Auto (22)-Personal Injury\/Property Damage\/Wrongful Death Uninsured Motorist (46) (if the case involves an uninsured motorist claim subject to arbitration, check this item instead of Auto) Other PI\/PD\/WD (Personal Injury\/ Property Damage\/Wrongful Death) Tort Asbestos (04) Asbestos Property Damage Asbestos Personal Injury\/ Wrongful Death Product Liability (not asbestos or toxic\/environmental) (24) Medical Malpractice (45) Medical Malpractice– Physicians & Surgeons Other Professional Health Care Malpractice Other Pl\/PD\/WO (23) Premises Liability (e.g., slip and fall) Intentional Bodily Injury\/PD\/WO (e.g., assault, vandalism) Intentional Infliction of Emotional Distress Negligent Infliction of Emotional Distress Other Pl\/PD\/WO Non PI\/PD\/WD (Other) Tort Business Tort\/Unfair Business Practice (07) Civil Rights (e.g., discrimination, false arrest) (not civil harassment) (08) Defamation (e.g., slander, libel) (13) Fraud (16) Intellectual Property (19) Professional Negligence (25) Legal Malpractice Other Professional Malpractice (not medical or legal) Other Non-Pl\/PD\/WO Tort (35) Employment Wrongful Termination (36) Other Employment (15) CM-010 !Rev. July 1, 2007] Contract Breach of Contract\/Warranty (06) Breach of Rental\/Lease Contract (not unlawful detainer or wrongful eviction) Contract\/Warranty Breach-Seller Plaintiff (not fraud or negligence) Negligent Breach of ContracV Warranty Other Breach of Contract\/Warranty Collections (e.g., money owed, open book accounts) (09) Collection Case-Seller Plaintiff Other Promissory Note\/Collections Case Insurance Coverage (not provisionally complex) (18) Auto Subrogation Other Coverage Other Contract (37) Contractual Fraud Other Contract Dispute Real Property Eminent Domain\/Inverse Condemnation (14) Wrongful Eviction (33) Other Real Property (e.g., quiet title) (26) Writ of Possession of Real Property Mortgage Foreclosure Quiet Title Other Real Property (not eminent domain, landlord\/tenant, or foreclosure) Unlawful Detainer Commercial (31) Residential (32) Drugs (38) (if the case involves illegal drugs, check this item; otherwise, report as Commercial or Residential} Judicial Review Asset Forfeiture (05) Petition Re: Arbitration Award (11) Writ of Mandate (02) Writ-Administrative Mandamus Writ-Mandamus on Limited Court Case Matter Writ-Other Limited Court Case Review Other Judicial Review (39) Review of Health Officer Order Notice of Appeal-Labor Commissioner Appeals CIVIL CASE COVER SHEET Provisionally Complex Civil Litigation (Cal. Rules of Court Rules 3.400-3.403) AntitrusVTrade Regulation (03) Construction Defect (10) Claims Involving Mass Tort (40) Securities Litigation (28) Environmental\/Toxic Tort (30) Insurance Coverage Claims (arising from provisionally complex case type listed above) ( 41) Enforcement of Judgment Enforcement of Judgment (20) Abstract of Judgment (Out of County) Confession of Judgment (non- domestic relations) Sister State Judgment Administrative Agency Award (not unpaid taxes) Petition\/Certification of Entry of Judgment on Unpaid Taxes Other Enforcement of Judgment Case Miscellaneous Civil Complaint RICO (27) Other Complaint (not specified above) (42) Declaratory Relief Only Injunctive Relief Only (non- harassment) Mechanics Lien Other Commercial Complaint Case (non-tort\/non-complex) Other Civil Complaint (non-tort\/non-complex) Miscellaneous Civil Petition Partnership and Corporate Governance (21) Other Petition (not specified above) (43) Civil Harassment Workplace Violence Elder\/Dependent Adult Abuse Election Contest Petition for Name Change Petition for Relief From Late Claim Other Civil Petition Page 2 of2 1 Robert P. Capistrano, SBN 703 82 Mayalakshmi H. Watts, SBN 246566 2 Eric Berkowitz (Volunteer Atty.), SBN 116634 Cynthia L. Chagolla, SBN 293184 3 BAY AREA LEGAL AID 1735 Telegraph Ave. 4 Oakland, CA 94612 Telephone: (510) 663-4744 5 Facsimile: (510) 663-4740 [email protected] 6 7 Attorney for Petitioners 8 9 10 11 CYNTHIA BROWN and MARCOS,ESPINOSA-TAPIA SUPERIOR COURT OF CALIFORNIA CONTRA COSTA COUNTY 12 CYNTHIA BROWN and MARCOS ) ‘11,8 -1 s\u00b7a s Case No. . \u00b7. 13 14 15 16 17 18 19 20 ESPINOSA-TAPIA, Petitioners, vs. WILL LIGHTBOURNE, in his official capacity as, Director of the California Department of Social Services, Respondent. I. ) ) VERIFIED PETITION FOR WRITS ) OF ADMINISTRATIVE MANDATE ) AND MANDATE ) ) Code Civ. Proc. 1085, 1094 .. 5, .Welf. ) & Inst. Code 10962 ‘- ) ) ) ) ) INTRODUCTION 21 1. Petitioners CYNTHIA BROWN and MARCOS ESPINOSA-TAPIA 22 (\”Ms. Brown\” and \”Mr. Espinosa-Tapia,\” respectively) challenge the practice of 23 Respondent WILL LIGHTBOURNE (\”Lightbourne\”), as Director of the California 24 Verified Petition for Writs of Administrative Mandate – 1 1 Department of Social Services (11CDSS11), of permitting counties to recover overissuances 2 of CalFresh benefits more than three years after a demand issues for repayment of such 3 overissuance. 4 2. Welfare and Institutions Code 18927 requires that households receive 5 11 adequate and timely notice of the [ food stamp] overissuance … 11 For collection 6 attempts, CDSS is responsible for defining collection methods that include adequate and 7 timely notice. Welf. & Inst. Code 18927(g). 8 3. Respondent’s regulations, set forth in CDSS Manual of Policy and Procedures 9 (11MPP 11) 63-801.111 and 63.801.112, allow counties to seek recovery of CalFresh 10 overissuances only if they occurred less than three years before the demand for repayment 11 is made. Respondent’s subsequent CDSS interpretations of these regulations, which purport 12 to extend this three-year limitation so long as one monthly overissuance accrued within 13 three years of the demand, are inconsistent with these governing regulations and, pursuant 14 to Welf. &. Inst. Code 10554, are invalid because the interpretations were adopted 15 outside of the notice and comment procedures set forth in the Administrative Procedure 16 Act (\”AP A\”), Gov. Code 11340, et seq. 17 4. Petitioners Brown and Espinosa-Tapia were allegedly overissued. CalFresh 18 food stamps, and CDSS permitted recovery of the entire amount demanded even though 19 significant portions of the total overissuances sought accrued more than three years before 20 the claim was made. 21 5. Ms. Brown and Mr. Espinosa-Tapia now seek a peremptory writ of 22 administrative mandate pursuant to Code Civ. Proc. 1094.5 and Welf. & Inst. Code \u00b7 23 10962 vacating Respondent’s two hearing decisions upholding the authority of Contra 24 Verified Petition for Writs of Administrative Mandate – 2 1 Costa County – as Respondent’s agent – to recover the full amount of the CalFresh 2 overissuances assessed against each Petitioner; and also to stay any efforts by Contra 3 Costa County to recover said overissuances pending the final resolution of this case. 4 6. Additionally, Petitioners seek a peremptory writ of mandate pursuant to 5 Code Civ. Proc. 1085 commanding Respondent to complywithMPP 63-801.111 and 6 63.801.112, and to refrain from permitting counties to recover CalFresh overissuances \u00b7 7 which occur more than three years before a demand for repayment is made. 8 9 II. THE PARTIES 7. Ms. Brown is, and at all relevant times has been, a resident of 10 Antioch, California and was eligible to receive CalFresh benefits. 11 8. Mr. Espinosa-Tapia was, at all relevant times and until mid-2013, a 12 resident of Antioch, California, and was eligible to receive CalFresh benefits. He now \u00b7 13 resides in San Francisco, California. 14 9. Respondent Lightbourne is the Director of the Department of 15 Social Services, and is responsible for managing CDSS in its administration of the 16 CalFresh Program in accord with the laws and regulations governing the Program. 17 Respondent is sued ill’his official capacity as the official responsible for ensuring that 18 CDSS and its agents act in conformity with federal and state law. In accord with Welf. & \u00b7 19 Inst. Code 10553 and 10962, Mr. Lightbourne is the proper Respondent in this 20 proceeding. 21 III. THE CALFRESH PROGRAM 22 10. California’s CalFresh Program, codified at Welf. & Inst. Code 18900, et seq. 23 and formerly known as the Food Stamp Program, is a federally funded, means-tested 24 Verified Petition for Writs of Administrative Mandate – 3 1 program which aims to \”safeguard the health and well-being of the nation’s population by 2 raising the levels of nutrition among low-income households.\” MPP 63-101.2. 3 11. The CalFresh Program provides eligible families with an electronic benefits 4 transfer or \”EBT\” card to purchase sufficient food to maintain their families at a \\ 5 subsistence level. As stated in Welf. & Inst. Code 18901, the CalFresh 6 Program is administered by CDSS in accord with applicable federal law. 7 12. Pursuant to Welf. & Inst. Code 18902, CDSS has delegated the day-to-day 8 responsibility of running the program to the State’s individual counties, \”subject to CDSS 9 regulatory and rulemaking authority.\” MPP 63-104. 10 13. The monthly amount of CalFresh benefits received by a recipient household 11 depends on the size of the family and the combined income of each member of the 12 household. 7 C.F.R. 273.10; MPP 63-503.24land 63-242. 13 14: An overissuance occurs when a food stamp household receives more food 14 stamps than it was eligible for in a given month. 15 A. CDSS Regulations Establish a Three-Year Limit for Initiating Overissuance 16 Recovery 17 15. When a recipient household is alleged to have been overissued 18 CalFresh benefits, CDSS regulations classify the overissuance as the result c:,f either 19 inadvertent household error (resulting from a mistake or misunderstanding), agency enor 20 (caused by the county), or an intentional program violation (as determined in a 21 disqualification hearing). 7 C.F.R. 273.18(b); MPP 63-801.2. 22 16. In the case of inadvertent household enor overissuances, MPP 63- 23 801.111 and 63-801.112, in, effect since 1984, have provided: 24 Verified Petition for Writs of Administrative Mandate – 4 1 2 3 4 5 6 7 8 .9 10 11 .111 The CWD [County Welfare Department] shall take action on inadvertent household and administrative error claims for which less than three years have elapsed between the month the overissuance occurred and the month the CWD determined by computation that an overissuance occurred, irrespective of the date the DFA 842 was completed. .112 The CWD shall not take action on inadvertent household and administrative error claims for which more than three years have elapsed between the month the overissuanc~ occurred and the month the CWD determined by computation that the overissuance occurred irrespective of the date the DFA 842 was completed. 17. The clause \”the month the CWD determined by computation\” refers to the month in which the County both calculates and notifies the recipient of the alleged overissuance, and demands repayment. See All-County Information Notice (\”ACIN\”) I-03- 02, \”Food Stamp Questions and Answers,\” p. 6 (January 14, 2002), a.true copy of which is attached as Exhibit 1 : Question #la: Is there a difference between establishing and calculating claims (for 12 overissuances)? [,r:J Yes. Claims of overissuances (Ois) are \”established\” by. docU)Tienting the amount of and the reason for the OI and issuing a demand letter to 13 the client. The date of the demand letter is the date that the claim is established [7 CFR 273.18(e)(3)(iii)]. Computing the amount of an overissuance does not 14 constitute the establishment of an OI claim. Counties must compute the amount of the overissuance and issue the demand letter within the three-year timeframe. If the 15 county does not compute the overissuance until the end of the three-year time period, a claim cannot be considered established against the household. (Italics 16 added) 17 B. Respondent Expands the Three-Year Time Limit for Initiating Recovery 18 18. Respondent subsequently issued ACIN I-52-02 (July 22, 2002), a true copy of 19 which is attached as Exhibit 2, purportedly allowing counties to recover overissuances 20 even if a \”month the overissuance occurred\” (MPP 63.801.111, 63-801.112) fell more 21 than three years prior to the demand for repayment: 22 The CWD would be operating within the three-year time frame as required by 63- 801.11 as long as one month of the OI occurs within three years of establishing the 23 claim. Therefore, it does not matter that part of the OI occurred more than three years prior to the establishment of the claim as long as a portion of the OI occurred 24 within the three-year time frame. (ACIN I-52-02, p. 1, Answer to Question lb.) Verified Petition for Writs of Administrative Mandate – 5 1 2 3 4 5 6 7 8 9 10 11 12 IV. FACTUAL ALLEGATIONS A. Petitioner Cynthia Brown 19. Ms. Brown had been receiving CalFresh benefits for herself and her children for several years when, on or about August 17, 2015, she received a notice :from the Contra Costa County Health and Welfare Agency (\”the County\”) that she had received overissuances of CalFresh benefits totaling $6,073 for the twelve months beginning in November, 2011 and ending in October, 2012, and demanding repayment of said overissuances. ( A true copy of this notice is attached\u00b7 as Exhibit 3 and incorporated herein by reference.) 20. All but three months of the County’s overissuance demand occurred more than three years before the notice. 21. Ms. Brown timely requested a hearing to contest the overissuance 13 14 15 16 17 18 19 20 21 22 23 24 demand and, on December 16, 2015, a hearing was held before a CDSS administrative law judge. 22. At the hearing, the parties agreed that the issue in dispute was not the amount of the alleged overissuances, but rather the period during which the County could lawfully collect the alleged overissuances. 23. Specifically, the County contended that applicable law permits it to collect overissuances made more than three years prior to its issuance of a demand for repayment so long as at least one month of overissuance occurred within this period, while Ms. Brown argued that the County is only permitted to collect overissuances made in months falling less than three years before it demands repayment. Verified Petition for Writs of Administrative Mandate – 6 1 24. Accordingly, Ms. Brown contended that the County was allowed to recover 2 only the CalFresh benefits paid to her household in the months of August, September, and 3 October, 2012, which total approximately $2,039. 4 25. On or about February 19, 2016, Respondent issued a written pecision denying 5 Ms. Brown’s claim and holding that the County was permitted to collect overissuances 6 from Ms. Brown reaching back to November 2011. (A true copy of this Decision (hereafter 7 the \”Brown Decision\”) is attached hereto as Exhibit 4 and is incorporated herein by 8 reference). 9 B. Petitioner Marcos Espinosa-Tapia 10 26. Mr. Espinosa-Tapia began receiving CalFresh benefits_on or about July, 2012. 11 On or about December 7, 2015, he received a notice from the County stating that he had 12 received overissuances of CalFresh benefits totaling $4,380 for the nine months beginning 13 -in July, 2012 and ending in March, 2013, and demanding repayment of said overissuances. 14 (A true copy of this notice is attached as Exhibit 5 and incorporated herein by reference.) 15 27. Mr. Espinosa-Tapia timely requested a hearing to contest the 16 overissuance demand. On April 6, 2015, a hearing was held before a CDSS administrative 17 law judge. Atthe hearing, the parties agreed that the issue in dispute was not the amount o 18 the alleged overissuance, but rather the pedod during which the County could lawfully 19 collect the alleged overissuances. 20 28. Specifically, the County contended that applicable law permits it to 21 collect overissuances made more than three years prior to its issuance of a demand for 22 repayment so long as at least one month of overissuance occurred within this period, while 23 Mr. Espinosa-Tapia argued that the County is only permitted to collect overissuances made 24. Verified Petition for Writs of Administrative Mandate – 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 in months falling less than three years before it demands repayment. Accordingly, Mr. Espinosa-Tapia contended that the County was allowed to recover only the CalFresh benefits paid to Mr. Espinosa-Tapia’s household in the months December, 2012 through March, 2013, which total approximately $2,420. 29. On or about April 11, 2016, Respondent issued a written Decision denying Mr. Espinosa-Tapia’s claim and holding that the County was permitted to collect overissuances from him reaching back to July 2012. (A true copy of this Decision is attached as Exhibit 6 and is incorporated herein by reference (hereafter, the \”Espinosa- Tapia Decision\”)). C. The Decisions 30. The Brown Decision and the Espinosa-Tapia Decision (collectively, the \”Decisions\”) rely on an erron.eous application of the law governing recovery of CalFresh overissuances, and constitute abuses of discretion in that the Respondent did not proceed in the manner required by law, among other things, because: (a) The Decisions rely on an erroneous interpretation and application of MPP 63-802.111-112 and 63-802.3 ll(b). These regulations explicitly require county welfare agencies to treat each overissuance month as independently triggering a recovery period of no more than three years, to the effect that such agencies cannot seek any overissuances for any month falling more than three years before demand for repayment is made. The Decisions wrongfully disregard the.plain meaning of the regulations, and misapply the regulations to permit county welfare agencies to recover overissuances made up to six years before a demand letter is sent: Verified Petition for Writs \u00b7of Administrative Mandate -\u00b7 8 1 (b) The Decisions rely on a CDSS notice entitled \”All County Information \\ 2 Notice 1-52-02\” (Exhibit 2) as authority for the County to collect overissuances made mor 3 than three years prior to its demands for repayment, thus going beyond the plain language 4 ofMPP 63-801.111 and 63-801.112. ACIN I-52-02 purports to establish a rule or 5 standard of general application, and to interpret the applicable regulations governing 6 overissuances in the MPP. ACIN provisions which go beyond governing regulations have 7 not been expressly exempted by statute from the requirement that they be promulgated in 8 conformity with the AP A. Because the cited provisions of ACIN I-52-02 are not supported 9 by the plain language of MPP _63-801.111 and 63-801.112 and have not been adopted 10 under the procedures set fortll in Gov. Code 11340.5, 11342.600, 11346, and other 11 applicable law, they are invalid \”underground regulations\” having no force or effect. See, 12 for example,Armisteadv. State Personnel Board, 22 Cal.3d 198 (1978). 13 FIRST CAUSE OF ACTION 14 (Administrative Mandate, Code Civ. Proc. 1094.5; Welf. & Inst. Code 10962) 15 31. Paragraphs 1 through 30 are incorporated herein by reference. 16 32. Each Petitioner has a beneficial interest in the subject matter of this 17 action, including ensuring that Respondent correctly interprets and applies the laws and 18 regulations governing the CalFresh Program. 19 33. The Decisions constitute abuses of discretion in that CDSS has not proceeded 20 in the manner required by law. Specifically, (i) the Decisions rely on the ACINs as 21 authority for the County to collect overissuances occurring more than three years before 22 the repayment demands to Petitioners were made, (ii) the Decisions violate the plain 23 24 Verified Petition for Writs of Administrative Mandate – 9 1 meaning ofMPP 63-802.111-112 and 63-802.31 l(b), and (iii) the Decisions rely on an \u00b7 2 underground regulation issued in violation of the AP A. 3 34. Petitioners have exhausted all available administrative remedies and 4 have no plain, speedy or adequate remedy at law. 5 35. Unless compelled to perform its duties and obligations in conformity 6 with law, Respondent will continue to fail to do so. 7 SECOND CAUSE OF ACTION 8 (Mandamus, Code Civ. Proc. 1085) 9 36. Paragraphs 1 through 30, and 32 through 35, are incorporated herein by 1 d \u00b7 reference. 11 3 7. Petitioners are entitled to a writ of mandate, pursuant to Code of Civil 12 Procedure 1085, in that the Respondent has a clear, present, and ministerial duty under 13 Welfare & Institutions Code 10553, 10554, and 18927 to develop clear and consistent 14 regulations, including those related to the collection of CalFresh overissuances that are 15 consistent with the law. 16 38. The CDSS’s policy of permitting county welfare agencies to seek recovery of 17 overissuances occurring more than three years before demanding payment is in violation o 18 law, as alleged herein, and wrongfully denies CalFresh recipients of their rights under 19 applicable statutes and regulations. 20 39. The offending provisions of ACIN I-52-02 are tantamount to a \”regulation\” 21 within the meaning of Gov. Code 11342.600, and other applicable law, and are thus 22 subject to the rulemaking procedures of the AP A. These provisions have not been adopted 23 as regulations and filed with the Secretary of State pursuant to the AP A. As such, the 24 Verified Petition for Writs of Administrative Mandate – 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ACIN Notices are invalid and ofno force or effect, and the CDSS’s reliance on them to permit county welfare agencies to seek overissuances occurring more than three years before demanding payment is contrary to law. CLAIM FOR ATTORNEYS’ FEES 40. This action will result in a benefit to the public, and Petitioners are entitled to an award of attorneys’ fees and costs pursuant to Code Civ. Proc. 1021.5. 41. Petitioners are also entitled to attorneys’ fees under Welfare & Institutions Code 10962. PRAYER FOR RELIEF WHEREFORE, Petitioners pray for relief as follows: 1. For an order barring the County, during the pendency of this action, from collecting any CalFresh overissuances from Petitioners that occurred more than three years from the dates that payment demands were made; 2 .. 3. For a peremptory writ of administrative mandate commanding Respondent to vacate the Decisions to the extent that they authorize collection of CalFresh overissuances that occurred more than three years from the dates payment demands were made; For a peremptory writ of administrative mandate commanding Respondent and its agents to refrain from complying with ACIN I-52-02 to the extent that it authorizes collection of CalFresh overissuances that occur in any month which falls more than three years from the month in which a demand for repayment is made; Verified Petition for Writs of Administrative Mandate – 11 1 4. For a peremptory writ of mandate commanding Respondent and its agents 2 to refrain from authorizing the collection of any CalFresh _overissuances that 3 occur in any month which falls more than three years from the month in 4 which a demand for repayment is made; 5 5. For an order granting Petitioners their costs and attorneys’ fees; and 6 6. For such other relief as is just and equitable. 7 8 Date: August!…!_, 2016 BAY AREA LEGAL AID 9 10 11 Attorney for Petitioners 12 13 14 15 16 17 18 19 20 21 22 23 24 Verified Petition for Writs of Administrative Mandate – 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. 2. 3. . VERIFICATION I have read the foregoing Petition. I am a party to this action. The matters stated in the foregoing document are true of my own knowledge except as to those matters which are stated on information and belief, and as to those matters I believe them to be true. 4. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 5. Executed on}H1 3 , 2016, at Concord, California. ,I Petition for Writs of Administrative Mandate – 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFICATION 1. I have read the foregoing Petition. 2. I am a party to this action. 3. The matters stated in the foregoing document are true of my own knowledge except as to those matters which are stated on information and belief, and as to those matters I believe them to be true. 4. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 5. Execll;ted on i \/ :, , 2016, at Richmond, California. ===pe=-~~-\u00b7—~~-r~\u00b7 . Marcos Espinosa-Tapia Petition for Writs of Administrative Mandate – 14 Exhibit 1 STATE OF CALIFORNIA–HEAL TH AND HUMAN SERVICES AGENCY DEPARTMENT OF SOCIAL SERVICES 744 P Street, Sacramento, CA 95814 January 14, 2002 ALL COUNTY INFORMATION NOTICE 1-03-02 TO: ALL COUNTY WELFARE DIRECTORS ALL FOOD STAMP COORDINATORS GRAY DAVIS, Governor REASON FOR THIS TRANSMITTAL [ ] State Law Change [ ] Federal Law or Regulation Change [ ] Court Order or Settlement Agreement [X] Clarification Requested by One or More Counties r l Initiated bv COSS SUBJECT: FOOD STAMP QUESTIONS AND ANSWERS The purpose of this All-County Information Notice is to provide counties with answers to questions regarding Food Stamp Program policy. These questions were submitted by the County Welfare Directors Association’s Technical Review Team (TRT) and the answers submitted to TRT for review and comments before being finalized by the Food Stamp Bureau. As requested by TRT county representatives, questions and answers (Q&As) are separated and categorized for ease of reference. If you have any questions regarding the enclosed Q&As, please contact the policy analyst assigned that area of the regulations. Sincerely, Original document signed by GARY SWANSON, Chief Food Stamp Branch FOSTER CARE WRAPAROUND SERVICES PROGRAM QUESTION #1: Are children who participate in the \”foster care wraparound services\” program considered to be foster care children? How are these wraparound payments treated in the food stamp budget calculation? ANSWER: The \”foster care wraparound services\” program is a program created to permit children who ordinarily would be placed in foster homes or group homes to remain in their own homes. Children who participate in the \”foster care wraparound services\” program would not be considered foster care children, even though foster care program funds are used to provide services to these children. Services provided to such families are excluded as income under MPP 63-502.2. Also, in instances where the county makes payments to a vendor or a third party on behalf of the household for an expense, such a vendor payment would be excluded as income under this same section. However, any cash paid directly to the food stamp household would be treated as income, as specified in MPP 63-502.1. SELF-EMPLOYMENT INCOME QUESTION #1: Food stamp manual sections 63-502.132, 63-502.143, 63-503.422, and FSQUADS 502.3- 10 require some clarification regarding self-employment income. The first issue involves whether to consider 20 hours management per week in determining whether room rental is earned or unearned income. The next one involves what you allow as the cost of doing business and\/or shelter expenses. Scenario #1: An applicant applies for food stamps for herself as a one-person household. She owns her own home and rents out three of the home’s four bedrooms. One bedroom is occupied by a couple and the other two bedrooms by single roommates. Everyone has equal access to the three common rooms. No meals are provided. Each person purchases and prepares his or her own meals. What percentage of the applicant’s mortgage, interest, taxes, and insurance should be allowed as the \”cost of doing business?\” Would the income on the rentals be considered earned or unearned? The applicant is not engaged 20 hours per week in managing the property. For this example, let’s say she rents each room for $200 per month and her shelter costs total $1000 per month ($800 interest, taxes, and insurance and $200 principal). Scenario #2: The applicant is self-employed as an acupuncturist and works out of her residence. She is renting a house and shares rent with a roommate. She claims part of her share of the rent and utilities as business expenses. Can these business expenses be allowed, as well as her full share of rent and utilities as a shelter deduction? ANSWER: Scenario #1: Because room rental is considered self-employment, income received from room rental would be treated as earned income in the food stamp budget as specified in MPP 63-502.132(b ). The \”20 hours a week management\” provision does not apply to a room rental situation; it applies only to management of rental property [MPP 63-502.132(a)]. SELF-EMPLOYMENT INCOME (continued) In determining the cost of doing business, CWDs have the option to do the calculation either by the square footage of the home or by the number of rooms. By square footage: 1) Let’s assume the square footage of the home is 1000 square feet, of which 300 square feet is rented out. Approximately 1\/3 of cost would be allowed from the $600.00 (gross income of 3 x $200.00). 2) Cost per month (her housing* and utility costs)= $1000.00. Take 33% of $1,000 = $333.00. 3) Net self-employment income ($600.00 – $333.00) = $267.00. 4) Or, allow the 40% standard deduction, instead of calculating actual expenses as in steps 1-3, if the household chooses this option. 5) Then, allow the 20% earned income deduction and other deductions, as necessary, after determining the net self-employment income in steps 1-3 or step 4. By number of rooms: 1) 7 rooms and 3 are rented out. 2) Percentage of cost is 3\/7 = .43. 3) Cost per month (her housing* and utility costs)= $1000.00. Take 43% of $1,000 = $430.00. 4) Net self-employment income ($600 gross income – $430.00) = $170.00. 5) Or, allow the 40% standard deduction, instead of calculating actual expenses as in steps 1-4, if the household chooses this option. 6) Then, allow the 20% earned income deduction and other deductions, as necessary, after determining the net self-employment income in steps 1-4 or step 5. *Housing costs include: mortgage, interest, taxes, and insurance Please note that the three common rooms will not be considered in this calculation, as the owner of the home is not charging roommates for the usage of these rooms. Scenario #2: She cannot claim a portion of her share of rent and utilities as business expenses, as well as claiming her full share of rent and utilities as a shelter deduction. However, she can claim part of her share of rent and utilities as business expenses, and the remainder would be allowed as a shelter deduction. The methods described in scenario #1 can be used to determine her net self-employment income. HOMELESS CLIENTS QUESTION #1: Can a homeless client receive food stamps if they are in a shelter that provides three meals a day? ANSWER: Yes, the client is still eligible to participate in the food stamp program. According to MPP 63-503.6, a homeless client shall be permitted to use their food stamp benefits to purchase prepared meals from meal providers who have been authorized by Food and Nutrition Service (FNS) to accept food stamp coupons at the shelter. A meal provider for the homeless is defined as a nonprofit organization, either public or private, which feeds homeless persons, e.g., soup kitchen, or shelter. SECTION 8 HOUSING QUESTION #1: A client is approved for Section 8 housing, but did not report this change to the CWD. Due to being approved for Section 8, the client’s rent went from $298 to $117, with HUD paying $181. However, there was no change in residence. CWD was budgeting the client $298, because the client did not report the rent change. The unreported income is $181. Should client report change in rent\/housing (Section 8) if no actual move occurred? ANSWER: Though the client did not move, and the income paid to a vendor is excluded income, it was still the client’s responsibility to report the change when she was approved for Section 8 housing. As stated in section MPP 63-505.41 (a), monthly reporting households shall report and provide verification of \”the source of excluded income when first reported and when there is a change.\” The client should have reported her Section 8 approval. Under these circumstances, because the client did not report the change, there is a client caused error. OVERISSUANCES BACKGROUND: 63-801.112 states: \”The CWD shall not take action on inadvertent household and administrative error claims for which more than three years have elapsed between the month the overissuance occurred and the month the CWD determined by computation that the overissuance occurred irrespective of the date the DFA 842 was complete.\” 63-801.311 (b) states: \”The CWD shall calculate the amount of the overissuance which occurred during the six years preceding the date the overissuance was discovered. The CWD shall not include in its calculations any amount of the overissuance which occurred in a month more than six years prior to the date the overissuance was discovered.\” QUESTION #1 a Is there a difference between establishing and calculating claims (for overissuances)? ANSWER: Yes. Claims for overissuances (Ols) are \”established\” by documenting the amount of and the reason for the 01 and issuing a demand letter to the client. The date of the demand letter is the date that the claim is established [7 CFR 273.18(e)(3)(iii)]. Computing the amount of an overissuance does not constitute the establishment of an 01 claim. Counties must compute the amount of the overissuance and issue the demand letter within the three-year timeframe. If the county does not compute the overissuance until the end of the three-year time period, a claim cannot be considered established against the household. QUESTION #1 b: Why calculate back six years, but act within three? ANSWER: The \”three years\” is the timeframe for the occurrence, the computation, and to inform the household of the 01. This time frame is to ensure that timely action is taken on any 01. The \”six years\” timeframe applies in determining the total amount of the 01. The counties must go back six years in computing the amount of the 01 claim against the household. A claim against the household is equal to the difference between the allotment amount the household received and the allotment amount the household should have received. OVERISSUANCES (continued) ANSWER #1 b (continued) The six years allows the county to possibly collect on a larger amount of the 01. Once a claim is established, there is no time limit, with the exception of MPP 63-801.222 (administrative errors claims being recouped pursuant to Lomeli v. Saenz), on collection of overissuances. QUESTION #1 c: What effect does this (calculating back six years) have on current Food Stamp Program case records retention requirements? ANSWER: Food Stamp Program case records retention requirements remain unchanged. QUESTION #1d: What is an example of calculating back six years, but acting within three? ANSWER: An overissuance occurred in December 2000. The county must establish a claim (compute the amount of the claim and issue a demand letter) for this overissuance within three years, which would be before December 2003. When the county computes the amount of this overissuance, it must go back six years to determine the total amount of the claim. Thus, if the county discovers and calculates the amount of this overissuance in December 2002, it would include in its calculations any amount which occurred during the six years preceding the December 2002 date, which would be back to December 1996. Exhibit 2 STATE OF CALIFORNIA-HEALTH AND HUMAN SERVICES AGENCY DEPARTMENT OF SOCIAL SERVICES 744 P Street, Sacramento, CA 95814 July 22, 2002 ALL-COUNTY INFORMATION NOTICE 1-52-02 TO: ALL COUNTY WELFARE DIRECTORS ALL FOOD STAMP COORDINATORS GRAY DAVIS, Governor REASON FOR THIS TRANSMITTAL [ ] State Law Change [ ] Federal Law or Regulation Change [ ] Court Order or Settlement Agreement [X] Clarification Requested by One or More Counties [ ] Initiated by COSS SUBJECT: FOOD STAMP QUESTIONS AND ANSWERS REFERENCE: ACIN 1-62-96, 1-03-02, 1-05-02; ACL 98-66, 99-64; CFL 00\/01-21 The purpose of this All-County Information Notice (ACIN) is to provide counties with answers to questions regarding Food Stamp Program policy. Questions were submitted by the County Welfare Directors Association’s Food Stamp Committee. The answers were submitted to the committee for review and comments before being finalized by the Food Stamp Policy Bureau. Additional questions and answers (Q&As) have been added by the bureau to provide clarification on topics that are frequently asked about by the counties. As requested by the committee, Q&As are separated and categorized for ease of reference. If you have any questions regarding the enclosed Q&As, please contact the policy analyst assigned that area of the regulations. Sincerely, Original document signed by Pat Sutherland For GARY SWANSON, Chief Food Stamp Branch Attachment OVERISSUANCES QUESTION #1 a: Please provide further clarification on the three-year time frame for establishing an overissuance (01) discussed in 01 Q&A #1 on pages six and seven of AGIN 1-03-02. For example, an IEVS report may cause a case to be referred to an investigative unit for potential fraud and 01 computation. When does the three-year clock get started? Is it the date the IEVS worker refers the case to investigations or the date the investigative staff uses the information on IEVS and other verifications (from an employer for example) to calculate the 01? ANSWER: The three-year time frame does not begin with the date of discovery, the date the case is referred to investigations, or the date the investigative staff uses the information on IEVS and other verifications to calculate the 01. The three-year time frame begins with the date of the occurrence of the 01 [Manual of Policies and Procedures (MPP) 63-801.11; AGIN 1-03-02]. 01 Q&A #1 in AGIN 1-03-02 provides an example of how the three-year time frame works. It also explains the six-year calculation time frame. QUESTION #1b: A portion of an 01 included in a \”six-year\” calculation would \”occur\” more than three years before the establishment of the claim. If a claim must be established within three years of the date of occurrence, how can a claim be established that includes months of 01 more than three years prior to the establishment date? ANSWER: MPP 63-801.311 (b) instructs the GWD to calculate the claim for this six-year period. The GWD would be operating within the three-year time frame as required by MPP 63-801.11 as long as one month of the 01 occurs within three years of establishing the claim. Therefore, it does not matter that part of the 01 occurred more than three years prior to the establishment of the claim as long as a portion of the 01 occurred within the three-year time frame. As mentioned in 01 Q&A #1 in AGIN 1-03-02, the three-year \”establishment\” time frame is to ensure that timely action is taken, and the six-year \”calculation\” time frame is to allow a larger amount to be collected. AGIN 1-52-02 Page 1 July 22, 2002 OVERISSUANCES (continued) QUESTION #2 BACKGROUND: 63-801.231 states: \”A claim shall be handled as an intentional program violation claim for an overissuance or trafficking only if an administrative disqualification hearing official or a court of appropriate jurisdiction has determined that a household member or the sponsor had committed an intentional program violation, as defined in Section 20-300.1 or if an individual accused of intentional program violation has signed either a Disqualification Consent Agreement or an Administrative Disqualification Hearing \u00b7 Waiver as defined in Sections 63-102(a) and (d)(6). Prior to a determination of intentional program violation the claim against the household shall be established and handled as an inadvertent household error claim.\” 63-801.321 states: \”For each month that a household received an overissuance due to an act of intentional program violation, the CWD shall determine the correct amount of food stamp benefits, if any, the household was entitled to receive. The amount of the intentional program violation claim shall be calculated back to the month the act of intentional program violation occurred, regardless of the length of time that elapsed until the determination of intentional program violation was made or the date the waiver of Right to an Administrative Disqualification Hearing or Disqualification Consent Agreement was signed. However, the CWD shall not include in its calculation any amount of the overissuance which occurred in a month more than six years from the date the overissuance was discovered or prior to March 1, 1979.\” QUESTION #2a: Are potential Intentional Program Violation (IPV) claims exempt from the three-year time frame for establishing the overissuance? ANSWER: MPP 63-801.231 indicates that a potential IPV claim should be established as IHE claim until an IPV has been determined as specified in this section (i.e., by court of appropriate jurisdiction, etc.). The IHE claim must be established within the required three-year time frame. If an IPV determination is made on the IHE claim, the IPV claim would be considered appropriately established regardless of the length of time that has elapsed from the date of occurrence. If an IPV determination were not made, the county would continue to handle the claim as an IHE. ACIN 1-52-02 Page 2 July 22, 2002 OVERISSUANCES (continued) ANSWER #2a (continued): Counties are permitted to postpone the establishment of an IHE in cases where an 01 is being referred for possible legal prosecution or for administrative disqualification, and the CWD determines that such action will prejudice the case (MPP 63-801.412). In such cases, when an IPV is determined in the manner specified in MPP 63-801.231 (i.e., by court of appropriate jurisdiction, etc.), the county would follow the decision set forth by the court, etc. Because the IPV was appropriately determined, a valid claim exists regardless of the length of time that has elapsed from the date of occurrence. However, if the case is determined not to be an IPV, and no IHE had been previously established, an IHE claim could only be established if it is still within the three-year time frame. The county would not be able to go back and establish an IHE claim if it is beyond that three-year time frame. QUESTION #2b: Special Investigations Unit (SIU) letters are not notices of action and are not subject to state administrative hearings because no adverse action explaining the 01 budget and demanding repayment has yet been taken by the county. If the county sends only an SIU letter that addresses the amount of a potential IPV, instead of sending a notice of action, would an IHE claim be considered established? ANSWER: A claim would only be considered established if the proper demand notices have been sent (for an IHE the county would send a DFA 377.78 with repayment agreement DFA 377.7C). If the county sends an SIU letter only, a claim would not be considered established. QUESTION #2c: Prior to July 2001, potential IPV overissuances that occurred over three years from the date of discovery were not addressed in a notice of action to the client with the client’s appeal rights explained until the IPV was either established in court or by an ADH. Once the IPV was established, any previous IHE 01 notice of action was revised to include the full overissuance amount that occurred during the IPV period. If the only overissuance was for an IPV period that occurred over three years from the date of discovery as then defined, no notice of action was initiated until the IPV was established. Would this be the same process now? ACIN 1-52-02 Page 3 July 22, 2002 OVERISSUANCES (continued) ANSWER: If a claim is initially established as an IHE, the county must send a DFA 377.78 and repayment agreement DFA 377.7G. If such claim were later determined to be an IPV, the county would inform the client of this status change by sending the DFA 377.7F along with repayment agreement DFA 377.7G. If the county decided not to establish the claim as an IHE first, but an IPV is appropriately determined (MPP 63-801.231), the county would send the DFA 377.7F and DFA 377.7G. QUESTION #2d: If there is no IHE 01 established because the IPV period ends more than 3 years before a potential IPV 01 is calculated, how is six years from the date the IPV overissuance was discovered to be determined? ANSWER: MPP 63-801.321 indicates that the county is to include Ols occurring during the preceding six years. Whenever a possible IPV overissuance is suspected, whether or not the county plans to first establish an IHE, the county should calculate the amount of the overissuance at that time. The date of the calculation would serve as the date of discovery and any applicable Ols in the preceding six years would be included. QUESTION #2 CONCLUSION: Whenever an IPV is suspected, counties should establish an IHE claim. By doing so, counties will ensure that they will still have a valid claim in case an IPV is not proven. If a client requests and is granted a fair hearing on the IHE claim, the county is not prevented from referring the case to the local prosecuting authority for investigation and prosecution for IPV. The county is only prevented from pursuing both an ADH on a case and referring that case for prosecution if the factual issues of the case arise out of the same or related circumstances (MPP 20-300.24). If the facts of the case do not warrant prosecution, or if a case previously referred for prosecution has been declined, the case is returned to the CWD for referral action for an ADH (MPP 20-300.23). AGIN 1-52-02 Page4 July 22, 2002 HOUSEHOLD COMPOSITION QUESTION #1: If a food stamp participant or a member of a food stamp household leaves the country or state due to an emergency, is there a time limit on how long that individual or household member can be gone without the food stamp benefits being affected? ANSWER: Food stamp regulations provide, with certain exceptions, that a household shall consist of persons who live together and customarily purchase food and prepare meals together for home consumption (MPP 63-402.13). Eligibility is determined on a monthly basis and household composition is an eligibility factor. Therefore, persons included in the household for any month must live with the household and purchase and prepare meals with the household for at least part of the month (MPP 63-402.131). With regard to months when a person is not in the household at all, the person does not fit into the household definition; therefore, he or she cannot be considered a member for that month. However, any of his or her income made available to the household would be counted as income to the household (MPP 63-503.45). Similarly, any of an absent person’s resources to which the household has access would be counted as resources of the household for food stamp purposes (MPP 63-501.2 and 63-503.45). Pursuant to MPP 63-505.3 and 63-505.5 households shall report changes in household composition and other relevant circumstances affecting eligibility. For additional information, please see AGIN 1-05-02. QUESTION #2: We have a case that consists of a mother, her child, and the child’s biological father. A few years ago, the mother and father were divorced. The mother got remarried and the second husband adopted the child. The mother and her second husband are now divorced and the biological father moved back into the home. MPP 63-402.142 states that separate household status cannot be granted when parents are living with their biological children. Can the biological father in this scenario be granted separate household status from the mother and the child? ANSWER: MPP 63-402.142 does not apply because the second husband adopted the child and the biological father does not have any legal ties to the child. If the biological father purchases and prepares together with the rest of the family, then this is one household. However, if the biological father purchases and prepares separately, and he and his ex-wife do not present themselves as husband and wife to the public, separate household can be granted per MPP 63-402.12 and MPP 63-102(s)(9). AGIN 1-52-02 Page 5 July 22, 2002 NONCITIZEN ELIGIBILITY-EXPIRED 1-551 CARDS QUESTION #1a: If the only documentation that a noncitizen provides is an expired 1-551 card, should the county institute a SAVE verification, or should the county determine that the noncitizen is ineligible until other documentation is made available? ANSWER: MPP 63-300.5(e)(2) indicates that a noncitizen is ineligible only if NO adequate verification or documentation is available. Lawful permanent residents do not lose their lawful permanent resident status because their 1-551 card has expired. Even if the 1-551 card is expired, it is an acceptable form of documentation. However, an expired card would represent questionable verification, at certification or recertification, and as such would fall under MPP 63-300.5(g). Therefore, the county should institute a SAVE verification for a noncitizen who shows an expired 1-551 card. Benefits should not be denied based on noncitizen status if someone has presented an expired 1-551 card. QUESTION #1 b: What should the county do if a noncitizen claims that his or her 1-551 card was taken away by INS because it was expired? ANSWER: If the noncitizen does not have any other documentation of his or her status, the noncitizen is ineligible for food stamp benefits until other documentation or verification is made available. MPP 63-300.5(e)(2)(8) indicates that if the noncitizen does not have any documentation of noncitizen status, but gives permission for the CWD to contact INS to request verification of non citizen status, then the CWD shall contact INS. If the CWD receives verification of eligible noncitizen status, then the CWD cannot deny benefits if the noncitizen is otherwise eligible. The CWD certifies the noncitizen pending the results of the verification for up to six months from the date of the original request for verification in accordance with MPP 63-300.5(e)(2)(D)(2). For both of the above situations (questions #1 a and #1 b), the CWD should also refer the client to INS for assistance in obtaining current documentation. Furthermore, MPP 63-300.5(i) provides that the CWD should offer assistance to a household that has difficulties in obtaining required documentary evidence. ACIN 1-52-02 Page 6 July 22, 2002 DRUG AND ALCOHOL FACILITIES-SHELTER DEDUCTIONS QUESTION #1: Should the rent expense for a resident of a drug and alcohol facility be used as a standard shelter deduction or as a homeless shelter deduction? ANSWER: A temporary resident at a drug and alcohol treatment facility does not in or of itself qualify the client as homeless. The CWD must make the determination if the client meets the definition of homeless as provided in MPP 63-102(h)(2). The county would need to determine whether the client was homeless before he\/she entered the treatment center or will be homeless after leaving the treatment center. If the client meets the Food Stamp Program’s homeless requirements, the CWD would then use the homeless shelter deduction. If it is determined that the client is not homeless, the CWD would use the standard shelter deduction. ACIN 1-52-02 Page 7 July 22, 2002 BUDGETING QUESTION #1: How should deductible expenses be determined for food stamp purposes in each of the following situations? SITUATION 1a: A household includes several individuals with some ineligible noncitizens and the rest eligible noncitizens or U.S. citizens. The income in the household is CalWORKs and income for one of the ineligible non citizens. The ineligible non citizen declares that the income is used only for personal needs, and that he or she does not pool income or contribute toward the household expenses. ANSWER: When one ineligible noncitizen has income, count all ineligible noncitizens in the proration of deductible expenses in accordance with MPP 63-502.374(a)(2). In other words, if one ineligible noncitizen has income, the proration of expenses is done automatically regardless of whether or not he or she contributes or pools income. You do not do a \”contribution test\” for income proration. This proration does not apply to the standard utility allowance (SUA).* SITUATION 1b: A household includes several individuals with some ineligible noncitizens and the rest eligible noncitizens or U.S. citizens. The income to the household is CalWORKs and income for one of the ineligible noncitizens. The ineligible noncitizen declares he or she contributes a flat amount to household expenses. ANSWER: When one ineligible noncitizen has income, count all ineligible noncitizens in the proration of expenses in accordance with MPP 63-502.374(a)(2) regardless of whether the ineligible noncitizen pays part, a flat amount, or all of the deductible expenses. Even if an ineligible noncitizen makes a fixed or flat rate contribution to a deductible expense, the known amount is not deducted and the expense must be prorated. [63-502.372(b), 63-502.373, and 63-502.374]. This proration does not apply to the SUA.* AGIN 1-52-02 Page 8 July 22, 2002 BUDGETING (continued) SITUATION 1c: A household includes several individuals with some ineligible noncitizens and the rest eligible noncitizens or U.S. citizens. The only income in the household is earned income for one of the ineligible non citizens. The ineligible non citizen declares he or she pays all the shelter expenses. ANSWER: When one ineligible noncitizen has income, count all ineligible noncitizens in the proration of expenses in accordance with MPP 63-502.374(a)(2). In the above situation, you would only prorate the deductible expenses based on the fact that at least one of the ineligible noncitizens has income. This proration does not apply to the SUA.* SITUATION 1d: A household includes several individuals with some ineligible noncitizens and the rest eligible noncitizens or U.S. citizens. The income in the household is CalWORKs, an ineligible noncitizen’s earned income, and unearned income for another ineligible noncitizen. The ineligible noncitizen with the earned income declares he or she pools income with the eligible household members. The ineligible noncitizen with the unearned income declares he or she does not pool income or contribute towards the household expenses. ANSWER: When one ineligible noncitizen has income, count all ineligible noncitizens in the proration of expenses in accordance with MPP 63-502.374(a)(2). In the above situation, once it is determined that one ineligible noncitizen has income, the proration of expenses is done automatically. You do not do a \”contribution test\” for income proration. This proration does not apply to the SUA.* SITUATION 1 e: A household includes several individuals with some ineligible noncitizens and the rest eligible noncitizens or U.S. citizens. The income to the household is CalWORKs that is paid to one of the ineligible noncitizens on behalf of citizen children. ACIN 1-52-02 Page 9 July 22, 2002 BUDGETING (continued) ANSWER: In order to be calculated into the proration of deductible expenses, the ineligible noncitizen must have income. If the ineligible noncitizen were acting solely as an agent or payee for another household member, he or she would not be calculated into the proration because that income would not be considered his or hers per MPP 63-502.372(b)(2). QUESTION #2: How do you calculate the combined and federal-only budgets for income and shelter costs in the following situations? SITUATION #2a: The food stamp (FS) household consists of 5 eligible members. CFAP mother receives CalWORKs grant. CFAP father, who is also welfare to work sanctioned, has earnings of $800. Three federally eligible children receive CalWORKs grant. The CalWORKs grant of $876 is the amount before the CFAP father was welfare to work sanctioned. Rent is $500. ANSWER: The combined FS budget computes the FS benefit amount for the entire household (both federal and CFAP household members). This is the FS allotment that should be issued to the household. CFAP household members are not excluded members of the FS household; they are part of the combined FS household. The only instance in which they would be considered \”excluded\” is when determining the federal share of cost for a combined household. The federal FS budget is ONLY used to determine the federal and state share of the combined allotment. The federal FS budget computes the l=’S benefit amount for the federal food stamp household members only. The CFAP share of the combined allotment is determined by subtracting the federal benefit amount from the combined benefit amount. AGIN 1-52-02 Page 10 July 22, 2002 BUDGETING (continued) ANSWER #2a (continued) Per AGL 98-66, dated September 1, 1998, \”CWDs are to use existing budgeting procedures for calculating food stamp benefits to be issued to eligible households. However, the income and deductible expenses of CFAP noncitizen household members shall be excluded when determining the federal share of cost for combined (state and federal) households.\” Therefore, in determining how much of the income and shelter cost in the above situation is to be used in the combined and federal-only budgets, the calculation is done as follows (proration does not apply to the SUA*): Income: COMBINED FS $800 (CFAP father’s earnings)+ $1676 to be used in the BUDGET $876 CalWORKs grant prior to the CFAP Combined FS budget father’s welfare to work sanction (CFAP mother, CF AP father, and 3 federally eligible ) = $1676 FEDERAL FS $876 divided by 5 (CFAP mother, CFAP $525.60 federally BUDGET father, and 3 federally eligible children) = eligible members’ income $175.20 per person X 3 (federally eligible to the Federal FS budget children)= $525.60 Note: None of the CFAP income is counted in the Federal FS budget. Rent: COMBINED FS $500 (Household’s total rent amount) $500 rent amount to be BUDGET used in the Combined FS budget FEDERAL FS $500 divided by 5 (CFAP mother, CFAP $300 rent amount to be BUDGET father, and 3 federally eligible children) = used in the Federal FS $100 per person X 3 (3 federally eligible budget children)= $300 Note: If an ineligible noncitizen or CFAP eligible has income, all ineligible noncitizens\/CFAP eligible persons of that household are counted in the proration. ACI N 1-52-02 Page 11 July 22, 2002 BUDGETING (continued) SITUATION #2b: FS household consists of five eligible members. CFAP eligible mother, also welfare to work sanctioned, has no other income. CFAP eligible father, also welfare to work sanctioned, has no other income. Three federally eligible children receive CalWORKs grant. The CalWORKs grant prior to the CFAP persons’ welfare to work sanction is $876. CFAP mother is the payee of the CalWORKs grant. Rent is $500. ANSWER: Income: COMBINED $876 CalWORKs grant prior to sanction $876 CalWORKs FS BUDGET (CFAP father, CFAP mother, and 3 federally income to the Combined eligible children) FS budget FEDERAL FS $876 divided by 5 (CFAP mother, CFAP $525.60 income to the BUDGET father, and 3 federally eligible children) = Federal FS budget $175.20 per person X 3 (federally eligible children) =$525.60 Note: When a person is work sanctioned but meets a food stamp work requirement exemption, the household continues to receive the same amount in food stamp benefits. While the sanctioned persons are removed from the AU, they are still part of the food stamp household. Hence, the CalWORKs grant amount of $876 (amount prior to the work sanction) would be prorated among the CalWORKs recipients. The pro rata share is then multiplied by the number of federally eligible persons to come up with the federal share. AGIN 1-52-02 Page 12 July 22, 2002 BUDGETING (continued) ANSWER #2b (continued) Rent: COMBINED $500 (Household’s total rent amount) FS BUDGET FEDERAL FS $500 (Household’s total rent) BUDGET Note: If an ineligible noncitizen has income, all ineligible noncitizens of that household, including CFAP eligible persons, are counted in the proration of a housing expense. In this case, since neither of the CFAP eligible persons has income, the rent expense would not be prorated. QUESTION #3: $500 rent amount to be used in the combined budget $500 rent amount to be in Federal FS budget How are income and shelter expense budgeted in the combined and federal-only budgets in the following situation? SITUATION #3: FS household consists of two eligible members. CFAP eligible mother has earned income of $500. Undocumented father has no income and does not contribute toward expenses. Undocumented child has no income. Citizen child. Rent is $400. ACIN 1-52-02 Page 13 July 22, 2002 BUDGETING (continued) ANSWER: Income: COMBINED FS $500 (CFAP eligible mother’s $500 income to the Combined BUDGET income) FS budget FEDERAL FS $0 $0 income to the Federal FS BUDGET Note: CFAP person’s income is budget not counted in the Federal FS budget. Rent: COMBINED FS $400 (household’s total rent $400 rent amount to the BUDGET amount) Combined FS budget FEDERAL FS $400 divided by 4 (CFAP $100 rent amount to the Federal BUDGET eligible mother, FS budget 2 undocumented persons, and Citizen child) = $.100 per person X 1 (Citizen child)= $100 Note: The proration is done in this case because the CFAP person has income. *SUA BUDGETING: The proration examples provided in the budgeting Q&As in this AGIN do NOT apply to the SUA. An AGL discussing the treatment of the SUA will be released by the Food Stamp Policy Bureau soon. AGIN 1-52-02 Page 14 July 22, 2002 Exhibit 3 \u00b7( I’ COUNTY OF CONTRA COSTA\u00b7 FOOD STAMP(CalFRESH) REPAYMENT NOTICE FOR INADVERTENT HOUSEHOLD ERRORS ONLY Cynthia Brown 5130 Paddock Ct Antioch, CA 94531 You or a member of your household made a mistalce. \u00b0!))o many Food Stamps(CalFR.ESH) were issued to: \/nYou. Cl , whom you sponsor. Here’s why: You failed to repo_rt Vernon Dunbar’s earnings from 7-Eleven. You must repay the extra Food Stamps(CalFR.ESH). ( ( Page 1 of 1 STA TE OF CALIFORNIA HEALTH AND WELFARE AGENCY DEPARTMENT OF SOCIAL SERVICES Notice Date: August 17, 2015 Case Name : Cynthia Brown Case Number: 07-09-0886109 CWIN : 63440 Investigator : Cozette Nguyen Investigator No : KXGD Phone : 677[7]-2943 Address : 400 Ellinwood Way, Pleasant Hill, CA 94523 Questions? Ask your Worker. State Hearing: If you think this action is wrong, you can ask for a hearing. The back of this page tells how. Your benefits may not be changed if you ask for a hearing before this action talces place. $6,0~00 in extra Food Stamps(CalFR.ESH) were issued for the period 11\/01\/2011 to 10\/31\/2012. This amourit was reduced by $ ~ because we owe;!)he household benefits from past months or we received repayment of part of the amount owed. Younowowe$ k,b7P , You do not have to use any SSI benefits you get to repay this overissuance. YOU MUST EITHER: . \u00b7 Pay in fu 11, or Sign the Repayment Agreement and pay as agreed. . . Complete, sign and return the enclosed Repayment Agreement (DF A 377. 7C). Your repayment agreement will be based on your current ability to pay as figured by the county. Any changes in your ability to pay may change your monthly payments. CJ If you do not sign and return the agreement within 30 days after the date of this notice the amount of Food ‘Stamps (CalFR.ESH) you get will be reduced by $10 or 10% the month following the 30 day period. ‘If you do not agree to pay, the county may use either ways of collecting the amount owed such as through the courts. If this inadvertent household error is later found to be an intentional program violation, penalties will apply even if you agree to pay back what you owe. If the county sues you for the amount due, you may also be required to pay court costs. If you do not pay the amount owed, the ~ounty may take your state income tax refu.nd and\/or ask the court to attach your wages or any property you own. Warning: If you believe this overissuance is wrong, this is your last chance to ask for a hearing. If you stay on\u00b7foo’d stamps (CalFR.ESH) the county can lower your food stamps(CalFRESH) to collect the overissuance. If you go off food stamps(CalFRESH) b(?fore the overissuance is paid back, the county may talce what you owe out of your income tax refund. Rules: These rules apply. You may review them at your Welfare Office: MS 63-801.21 SCA-NNED Attachment l Page j_ Exhibit 4 ( \/ ‘ ‘ t CALIFORNIA DEPARTMENT OF SOCIAL SERVICES Hearing No. 2015247121 In the Matter of Claimant(s): Cynthia Brown 5130 Paddock Court Antioch, CA 94531 Pursuant to the authority of the Director, I adopt the attached final decision. Shelton, Demetrius Administrative Law Judge Hearing Date: A id Pending: Agency: Agency: Authorized Rep. Orl(anization: SSN: AKA: Case Name: LA District\/Case: December 16, 2015 Not Applicable Contra Costa County Bay Area Legal Aid DECISION Adopt Date: February 19, 2016 State Hearing Record Release Date: Issue Codes: Agency Representative: Agency Representative: Authorized Rep: SSN: AKA: Language: Companion Case: Appeal Rights February 19, 2016 [293-2] Denise Reynolds Robert Capristrano You may ask for a rehearing of this decision by mailing a written request to the Rehearing Unit, 744 P Street, MS 9-17-37, Sacramento, CA 95814 within 30 days after you receive this decision. This time limit may be extended up to 180 days only upon a showing of good cause. In your rehearing request, state the date you received this decision and why a rehearing should be granted. If you\\ want to present additional evidence, describe the additional evidence a11d explain why it was not introduced before and how it would change the decision. You may contact Legal Services Jo,; assistance. You may ask for judicial review of this decision by filing a petition in Superior Court under Code of Civil Procedure 1094.5 within one year after you receive this decision. You may file this petition without asking for a rehearing. No filing fees are required. You may be entitled to reasonable attomey’s fees and costs if the Court renders a final decision in your favor. You may contact Legal Services for assistance. This decision is protected by the confidentiality provisions of Welfare and Institutions Code 10850. CDSS State Hearings Division Decision Cover Page 1 State of California ( CDSS State Hearings Dlvis\/t,,, SUMMARY H( ‘lg No. 2015247121-629 Page 1 The Claimant received a CalFresh overissuance of $6,073 for the period November 2011 through Qctober 31, 2012. Contra Costa County (\”County\”) may collect the full amount of the overissuance for the period. [293-2] FACTS By Notice of Action (\”NOA\”) dated August 17, 2015, the County notified the Claimant that she was overissued $6,073 in CalFresh benefits for the period November 2011 through October 31, 2012 due to unreported income. On August 31, 2015, the Claimant requested a state hearing to contest this County action. On December 16, 2015, a state hearing was held in Pleasant Hill, California. Present at the hearing were the Claimant’s Authorized Representative (\”AR\”), a County Hearing Representative (\”CR\”), and a County Overpayment Specialist. Both the County and the AR submitted Statements of Position which were admitted into the record. At the hearing, the parties agreed that the issue in dispute was not the amount of the overissuance, but rather the period of recovery. The CR testified that the Claimant’s household consists of the Claimant, her minor son, and two adult sons. Evidence was further presented that on August 18, 2015, the County’s Overpayment Specialist documented a CalFresh overissuance of $6,073 for the period November 1, 2011 through October 31, 2012 due to the Claimant’s failure to report earned income from one of her adult son’s employment at ?-Eleven Store. The CR testified that the County became aware of this unreported income on October 22, 2012. The CR asserted that pursuant to regulations, the County is entitled to collect the full amount of the overissuance as established in the NOA issued on August 17, 2015. The CR argued that an overissuanc;e must be established when there is less than three years between the month the overissuance occurred, and the m.onth the eligibility worker calculates and determines that an overissuance has occurred. The CR further presented evidence that \”as long as one month of the overissuance occurred within this three-year period a claim may be established\” and the County may go back six years in its recovery. The AR did not dispute the $6,073 overissuance for the period. The AR, however, argued that the County is limited in its recovery to the overissuances for the month of August 2012 through October 2012 as those months were within the three year of the establishing of the overissuance. The AR argued that the County cannot recover an overissuance of benefits issued more than three years prior to demanding repayment which in this case was August 17, 2015. The argued that the Manual of Policies and Procedures (\”MPP\”), Section 63-801.112 provides: \”The CWD shall not take action on inadvertent household and administrative error claims for which more than three years have elapsed between the month the overissuance occurred and month the CWD-determined by computation that the overissuance occurred irrespective of the date the DFA 842 was complete.\” (Emphasis added) Accordingly, the AR testified that the amount of the overissuance would be limited to months of August 2012 through October 2012 in the approximate amount of $2,039. State of California ( CDSS State Hearings Dlvisio,. H( rJg No. 2015247121\u00b7629 Page3 The QR 7\/SAR 7\/SAWS 2 form must include verification of gross nonexcluded earned income for the Data Month and verification of non~xcluded unearned income when first reported and when there is a change. This requirement does not apply to child\/spousal support disregard payments or PA, GA, FC, RCA, or EGA payments paid by the county. ( 63-508.45, All County Letter 12-25, May 12, 2012) Questions on the QR 7\/SAR 7\/SAWS 2 shall not be considered fully answered if situations such as, but not limited to the following exist: The QR 7\/SAR 7\/SAWS 2 does not include information on changes that the household has previously reported to have occurred; for example, an actual change that the household reported to the county by telephone mid-payment period was not included on the QR 7\/SAR 7\/SAWS 2. The QR 7\/SAR 7\/SAWS 2 does not include information that was reported on the previous QR 7 and the household does not indicate a change has occurred (e.g., the household previously reported earnings from two sources and only reported income from one source on the current QR 7\/SAR 7\/SAWS 2). If elements pertaining to one program’s requirements are missing from the QR 7\/SAR 7\/SAWS 2, the QR 7\/SAR 7\/SAWS 2 shall be considered incomplete for that program only. The county shall not consider the QR 7\/SAR 7\/SAWS 2 incomplete if information regarding child support\/spousal support disregard payments has not been included. ( 63-508.44, All County Letter 12-25, May 12, 2012) Mid-payment period change means any change reported during the payment period that is outside the QR 7\/SAR 7\/SAWS 2 report process. There are two types of mid-quarter reports: (1) mandatory reports the household must make within 10 days and (2) voluntary reports the household may make at any time during the quarter. The county shall only take action to increase benefits as a result of a voluntary report and shall take no action to decrease benefits. ( 63-102{m)(7) All County -Letter 12-25, May 12, 2012) Under prospective budgeting except for certain designated households who are excluded from regular reporting, all households participating in the CalFresh Program shall report household circumstances on the QR 7\/SAR 7\/SAWS 2 as a condition of eligibility. Households will also be required to report changes as specified in 63-508 and 63-509, other than on the QR 7\/SAR 7\/SAWS 2. ( 63-505.2 effective July 1, 2004) Eligibility and benefit amounts will be determined on a quarterly or semi-annual basis from information reported by the recipient on the QR 7\/SAR 7\/SAWS 2. Prospective budgeting rules will be used. { 63-508.11) Under SAR, all CalFresh recipients subject to the IRT requirements are required to report mid- period when their income exceeds 130 percent of the FPL for their household size. While the two tiers of the CalWORKs IRT are not mandatory reports in CalFresh, when a report of income over the CalWORKs IRT is made that results in a change in the CalWORKs case, the allotment will also be recalculated in the companion CalFresh case. (All County Letter 12-25, May 12, 2012) 1 State of California ( COSS State Hearings Divisio,. H( 1g No. 2015247121-629 Page4 CalFresh recipients must report income over their IRT within 1 O days of when the change is known to the household. The date the change is ‘known to the household’ is either the date the household becomes aware of new employment or an increase in pay, the start date of employment’or when the household first receives the income exceeding the IRT. All County Letter 14-77, October 15, 2014 (Question #3). To determine a GalFresh household’s net monthly income, when there is no elderly or disabled household member, the county shall use the steps listed below. For QR\/PB households, the steps below shall be followed after income is averaged over the QR\/PB Payment Quarter as specified in 63-509(a)(4): The county shall use exact dollars and cents. The final figure shall be rounded up for calculations that end in 50 cents or more, and down otherwise. (a) Add the gross monthly income earned by all household members minus earned income exclusions. (b) Apply the earned income deduction (which is 20% of gross earned income) to the total gross earned income. (c) Add to net monthly earned income the total monthly unearned income of all household members, minus income exclusions. (d) Subtract the standard deduction which is $155 for four persons effective October 1, 2011 (AGIN 1-62-11), and $160 effective October 1, 2012 (AGIN 1-46-12). (e) Subtract monthly dependent care expenses, if any, up to the current maximum. It is. $200 for dependent children under age two and $175 for all other dependents. (The cap on the deduction for dependent care expenses is eliminated effective October 1, 2008. Families eligible for the deduction are allowed to deduct the entire amount of dependent care\u00b7expenses when calculating benefit levels.) (ACL 08-37) (f) Subtract the homeless shelter deduction (which was $143 as of October 1, 1995 and continuing). (g) Total the allowable shelter expenses (see 63-502.36) to determine shelter costs. Subtract from the total shelter costs 50% of the household’s monthly income after all the above deductions have been subtracted. The remaining amount, if any, is the excess shelter cost. (h) Subtract the excess shelter cost (up to the current maximum, which was and $459 effective October 1, 2011 and $469 effective October 1, 2012) from the household’s monthly income after all other deductions. The household’s net monthly income has been determined. ( 63-503.311 revised effective November 1, 2006; Handbook 63-1101.2; AGIN 1-61-09 and 1- 75-1 O) The general rule is that the county is required to establish a claim against any household that has received more benefits than it was entitled to receive. All adult household members are jointly and individually liable for any overissuance to the household. ( 63-801.1) State of California ( CDSS State Hearings Divisio,. H( rig No. 2015247121-629 Page5 The county shall initiate collection action against any or all of the adult members of a household which received an overissuance. ( 63-801.61) There are no current State regulations that would prevent counties from pursuing collections of an established inadvertent household error or inadvertent household error overissuance claim (i.e. when the county issued a demand letter to the household within three years of the overissuance that the county seeks to collect) when more than three years has lapsed after the demand letter was issued. (AGIN l-58-08) In an unpublished decision, the Court of Appeals upheld COSS’ claims that application of the doctrine of equitable estoppal was inappropriate because Cal Fresh is a wholly federally funded program, and because Office of Personnel Managementv. Richmond (1990) 496 U.S. 414, precluded the relief sought. (Vang v. Saenz, No. C016270, March 20, 2002) In an unpublished opinion by the Court of Appeals (Vang v. Saenz) the Court denied petitioner’s claim that equitable estoppel should be applied to preclude the county from recovering CalFresh overissuances which were caused by inadvertent household error. The Appeals Court relied primarily on the U.S.-Supreme Court’s analysis in OPM v. Richmond. In the OPM case, the Supreme Court concluded that equitable estoppal cannot be applied against the government where to do so would result in the payment of benefits not authorized by Congress. The Supreme Court stated in OPM as follows: \”Whether there are any extreme circumstances that might support estoppal in a case not involving payment from the Treasury is a matter we need not address. As for monetary claims, it is enough to say that this Court has never upheld an assertion of estoppal against the Government by a claimant seeking public funds. In this context there can be no estoppal, for courts cannot estop the constitution.\” (OPMv. Richmond (1990) 496 U.S. 414,434) The county shall take action on inadvertent and administrative error claims for which less than three years have elapsed between the month the overissuance occurred and the month the county determined by computation that an overissuance occurred, irrespective of the date the claim determination was completed. ( 63-801. 111) The COSS interpretation of the three-year time period discussed in 63-801.111 is as follows: \”The three-year time frame does not begin with the date of discovery, the date the case is referred to investigations, or the date the investigative staff uses the information on IEVS and other verifications to calculate the 01. The three-year time frame begins with the date of the occurrence of the 01 [Manual of Policies and Procedures (MPP) 63- 801. 11; AGIN 1-03-02]. Of Q&A #1 in AGIN 1-03-02 provides an example of how the three-year time frame works. It also explains the six-year calculation time frame. 11 (All-County Information Notice (AGIN) No. 1-52-02, July 22, 2002, Question 1) The county shall calculate the amount of the CalFresh overissuance which occurred during the six years preceding the date the overissuance was discovered. The county shall not include in its calculation any amount of the overissuance which occurred in a month more than six years \u00b7,,. State of California ( CDSS State Hearings Divisio,, H( ng No. 2015247121-629 Page6 prior to the date the overissuance was discovered. ( 63-801.311 {b), as revised effective August 10,2001) The COSS issued an All-County Information Notice {AGIN) in which it interpreted the following state regulations: 11The CWD shall not take action on inadvertent household and administrative error claims for which more than three years have elapsed between the month the overissuance occurred and the month the CWD determined by computation that the overissuance occurred irrespective of the date the DFA 842 was complete. 11 ( 63-801.112) 11The CWO shall calculate the amount of the overissuance which occurred during the six years preceding the date the overissuance was discovered. The CWO shall not include in its calculations any amount of the overissuance which occurred in a month more than six years prior to the date the overissuance was discovered. 11 ( 63-801.311 (b)) \”QUESTION #1 b: \”Why calculate back six years, but act within three? \”ANSWER: \”The 11three years\” is the timeframe for the occurrence, the computation, and to inform the household of the 01. This time frame is to ensure that timely action is taken on any 01. The \”six years\” timeframe applies in determining the total amount of the 01 claim against the household. A claim against the household is equal to the difference between the allotment amount the household received and the allotment amount the household should have received. \”The six years allows the county to possibly collect on a larger amount of the 01. Once a claim is established, there is no time limit, with the exception of 63-801.222 (administrative errors . claims being recouped pursuant to Lomeli v . .Saenz), on collection of overissuances. 11 Based on the above departmental interpretation, as further explained \u00b7in AGIN No. l-52-02, it appears that despite 63-801.112, which limits the county action to three years from the \”month the overissuance occurred\” and the overissuance computation month, the COSS position is to allow the counties to take action to collect the overissuance for up to six years as long as the overissuance occurred over a six-year period, the last month of which occurred within three years of the overissuance computation. Thus, the COSS is treating an \”overissuance\” not as a one-month occurrence for purposes of the above interpretation, but as a continuing action. (AGIN No. l-03-02, January 14, 2002; AGIN 1-52-02, July 22, 2002) There are no current State regulations that would prevent counties from pursuing collections of an established administrative error or inadvertent household error overissuance claim (i.e. when the county issued a demand letter to the household within three years of the overissuance that the county seeks to collect) when more than three years has lapsed after the demand letter was issued. (AGIN 1-58-08) The county shall be permitted to determine that a CalFresh overissuance claim is uncollectible after it is held in suspense for three years. The county shall use a suspended or terminated claim to offset a restoration of lost benefits in accordance with 63-802.54. ( 63-801.53) State of California ( CDSS State Hearings Divisi6 .. CONCLUSION H( ‘ng No. 2015247121-629 Page 7 It is undisputed that the Claimant received a CalFresh overissuance of $6,073 for the period November 2011 through October 31, 2012 due to unreported household income. The evidence further established that the overissuance was discovered on, or around, October 22, 2012. The overissuance was thereafter established via a notice of action dated August 17, 2015. As stated in the \”Law\” section above, the position of the California Department of Social Service (COSS) is to allow the counties to take action to collect an overissuance for up to six years as long as the overissuance occurred over a six-year period, the last month of which occurred within three years of the overissuance computation. Thus, the COSS is treating an \”overissuan.ce\” not as a one-month occurrence for.purposes of the above Interpretation, but as a continuing action. Accordingly, since the last month of the overissuance in this matter for the period November 1, 2011 through October 31, 2012 occurred within the three year period that the overissuance was established, the County may collect the full amount of the overissuance. The County’s action, therefore, must be sustained. ORDER The claim is denied. Exhibit 5 ( 1, ( CON DADO DE CONTRA COST A \\, STATE OF CALIFORNIA HEALTH AND HUMAN SERVICES AGENCY CALIFORNIA DEPARTMENT OF SOCIAL SERVICES Food Stamps Over Paymerit NOTIFICACl6N DE EMISION EXCESIVA DE BENEFICIOS DE CALFRESH SOLAMENTE POR ERRORES NO INTENCIONALES DEL GRUPO (IHE) Marpos Espinosa-Tapia 38 Doral WAY Antioch CA 94509-604 7 Numero de identificaci6n de reclamo: 1339887 Se le emlti6 una cantidad excesiva de beneflcios del Programa de CalFresh (conocido antes coma el Programa de Estampillas para Comida) a su grupo para fines de CalFresh (de aquf en adelante llamado ‘grupo’). La raz6n es la siguiente: Se us6 la cantidad equivocada de ingresos ganados cuando se calcul6 su cantidad de CalFresh. Esto provoc6 que su grupo recibiera beneficios de CalFresh de mas. Los ingresos ganados no reportados no callflcan para la deducci6n de! 20%. Usted tiene que reembolsar los beneficios extras de CalFresh. \u00b7 Se le emitieron $4380.00 en beneficios extras de, CalFresh para el perfodo de 07 \/2012 – 03\/2013. El g~upo recibi6 la cantidad de $4380.00 en beneflcios de Ca!Fresh. El grupo debi6 haber recibido $0.00 en beneflcios de CalFresh .. Usted recibi6 $4380.00 (beneficios extras de Ca!Fresh) menos lo que debi6 haber . re.cibido. Esta cantidad se redujo $0.00 porque le debf amos beneficios al grupo correspondientes a meses anteriores o reclblmos un reembolso parcial de la cantldad que se debfa. Usted ahora debe $4380.00. En la hoja de calculo adjunta a esta notiflcacl6n, puede ver c6mo calculamos la cantidad extra que usted recibi6. Reglas: Estas reg las aplican. Usted puede revisarlas en su oflclna de asistencia pl’.Jblica.: MPP: 63-801.21 Duarte v. Saenz Fecha de notlficacl6n Nombre del caso Numero del caso Nombre del trabajador Numero del trabaJador Numero de telefono del trabajador Horarlo de oficina lnforrnac!6n las 24 horas D1reccl6n : 12107\/2015 : Marcos Espinosa-Tapia : 1B20B77 : MCSC : FTPS : (866) 663-3225 ; 8AM-12PM, 1 PM-6PM : (877) 506-4630 : PO BOX\u00b74114 Concord CA 94524-4114 l Tiena preguntas? Comunfquese con su trabajador. Audiencia con el estado: Si usted cree que esta acci6n esta equivocada, puede solicita\u00b7r una audiencla a menos que ya haya tenido una audiencia sabre la cantidad que debe. En el reverse de esta hoja se le explica c6mo hacerlo. Es posible que sus beneflcios no. cambien si usted solicita una audiencia antes\u00b7 que esta acci6n entre en vigor. – No tiene que usar beneficlos que reclbe de\u00b7! Programa de lngresos Suplementales de Segurldad (SSI) para reembolsar esta emlsi6n excesiva. – Puede pedir una audiencia si cree que recibi6 los beneflcios extras de Cal Fresh porque\u00b7 el Departamenfo de Bienestar Pt’.iblico del Condado cometi6 un error. \u00b7 – Se cobrara a todas las personas adultas que formaban parte del grupo cuando ocurrl6 la emisi6n excesiva. USTED TIENEQUE: Pagar por completo la emlsi6n excesiva de beneflcios de Ca!Fresh o completar, firmar y devolver el formulario de convenio para reembolso (DFA 377.7C) que se adjunta y pagar en la forma acordada. ACCIONES DEL PROGRAMA: – Se basara\u00b7 su convenio de reembolso en su capacidad actual para pagar segun la calcule el condado. Cualquler camblo en su capacidad para pagar pudiera cambiar sus pagos mensuales. – Si usted no flrma y devuelve el convenio antes de que pasen 30 dfas a partir de la fecha:de esta notificaci6n, la cantldad de beneficios de CalFr.esh que usted reclbe se reducira un 10% comenzando en NIA. \u00b7 \u00b7 – Si usted no paga, es poslble que el condado utilice otros medics para cobrar I? cantidad que usted debe, coma por medio de la corte, otros metodos de agenclas de cobras, y por una acci6n de cobras del gobierno federal. – SI mas tarde se determina, en la carte o por medic de una audiencia, que este error fue culpa de usted, se apllcaran sanciones aun cuando usted este de Attachment .1. Page j_ PAGE 1 OF 6 ( NOTIFICACION DE Ace(~,~ CONDADO DE CONTRA COSTA 1 STATE OF CALll’ORNIA HEALTH AND HUMAN SERVICES AGENCY CALIFORNIA DEPARTMENT OF SOCIAL SERVICES Food Stamps Over Payment (CONTINUADO) acuerdo en reembolsar lo que debe. Si el pago del reclamo se atrasa o si se presenta una demanda en contra del grupo, es posible que se requlera que usted pague los costos adicionales del tramite o de la carte. – SI usted no paga la cantldad que debe, el condado puede interceptar su devoluci6n estatal\/federal de impuestos sabre los ingresos y\/o hacer uria petici6n a la corte para embargar su sueldo o cualquier otra clase de propiedad que usted posea. Advertencla: SI usted cree que esta emis16n excesiva esta equivocada, esta es su ultima oportunidad para solicltar una audiencia. Si continua. recibiendo beneficios de CalFresh, el Condado puede reducir su cantidad de beneficlos de CalFresh para cobrar la emisi6n excesiva. Si deja de recibir beneficios de CalFresh antes de que se reembolse la emisi6n excesiva, es posible que el Condado tome la cantidad que usted debe de su devolucl6n de impuestos sabre los ingresos. \u00b7 CF 377.78 (2\/14) (To client) CalFresh 01 Notice for Inadvertent Household Errors Only Fecha de noUflcacl6n Nombre del caso Numero del caso Nombre del trabajador Numero del \u00b71rabajador Nllmero de telefono del trabajador : 12\/07\/2015 : Marcos Espinosa-Tapia : 1820877 : MCSC : FTPS : (866) 663-3225 Attachment_.1_ Pag.e _.1-__ . – PAGE 2 OF 5 Noi-1l=1cA610N DE Ace(. __ .~ . Food Stamps Over Payment (CONTINIJADO) ( CONDADO DE CONTRA COSTA \u00b7, Fecha de notlflcacl6n . Nombre de! caso Numero de! caso Nombre del trabajador . Ndmero del trabaJador STATE OF CALIFORNIA HEAL TH AND HUMAN SERVICES AGENCY CALIFORNIA DEPARTMENT OF SOCIAL SERVICES : 12\/07\/2015 : Marcos Espinosa-Tapia : 1B20B77 : MCSC : FTPS Ndmero de telefono del trabajador : (866) 663-3225 Mes y ano de la emi$i6n excesiva 0112012 PARTE 1 ELEGIBILIDAD POR INGRESOS\u00b7BRUTOS A. INGRESOS NO GANADOS, BRUTOS Y NO EXENTOS 1. Asistencia monetaria 2. Seguro Social, Desempleo (UIB), lncapacidad (DIB), pensiones 3. Mantenimiento de hijos\/esposa(o) 4. Becas, subvenclones, prestamos 5. Otros 6. lngresos no ganados brutos no reportados m ~ $ $ $ $ 7. lngresos no ganados brutos (A1+A2+A3+A4+A5+A6) $ 8. Menos mantenlmiento de hijos pagado (anote el resto en B7) 9. To~al de ingresos no ganados bruto~ (A7 – AB) 8. INGRES.OS GANADOS, BRUTOS Y NO EXENTOS 1. Salarlo\/sueldo b\”ruto 2. Trabajo por cuenta propia 3. Aslgnaci6n para entrenamie_nto 4. lngresos ganados brutos (B1 +B2+B3) 5. lngresos ganados brutes no reportados 6. lngresos ganados, brutes y ajustados (B4+85) (incluyendo lngresos no reportados) 7. Me nos el resto del mantenimlento de hijos pagado (Si no se us6 completamente en la Secci6n A) 8. Total de ingresos ganados brutos (B6-B7) (Si la i;;antldad es un numero negativo, anote cero) C. PRUEBA DE INGRESOS BRUTOS No calculado para hogares con un miembro de edad avanzada\/incapacitado. (MPP 63-503.323) 1. Tamano del hogar $ ~ $ :I! ~ ~ ~ m $ $ 2. Maximo permitido de ingresos brutes de la lista .;,c.$ ___ _ 3. Total de ingresos brutes mensuales contables ..,_$ ___ _ (A9+B8) . . 4. lEleglble por ingresos brutes? (6Es el C3 menos o lgual al C2?) D. EMIS16N EXCESIVA POR INGRESOS BRUTOS (Si C4 es ‘No’) 1. Cantidad emitida anteriormente \u00b72. Beneficlo correcto 3. Totarde la emisl6n excesiva de CalFresh (D1-D2) 4. Menos beneficios perdidos no restablecidos 5. Menos pago r~cibldo 6. Cantidad de la emisi6n excesiva que se tiene que devolver (D3-D4-D5) \u00b7 ‘?. Menos beneficlos a cambio de trabajo (Workfare) para contrabalancear \u00b7 8. Cantidad de la emisi6n exceslva que se tiene que devolver (D6-D7) $ $ ~ $ -~ $ $ i m ~ $ $ $ ~ $ ~ ~ $ :I! ~ ~ $ $ $ $ $ $ $ $ $ ~- ~ $ $ ~ NA 1263 (SP) (8\/11) CONTINUATION PAGE Attaehment $ m $ $ $ $ m ~- ~ $ ~ $ $ ~ m -~ ~ $ $ ~ $ -~ $ ~ i m i $ $ $ $ i m $ ~ $ $ ~ ~ $ ~ ~ ~ ~ i $ $ $ $ $ $ ~ i j Page :3 PAGE 3 OF 5 ,..\u00b7\u00b7\u00b7 NOTl(=fCACl’ON DE ACC(- .~- Food Stamps Over Payment (CONTINUADO) CONDADO ~SONTRA COSTA ( Fecha de notlficacl6n Nombre del caso NLJmero del caso Nombre del trabajador Numero del trabajador STATE OF CALIFORNIA ‘HEAL TH AND HUMAN SERVICES AGENCY CALIFORNIA DEPARTMENT OF SOCIAL SERVICES : 12\/07\/2015 : Marcos Espinosa-Tapia : 1820877 : MCSC. : FTPS Numero de telefono del trabajador : (866) 663-3225 Mes y a~o de la emisi6n excesiva PARTE 2 – ELEGIBILIDAD POR INGRESOS NETOS (Esta secci6n se calcula solamente si C4 es ‘Sf’.) \u00b7e. INGRESOS NO GANADOS, BRUTOS Y NO 07\/2012 EXENTOS (A9) -$ __ _ F. INGRESOS GANADOS, BRUTOS Y NO EXENTOS 1: lngresos ganados brutos (no incluyendo ingresos no reportados) (84) ..,.$’—– 2. lngresos ganados, brutes y ajustados (80% de F1) .,.$ ___ _ 3. lngresos ganadqs, brutos y no reportados .,.$’—– 4. Total de ingres~s ganados contables … $ ___ _ 5. Menas el resto de mantenimiento de hijos pagado (B7) (Si no se us6 completamente el’) la Secci6n A) . \u00b7 _$ ___ _ 6. Total de ingresos ganados brutes (F4-F5) (Si la cantidad e~ un nl’.lmero negative, anote cero) -=$ ___ _ G. TOTAL DE INGRESOS BRUTOS Y NO EXENTOS (E+F6) . . -=$ ___ _ H. DEDUCCl6N ESTANDAR\/CUIDADO DE DEPENDIENTES\/ Al.BERGUE PARA PERSONAS SIN HOGAR 1. Deducci6n estandar \”\”$ ___ _ 2. Exceso de gastos medicos (Solamente se calcula el exceso de gastos medicos para hogares con miembros de edad avanzada\/incapacitados.) \u00b7 =$ ___ _ 3. Cuidado de dependientes (100% del costo) .,.$’—– 4. Deducci6n por a!bergue\u00b7 para personas sin ho gar ..:,:$ ___ _ 5. Total de deduccfones (H1+H2+H3+H4) \”\”$ ___ _ 6. Total de ingresos ajustados (G-H5) ..,..$ ___ _ I. DEDUCCIONE:S POR VIVIENDA 1. Total del ‘costo de vivienda .,.,$_’—- 2. Total \u00b7de la cantidad permitida para servicios publicos \u00b7 y municipales =$—.,– 3. Total del costo para alojamiento (11+12) =$ ___ _ 4. Cantidad permitida para el costo de alojamiento ~0%deH~ . =$-~– 5. Exceso del costo de alojamiento (13-14) -$ ___ _ 6. Maximo de cantidad permitida para alojamiento (Anote la cantidad que aparece en 15 para hogares con un miembro de edad avanzada\/incapacitado.) =$ ___ _ 7. Deducci6n permitida para alojamiento (15 6 16, lo que sea menos) (An_ote la cantidad que ap1;1rece en 15 para t\\ogares con un niiembro de edad avanzada\/ incapacitado.) \”\”$ ___ _ J. INGRESOS NETOS MENSUALES CONTABLES (H6,17) -=$ ___ _ K., PRUEBA DE INGRESOS NETOS .1. Tamaiio del hogar 2. Maximo permitido de ingresos netos de la lista 3. l,Elegible par ingresos netos? (iEs J menos o igual a K2?) NA 1263 (SP) (B\/11) CONTINUATION PAGE $ $ $ $ $ $. $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ Ill ~ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ PAGE 40F 5 NOTIFICACION DE Ace( __ .~ { STATE OF CALIFORNIA CONDADO D60NTRA COSTA.. HEAL1HANDHUMAN SERVIC,ESAGENCY Food Stamps Over Payment (CONTINUADO) Mes y afio de la emisi6n excesiva L. EMISION EXCESIVA POR INGRESOS NETOS 1. Cantldad emitida\/autorizada anteriormente 2. Beneficio correcto 3. Total de la emisi6n excesiva de CalFresh (L 1-l2) 4. Menas beneficios perdidos no restablecldos 5. Menas pago recibldo 6. Cantidad de la emlsi6n excesiva que se tiene que devolver (L3-L4-L5) 7. Menas beneficios a cambio de trabajo (Workfare) para pontrabalancear 8. ‘Cantidad del pago excesivo que se tlene que devolver (L6-L7} PARTE 3 ‘-ELEGIBILIDAD POR RECURSOS M. RECURSOS CONTABLES 1. Total de recurses 2. Nivel maxima de recursos 3. lElegible por recurses? (lEs M1 menas o igual a M2?) N. EMISION EXCESIVA POR RECURSOS (Si M3 es ‘No’) 1. Cantidad emitida\/autorizada anteriormente 2. Beneficia carrecto 3. Total de la emisl6n exceslva de CalFresh (N1-N2) 4. Menas beneficios perdidas no restablecidas 5. Menas pago recibldo 6. Cantidad de la emisi6n excesiva que se tiene que devolver (N3-N4–N5) 7. Menas beneficlas a\u00b7cambio de trabaja (Workfare) para contrabalancear 8. Cantidad de la emisi6n excesiva que se tiene que devolver {N6-N7) PARTE 4 – ELEGIBILIDAD POR RAZONES NO Fl NANCI ERAS 0. MIEMBROS DEL HOGAR 1. Tamafio anterior del hagar 2. Tamafio correcto del hagar P. EMISION EXCESIVA POR RAZONES NO FIN’ANCIERAS 1. Cantldad emitlda\/autorlzada anteriormente 2. Beneficia correcto 3. Total de la emisi6n excesiva de CalFresh (P1-P2) 4: Menas beneficios perdidos \u00b7no restablecldas 5. Menas pago recibi.d.o 6. Car:itldad de la emisi6n excesiva que se tiene que devolver (P3-P4-P5) 7. Meno$ beneficias a camblo de trabajo (Workfare) para contrabalancear \u00b7 8. Cantiaad de la emi’si6n excesiva que se tiene que devolver (P6-P7) NA 1263 {SP) (8\/11) CONTINUATION PAGE CALIFORNIA DEPARTMENT OF SOCIAL SERVICES Fecha de notlficacion Nombre del caso Numero del caso Nombre del trabajador Numero del trabajador Numero de telefono de! trabajador 0Zl2Qj2 $ $ $ $. ~ :Ii $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $. $ $ $ $ ~ l2 $ l2 $ \u00b7$ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ :Ji $ $ $ :Ji $ $ :Ji $ :Ji :Ji $ $ $ ~ $ $ $ $ $ $ m m $ ~aehment- : 12\/07\/2015 : Marcos Espinosa-Tapia : 1B20B77 : MCSC : FTPS : {866) 663-3225 $ $ $ $ $ $ $ $ $ $ $ $ ‘$ ~ $ $ $ $ $ $ $ $ $ $ $ :f: $ &= ~age PAGE 5 OF 5 I Exhibit 6 ,. CALIFORNJ .t.>EPARTMENT OF SOCV(_u.SERVICES Hearing No. 2016005241 In the Matter of Claimant( s): Marcos Espinosa-Tapia 1686 45th Ave. San Francisco CA 94122 Pursuant to. the authority of the Director, I adopt\/ttt::: ~ S. McKeever Administrative Law Judge Hearing Date: Aid Pending: Agency: Agency: Authorized Rep. Orl{anization: SSN: AKA: Case Name: LA District\/Case: April 6, 2016 Not Applicable Contra Costa County Bay Area Legal Aid Marcos Espinosa -Tapia DECISION Adopt Date: April 11, 2016 State Hearing Record Release Date: Issue Codes: Agency Representative: Agency Representative: Authorized Rep: SSN: AKA: Language: C,ompanion Case: Appeal Rights April 11, 2016 [292-2) Yesenia Valdivia John Treat \u00b7 Yott may ask for a rehearing of this decision by mailing a written request to the Rehearing Unit, 744 P Stree~ MS 9-17-37, Sacramento, CA 95814 within 30 days after you receive this decision. This time limit may be extended up to 180 days only upon a showing of good cause. In your rehearing request, state the date you received this decision and why a rehearing should be granted. If you want to present additional evidence, describe the additional evidence and explain why it was not introdttced before and how it wo11ld change the decision. You may contact Legal Services for assistance. Yott may ask for judicial review of this decision by filing a petition in Superior Court 1111der Code of Civil Procedure 1094.5 within one yea,: after you receive this decision . .You may file this petition without asking for a rehearing. No filing fees are required. You may be entitled to reasonable attomey’s fees and costs if the Court renders a final decision in your favor. You may contact Legal Services for assistance. This decision is protected by the confidentiality provisions of Welfare and Institutions Code 10850. CDSS State Hearings Division Decision Cover Page I \u00b7 l I I I I I State of California \/ CDSS State Hearings Divisil_ SUMMARY Hr\”ing No. 2016005241-285 ( Page 1 Contra Costa County’s determination that Claimant was overissued $4,380 in CalFresh (formerly Food Stamps) benefits from July 2012 to March 2013 is sustained. The overissuance was caused by Claimant’s failure to report his spouse’s income. \u00b7 Under state and federal regulations, the County is not barred from seeking recovery of that portion of the overissuance which occurred more than three years prior to the date of discovery when the last month of the overissuance was established within three years from its occurrence and no portion of the claim occurred more than six years prior to discovery. [292-2] FACTS Claimant appeals Contra Costa County’s determination that he was overissued $4,380 in CalFresh (formerly Food Stamps) benefits from July 2012 to March 2013. The County issued a Notice of Action (NOA) December 7, 2015. Claimant requested a hearing January 4, 2016. The hearing was held April 6, 2016, in Pleasant Hill, California. Claimant was represented by his Authorized Representative (ARs). The County was represented by a Social Services Appeals Officer (SSAO). Claimant is a 37-year old male who applied for CalFresh benefits on July 9, 2012. The household consisted of Claimant, his wife and their three minor children. At the time of application the only income reported was from Claimant’s employment, which was stated to be $1,600 per month. Claimant submitted a QR 7 (quarterly report) for data month August 2012, November 2012 and February 2012 in which he reported only his own earnings. The County asserted that in preparing for the annual recertification in June 2013 the County discovered that.Claimant’s wife had received income from earnings and State Disability Income (SDI). It requested and obtained verification from the wife’s employer that the wife was hired on November 14, 2011, and received earnings through January 2013 from Kaiser Permanente. Subsequent information verified that the wife continued to be employed as of the date the employment was documented in November 2015. The County introduced earnings information into the record. Additionally,-the County received verification tha_t Claimant’s wife qualified for and received SDI during the period of the overissuance. The Income Eligibility Verification System (IEVS) payment record showed that she recei\\\/ed $530 per week begfnning October 27, 2012. The record stated that Claimant had remaining benefits of $26,197.14 as of December 5, 2012, and that she received $1,060 in November 2012. Based upon the information it received, the County determined that Claimant’s CalFresh household was overissued benefits from July 2012 to March 2013. The County submitted a budget table the SSAO testified was attached to the NOA sent to Claimant and his wife. The County determined the household’s income for the overissuance period \u00b7as follows: Month Claimant’s Spouse’s Total Spouse’s Total gross Gross wages wages earnings SDI limit 7\/2012 $1,733.60 $3,694.00 $5,427.00 $0 $5,427.00 $2,836.00 8\/2012 $1,733.60 $3,516.00 $5,429.00 $0 $5,249.00 $2,836.00 9\/2012 $1,733.60 $3,566.00 $5,299.00 $0 $5,299.00 $2,836.00 10\/2012 $1,600.00 $3,533.00 $5,133.00 $0 $5133.00 $2,927.00 11\/2012 $1,600.00 $2,081.00 $3,681.00 $0 $3 681.00 $2,927.00 State of California ,.- COSS State Hearings Divisi( Hr-\”ing No. 2016005241-285 \\. .Page2 Month Claimant’s Spouse’s Total Spouse’s Total gross Gross waaes wages earnings SDI limit 12\/2012 $1,600.00 $308.00 $1,908.00 $0 $1,908.00 $2,927.00 1\/2013 $1,600.00 $286.45 $1,886.45 $2,297.00 $4,183 .. 45 $2,927.00 2\/2013 $1,600.00 $0.00 $1,600.00 $2,297.00 $3,897.00 $2,927.00 3\/2013 $1,600.00 $1,037.98 $2,637.00 $0 $2,637.00 $2,927.00 The County determined that Claimant’s household’s gross income exceeded the eligibility limit from July to November 2012, and January and February 2013. In December 2012 and March 2013, however, the household’s gross income did not exceed the eligibility limit, and in those two months the County determined the overissuance as follows: Factor 12\/2012 3\/2013 Claimant’s earninQs $1,600.00 $1,600.00 Less 20% disreaard $1,280.00 $1,280.00 Spouse’s earnim:1s $308.00 $1,037.00 Countable earnim1s $11588.00 $1,317.00 Standard deduction -$187.00 – $187.00 Adjusted income $1,401.00 $2,130.00 Housina costs $1,731.00 $1,731.00 50% adjusted income $700.50 $1,065.00 Excess shelter $1,030.50 $666.00 Maximum excess shelter – $469.00 – $469.00 Net income $932.00 $1,661.00 Correct arant for HH of 5 $513.00 $294.00 Amount issued $605.00 $605.00 Overissuance $92.00 $311.00 The overissuance as calculated by the County was thus as follows: Month Eligible amount Amount issued Overissuance 7\/2012 $0 $421.00 $421.00 8\/2012 $0 $568.00 $568.00 9\/2012 $0 $568.00 $568.00 10\/2012 $0 $605.00 $605.00 11\/2012 $0 $605.00 $605.00. 12\/2012 $513.00 $605.00 $92.00 1\/2013 $0 $605.00 $605.00 2\/2013 $0 $605.00 $605.00 3\/2013 $294.00 $605.00 $311.00 Total $807.00 $5187.00 $4380.00 In its Statement of Position (SOP), the County asserted that it had incorrectly failed to include the wife’s SDI and earnings for December 2012 and March 2013, and that the actual overissuance should equal $5,187. It stipulated, however, that the County is bound by the amount originally charged in the December 7, 2015, NOA.1 1 It was not established that the original overissuance was understated. Although the IEVS record shows receipt of SDI in November 2012, it is not clear that under quarterly reporting rules that income was countable prior to January 2013. The IEVS report does not verify receipt of SDI after November 2012. It is also not clear what earned income the County asserts was not considered. State of California , CDSS State Hearings Divisit Claimant’s position H(~\”lng No. 2016005241-285 . Page3 Claimant’s ARs do not dispute the income information or overissuance calculations made by the County. They argued that under MPP 63-801.112, the County was barred from seeking collection of any overissuance for a month more than three years prior to December 2015, the month it determined that the overissuance occu\u00b7rred and notified Claimant of the claim. Therefore, they asserted that the overissuance should be limited to the period fror:n December 2012 to March 2013, a total of $2,420. Claimant’s ARs do not deny that the County’s attempt to collect the overissuance for the months prior to December 2012 is inconsistent with the interpretation of the California Department of Social Services (COSS) announced in All-County Information Notice (ACIN) 1-03-02 (January 141 2002). The ARs argued that ACIN 1-03-02 is a \”rule which interprets other rules\” and violates with the Administrative Procedures.Act, Cal. Gov’t Code 11342. LAW All the regulations cited refer to the Manual of Policies and Procedures (MPP), unless otherwise noted. For purposes of this decision, W&IC is the abbreviation for the Welfare & Institutions Code. CalFresh (formerly food stamp) benefit determinations Eligibility and benefits in the CalFresh (CF) program are determined based upon prescribed rules which consider a household’s income and specified deductions. A household’s gross income must fall below the applicable limit for a household of comparable size to qualify for benefits. If a household satisfies the gross income test, its net nonexempt income is calculated \u00b7 to determine if the household is eligible under the net income limit and, if so, the amount of benefits for which the household qualifies. Gross income limit Except for categorically eligible households and households with an elderly or disabled household member(s), the counties shall determine eligibility for CF henefits pursuant to the maximum gross income standards as promulgated and updated by the United States Department of Agriculture. The gross income standard for a household of five (5) persons as set forth in Handbook 63-1101.31 and set out in All-County Information Notice 1-62-11, effective October 1, 2011 was $2,836. As of October 1, 2012, it was $2,927 (AGIN 1-46-12). A household with income in excess of the standard is ineligible to receive CF. ( 63-409.111) Net income limit Except for categorically eligible households, CF eligibility is based on maximum net income standards set forth in Handbook 63-1101. Pursuant to Handbook 63-1101.32 and set out in All-County Information Notice 1-42-12, effective October 1, 2012, the maximum net income level for a household of five (5) persons was $2,251. A household with income in excess of the standard is ineligible to receive CF. ( 63-409.112) \u00b7 State of California ,.. CDSS State Hearings D\/vis;l H(-\”ing No. 2016005241-285 . Page4 Semi-annual reporting and reasonably anticipated income The county will use information on the SAR 7 to determine continuing eligibility and future benefit amounts based on all eligibility factors. Based on information provided on the SAR 7, the county will determine continuing eligibility as it relates to property, income deprivation (CalWORKs only), and household composition using prospective budgeting rules. (All-County Letter No. 03-18, April 29, 2003, p.16) The SAR\/Prospective Budgeting (SAR\/PB) system uses anticipated income\/prospective budgeting to determine a recipient’s benefits. Prospective budgeting requires the county to use income that the recipient reasonably anticipates it will receive during the payment period. () Income is \”reasonably anticipated\” when the county determines it is reasonably certain that the recipient will receive a specified amount of income during any month of the SAR payment period and applies to.all earned and unearned income. Income is considered reasonably anticipated if the county determines that the income has or will be approved or authorized within the upcoming payment period, or the assistance unit\/household is reasonably certain that the income will be received within the period; and the amount of the income is known. {AH-County Letter 12-25, May 17, 2012) Weekly and biweekly income conversions Income reasonably anticipated during the certification period shall be counted as income only in the month it is expected to be received, unless the income is averaged. The county shall use exact monthly income if it can be reasonably anticipated. For change reporting households, whenever a full month’s inc.ome is anticipated but is received on \u00b7a weekly or biweekly basis, the \u00b7 county shall convert income to monthly income by multiplying by 4.33 or 2.167 as appropriate if the exact amount is not known. For SAR households, whenever a full month’s income is anticipated but is received weekly or biweekly, and will remain the same throughout the SAR payment Quarter, the county shall convert income to monthly income by multiplying by 4.33 or 2.167 .. ( 63-503.242(b) (1 )(QR)) CalFresh benefit calculations for households without an elderly or disabled member To determine a CalFresh household’s net monthly income, when there is no elderly or disabled household member, the county shall use the steps listed below. For prospective budgeting households, the steps below shall be followed after income is computed for the payment period as specified in 63-509(a)(4): The county shall use exact dollars and cents. The final figure shall be rounded up for calculations that end in 50 cents or more, and down otherwise. (a) Add the gross monthly income earned by all household members minus earned income exclusions. (b) Apply the earned income deduction (which is 20% of gross earned income) to the total gross earned income. , State of California ,. CD55 State Hearings Divis\/. Hf\”‘\”ing No. 2016005241-285 l Page5 (d) Subtract the standard deduction which was $187 for five (5) persons effective October 1, 2012. (e) Subtract monthly dependent care expenses, if any, (f) Subtract the homeless shelter deduction, if applicable. (g) Total the allowable shelter expenses (see 63-502.36) to determine shelter costs. Subtract from the total shelter costs 50% of the household’s monthly income after all the above deductions have been subtracted. The remaining amount, if any, is the excess . shelter cost. (h) Subtract the excess shelter cost (up to the current maximum, which was $469 effective October 1, 2012, from the household’s monthly income after all other deductions. The household’s net monthly income has been determined. ( 63-503.311 revised effective November 1, 2006; Handbook 63-1101.2; AGIN 1-61-09 and 1- 75-10) The household’s monthly allotment shall be determined from the Coupon Allotment Tables (Handbook 63-1101) on the basis of the household’s size and net income. For a household of five (5) persons with net income of $932, the monthly allotment was $513. { 63-503.324) CalFresh (formerly Food Stamps) overissuances When a Cal Fresh household received a larger allotment than it was entitled to receive, the county shall establish a claim against the household equal to the difference between the benefits received and the benefits which should have been issued. (a) For categorically eligible households, a claim shall be determined only when the amount of the overissuance can be calculated on the basis of the household’s net income and\/or household size. (b) When the overissuance occurred in a month or months in which any household member has already performed a Workfare or work component requirement, see 63-407.89. (c) When determining the amount of benefits the household should have received, the county shall not apply the 20% earned income deduction to that portion of earned income the household failed to report. ( 63-801.312, as amended by adding (c), effective November 12, 1996) When computing an overissuance or underissuance, counties are to use the actual amount of CalWORKs that was anticipated with reasonable certainty or that was reasonably anticipated. Quarterly reporting regulations support using the amount of the CalWORKs grant that was reasonably anticipated with no look-back for recalculation of the CalWORKs grant. Since CalWORKs grants are known-to-county information and not subject to recipient reporting, a recalculated grant is not required. (All County Information Notice 1-16-05, p.12, April 4, 2005} ,, State of California , CDSS State Hearings Divisif Hp\”‘\”ing No. 2016005241-285 \\ Page 6 Collection of CalFresh (CF) overissuances The general rule is that the county is required to establish a claim against any household that has received more benefits than it was entitled to receive. All adult household members are jointly and individually liable for any overissuance to the household. ( 63-801.1) The county shall take action on inadvertent and administrative error claims for which less than three years have elapsed between the month the overissuance occurred and the month the county determined by computation that an overissuance occurred, irrespective of the date the claim determination was completed. ( 63-801 .111) The COSS interpretation of the-three-year time period discussed in 63-801.111 is as follows: \”The three-year time frame does not begin with the date of discovery, the date the case is referred to investigations, or the date the investigative staff uses the information on IEVS and other verifications to calculate the 01. The three-year time frame begins with the date of the occurrence of the OI [Manual of Policies and Procedures\u00b7 (MPP) 63- 801.11; AGIN 1-03-02]. 01 Q&A #1 in AGIN 1-03-02 provides an example of how the three-year time frame works. It also explains the six-year calculation time frame.\” (All-County Information Notice (AGIN) 1-52-02, July 22, 2002, Question 1) The county shall calculate the amount of the CF overissuance which occurred during the six years preceding the date the overissuance was discovered. The county shall not include in its calculation any amount of the overissuance which occurred in a month more than six years prior to the date the overissuance was discovered. ( 63-801.311 (b), as revised effective August 10, 2001) (AGIN 1-03-02, January 14, 2002) Counties may take action to collect an overissuance for up to six years as long as the overissuance occurred over a six-year period, the last month of which occurred within three years of the overissuance computation. Thus, the COSS is treating an 11overissuance 11 not as a one-month occurrence for purposes of the above interpretation, but as a continuing action. (AGIN 1-03-02, January 14, 2002; AGIN 1-52-02, July 22, 2002) CONCLUSION The sole issue presented in Claimant’s appeal is whether the County may demand repayment of an overissuance of CalFresh benefits which occurred more than three years prior to the date the County established the claim. His ARs argues that the overissuance which is alleged to have occurred from July to November 2012 – a total of $2,767 – is not recoverable. In its Statement of Position (SOP), Claimant’s AR asserts that the total overissuance should be reduced to $2,420. However, the amount for that period allegedly owed as stated in the December 7, 2015, NOA, and as stipulated by the County, is $1,613 ($92 + $605 + $605 + $311). The overissuance for the period from July to November 2012 Claimant’s AR contends may not be collected is $2,767 ($421 + $568 + $568 +605 +605). Claimant’s counsel cites MPP 63-801.112 in support of his argument that the County may not seek recovery of any overissuance which occurred prior to December 2012. That regulation provides, \”The CWD [county welfare department] shall not take action on inadvertent household … State of California . CDSS State Hearings Dfvisl H,r\”ing No. 2016005241-285 t Page 7 and administrative error claims for which more than three years have elapsed between the month the overissuance occurred and the month the CWD determined by computation that the overissuance occurred irrespective of the date the DFA 842 was completed.\” Additionally, MPP 63-801.113(b) provides that \”[t]he CWD shall calculate the amount of the overissuance which occurred during the six years preceding the date the overissuance was discovered. The CWD shall not include in its calculation any amount of the overissuance which occurred in a month more than six years prior to the date the overissuance was discovered.\” Since the County has not characterized the overissuance in this case as an Intentional Program Violation (IPV), the rules set forth in 63-801. 11 apply. Claimant’s AR argues that phrase \”the month the overissuance occurred\” must mean that each overpayment month independently triggers the three-year recovery period. Claimant’s reading conflicts with the COSS policy providing guidance to the counties as set forth in All-County Information Notices 1-03-02 (January 3, 2002) and ACIN 1-52-02 (July 22, 2002). These state that once an overissuance for any month is established within three years from the date of its occurrence, the County must calculate the overissuance for the six year period from the date of discovery pursuant to 63-801.311 (b). I do not find 63-801.112 clearly prohibits a county from seeking recovery of an overissuance for a month occurring more than three years prior to the month of discovery when the last month of a continuous overissuance occurred within three years from the date it was established by the County. The COSS interpretation allows application of the six-year calculation period of 63- 801.311 (bJ once an overissuance has been established within three years from its occurrence. Claimant’s argument that the six-year calculation applies only in Intentional Program Violation (IPV). cases under 7 C.F.R. 273.18(c)(1} is not supported by the language of that regulation. That section provides tliat for IPV cases, a claim \”must be calculated back to the month the act of IPV first occurred,\” i.e., irrespective of any time limit. Apart from IPV cases, states are prohibited \”for all claims\” from including amounts which occurred more than six years prior to discovery. Thus, the federal regulation.clearly contemplated recovery of overissuances occurring more than three years prior to the .date of discovery in non-lPV cases, and the state’s rule at 63-801.311 (b} is consistent with that provision. Claimant’s position would render the six- year calculation period meaningless, since no such limits apply in I PV cases. Nor do I find that the guidance set forth in ACIN 1-03-02 and ACIN 1-52-02 violates the Administrative Procedure Act. The ACINs are not regulatory but merely explain the meaning of existing regulations. The policy at issue here has been applied for some 14 years and Claimant’s AR cited no court decision or judicial ruling which has found that it violates state or federal law. ORDER The claim is denied. ( ( STAiE OF CALIFORNIA\u00b7 HEAL TH AND !iUMAiil SERVICES AGENCY CALIFORNIA DEPARTMENT OF SOCIAL SERVICES Notice of Langua_ge Services If you do not understand this\u00b7 information or not[fioatio’n, call:your \u00b7county worker. You have the right to interpreter services provided by the county at no costto you. (English) Si no .entiende la lnformaci6n o hotifica~iph, pongase en conta~o con el Jrabajador social de.su condado. El condado debe proporcionarle el servlcio de interpretaci6n.e:n forma-.gtatuita. (Spanish) c:.,t.;..J4 ~’;ll ~~~~fa i,;!jl_.i,A ~ .J~I c.ill\u00b7~..J .~I ill.J41 JU’:\/1 ~ .J(;..&)’11~ .:,l.<.!:.l!..i.fa.JI &~ -~ \u00b7tl l~I (Arabic} b13h.w1u pl.1.qinptftugJi.ult Lhp b01u4:tnfuit:.u'hml\\hgl:;p.-timuitllitlhp. qmtJ.mnp tqtn_zmnbJUlJ.p.4. ]:i11mtlnLltp ndthp mnmli.g q6:mptfmlt l3'U.1.pqumlth81 bmn~]rtLI3']U1ltg, np t\\hq lJ.mpt.l}l qmqwnp 4n11,tfp.g (Armenian) IJIMEltli~fiYfUITrufiiima yrnr~a~ru'il:lum0 f\\'!'s~Hi1'~t_mma4Tiilifii! tmqtmnaUmtJtrfi 'l'Ufi'in8mg q1:1mm~rutrutiu11twtt1ru~rut!hrntmautmmffa~t11ini.fmififu '1 (Cambodian) ~o.!ifH~~Jkt\u00b7filJUJt~~?;U~P'J~~ll*19\u00a5, mt~it~a'-J::Cl'FAffel!Nfr~o 1W,t,f;Jfi~IJ~;ft:lvmmW~a~~ lit P ~AJUl!~o (Chinese) u-1\\.;,.A .J~ .1..5.\u00b7 ~Ji <.:il.i.A JI ~.;I~ t.\u00a5\"\u00b7tlyU W .~~ IJ\"W ~~ ~ llij.S 4 ,~ I.J ~)lb!~ d..c.)\\1.1 u1l .fil ,.\\J_,J\u00b7.ll-4 b_M-1 J~ ~I.) ~kji (Farsi) Yog koj tsis to taub cov ntaub ntawv'lossis daim ntawv\u00b7no, hu rau koj tl:ls kws khiav ntaub ntawv nyob koj cheeb tsam. Koj muaj cai siv kev pa:b txhais lus pub dawb uas l6s ntawm cheeb tsam koj nyob ko. (Hmong) c \u00a91\u00b7w-li-\\!=>~~a i; ;tiJ{!!l!M~ ttJ t, ,~1:: let, i.J 7 :;,.::; 1 r-; .:.._i.J-1:: c:ii~\”\”f ~ t, ‘o cv., tJt::. 1::rtf.J r; VT 4 7J\\; imiR;f-t:’A a:m{tt Lt t b? *lfijfj{;!;j 1,)., **\u00b7~rct-*lJ.-CT 0 (Japanese) ODI ~E:! ~.tr. .9:~ 5-.XIA-J~ LIi. – \u20ac1’ Olull :}:;o~Ale!.1 :!t~El @S ,Q~OUJII e!.sfo~JDI l:H~LIQ. @t_!g 3HtEl~~EI ~Q:1 Ml:li~~ ~fi~ ~~ ~2.1~ ~::ii [email protected]. (Korean) m\”ln~\”lm\u00b7u.J6 t~\”l t ~f :i.}1H)l@L V 0:\”9jElD\”lJ.Jil lmtms’cth:n\”lnJtjlJ nj\”llle1\”l;)~ 🙁 county) ~0jffi’11l. ffi\”llllJ~CllJl~U5UU@li\”llllJ’1t:1lli’1~\”lffi~r:itmlc:imJ6ltiEl\”l;)t1 (county) tC1~ffi\”l1JJt~J~\”l. (Lao) GEN 1365 (MULTILINGUAL) (3\/08) Page 1 of2 ”

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” \” .,,-{NEY OR PARTY W!THOUT ATTORNEY {Name, State, nber, and address)\u00b7 vanessa Lee, SBN 2162lq \/ Yolanda C. Arias, SBN 130 025 Legal Aid Foundation of L .A. 5228 Whittier Blvd. Los Angeles, CA 90022 Dora Luna, SBN 187970 Western Center on Law & Poverty 3701 Wilshire Boulevard, L.A., CA 90 01 0 (213) 487-7211 TELEPHONE NO.: (213) 640-3923 FAX NO.: (213) 640-3911 ATTORNEY FOR INamei: Petitioner Wendv Camacho SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES STREET ADDRESS: 111 North Hill Street MAILING ADDRESS: 111 North Hill Street CITY ANO ZIP CODE: Los Angeles, CA 9001 0 BRANCH NAME: CENTRAL DISTRICT CASE NAME: Wendy Camacho V. Cliff Allenby, Director CA DSS and CA DSS CIVIL CASE COVER SHEET [z] Unlimited [=:J limited Complex Case Designation CJ Counter CJ Joinder of (Amount demanded (Amount demanded is Filed with first appearance by defendant exceeds $25 000) $25,000 or less (Cal. Rules of Court, rule 1811) FOR COURT USE ONLY ,\u00b7\u00b7, ,{ \ufffd’ . h\\\” \u00b7 . ,\u00b7 ,,, . . . \\– ff l: t)’ )i.,, .,,- CASE NUMtr s 1 JUDGE: DEPT: ‘ f .. 2006 1 i .. 04207 Items 1 5 below must be completed (see instructions on page 2). 1 . Check one box below for the case type that best describes this case: CM-010 ;_:\u00b7 . ,-\u00b7 1 .:rk L>::r ,:i\\ Auto Tort 0Auto(22) [::J Uninsured motorist (46) Other Pl\/PD\/WO (Personal Injury\/Property Damage\/Wrongful Death) Tort Contract [7 Breach of contracVwarranty {06) [:::J Collections (09) CJ Insurance coverage {18) CJ Other conlract (37) Provisionally Complex Civil Litigation (Cal. Rules of Court, rules 1800-1812) [:J Antitrust\/Trade regulation (03) D Conslruction defect (10) D Asbestos (04) Real Property [:J Product liability (24) [:J Eminent domain\/Inverse D Mass tort (40) CJ Securities litigation (28} CJ Environmentalffoxic tort (30} D Medical malpractice (45) [:J Other PI\/PDIWD (23) Non PI\/PD\/WD (Other) Tort condemnation (14) CJ Wrongful eviction (33) D Other real property (26) CJ insurance coverage claims arising from the above listed provisionally complex case types (41) [:] Business tort\/unfair business practice (07) Cl Civil rights (08) CJ Defamation (13) D Fraud (16) Unlawful Detainer CJ Commercial (31) [:J Residential (32) D Drugs(38) Enforcement of Judgment D Enforcement of judgment (20) Miscellaneous Civil Complaint 0 RIC0(27) D Intellectual property (19) [\”:::J Professional negligence (25) r=:J Other non.PI\/PD\/WD tort (35) Employment Judicial Review D Asset forteiture (05) D Other complaint (not speciffed above) (42) Miscellaneous Civil PE?tition CJ Petition re: arbitration award (11) [ X I Writ of mandate (02) [=:) Partnership and corporate governance (21) Cl Other petition (not speciffed above) (43) CJ Wrongful termination (36) D Other employment (15) D Other judicial review (39) 2. This case D is W is not complex under rule 1800 of the California Rules of Court. If the case is complex, mark the factors requiring exceptional judicial management: a. [:::J Large number of separately represented parties d. b. D Extensive motion practice raising difficult or novel e. D Large number of witnesses D Coordination with related actions pending in one or more courts in other counties, states, or countries, or in a federal court issues that will be time-consuming to resolve c. D Substantial amount of documentary evidence f. D Substantial postjudgment judicial supervision 3. Type of remedies sought {check al\/ that apply): a. [x] monetary b. [ _id nonmonetary; declaratory or injunctive relief c. D punitive 4. Number of causes of action {specify): 5. This case c:J is Ci] is not a class action suit 6. If there are any known related cases, file and serve a notice of related case. (You may use form CM-015). Date: July 14, 2 0 06 Vanessa Lee, SBN 216213 \u25ba TYPE OR PRINT NAME NOTICE Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 201.8.) Failure to file may result in sanctlons. File this cover sheet in addition to any cover sheet required by local court rule. If this case is complex under rule 1800 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all other parties to the action or proceeding. Unless this is a com lex case this cover sheet will be used for statistical ur oses onl . Fo,mAdopled lo< M,odatocy Use CIVIL CASE COVER SHEET \ufffda] Judicial Council of California So u -\ufffdn\ufffd CM-010 {Rev. January 1. 2006) v L ‘.Cl ,_ , :, . …. ‘ \”‘ iC \u00b7o :\ufffd \u00b7 – ‘ A Civil Case Cover Sheet Category No. Auto (22) Uninsured Motorist (46) Asbestos (04) Producl Liability (24) Medical Malpractice (45) Other Personal Injury Property Damage Wrongful Death (23) Business Tort (07) Civil Rights (08) Defamation (13) Fraud (16) Intellectual Property (19) CIV 109 03-04 (Rev. 03106) tASC Approved D D D D D D D D D D D D D D B Type of Action (Check only one) A7100 Motor Vehicle – Personal Injury\/Property Damage\/Wrongful Death A7110 Personal Injury\/Property Damage\/Wrongful Death – Uninsured Motorist A6070 Asbestos Property Damage A7221 Asbestos – Personal Injury\/Wrongful Death A7260 Product Liability {not asbestos or toxic\/environmental) A7210 Medical Malpractice – Physicians & Surgeons A7240 Other Professional Health Care Malpractice A7250 Premises Liability (e.g., slip and fall} A7230 Intentional Bodily Injury\/Property Damage\/Wrongful Death (e.g . assault, vandalism, etc.} A7270 Intentional Infliction of Emotional Distress A7220 Other Personal Injury\/Property Damage\/Wrongful Death A6029 Other Commercial\/Business Tort (not fraud\/breach of contract) A6005 Civil Rights\/Discrimination A6010 Defamation (slander\/libel} A6013 Fraud (no contract) A6016 Intellectual Property CIVIL CASE COVER SHEET ADDENDUM AND STATEMENT OF LOCATION C Applicable Reasons See Step 3 Above 1., 2., 4. 1., 2., 4. 2. 2. 1., 2., 3., 4., 8. 1., 2., 4. 1 . 2., 4 . 1., 2., 4. 1., 2 . 4. 1 . 2., 3. 1., 2., 4. 1., 2 . 3. 1., 2., 3. 1., 2., 3. 1 .. 2., 3. 2., 3. LASC, rule 2.0 Page 1 of4 LA-4B1 i:i E w SHORT TITLE: CAMACHO V. A Civil Case Cover Sheet Category No. Professional Negligence (25) Other (35) Wrongful Termination (36) Other Employment (15) Breach of ContracV Warranty (06) (not insurance) Collections (09) Insurance Coverage (18) Olher Contract (37) Eminent Domain\/Inverse Condemnation (14) Wrongful Eviction (33) Other Real Property (26) Unlawful Detainer – Commercial (31) Unlawful Detainer – Residential (32) Unlawful Detainer – Drugs (38) Asset Forfeiture (05) Petition re Arbitration (11) CIV 109 03-04 (Rev. 03\/06) LASC Approved ALLENBY, DIRECTOR CA DSS CASE NUMBER D D [ _=i D D D CJ D D D D D D D D D D D D D D D D D B Type of Action (Check only one) A6017 Legal Malpractice A6050 Other Professional Malpractice (not medical or legal) A6025 Other Non-Personal Injury\/Property Damage tort A6037 Wrongful Termination A6024 Other Employment Complaint Case A6109 Labor Commissioner Appeals A6004 Breach of Rental\/Lease Contract (not Unlawful Detainer or wrongful eviction) A6008 ContracVWarranty Breach-Seller Plaintiff (no fraud\/negligence) A6019 Negligent Breach of Contract\/Warranty (no fraud} A6028 Other Breach of Contract\/Warranty (not fraud or negligence) A6002 Collections Case-Seller Plaintiff A6012 Other Promissory Note\/Collections Case A6015 Insurance Coverage (not complex) A6009 Contractual Fraud A6031 Tortious Interference A6027 Other Contract Dispute (not breach\/insurance\/fraud\/negligence) A7300 Eminent Domain\/Condemnation Number of parcels ___ A6023 Wrongful Eviction Case A6018 Mortgage Foreclosure A6032 Quiet Title A6060 Other Real Property {not eminent domain, landlord\/tenant, foreclosure A6021 Unlawful Detainer-Commercial (not drugs or wrongful eviction) A6020 Unlawful Detainer-Residential (not drugs or wrongful eviction) A6022 Unlawful Detainer-Drugs A6108 Asset Forfeiture Case A6115 Petition to Compe!\/ConfirmNacate Arbitration CIVIL CASE COVER SHEET ADDENDUM AND STATEMENT OF LOCATION Applicable Reasons \ufffd See Step 3 Above 1., 2., 3. 1., 2., 3. 2., 3. 1., 2., 3. 1., 2., 3. 10. 2., 5. 2., 5. 1., 2., 5. 1 . 2., 5. 2., 5., 6. 2.,5. 1., 2., 5., 8. 1., 2., 3., 5. 1., 2 . 3., 5. 1., 2., 3., 8. 2. 2., 6. 2 . 6. 2. ,6. 2., 6. 2., 6. 2., 6. 2., 6. 2.,6. 2., 5. LASC, rule 2.0 Page 2 of 4 < 5. 5 \" , 0 \u25ba ,= = \ufffd \ufffd 5 > , ti \u00a3 0 (.) SHORT TITLEc CAMACHO V. ALLENBY, DIRECTOR CA DSS CASE NUMBER A Civil Case Cover Sheet Category No. Writ of Mandate (02) Other Judicial Review (39) Antitrusvr rade Regulation (03) Construction Defect (10) Claims Involving Mass Tort (40) Securities Litigation (28} Toxic Tort Environmental (30) Insurance Coverage Claims from Complex Case (41) Enforcement of Judgment (20) RICO (27) Other Complaints (Not Specified Above) (42) Partnership Corporation Governance (21) Other Petitions (Not Specified Above) (43) CIV 109 03-04 (Rev. 03\/06) LASC Approved B Type of Action (Check only one) \ufffd A6151 Writ \ufffd Administrative Mandamus D D D D D D D D D [::_1 D D D D D D D D D D D D D D A6152 Writ – Mandamus on limited Court Case Matter A6153 Writ * Other Limited Court Case Review A6150 Other Writ \/ Judicial Review A6003 Antitrusvrrade Regulation A6007 Construction defect A6006 Claims Involving Mass Tort A6035 Securities Litigation Case A6036 Toxic Tort\/Environmental A6014 Insurance Coverage\/Subrogation (complex case only) A6141 Sister State Judgment A6160 Abstract of Judgment A6107 Confession of Judgment (non-domestic relations) A6140 Administrative Agency Award (not unpaid taxes) A6114 Petition\/Certificate for Entry of Judgment on Unpaid Tax A6112 Other Enforcement of Judgment Case A6033 Racketeering (RICO) Case A6030 Declaratory Relief Only A6040 Injunctive Relief Only (not domestic\/harassment) A6011 Other Commercial Complaint Case (non-tort\/non-complex) A6000 Other Civil Complaint (non-tort\/non-complex) A6113 Partnership and Corporate Governance Case A6121 Civil Harassment A6123 Workplace Harassment A6124 Elder\/Dependent Adult Abuse Case A6190 Election Contest A61 1 0 Petition for Change of Name A6170 Petition for Relief from Late Claim Law A6100 Other Civil Petition CIVIL CASE COVER SHEET ADDENDUM AND STATEMENT OF LOCATION C Applicable Reasons See Step 3 Above 2 .. 8. 2. 2. 2., 8. 1., 2., 8. 1., 2., 3. 1., 2., 8. 1 . , 2., 8. 1., 2., 3., 8. 1., 2., 5., 8. 2., 9. 2., 6. 2., 9. 2., 8. 2., 8. 2., 8., 9. 1., 2., 8. 1., 2., 8. 2., 8. 1., 2., 8. 1., 2., 8. 2., 8. 2., 3., 9. 2., 3., 9. 2., 3., 9. 2. 2., 7. 2., 3., 4., 8. 2., 9. LASC, rule 2.0 Page 3 of 4 SHORT TITLE, CAMACHO V . ALLENBY’ DIRECTOR CA DSS CASE NUMBER Item Il l . Statement of Location: Enter the address of the accident, party’s residence or place of business, performance, or other circumstance indicated in Item II., Step 3 on Page 1 , as the proper reason for filing in the court location you selected. REASON: CHECK THE NUMBER UNDER COLUMN C WHICH APPLIES IN THIS CASE ADDRESS: 0 1 j\ufffdJ2. 0 3. 04. 0 5. 0 6. 0 7. 0 8. 0 9. 010. 111 North Hill Street crrv: STATE: ZIP CODE: Los l’ngeles CA 90010 Item IV. Declaration of Assignment: I declare under penalty of perjury under the laws of the State of California. that the foregoing is true and correct and that the above-entitled matter is pro\ufffderly filed for assignment to the Superior courthouse in the Centra District of the Los Angeles Superior Court (Code Civ. Proc., 392 et seq., and LASC Local Rule 2.0, subds. (b), (c) and (d)). Dated: July 14 , 2006 \ufffdPARTY) Vanessa Lee, Esq. State Bar # 21621 ‘1 PLEASE HAVE THE FOLLOWING ITEMS COMPLETED AND READY TO BE FILED IN ORDER TO PROPERLY COMMENCE YOUR NEW COURT CASE: 1 . Original Complaint or Petition. 2. If filing a Complaint, a completed Summons form for issuance by the Clerk. 3. Civil Case Cover Sheet form CM-010. 4. Complete Addendum to Civil Case Cover Sheet form LASC Approved CIV 109 03-04 (Rev. 03\/06). 5. Payment in full of the filing fee, unless fees have been waived. 6. Signed order appointing the Guardian ad Litem, JC form 982(a)(27), if the plaintiff or petitioner is a minor under 1 8 years of age, or if required by Court. 7. Additional copies of documents to be conformed by the Clerk. Copies of the cover sheet and this addendum must be served along with the summons and complaint, or other initiating pleading in the case. CIV 109 03-04 (Rev. 03\/06) LASC Approved CIVIL CASE COVER SHEET ADDENDUM AND STATEMENT OF LOCATION LASC, rule 2.0 Page 4 of 4 2 3 4 5 VANESSA LEE, Bar No. 2 162 19 YOLANDA ARIAS, Bar No. 1 30025 LEGAL AID FOUNDATION OF LOS ANGELES 5228 Whittier Boulevard Los Angeles, California 90022 Telephone: (2 13) 640-3923 Facsimile: (213) 640-391 J DORA LUNA, Bar No. 1 87970 FEES WAIVED Welfare & Institutions Code 10962 ‘ J : : ,. <..., ;, 6 WESTERN CENTER ON LAW AND POVERTY .J, : ' . 7 8 9 J O 1 1 12 1 3 14 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 26 27 28 3701 Wilshire Boulevard, Suite 208 Los Angeles CA 90010 Telephone: (2 1 3) 487-72 1 1 Facsimile: (21 3) 487-0242 ATTORNEYS FOR PETITIONER, WENDY CAMACHO SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES WENDY CAMACHO, Petitioner, V. CLIFF ALLENBY, in his official capacity as Director, California Department of Social Services and the CALIFORNIA DEPARTMENT OF SOCIAL SERVICES, Respondents. I. ) Case No. 8 S 1 0 4 2 0 7 ) ) Unlimited Civil Case ) ) PETITION FOR WRIT OF.MANDATE ) (Code of Civ. Proc. I 094.5, I 085; ) Welf. & Inst. Code I 0962) ) ) ) ) ) INTRODUCTION I . Petitioner WENDY CAMACHO is a single mother of an autistic child. She received cash assistance as she pursues a nursing degree for the purpose of becoming self\u00ad sufficient. The nursing program is Ms. Camacho's Self-Initiated Program (\"SIP\"), a welfare-to- Petition for Writ of Mandate 1 work activity under CalWORKs. The CalWORKs program provides that individuals participating 2 in welfare-to -work must be given necessary supportive services, such as money for books and 3 supplies. Los Angeles County, however, failed to assist Ms. Camacho with the supportive services 4 necessary to allow her to participate in her SIP, forcing her to use rent and food money to purchase 5 the books and supplies. When Ms. Camacho appealed the County's determination at a state 6 administrative hearing, the Administrative Law Judge made an error oflaw by deciding that Ms. 7 Camacho was not entitled to reimbursement because the \"school expenses . . . were incurred prior to 8 her signing a SIP contract.\" Hearing Decision No. 05 109402, attached as Exhibit 1 . 9 2. Ms. Camacho hereby respectfully petitions this Court for a writ of administrative 10 mandate, pursuant to California Civil Procedure (\"Civ. Proc,\") Code 1 094.5, 1 to overturn 1 1 Respondent 's decision. Ms. Camacho is entitled to a payment of $377 .20 for books and supplies 12 necessary for her SIP. 13 3. Ms. Camacho also petitions this Court for a writ of administrative mandate, 14 pursuant to Civ. Proc. Code 1085, ordering Respondent to instruct his agents to approve payment 15 of supportive services necessary for a CalWORKs recipient to participate in a SIP, even when the 1 6 expenses were incurred before the SIP was approved. 17 II. 1 8 PARTIES 1 9 4. Petitioner WENDY CAMACHO is a resident of Los Angeles County. She is the 20 single mother of an autistic child and is a student at Cerritos College. She seeks a reversal of 21 Respondent 's final decision denying reimbursement _of supportive services necessary for her 22 participation in her SIP, a welfare-to-work activity. 23 5. Respondent CLIFF ALLENBY is the Director of the California Department of 24 Social Services. Pursuant to Welfare and Institutions (\"Welf. & Inst .\") Code 10962, he is the 25 sole Respondent in this proceeding. As Director, he is charged under Welf. & Inst. Code 10553 26 with administering the CalWORKs program. His duties are partially set out in Welf. & Inst. Code 27 28 1 All references herein to Codes are to those of the State of California, nnless otherwise stated. 2 Petition for Writ of Mandate I work activity under CalWORKs. The Ca!WORKs program provides that individuals participating 2 in welfare-to-work must be given necessary supportive services, such as money for books and 3 supplies. Los Angeles County, however, failed to assist Ms. Camacho with the supportive services 4 necessary to allow her to participate in her SIP, forcing her to use rent and food money to purchase 5 the books and supplies. When Ms. Camacho appealed the County's determination at a state 6 administrative hearing, the Administrative Law Judge made an error of law by deciding that Ms. 7 Camacho was not entitled to reimbursement because the \"school expenses . . . were incurred prior to 8 her signing a SIP contract.\" Hearing Decision No. 05 109402, attached as Exhibit 1 . 9 2. Ms. Camacho hereby respectfully petitions this Court for a writ of administrative I O mandate, pursuant to California Civil Procedure (\"Civ. Proc.\") Code I 094.5,1 to overturn 1 1 Respondent's decision. Ms. Camacho is entitled to a payment of$377.20 for books and supplies 1 2 necessary for her SIP. 1 3 3. Ms. Camacho also petitions this Court for a writ of administrative mandate, I 4 pursuant to Civ. Proc. Code 1 085, ordering Respondent to instruct his agents to approve payment I 5 of supportive services necessary for a CaJWORKs recipient to participate in a SIP, even when the 1 6 expenses were incurred before the SIP was approved. 1 7 II. 1 8 PARTIES 1 9 4. Petitioner WENDY CAMACHO is a resident of Los Angeles County. She is the 20 single mother of an autistic child and is a student at Cerritos College. She seeks a reversal of 21 Respondent's final decision denying reimbursement of supportive services necessary for her 22 participation in her SIP, a welfare-to-work activity. 23 5. Respondent CLIFF ALLENBY is the Director of the California Department of 24 Social Services. Pursuant to Welfare and Institutions (\"Welf. & Inst.\") Code 10962, he is the 25 sole Respondent in this proceeding. As Director, he is charged under Welf. & Inst. Code 10553 26 with administering the CalWORKs program. His duties are partially set out in Welf. & Inst. Code 27 28 1 All references herein to Codes are to those of the State of California, unless otherwise stated. 2 PP.tition for Writ of M:::inrl:::ttP.. 1 1 1 200 et seq. Respondent must comply with both state and federal law. Respondent Allenby is 2 sued in his official capacity. 3 6. Respondent CALIFORNIA DEPARTMENT OF SOCIAL SERVICES (\"CDSS\") is 4 the single state agency responsible for supervising the administration of public social services in 5 California, including the CalWORKs program in order to secure full compliance with the 6 applicable provisions of state and federal laws. Welf. & Inst. Code J 0600. Respondent has 7 delegated responsibility for administering CalWORKs in Los Angeles County to the County 8 Department of Public Social Services (\"DPSS\"). At all times, DPSS was and is the agent of 9 Respondent. 1 0 III. I I FACTS 1 2 7. Petitioner Wendy Camacho is a student at Cerritos College in Norwalk, California. 1 3 She was admitted into the College's Associate Degree for Nursing (\"ADN\") program in spring 14 2005, and expects to complete the program by spring 2007. The spring 2005 semester of the ADN 15 program began on February 1 4, 2005, and ended on May 1 9, 2005. 1 6 8. Ms. Camacho applied for CalWORKs in February 2005, since the father of Ms. 1 7 Camacho's child abandoned both mother and son. She sought cash assistance as a last resort due to J 8 the financial hardship she was experiencing in supporting herself and her son, who is autistic. 1 9 9. Ms. Camacho received a letter from DPSS to attend an Orientation and Appraisal 20 appointment on February 28, 2005. Due to a conflict with her school schedule, Ms. Camacho 21 contacted DPSS on February 28, 2005, and rescheduled the appointment for March 10, 2005. She 22 told DPSS that she already made some purchases of books and supplies, and DPSS told her to 23 bring the receipts to her appointment. In the meantime, DPSS sent Ms. Camacho paperwork to 24 verify her enrollment and program of study at Cerritos College. 25 J O. As the semester had just begun, Ms. Camacho needed books and school supplies. 26 She made purchases on two separate occasions, in the amounts of $199.07 on February 22, 2005, 27 and $21 2.71 on March 9, 2005. She bought the items by paying with her CalWORKs cash aid 28 grant and charging the remainder of the purchase on a credit card. 3 Petition for Writ of Mandate 1 1 . On March 9, 2005, Ms. Camacho contacted DPSS to confirm the appointment for 2 the next day. She also inquired about the process for books and supplies reimbursements. During 3 the phone conversation, DPSS informed her that she could not be reimbursed for books and 4 supplies prior to her signing a so-called \"contract\" with DPSS. 5 12. On March I 0, 2005, Ms. Camacho met with DPSS. She presented DPSS with the 6 completed forms that she received from DPSS to verify her emollment and program. DPSS 7 approved Ms. Camacho for a Self-Initiated Program (\"SIP\"). 8 13. Ms. Camacho again inquired about the process to receive reimbursements for the 9 books and supplies she needed for the SIP. DPSS orally refused to reimburse her on the basis that l O she had not signed the agreement for the SIP until that day. 1 1 14. On March 1 5, 2005, Ms. Camacho's counselor at Cerritos College submitted an 12 educational materials worksheet to DPSS on Ms. Camacho's behalf. The document included a 1 3 request for reimbursement of the February 22 and March 9 purchases, along with a request for 14 advance payment for additional books and supplies for the semester. The document identified 1 5 books and supplies totaling $377.20 as already purchased by Ms. Camacho. An additional $ 169.09 I 6 was listed for the payment advance request. 1 7 1 5. In response to the reimbursement and advance payment request, DPSS agreed to 1 8 pay for the March 9, 2005, purchases since they were made only one day prior to Ms. Camacho's 1 9 appointment on March 1 0, 2005. DPSS issued one payment to Ms. Camacho in the amount of 20 $169.09. However, the $ 169.09 amount reflects the advance payment request submitted to DPSS 2 1 rather than a reimbursement payment for the purchases made on March 9, 2005. 22 1 6. DPSS failed to reimburse her for the purchases made prior to March 10, 2005, in the 23 amount of$377.20. 2 24 25 26 27 28 2 One of the items that Ms. Camacho purchased on March 9, 2005, was paid for by the advance payment amount of $169.09 as the college counselor mistakenly included it as an advance payment request rather than as an item already purchased. Petition for Writ of Mandate 1 1 7. Ms. Camacho used the books and supplies throughout the course of the spring 2005 2 semester that qualified her for the SIP, and will continue to use them until the completion of the 3 ADN program that essentially is the term of the SIP. In addition to using her CalWORKs cash aid 4 to pay for the much needed books and supplies, Ms. Camacho was forced to borrow money in 5 order to pay off the amount she charged to her credit card. 6 1 8. As DPSS informed Ms. Camacho verbally that she would not be reimbursed for 7 books purchased prior to signing a \"contract\" with DPSS, attempts to resolve the issue with DPSS 8 failed. Ms.Camacho requested a state hearing on April 1 9, 2005, with the assistance of the Legal 9 Aid Foundation of Los Angeles (\"LAFLA\"). 1 0 1 9. The state hearing on the matter was on June 8, 2005. Ms. Camacho attended the 1 1 hearing and was represented by LAFLA. The decision, released on July 1 8, 2005, denied Ms. 12 Camacho's request for reimbursements on the basis that the \"school expenses . . . were incurred prior 1 3 to her signing a SIP contract.\" See Exhibit I . Respondent's decision cited no authority in support 1 4 of the denial of ancillary expenses to Ms. Camacho, contrary to requirements in Manual of Policy 1 5 and Procedures (\"MPP\") 22-061 .5. Instead, the decision is based, in error, on the application of 1 6 contract theory to Ms. Camacho's situation. 1 7 20. LAFLA requested a rehearing on Ms. Camacho's behalf. By a letter dated 1 8 September 22, 2005, the request was denied by operation of law. MPP 22-065.3 1 . 1 9 IV. 20 APPLICABLE LAW 2 1 A. 22 The CalWORKs Welfare-to-Work Program 2 1 . The CalWORKs program provides subsistence cash benefits to low-income families 23 with children. Welf. & Inst. Code 1 1200 et seq. Families must meet a host of financial 24 eligibility requirements designed to ensure that only the most needy are aided. See, e.g. Welf. & 25 Inst. Code 1 1450. 12, 1 1 1 55 (income and asset limits). Adult recipients in these families may 26 receive cash aid only for a cumulative total of 60 months. W elf. & Inst. Code 1 1454 (b ). During 27 their 60 months on aid, most adult recipients must participate 32 hours per week in the CalWORKs 28 welfare-to-work program. Welf. & Inst. Code 1 1 322.8(a). Recipients who, without good 5 Petition for Writ of Momrl,-1<> 1 cause, fail to comply with these participation requirements face financial sanctions. W elf. & Inst. 2 Code 1 1 327.S(a); MPP 42-721 .4. 3 B. 4 Self-Initiated Programs (SIPs) 22. A participant must be enrolled in an education or training program prior to his or her 5 Appraisal appointment with the county welfare department in order for the program to qualify as a 6 Self-Initiated Program (\”SIP\”) as the person’s welfare-to-work activity. See Welf. & Inst. Code 7 1 1 325.23; MPP 42-7 1 1 .54. In addition, a SIP participant must also make satisfactory progress in 8 the program, the county must determine that continuing in the program is likely to lead to self- 9 supporting employment, and the welfare-to-work plan must reflect the program. Welf. & Inst. 1 0 Code 1 1 325.23. 1 1 C. 1 2 Supportive Services 23. Welfare and Institutions Code 1 1 323.2(a) provides that \”[n]ecessary supportive 1 3 services shall be available to every participant in order to participate in the program activity to 14 which he or she is assigned.\” Supportive services include childcare, transportation, and ancillary 1 5 expenses, \”which shall include the cost of books, tools, clothing specifically required for the job, 1 6 fees, and other necessary costs.\” Welf. & Inst. Code l 1 323.2(a)(3); MPP 42-750.1 I . A 1 7 participant must not be required to use her CalWORKs funds to pay for supportive services. MPP 1 8 42-750.21 . 1 9 24. According to Welf. & Inst. Code l 1 325.23(d), \”[s]upportive services 20 reimbursement shall be provided for any participant in a self-initiated training or education 2 1 program approved under this subdivision [defining SIPs] (emphasis added). This reimbursement 22 shall be provided if no other source of funding for those costs is available.\” Once the SIP is 23 approved, the welfare-to-work plan signed between the participant and the County must reflect the 24 supportive services that the participant can receive. Welf. & Inst. Code l l 323.2(a). 25 25. Statutory authority governs CalWORKs supportive services and County 26 responsibility to pay for them, and not contract law. In addition, the laws and regulations do not 27 restrict the advance payment or reimbursement of necessary supportive services based on the date a 28 welfare-to-work plan is signed. 6 PAtitinn fnr \\\/\\frit nf 1\\\/l::mrl\ufffdtp I 2 3 4 5 26. 27. V. F1RST CAUSE OF ACTION (Administrative Mandamus Pursuant to Code of Civil Procedure I 094.5) This cause of action includes paragraph I to 25. This verified petition is brought under Code of Civ. Proc. I 094.5 and is authorized 6 by W elf. & Inst. Code I 0962, which permits filing a petition to review the entire proceeding 7 conducted by the Department of Social Services (CDSS). Under Code ofCiv. Proc. 1094.5, no 8 filing fee or bond is required for such filing. 9 28. California has declared that public social services are to be administered in full I O compliance with applicable federal and state laws. Welf. & Inst. Code I 0600. 1 1 29. Respondent prejudicially abused his discretion in rendering his decision as he failed 1 2 to proceed in the manner required by Jaw. Respondent applied the wrong substantive standard in 1 3 his decision. Respondent applied contract theory rather than the state Jaw standards for supportive 14 services for a CaJWORKs recipient under state Jaw. 1 5 30. Respondent’s decision does not comply with applicable state Jaws governing the 1 6 administration of public social services and eligibility for supportive services in the CaJWORKs 1 7 program. Respondent failed to follow the applicable Jaw regarding the reimbursement of 1 8 supportive services payments for S!Ps set forth in Welf. & Inst. Code I 1 323.2(a) and 1 9 1 1 325.23(d). 20 3 1 . The issue in this action concerns a vested fundamental right to welfare benefits, and 21 the appropriate standard or review is this Court’s independent judgment. 22 23 32. 33. Ms. Camacho has exhausted all of her administrative remedies. Ms. Camacho is beneficially interested in the outcome of the proceeding and has no 24 other plain, speedy or adequate remedy at Jaw. \ufffd VI. 26 SECOND CAUSE OF ACTION 27 (Administrative Mandamus, Pursuant to Code of Civil Procedure I 085) 28 34. This cause of action includes paragraphs I to 33. 7 P,:i.titinn fnr Writ nf M!=tnrl:::.t,:i. 1 35. Respondent Allenby has a clear, present and ministerial duty under state law to 2 administer the CalWORKs program pursuant to state law. At all times relevant here, Respondent 3 had, and continues to have, the ability to perform his legal duties in accordance with state Jaw and 4 failed to do so. 5 36. Respondent failed to perform his duty in the delivery of CaJWORKs services to Ms. 6 Camacho by denying her supportive services necessary for participation in a SIP. 7 37. Ms. Camacho has no other plain, speedy or adequate remedy at law except by way 8 of a preemptory writ of mandate pursuant to Civ . Proc. Code I 085. 9 VII. JO THIRD CAUSE OF ACTION 1 1 (Declaratory Relief, Pursuant to Code of Civil Procedures I 085 ) 1 2 1 3 38. 39. This cause of action includes paragraphs I to 37. An actual controversy has arisen and now exists between Ms. Camacho and 1 4 Respondent as to Ms. Camacho’s eligibility for ancillary expenses as supportive services under 1 5 Welf. & Inst. Code I 1 323.2(a)(3). Ms. Camacho contend that the denial of the supportive 1 6 services is due to the erroneous actions of Respondent’s agent. 1 7 40. Ms. Camacho is beneficially interested in having Respondent rectify his error in 1 8 upholding and reaffirming his agent’s failure to deliver CalWORKs services according to Welf. & 1 9 Inst. Code I 1 323.2(a)(3) and Welf. & Inst. Code l 1 325.23(d). 20 4 1 . Ms. Camacho seeks a determination of the respective rights and duties of the 21 parties. Declaratory relief i s appropriate because, in the absence of such relief, Respondent will 22 continue to deny ancillary expenses to SIP participants similar to Ms. Camacho’s circumstance. 23 42. Declaratory relief is also appropriate because of Respondent’s agent’s inconsistent 24 and contrary decision in addressing Ms. Camacho’s case as well as others in the same 25 circumstances. In the absence of this relief, Respondent may continue to arbitrarily approve or 26 deny benefits in such cases. 27 28 8 Pe>titinn fni- \\\/Vrit nf I\\Aonrk:ito 1 2 3 4 VIII. PRAYER FOR RELIEF Wherefore, Ms. Camacho requests the following relief: 1 . A peremptory writ of mandate reversing and rescinding Administrative Hearing No. 5 05109402 and directing Respondent Allenby to: 6 7 8 9 1 0 1 1 12 13 14 1 5 16 1 7 1 8 1 9 20 21 22 23 24 25 26 27 28 2. 3 . 4. a. b. C. issue a new decision approving supportive services payments in the amount of $377.20; order his agents to provide payment of supportive services for a Ca!WORK.s recipient participating in a Self-Initiated Program, even when the expenses were incurred before the SIP was approved; pay interest to Ms. Camacho on all benefits due to her here until paid in full; Award Ms. Camacho her reasonable costs of her suit; Award reasonable attorney fees to the Western Center on Law and Poverty; Such other relief as this Court may deem just and proper. DATED: July 14, 2006 Respectfully submitted by, v\ufffdo Attorney for Petitioner PP.lilion for Writ of ManrlalP. Exhibit A \ufffd p CALIFORNIA DEPARTMENT OF SOCIAL SERVICES Hearing No. 2005109402 In the Matter o\/Claimant(s). Wendy Camacho 14802 Danbrook Dr. Whittier, CA 90640 Pursuant to the authority of the Director, ?1Ili\u00aei)t:Uie \ufffdacned final dccisien7\”‘- i _ \ufffd\u00b7 . \u00b7 . \ufffd\u00b7 f _\u00b7 \\ ., .,.’\”0,,<. t \ufffd\u00b7\ufffd-\u00b7\ufffd:0 10:,-.,, t \u00b7t- ' . Claudia Garcia ~--\u00b7\ufffdAdrninimrati-ve--1!.w-J.udge.,,. ... ..c\" -... Hearing Date: 6\/8\/2005 Aid Pending: Not applicable Agency: Los Angeles County Agency: A uth. Rep. Org. : SSN: AKA: Case Name: LA District\/Case: 40\/B0DI 1 15 CDSS State Hearings Division DECISION State Hearing Record Release Date: Issue Codes: Adopt Date: .Ir II 1 8 2ll05 JU! I 8 2005 [ I 1 6\u00b72] Agency Representative: P. Hadley Filing Date: 4\/19\/05 Authorized Rep: Vanessa Lee SSN: AKA: language: Companion Case: Decision Cover Page 20051 09402 - I SUMMARY Los Angeles County correctly denied claimant's request for reimbursement of school expenses incurred prior to her signing a GAIN self-initiated program {SIP} contract. [1 16-2}[20051 09402] FACTS It is undisputed that the claimant, a mandatory GAIN participant, signed a SIP contract on March 1 0, 2005. The claimant and the county agreed that the claimant could attend Cerritos College to fulfill her work requirement. At the hearing, the claimant testified she enrolled at Cerritos College prior to her signing a SIP contract. The claimant purchased books and materials for her classes on February 28, 2005 and she would now like to be reimbursed for expenses incurred prior to her signing a GAIN contract. The claimant admitted that she did not know if the county would approve her attending college when she enrolled for classes in February 2005. The county has paid for ancillary expenses since the SIP c::ontract was signed. LAW All the regulations cited refer to the Manual of Policies and Procedures (MPP}, unless otherwise noted. Supportive services which are necessary for participation in the assigned program activity, or in order to accept employment, must be available to every participant, including those in SIPs. When necessary services are not provided, the individual will have established good cause for nonparticipation, under 42-713.21 . Supportive services must include childcare, transportation costs, ancillary expenses, and personal counseling. Payments for all such services, except for childcare, shall be advanced to the participant whenever necessary, and when desired by the participant. Requiring CalWORKs participants to use their income, income disregard or cash assistance payment to pay for supportive services violates state statutes and regulations. {All-County Letter (ACL) No. 97-72, Attachment 1 , pp. 29-30, October 29, 1 997; W&IC 1 1323.2, 1 1 325.23{d), and 1 1 323.4(a); 42-750. 1 , effective July 1 , 1 998; ACL No. 00- 54, August 1 1 , 2000) Ancillary expenses shall include the cost of books, tools, clothing specifically required for the job, fees and other necessary costs. {W&IC 1 1 323.2(a)(3)) Tuition and school fees in the nature of tuition are not ancillary expenses and the county need not pay such costs when a hon-county entity has contracted for the training. ( 42-750. 1 1 3, effective July 1 , 1 998 and modified effective September 1 3, 1 999) 20051 09402 - 2 CONCLUSION Los Angeles County correctly denied claimant's request for ancillary expenses prior to her signing a SIP contract. Claimant's own testimony reveals that she did not know if the county would approve her attending Cerritos College when she enrolled for classes in February 2005 and enrolled anyway. There is no authority to support claimant's allegation that the county is liable for ancillary expenses prior to signing a GAIN contract. ORDER The claim is denied. FROM (THU) JUL 27 2008 1 8 : 1 4\/ST. 1 8 : 0S\/No. 7600000274 P 3 ATIORNEY OR PARTY WITHOUT ATTORNEY (Name and Address): FOR COURT USE ONLY LEGAL AID FOUNDATION OF LOS ANGELES 5228 EAST WHITTIER BLVD . LOS ANGELES , CA 90022 ( 213 ) .1\u00a5.\ufffd0.-3883 ATTORNEY FOR NAME OF COURT ANO ADDRESS: SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES CENTRAL - CIVIL LIMITED 110 N. GRAND AVENUE LOS ANGELES , CA 90012 PlAMIR'lPETITIONER: CAMACHO DEFENDANT\/RESPONDENT: ALLENBY & CA DSS \ufffd,;,:::u:, .L\ufffdV ! PROOF OF SERVICE BS104207 Hearing date: Time : Dept . \/Div . : 1 . At the time of service I was at least 18 years of age and not a party to this action, and I served copies of the : 2 . PETITION FOR WRIT OF MANDATE; CIVIL CASE COVER SHEET a . Party served : b . Person served: c . Address : CLIFF ALLENBY, IN HIS OFFICIAL CAPACITY AS DIRECTOR CALIFORNIA DEPARTMENT OF SOCIAL. SERVICES MARILYN MCCLOSKEY, ATTORNEY, AUTHORIZED TO ACCEPT SERVICE OF PROCESS 744 P STREET SACRAMENTO, CA 95814 3 . I served the party named in item 2 a . by personally delivering the copies ( l ) on 07\/24\/06 at ( 2 ) 10 : 59 AM 4 . Witness fees were not demanded or paid. 5 . Person serving : 6 . MIKE SINGH a . Fee for service : 75 . 00 JANNEY & JANNEY ATTORNEY SVCS . 154 5 WILSHIRE BLVD . SUITE 3 11 LOS ANGELES , CA 90017 d . Registered California process server (subcontractor) ( 2 ) Registration No . , #200002 ( 3 ) County: SACRAMENTO (213 ) 628-6338 I declare under California that Date : 07\/27\/06 penalty of per\ufffdury under the laws of the State of the foregoing is true and correct . \ufffd \/ . \/J Signature : \ufffdc..( \u00b7 c \ufffd,R 0 Judicial Council Form, Rule 982 1127482 pplv2 Janney & Janney attorney service, inc. Documem PJepared On RBC'\/dod PIJ)tlr 1 545 WILSHIRE BLVD. SUITE 31 1 LOS ANGELES, CA 90017 (213) 628-6338 www.janneyandJanney.com FROM (THU) JUL 27 2008 18! 15\/ST. 1 8 ! 09\/Ho. 7600000274 P 5 ATTORNEY OR PARTY WITHOUT ATTORNEY {Name and Address}: fOA COURT USE ONLY LEGAL AID FOUNDATION OF LOS ANGELES 5228 EAST WHITTIER BLVD . LOS ANGELES , CA 90022 (213 ) .\ufffd4\ufffd.\ufffd3883 ATTORNEY FOR Name : NAME OF COURT ANO ADDRESS: SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES CENTRAL - CIVIL LIMITED J.J.O N . GRAND AVENUE LOS ANGELES, CA \ufffd0012 PlAINTIFFJPETITIONER: CAMACHO OEFENOANTIRESl'ONOENT: ALLENBY & CA DSS ' :1-1 .NU . : PROOF OF SERVICE BS104207 Hearing date : Time : Dept . \/Div. : 1 . At the time of service I was at least 18 years of age and not a party to this action, and I served copies of the : \u00b7 PETITION FOR WRIT OF MANDATE; CIVIL CASE COVER SHEET 2 . a . Party served : CALIFORNIA DEPARTMENT OF SOCIAL SERVICES ; RESPONDENTS b . Person served: MARILYN MCCLOSKEY, ATTORNEY, AUTHORIZED TO ACCEPT SERVICE OF PROCESS c . Address : 744 P STREET SACRAMENTO, CA 95814 3 . I served the party named in item 2 a . by personally delivering the copies ( l ) on 07\/24\/06 at ( 2 ) 1 0 : 5 9 AM 4 , Witness fees were not demanded or paid. 5 . Person serving : MIKE SINGH a . Fee for service : 4 0 . 00 JANNEY & JANNEY ATTORNEY SVCS . 1545 WILSHIRE BLVD . SUITE 3 11 LOS ANGELES , CA 90017 ( 213 ) 628-6338 d . Registered California process server ( subcontractor) ( 2 ) Registration No . : #200002 ( 3 ) County : SACRAMENTO 6 . I declare under penalty of periury under the laws of the State of California that the foregoing is true and correct . l Date : 07 \/27 \/06 Signature :\ufffd4.e ,Av..J\/) Judicial Council Form, Rule 982 112748 2 - 1 pplv2 Janney & Janney attorney service, inc. Document Prepared On R&cyel&d Paper 1545 WILSHIRE BLVD. SUITE 31 1 LOS ANGELES, CA 90017 (213) 628-6338 www.janneyandjanney.com \u00b71- "

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” WESTERN CENTER ON LAW & POVERTY, INC. VANESSA LEE, SBN 216219 DORA LUNA, SBN 187970 RICHARD ROTHSCHILD, SBN 67356 [email protected] 3701 Wilshire Boulevard, Suite 208 Los Angeles, CA 90010 Telephone: (213) 487-7211 Facsimile: (213) 487-024 LEGAL AID FOUNDATION OF LOS ANGELES YOLANDA ARIAS, SBN 130025 [email protected] 5228 Whittier Boulevard Los Angeles, California 90022 Telephone: (213) 640-3923 Facsimile: (213) 640-3911 SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES WENDY CAMACHO, Petitioner, v. CLIFF ALLENBY, Interim Director, California Department of Social Services, and DEPARTMENT OF SOCIAL SERVICES, Respondents ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: BS104207 PETITIONER’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR WRIT OF MANDATE Date: March 17, 2008 Time: 9:30 a.m. Dept: 85 I. INTRODUCTION TC \”I. INTRODUCTION\” \\f C \\l \”1\” California’s welfare-to-work program, CalWORKs, enables welfare recipients to obtain the training and skills needed to secure employment and attain self-sufficiency. As part of welfare-to-work, CalWORKs provides supportive services such as books and supplies known as ancillary expenses to recipients who need them to participate in approved education programs. Petitioner Wendy Camacho, a single mother of an autistic child, is pursuing a nursing degree approved as a CalWORKs education program. At the beginning of the semester, Ms. Camacho purchased books and supplies needed so she could keep up with her classes. Respondents John Wagner and the California Department of Social Services ( CDSS ) refused to pay for the books and supplies because Ms. Camacho bought them before the nursing program was approved a few weeks after the semester began. Ms. Camacho is entitled to a reimbursement under CalWORKs for the books and supplies she purchased because they are exactly the type of supportive services welfare recipients need to succeed in CalWORKs. Necessary supportive services shall be available to every participant in order to participate in the program activity to which he or she is assigned. Welf. & Inst. Code 11323.2(a) TA \\l \”Welf. & Inst. Code 11323.2(a)\” \\s \”Welf. & Inst. Code 11323.2(a)\” \\c 3 . The law does not limit payment for supportive services used in approved education programs to books and supplies purchased only after the program is approved. Respondents must provide payment for supportive services, regardless of when they were purchased, if these items were necessary for participation in the approved education programs. Welf. & Inst. Code 11323.2 TA \\l \”Welf. & Inst. Code 11323.2\” \\s \”Welf. & Inst. Code 11323.2\” \\c 3 ; see also Welf. & Inst. Code 11325.23(d) TA \\l \”Welf. & Inst. Code 11325.23(d)\” \\s \”Welf. & Inst. Code 11325.23(d)\” \\c 3 ( Supportive services reimbursement shall be provided for any participant in a self-initiated training or education program ). Petitioner therefore seeks a writ of mandate requiring Respondents to reimburse her for books and supplies she purchased that were necessary for an education program approved under CalWORKs, California’s welfare-to-work program for families. Ms. Camacho also seeks a writ of mandate requiring Respondents to administer the CalWORKs program properly by reimbursing CalWORKs recipients for supportive services necessary for approved education programs. II. STATUTORY FRAMWORK TC \”II. STATUTORY FRAMWORK\” \\f C \\l \”1\” A. CalWORKs Program TC \”A. CalWORKs Program\” \\f C \\l \”2\” The CalWORKs program provides subsistence cash benefits to low-income families with children. Welf. & Inst. Code 11200 et seq TA \\l \”Welf. & Inst. Code 11200 et seq\” \\s \”Welf. & Inst. Code 11200 et seq\” \\c 3 . In order to receive cash assistance, most adult recipients must work or participate in welfare-to-work ( WTW ) activities for 32 hours per week. Welf. & Inst. Code 11320.3 TA \\l \”Welf. & Inst. Code 11320.3\” \\s \”Welf. & Inst. Code 11320.3\” \\c 3 , 11322.8(a) TA \\l \”Welf. & Inst. Code 11322.8(a)\” \\s \”Welf. & Inst. Code 11320.3, 11322.8(a)\” \\c 3 ; Manual of Policy and Procedures ( MPP ) 42-711.4 TA \\l \”Manual of Policy and Procedures (\\ MPP\\ ) 42-711.4\” \\s \”Manual of Policy and Procedures (\\\”MPP\\\”) 42-711.4\” \\c 6 . The intent of the WTW program is to provide employment and training services to virtually all adult recipients. MPP 42-701.1 TA \\l \”MPP 42-701.1\” \\s \”MPP 42-701.1\” \\c 6 . A county must provide information on the CalWORKs program including a description of the education, employment, and training opportunities and supportive services available to an individual either at the time of application or once the individual is determined to be eligible for aid. Welf. & Inst. Code 11324.8 TA \\l \”Welf. & Inst. Code 11324.8\” \\s \”Welf. & Inst. Code 11324.8\” \\c 3 . The county must also conduct an appraisal of the recipient that includes information on employment history and skills, participation in training opportunities, and available supportive services. Welf. & Inst. Code 11325.2 TA \\l \”Welf. & Inst. Code 11325.2\” \\s \”Welf. & Inst. Code 11325.2\” \\c 3 . After the appraisal, the county must follow a specific sequence of procedures for assigning recipients to WTW activities. Welf. & Inst. Code 11320.1 TA \\l \”Welf. & Inst. Code 11320.1\” \\s \”Welf. & Inst. Code 11320.1\” \\c 3 ; MPP 42-711.5 TA \\l \”MPP 42-711.5\” \\s \”MPP 42-711.5\” \\c 6 . The activities are reflected in a WTW plan that the county and the recipient agree upon. Welf. & Inst. Code 11322.6 TA \\l \”Welf. & Inst. Code 11322.6\” \\s \”Welf. & Inst. Code 11322.6\” \\c 3 . B. Self-Initiated Programs TC \”B. Self-Initiated Programs\” \\f C \\l \”2\” A CalWORKs recipient is not restricted to the usual WTW activity assignment process when the recipient is already in an education or training program. If, prior to appraisal, the recipient is enrolled in an undergraduate degree or certificate program leading to employment, the program may be approved as a Self-Initiated Program ( SIP ). Welf. & Inst. Code 11325.23 TA \\l \”Welf. & Inst. Code 11325.23\” \\s \”Welf. & Inst. Code 11325.23\” \\c 3 ; MPP 42-711.54 TA \\l \”MPP 42-711.54\” \\s \”MPP 42-711.54\” \\c 6 . The time of enrollment must be before the actual appraisal, or before the date of the initial appraisal appointment, if the recipient failed to attend the appointment without good cause. MPP 42-711.541(a) TA \\l \”MPP 42-711.541(a)\” \\s \”MPP 42-711.541(a)\” \\c 6 . In addition to being enrolled in the program, the recipient must satisfy three other requirements for the education program to be approved as a SIP: 1) she must be making satisfactory progress in the program; 2) the county must determine that her continuation in the program is likely to lead to self-supporting employment; and 3) her WTW plan must reflect the county’s determination that the program will lead to employment. Welf. & Inst. Code 11325.23 TA \\l \”Welf. & Inst. Code 11325.23\” \\s \”Welf. & Inst. Code 11325.23\” \\c 6 ; MPP 42-711.541 TA \\l \”MPP 42-711.541\” \\s \”MPP 42-711.541\” \\c 6 . C. Supportive Services TC \”C. Supportive Services\” \\f C \\l \”2\” CalWORKs provides its recipients with supportive services to assist them to work or participate in WTW activities. Necessary supportive services shall be available to every participant in order to participate in the program activity to which he or she is assigned. Welf. & Inst. Code 11323.2(a) TA \\s \”Welf. & Inst. Code 11323.2(a)\” . Supportive services include childcare, transportation, and ancillary expenses, which are defined as the cost of books, tools, clothing specifically required for the job, fees, and other necessary costs. Welf. & Inst. Code 11323.2(a)(3) TA \\l \”Welf. & Inst. Code 11323.2(a)(3)\” \\s \”Welf. & Inst. Code 11323.2(a)(3)\” \\c 3 ; MPP 42-750.11. A participant cannot be required to use her CalWORKs grant to pay for supportive services. MPP 42-750.21 TA \\l \”MPP 42-750.21\” \\s \”MPP 42-750.21\” \\c 6 . Payment for supportive services shall be advanced to the participant, whenever necessary, and when desired by the participant, so that the participant need not use his or her funds to pay for these services. Welf. & Inst. Code 11323.4 TA \\l \”Welf. & Inst. Code 11323.4\” \\s \”Welf. & Inst. Code 11323.4\” \\c 3 . The advanced payment provision covers all forms of supportive services except for child care, where the payment process is governed by the Education Code. Educ. Code 8350 et seq TA \\l \”Educ. Code 8350 et seq\” \\s \”Educ. Code 8350 et seq\” \\c 2 . Self-Initiated Program participants must be reimbursed for necessary supportive services. Supportive services reimbursement shall be provided for any participant in a self-initiated training or education program approved under this subdivision. This reimbursement shall be provided if no other source of funding for those costs is available. Welf. & Inst. Code 11325.23(d) TA \\s \”Welf. & Inst. Code 11325.23(d)\” . \/\/\/ \/\/\/ \/\/\/ III. STATEMENT OF FACTS TC \”III. STATEMENT OF FACTS\” \\f C \\l \”3\” Petitioner Wendy Camacho began receiving CalWORKs benefits in February 2005. Administrative Record tab ( AR: ) 2. She is a single parent of an autistic child. AR:10 at 2. Ms. Camacho enrolled at Cerritos College in 2003. AR:13 at 2. She entered the college’s Associate Degree for Nursing Program in the Spring 2005 semester. AR:10 at 2. After she began receiving her cash grant, Ms. Camacho received a letter from the Los Angeles County Department of Public Social Services ( DPSS ) for an appraisal appointment on February 28, 2005. AR:3. Because Ms. Camacho’s school schedule conflicted with the date, she contacted DPSS to reschedule the appointment. AR:3. DPSS sent Ms. Camacho a form to take to Cerritos College to verify the nursing program as a Self-Initiated Program. AR:7. Ms. Camacho’s classes began on February 22, 2005. AR:5. In order to participate in the nursing program classes, Ms. Camacho needed to purchase books and supplies. AR:10 at 2, line 21. One of her classes scheduled a weekly exam for the entire semester, and she did not want to fall behind on her studies. AR:10 at 2, lines 24-25. On February 22, 2005, Ms. Camacho purchased $212.71 worth of books and supplies using cash and a credit card. AR:6. She made a second purchase of books and supplies, such as a nursing care plans textbook, a pocket medical dictionary, and a nurse’s drug guide, in cash on March 9, 2005, in the amount of $199.07. AR:6. Ms. Camacho had no other source of funds, from the college or otherwise, to pay for the books and supplies and resorted to using her cash grant to cover these expenses. AR:10 at 3, line 20 and at 4, line 1. On March 10, 2005, Ms. Camacho met with DPSS. AR:7. She submitted the SIP verification form. AR:7. DPSS accepted the document and approved the nursing program as a SIP. AR:4. Ms. Camacho requested that DPSS reimburse her for the books and supplies she had purchased. AR: 16 at 9, lines 5-7. DPSS instructed Ms. Camacho to bring the receipts with her to her March 10 appointment. AR:16 at 9, lines 5-7. At the appointment, DPSS refused to reimburse Ms. Camacho because she purchased the items before she signed a welfare-to-work plan. AR:7. Ms. Camacho requested an administrative hearing. AR:9. The Administrative Law Judge upheld DPSS’ decision to deny reimbursement, concluding without citing any legal authority that the county is not liable for ancillary expenses prior to signing a GAIN contract. AR:1 at 2. Ms. Camacho’s request for a rehearing was subsequently denied by operation by law. AR:15. Ms. Camacho timely filed a petition for writ of mandate to challenge the decision in her case and to challenge Respondents’ policy of failing to reimburse CalWORKs recipients for supportive services necessary for approved SIPs. IV. STANDARD OF REVIEW TC \”IV. STANDARD OF REVIEW\” \\f C \\l \”1\” Ms. Camacho seeks an administrative writ of mandate, under Code of Civil Procedure section 1094.5 TA \\l \”Code of Civil Procedure section 1094.5\” \\s \”Code of Civil Procedure section 1094.5\” \\c 2 , and a traditional writ of mandate under Code of Civil Procedure section 1085 TA \\l \”Code of Civil Procedure section 1085\” \\s \”Code of Civil Procedure section 1085\” \\c 2 . Pursuant to Welfare and Institutions Code section 10962 TA \\l \”Welfare and Institutions Code section 10962\” \\s \”Welfare and Institutions Code section 10962\” \\c 3 , Ms. Camacho seeks an administrative writ of mandate to overturn Respondents’ decision in hearing number 05109402. Welfare and Institutions Code section 10962 provides Ms. Camacho with the remedy of filing a petition for writ of mandate under Code of Civil Procedure section 1094.5 TA \\s \”Code of Civil Procedure section 1094.5\” inquiring into the validity of any final administrative order or decision. Civ. Proc. Code 1094.5(a). TA \\l \”Civ. Proc. Code 1094.5(a).\” \\s \”Civ. Proc. Code 1094.5(a)\” \\c 2 In an action for administrative mandamus, the court’s inquiry extends to whether the agency acted in excess of jurisdiction or abused its discretion by not proceeding in the manner required by law . Where jurisdiction involves the interpretation of a statute, regulation, or ordinance, the issue of whether the agency proceeded in excess of jurisdiction is a question of law. Schneider v. California Coastal Commission, 140 Cal. App. 4th 1339, 1343 (2006) TA \\l \”Schneider v. California Coastal Commission, 140 Cal. App. 4th 1339 (2006)\” \\s \”Schneider v. California Coastal Commission, 140 Cal. App. 4th 1339, 1343 (2006)\” \\c 1 . Here, Respondents acted in excess of jurisdiction by failing to comply with the applicable Welfare and Institutions Code sections. When an action concerns a vested fundamental right to welfare benefits, the appropriate standard of review, even on factual questions, is the independent judgment of the Court. Frink v. Prod, 31 Cal. 3d 166 (1982) TA \\l \”Frink v. Prod, 31 Cal. 3d 166 (1982)\” \\s \”Frink v. Prod, 31 Cal. 3d 166 (1982)\” \\c 1 ; Berlin v. McMahon, 26 Cal. App. 4th 66 (1994) TA \\l \”Berlin v. McMahon, 26 Cal. App. 4th 66 (1994)\” \\s \”Berlin v. McMahon, 26 Cal. App. 4th 66 (1994)\” \\c 1 . Ms. Camacho also seeks a traditional writ of mandate, pursuant to Code of Civil Procedure section 1085 TA \\s \”Code of Civil Procedure section 1085\” , ordering Respondents to pay for supportive services necessary for approved SIPs. A traditional writ of mandate will lie to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station Civ. Proc. Code 1085. Where \”‘\”the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty . . .\”‘\” the petitioner \”‘\”need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced . . . .\”‘\”Green v. Obledo, 29 Cal.3d 126, 144 (1981) TA \\l \”Green v. Obledo, 29 Cal.3d 126, 144 (1981)\” \\s \”Green v. Obledo, 29 Cal.3d 126, 144 (1981)\” \\c 2 . The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of the law. Civ. Proc. Code 1086 TA \\l \”Civ. Proc. Code 1086\” \\s \”Civ. Proc. Code 1086\” \\c 2 . V. ARGUMENT TC \”V. ARGUMENT\” \\f C \\l \”1\” A. the welfare and institutions code does not limit the payment of NECESSARY Supportive Services FOR APPROVED Self-initiated programs only to SERVICES Purchased After the recipient Signs a Welfare-to-Work Plan TC \”A. the welfare and institutions code does not limit the payment of NECESSARY Supportive Services FOR APPROVED Self-initiated programs only to SERVICES Purchased After the recipient Signs a Welfare-to-Work Plan\” \\f C \\l \”2\” The Administrative Law Judge ruled against Ms. Camacho on the ground that [t]here is no authority to support claimant’s allegation that the county is liable for ancillary expenses prior to signing a GAIN contract. AR:1 at 2. The CalWORKs statute, however, does not contain any language limiting the payment of necessary supportive services to expenses occurring after the WTW plan is signed. Rather, the Welfare and Institutions Code requires a recipient to enroll in the education program before signing a WTW plan, and subsequently allows for reimbursement of necessary supportive services for the approved activity. See TA \\s \”Welf. & Inst. Code 11325.23(d)\” Welf. & Inst. Code 11325.23(d) ( Supportive services reimbursement shall be provided for any participant in a self-initiated training or education program approved under this subdivision. ). The necessity of supportive services for a SIP activity does not depend on when a piece of paper is signed. Under Welfare and Institutions Code section 10725 TA \\l \”Welfare and Institutions Code section 10725\” \\s \”Welfare and Institutions Code section 10725\” \\c 3 , CDSS may adopt regulations, orders, or standards of general application to implement [and] interpret the CalWORKs statutes and administer the WTW program. CDSS, however, may not insert [words] in a statutory provision under the guise of interpretation. Kirkwood v. Bank of America, 43 Cal. 2d 333, 341 (1954) TA \\l \”Kirkwood v. Bank of America, 43 Cal. 2d 333 (1954)\” \\s \”Kirkwood v. Bank of America, 43 Cal. 2d 333, 341 (1954)\” \\c 1 . If an agency [a]dministers regulations that alter or amend the statute or enlarge or impair its scope, courts have the obligation to strike down such regulations. Morris v. Williams, 67 Cal. 2d 733, 748 (1967) TA \\l \”Morris v. Williams, 67 Cal. 2d 733 (1967)\” \\s \”Morris v. Williams, 67 Cal. 2d 733, 748 (1967)\” \\c 1 (citation omitted). Respondents’ insertion of a time requirement is a rewriting of the law and impermissibly narrows the scope and purpose of a WTW plan. Id. at 748-749; see also Mooney v. Pickett, 4 Cal. 3d, 669, 681 (1971) TA \\l \”Mooney v. Pickett, 4 Cal. 3d, 669 (1971)\” \\s \”Mooney v. Pickett, 4 Cal. 3d, 669, 681 (1971)\” \\c 1 (regulation invalidated as it impaired the scope of the statute by inserting employability as a basis to deny county cash assistance to single adults). The purpose of a WTW plan is to outline the activity or activities in which the recipient will participate. Welf. & Inst. Code 11322.6 TA \\s \”Welf. & Inst. Code 11322.6\” TA \\s \”Welf. & Inst. Code 11323.2(a)\” . The plan also indicates the type of supportive services needed for the activity assignment(s). Welf. & Inst. Code 11323.2(a) TA \\s \”Welf. & Inst. Code 11323.2(a)\” . In identifying necessary supportive services for WTW activities, the WTW plan does not contain language restricting the time frame of purchases for necessary supportive services. See Welf. & Inst. Code 11323.2(a)(3) TA \\s \”Welf. & Inst. Code 11323.2(a)(3)\” ( As provided in the welfare-to-work plan entered into between the county and the participant , supportive services shall include: Ancillary expenses, which shall include the cost of books, tools, clothing specifically required for the job, fees, and other necessary costs. ). As [t]he courts are loathe to construe a statute which has the effect of ‘adding’ language to a statute (Schneider, 140 Cal. App. 4th at 1345) TA \\s \”Schneider v. California Coastal Commission, 140 Cal. App. 4th 1339, 1343 (2006)\” , Respondents cannot restrict or negate the necessity of a supportive service for an approved activity based on the date a WTW plan is signed. B. Respondents Regularly Issue Payments After a Recipient Enters the public benefit Program TC \”B. Respondents Regularly Issue Payments After a Recipient Enters the public benefit Program\” \\f C \\l \”2\” The issuance of payments after a recipient is in the program is not an unsupported practice in the CalWORKs. CalWORKs does not limit its cash aid payment to a prospective basis. A family approved for cash assistance receives its first benefit payment retroactive to the date of application, regardless of the actual case approval date. MPP 44-317.11 TA \\s \”Welf. & Inst. Code 11323.2(a)(3)\” . Child care Similarly, the food stamp program also issues benefits retroactive to the date of application. MPP 63-300.1 TA \\l \”MPP 63-300.1\” \\s \”MPP 63-300.1\” \\c 6 . CalWORKs recipients who need child care to work or participate in welfare-to-work activities can receive payments for child care up to 30 days before the date they request the service. Welf. & Inst. Code 11323.3(b)(4) TA \\l \”Welf. & Inst. Code 11323.3(b)(4)\” \\s \”Welf. & Inst. Code 11323.3(b)(4)\” \\c 3 ; MPP 47-301.22(b) TA \\l \”MPP 47-301.22(b)\” \\s \”MPP 47-301.22(b)\” \\c 6 , 47-301 et seq TA \\l \”MPP 47-301 et seq\” \\s \”MPP 47-301.22(b), 47-301 et seq\” \\c 6 . Retroactive payments recognize that applicants meet financial eligibility criteria as of the date of application. Respondents require CalWORKs recipients to sign WTW plans within 90 days of being determined eligible for assistance. Welf. & Inst. Code 11325.21 TA \\l \”Welf. & Inst. Code 11325.21\” \\s \”Welf. & Inst. Code 11325.21\” \\c 3 . If Respondents abide by this time limit to appraise and assess their recipients, any issuances of payments for necessary supportive services for approved SIPs will also be limited. Providing a payment for necessary supportive services used in a SIP incurred as of the date of CalWORKs applications reasonably accounts for the CalWORKs recipient’s financial needs while satisfying the aims of the CalWORKs program. C. respondents are legally required to reimburse sip participants for necessary supportive services TC \”C. respondents are legally required to reimburse sip participants for necessary supportive services\” \\f C \\l \”2\” Welfare and Institutions Code section 11325.23(d) TA \\s \”Welf. & Inst. Code 11325.23(d)\” accounts for the unique circumstances of the SIP activity approval process by explicitly providing for reimbursements to recipients approved as SIP participants. Supportive services reimbursement shall be provided for any participant in a self-initiated training or education program approved under this subdivision (emphasis added). Welf. & Inst. Code 11325.23(d) TA \\s \”Welf. & Inst. Code 11325.23(d)\” . Ms. Camacho’s nursing program was approved as a SIP, thus entitling her to a reimbursement. AR:4. The court must apply a plain meaning rule when interpreting words contained in legislative enactments. City of Pasadena v. AT&T Communications of California, 103 Cal. App. 4th 981, 984 (2002) TA \\l \”City of Pasadena v. AT&T Communications of California, 103 Cal. App. 4th 981 (2002)\” \\s \”City of Pasadena v. AT&T Communications of California, 103 Cal. App. 4th 981, 984 (2002)\” \\c 1 . The words reimbursements shall be provided are used specifically in the statute pertaining to supportive services for SIP participants. This phrase appears only in the SIP context of the CalWORKs statutory scheme on payment of non-child care supportive services. The CalWORKs statute otherwise discusses payments for supportive services, excluding child care services, as available for advance payment for the services. Payment for supportive services shall be advanced to the participant, whenever necessary, and when desired by the participant, so that the participant need not use his or her funds to pay for these services. Welf. & Inst. Code 11323.4 TA \\s \”Welf. & Inst. Code 11323.4\” . Because a SIP requires participation in the program before its approval, CalWORKs recipients in Ms. Camacho’s situation cannot request advance payments and must rely on a reimbursement for their necessary supportive services. Only upon approval of the SIP could Ms. Camacho utilize the advanced payment provision of section 11323.4 TA \\s \”Welf. & Inst. Code 11323.4\” . Though she was approved for CalWORKs and engaged in an education activity that ultimately entitled her to supportive services, Ms. Camacho had no mechanism to request an advanced payment for supportive services. She depended solely on DPSS to contact her on the next steps of the CalWORKs process once she became a CalWORKs recipient. Until the SIP approval, Ms. Camacho faced the difficult challenge of using her CalWORKs grant to cover the upfront costs of books and supplies needed for the semester, as well as her living expenses. As she cannot be required to use her CalWORKs grant to pay for supportive services (MPP 42-750.21 TA \\s \”MPP 42-750.21\” ), Respondents must reimburse Ms. Camacho for the books and supplies she purchased before approval of her SIP. Welf. & Inst. Code 11325.23(d) TA \\s \”Welf. & Inst. Code 11325.23(d)\” (supportive services reimbursement shall be provided for any participant in an approved SIP). D. AS A SIP PARTICIPANT MAY incur Supportive service expenses in qualifying for approval of Her SIP, reimbursement for the expenses shall be provided TC \”D. AS A SIP PARTICIPANT MAY incur Supportive service expenses in qualifying for approval of Her SIP, reimbursement for the expenses \\ shall be provided\” \\f C \\l \”2\” A SIP is uniquely different from all other WTW activities as it essentially requires ongoing participation. To be approved for a SIP, an individual must enroll in an education or training activity prior to her appraisal with the county. Welf. & Inst. Code 11325.23 TA \\l \”Welf. & Inst. Code 11325.23\” \\s \”Welf. & Inst. Code 11325.23\” \\c 3 ; MPP 42-711.541(a) TA \\s \”MPP 42-711.541(a)\” . Enrollment means that an individual has applied for and been accepted in a certificate or degree program, and continues to meet or fulfill all conditions, imposed by the institution offering the program, to maintain current enrollment status. MPP 42-711.549 TA \\l \”MPP 42-711.549\” \\s \”MPP 42-711.549\” \\c 6 . In addition to enrollment, the recipient must also show the county that she is making satisfactory progress in the program, and the county must determine that continuing in the program will lead to the recipient’s self-supporting employment. Welf. & Inst. Code 11325.23 TA \\s \”Welf. & Inst. Code 11325.23\” . The recipient’s WTW plan must reflect the county’s determination. Id. As with the timing of enrollment, making satisfactory progress is a criterion in the SIP approval process that requires the recipient’s active engagement with the education or training program. Id. In Ms. Camacho’s case, and in the situations of other recipients in SIPs, determining whether an individual is making satisfactory progress may require the person to already be attending classes in the education program. Continual attendance and progress requires the recipient to have some method of succeeding in her studies such as having the requisite books and supplies necessary to complete assignments. In contrast, Welfare and Institutions Code section 11320.1 TA \\s \”Welf. & Inst. Code 11320.1\” imposes a specific sequence of WTW activities on recipients who do not have education activities in place at their appraisals. Each non-SIP activity only begins after the county assigns it. The county can then prospectively identify and arrange the supportive services needed for participation. The requirements of a recipient to enroll, attend, and make satisfactory progress in an education program before the program is approved inherently establish the rationale for reimbursing the cost of recipient’s supportive services, whether incurred before or after the signing of a WTW plan. Ms. Camacho had to incur the expenses in order to continue in the nursing program that became a SIP. AR:10 at 2, lines 21-25. If Ms. Camacho did not pay for the books and supplies when she needed them for her classes, she likely would have fallen behind on her studies and failed her weekly exams. AR:10 at 2, lines 24-25. The school semester had begun by the time DPSS set an appraisal appointment with Ms. Camacho. AR:10 at 2, lines 5-9. The Administrative Law Judge demonstrated her misunderstanding of the SIP approval process and applied her misunderstanding throughout the hearing. The ALJ advised Ms. Camacho: [Y]ou probably should have waited out the semester if things [were] that tight and you needed the money for books, you could have said, well, I can’t do it this semester, but I’m going to start the following semester. AR:16 at 7, lines 26-27; at 8, lines 1-2. If Ms. Camacho had waited out the semester as suggested by the ALJ, she would not be eligible for a SIP. Ms. Camacho’s supportive services expenses related directly to her qualification for a SIP and her ability to achieve the goals of the CalWORKs program. E. RESPONDENTS MUST PAY FOR SUPPORTIVE SERVICES REGARDLESS OF WHETHER MS. CAMACHO KNEW, BEFORE PURCHASHING HER BOOKS AND SUPPLIES, THAT HER SIP WOULD BE APPROVED TC \”E. RESPONDENTS MUST PAY FOR SUPPORTIVE SERVICES REGARDLESS OF WHETHER MS. CAMACHO KNEW, BEFORE PURCHASHING HER BOOKS AND SUPPLIES, THAT HER SIP WOULD BE APPROVED\” \\f C \\l \”2\” The Administrative Law Judge erroneously concluded that denying payment of the supportive services was proper because Ms. Camacho did not know if the county would approve her attending Cerritos College when she enrolled for classes in February 2005 and [she] enrolled anyway. AR:1 at 2. The ALJ stated: [N]o one is disputing that what [Ms. Camacho] did, you know, was a good thing going to school and getting your nursing degree , but you did this on your own dime. You did this without a contract with the County. I guess I don’t understand why you think the County should pay for something that wasn’t approved when you started school. AR:16 at 8, lines 15-18. This position, however, runs contrary to the legal requirements for qualifying for a SIP. Having a program approved for a SIP requires enrollment in that program first. Welf. & Inst. Code 11325.23 TA \\s \”Welf. & Inst. Code 11325.23\” . CalWORKs participants must make a leap of faith by enrolling before their SIPs can be approved. Welfare and Institutions Code section 11325.23(d) TA \\s \”Welf. & Inst. Code 11325.23(d)\” responds to this act of faith by providing for reimbursement of necessary expenses once the SIP is approved. Ms. Camacho’s enrollment in the nursing program before knowing whether the program qualified for a SIP was the normal process to having her nursing program qualify for a SIP. Ms. Camacho complied with all rules regarding SIPs and should be reimbursed for the necessary supportive services she incurred after applying for CalWORKs. When DPSS approved Ms. Camacho’s SIP, Respondents obligated themselves to reimburse Ms. Camacho for the necessary supportive services she incurred to participate in the approved SIP. F. MS. CAMACHO IS ENTITLED TO RELIEF UNDER CODE OF CIVIL PROCEDURE SECTIONS 1094.5 TA \\s \”Code of Civil Procedure section 1094.5\” AND 1085 TC \”F. MS. CAMACHO IS ENTITLED TO RELIEF UNDER CODE OF CIVIL PROCEDURE SECTIONS 1094.5 AND 1085\” \\f C \\l \”2\” Ms. Camacho may properly pursue writs of mandate under both Code of Civil Procedure section 1094.5 TA \\s \”Code of Civil Procedure section 1094.5\” and 1085 TA \\s \”Code of Civil Procedure section 1085\” . Mandamus under section 1094.5 is appropriate to inquire into the validity of any final administrative order or decision made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal . (Code Civ. Proc., 1094.5, subd. (a) TA \\s \”Civ. Proc. Code 1094.5(a)\” .) Conlan v. Bonta 102 Cal. App. 4th 745, 752 (2002) TA \\l \”Conlan v. Bonta 102 Cal. App. 4th 745 (2002)\” \\s \”Conlan v. Bonta 102 Cal. App. 4th 745, 752 (2002)\” \\c 2 . However, [w]here a petition challenges an agency’s failure to perform an act required by law rather than the conduct or result of an administrative hearing, the remedy is by ordinary mandate pursuant to Code of Civil Procedure section 1085 TA \\s \”Code of Civil Procedure section 1085\” . Id. Section 1094.5 TA \\s \”Code of Civil Procedure section 1094.5\” does not preclude a broader challenge to agency conduct or procedures alleged to breach the agency’s statutory obligation. Id., citing Timmons v. McMahon, 235 Cal. App. 3d 521 (1991). TA \\l \”Timmons v. McMahon, 235 Cal. App. 3d 521 (1991).\” \\s \”Timmons v. McMahon, 235 Cal. App. 3d 521 (1991).\” \\c 1 It is not inconsistent to award relief under both sections 1094.5 TA \\s \”Code of Civil Procedure section 1094.5\” and 1085 TA \\s \”Code of Civil Procedure section 1085\” of the Code of Civil Procedure. Conlan v. Bonta, 102 Cal. App. 4th at 752 TA \\s \”Conlan v. Bonta 102 Cal. App. 4th 745, 752 (2002)\” . VI. CONCLUSION TC \”VI. CONCLUSION\” \\f C \\l \”1\” For all of the foregoing reasons, Ms. Camacho requests that this Court issue a writ of mandate under Civil Procedure Code section 1094.5 TA \\s \”Code of Civil Procedure section 1094.5\” reversing the administrative decision and requiring Respondents to reimburse her for supportive service ancillary expenses. Ms. Camacho further requests that this Court issue a writ of mandate under section 1085 TA \\s \”Code of Civil Procedure section 1085\” requiring Respondents to pay for supportive services necessary for participation in a SIP activity to CalWORKs recipients who must incur such expenses before their SIPs have been approved. Dated: _______________ Respectfully submitted Western Center on Law & Poverty LEGAL AID FOUNDATION OF LOS ANGELES _________________________________ Vanessa Lee Attorneys for Petitioner TABLE OF CONTENTS PAGE NO. 2I. INTRODUCTION 3II. STATUTORY FRAMWORK 3A. CalWORKs Program 3B. Self-Initiated Programs 4C. Supportive Services 5III. STATEMENT OF FACTS 6IV. STANDARD OF REVIEW 7V. ARGUMENT 7A. the welfare and institutions code does not limit the payment of NECESSARY Supportive Services FOR APPROVED Self-initiated programs only to SERVICES Purchased After the recipient Signs a Welfare-to-Work Plan 9B. Respondents Regularly Issue Payments After a Recipient Enters the public benefit Program 9C. respondents are legally required to reimburse sip participants for necessary supportive services 11D. AS A SIP PARTICIPANT MAY incur Supportive service expenses in qualifying for approval of Her SIP, reimbursement for the expenses shall be provided 12E. RESPONDENTS MUST PAY FOR SUPPORTIVE SERVICES REGARDLESS OF WHETHER MS. CAMACHO KNEW, BEFORE PURCHASHING HER BOOKS AND SUPPLIES, THAT HER SIP WOULD BE APPROVED 13F. MS. CAMACHO IS ENTITLED TO RELIEF UNDER CODE OF CIVIL PROCEDURE SECTIONS 1094.5 AND 1085 14VI. CONCLUSION TABLE OF AUTHORITIES PAGE NO. Cases Berlin v. McMahon, 26 Cal. App. 4th 66 (1994) 7 City of Pasadena v. AT&T Communications of California, 103 Cal. App. 4th 981 (2002) 10 Conlan v. Bonta 102 Cal. App. 4th 745 (2002) 13 Frink v. Prod, 31 Cal. 3d 166 (1982) 7 Green v. Obledo, 29 Cal.3d 126, 144 (1981) 7 Kirkwood v. Bank of America, 43 Cal. 2d 333 (1954) 8 Mooney v. Pickett, 4 Cal. 3d, 669 (1971) 8 Morris v. Williams, 67 Cal. 2d 733 (1967) 8 Schneider v. California Coastal Commission, 140 Cal. App. 4th 1339 (2006) 6, 9 Timmons v. McMahon, 235 Cal. App. 3d 521 (1991). 13 TOA \\h \\c \”2\” \\p Statutes and Regulations Civ. Proc. Code 1085 6, 7, 13, 14 Civ. Proc. Code 1086 7 Civ. Proc. Code 1094.5 6, 13, 14 Civ. Proc. Code 1094.5(a) 6, 13 Educ. Code 8350 4 MPP 42-701.1 3 MPP 42-711.4 3 MPP 42-711.5 3 MPP 42-711.54 3 MPP 42-711.541 4 MPP 42-711.541(a) 3, 11 MPP 42-711.549 11 MPP 47-301 9 MPP 42-750.11 4 MPP 42-750.21 4, 11 MPP 44-317.11 9 MPP 47-301.22(b) 9 MPP 63-300.1 9 Welf. & Inst. Code 10725 8 Welf. & Inst. Code 10962 6 Welf. & Inst. Code 11200 3 Welf. & Inst. Code 11320.1 3, 11 Welf. & Inst. Code 11322.6 3, 8 Welf. & Inst. Code 11322.8(a) 3 Welf. & Inst. Code 11323.2 2 Welf. & Inst. Code 11323.2(a) 2, 4, 8 Welf. & Inst. Code 11323.2(a)(3) 4, 8, 9 Welf. & Inst. Code 11323.3(b)(4) 9 Welf. & Inst. Code 11323.4 4, 10 Welf. & Inst. Code 11324.8 3 Welf. & Inst. Code 11325.2 3 Welf. & Inst. Code 11325.21 9 Welf. & Inst. Code 11325.23 3, 4, 11, 13 Welf. & Inst. Code 11325.23(d) passim Welf. & Inst. Code 11320.3 3 \ufffd John Wagner was appointed Director of the Department of Social Services on April 24, 2007, and is named in his official capacity. \ufffd DPSS later paid Ms. Camacho $169, mistakenly assuming it had paid for the March 9th purchases. AR:13, at 3, line 17. The amount, however, corresponds with an advance payment request that Ms. Camacho submitted to DPSS. AR:11. An additional error is that the advance payment request included one of the items in dispute for a reimbursement, in the amount of $31.85. The amount Ms. Camacho seeks as a reimbursement is $377.20. \ufffd Prior to CalWORKs, California’s welfare program operated under the name of Aid to Families with Dependent Children (AFDC) and its welfare-to-work structure know as GAIN Greater Avenues to Independence. The Administrative Law Judge continued to use pre-CalWORKs reference to the AFDC GAIN program in her decision, including reference to a GAIN contract. \ufffd The definitions of reimbursement are: the act of reimbursing. Def. reimburse: 1. to pay back (an equivalent for something taken, lost, or expended) to someone. 2. to make restoration or payment of an equivalent to. Webster’s Third New International Dictionary of the English Language Unabridged, 1966; and 1. Repayment. 2. Indemnification. Black’s Law Dictionary 7th Edition, 1990. – 1 – ______________________________________________________________________________________________________ PETITIONER’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR WRIT OF MANDATE ”

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” 1 2 3 4 GRACE GALLIGHER (S.B.N. 106687) Coalition of California Welfare Rights Organizations, Inc. 1111 Howe Ave, Suite 150 Sacramento, CA 95825 (916) 736-0616 Fax: (916) 736-2645 Email: [email protected] ‘ F\ufffd\ufffdED\/ENDORSED L JUL 3 1 2018 l 5 Attorney for Petitioner ALI CIA COTTRELL BY RULON COTTRELL, Jr. and 6 JOELYNN COTTRELL, Conservators L By:_ \ufffd=-=—. –.J 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO RULON COTTRELL AND JOELYNN COTTRELL, Conservators on behalf of ALICIA COTTRELL, Petitioners, V. WILL LIGHTBOURNE, Director, California Department of Social Services, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) – 1 – Case No. 34-2016-80002332 POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR WRIT OF ADMINISTRATIVE MANDA TE Date: September 14, 2018 Time: 10:00 A.M. Dept: 17 Date of Filing of Action: April 13, 2016 Cottrell v. Lightbourne, Sac. Co. Superior Court# 34-2016-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate 1 TABLE OF CONTENTS 2 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATEMENT OF FACTS …………………………………………….. 3 PROCEDURAL HISTORY …………………………………………….. 5 ST AND ARD OF REVIEW …………………………………………….. 7 STATUTORY AND REGULATORY FRAMEWORK ………………………… 8 A. The In-Home Supportive Services Program …………………………… 8 B. Medi-Cal Due Process Requires The Use Of Legally Adequate Written Notices Of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 C. A Legally Adequate Written Notice of Action Is A Due Process Requirement Under the California State Constitution …………. 10 D. Notices of Action and the Administrative Hearing Process ………………. 11 I. THE ALJ LIMITED HIS EVALUATION OF THE SIX NOTICES OF ACTION TO THE DEFINITION OF \”ADEQUATE NOTICE \” AND DID NOT CONSIDER WHETHER THE NOTICES OF ACTION MEET ADDITIONAL REQUIREMENTS. . . . . . . . . . . . . . . . . . 13 A. A Federal Court Has Opined That The IHSS Notice Forms Are Legally Inadequate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 II. RESPONDENT’S AFFIRMATIVE DEFENSES SHOULD BE OVERRULED …… 17 A. Respondent’s First Affirmative Defense \”Petition Fails to State Facts Sufficient to onstitute A Cause of Action.\” ……………………………………… 17 B. Respondent’s Second Affirmative Defense \”Petitioner’s Claims Are Barred By Applicable Statutes of Limitations ………………… ……………… 19 C. Respondent’s Third Affirmative Defense \”Petition Is Barred By the Doctrine of Laches.\” .. \ufffd . \” $ 20 – 1 – Cottrell v. Lightbourne, Sac. Co. Superior Court# 34-2016-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. Respondent’s Fourth Affirmative Defense \”Petition For Writ For (Sic] Mandate, As A Whole, And Each Claim For Relief Asserted In It, Is Stated In Conclusory Terms, Respondent Cannot Fully Anticipate All Affirmative Defenses That May Be Applicable In This Action.\” ……………………………………… 21 CONCLUSIONS …………………………………………………… 21 – ii – Cottrell v. Lightbourne, Sac. Co. Superior Court# 34-2016-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate 1 2 3 4 5 6 Page California State Constitutional Authority California Consti tution Article I , Section 7(a ) ………………………………. 10, 11, 12 Case Authority 7 Abbott v. City of Los Angeles (1958) 50 Cal.2d 438 ………………………………. 20 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bixby v. Pierno (1971) 4 Cal.3d 130 ………………………………………….. 7 Buckhannon v. Percy, 533 F. Supp 822 (E.D. Wisc. 1982), affd in part, mo difie d in part, 708 F.2d 1209 (7th Cir, 1983) …………………………………………. 10 Calderon v. Anderson (1996) 45 Cal.App.4th 607 …………………………………. 7 Cooper v. Kizer (1990) 230 Cal.App.3d 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 David v. Heckler (E.D. N.Y. 1984) 591 F.Supp. 1033 …………………………….. 10 FPI Dev., Inc. v. Nakashima, (1991) 231 Cal.App.3d 367 …………………………… 18 Frinkv. Prod (1982) 31 Cal.3d 166 …………………………………………… 7 Fukuda v. City of Angels (1999) 20 Cal. 4th 805 ………………………………….. 8 Goldberg v. Kelly (1970) 397 U.S. 254 ……………………………………….. 17 Gressley v. Williams (1961) 193 Cal.App.2d 636 ……………………………… 18, 19 Interstate Brands v. California Unemployment Insurance Appeals Board (1980) 26 Cal.3d 770 ……………………………. 8 Jones v. Flowers (2006) 547 U.S. 220 ……………………………………….. 17 Mason v. OAH (2001) 89 Cal. App. 4th 1119 …………………………………….. 8 Mullane v. Hanover Bank and Trust Co (1950) 339 U.S. 306 ……………………….. 17 People v. Ramirez (1979) 25 Cal.3d 260 ………………………………………. 11 – 111 – Cottrell v. Lightbourne, Sac. Co. Superior Court# 34-2016-800002332 Points an d Authorities In Support Of Petition For Writ Of Administrative Man date 1 Pag 2 Reilly v. Marin Housing Authority (2018) 22 Cal.App. 5th 425 ……………………….. 8 3 Rodriquez v. Chen, (D.Az. 1996) 985 F. Supp. 1189 …………………………….. 10 4 Ryan v. California Interscholastic Federation – San Diego Section 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (2001) 94 Cal.App.4th 1048 ………………………………………… 11 San Diego Dept. of Pub. Welfare v. Superior Court (1972) 7 Cal. 3d 1 ……………….. – 20 Turner v. McMahon, Consent Decree (1983) (U.S. District Court, Northern District , C A filed on June 20, 1983 ……………… 11 Unterthiner v. Desert Hosp. Dist. (1983) 33 Cal. 3d. 225 ………………………….. 7 V.L. v. Wagner (2009) 669 F. Supp.2d 1106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 Wallace v. Board of Education, 63 Cal.App.2d 611 ……………………………. 20 California State Statutes Code of Civil Procedure 1094.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Code of Civil Procedure 1094.5(b) ……………………………………….. 19 Welf. & Inst. Code 10554 ……………………………………………… 11 Welf & Inst. Code 10950 ……………………………………………… 9 Welf. & Inst. Code 10951(a )(l) …………………………………………. 12 Welf. & Inst. Code 10951(a )(2) …………………………………………. 12 Welf. & Inst. Code 10951 (b )(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Welf. & Inst. Code 10951(b)(3) …………………………………………. 13 W elf. & Inst. Code 10962 ……………………………………………. 19, 20 Welf. & Inst. Code 12300 ………………………………………… 7, 8, 9, 11 Welf. & Inst. Code 12300(a ) …………………………………………… 7, 8 Welf. & Inst. Code 12300.2 ………………………….. , . , …………….. 9 -1V- Cottrel\/ v. Lightbourne, Sac. Co. Superior Court# 34-2016-800002332 Points and Authorities In Support Of Petition For Writ Of Ad ministrative Mandate 1 Pag 2 Federal Regulations 3 4 5 6 42 Co de of Fe deral Regulations 431.210 ………………………………….. 9, 10 California State Regulations California Department of Social Services Manual of Policies and Proce dures 7 M P P 10-116 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ………………… 9 8 M P P 10-116.42 …………………………………. ……………… 12, 13 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 M P P 22-00l(a)(l ) ………………… , ………………….. , ……. 11, 12, 13 M P P 22-003.1 ……………………. . ……………………………… 9 M P P 22-009.1 …………………………………………………….. 13 M P P 22-009.11 ………………………………………………… 6, 7, 13 M P P 22-071 et seq. . ………………………………………………… 12 M P P 22-071.13 …………………………………………………….. 9 M P P 22-071.4 ……… ………………………………………. 12, 15, 16 M P P 22-071.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 M P P 30-700.1 …………………………………………………….. 8 M P P 30-757.135 …………………………………………………… 15 M P P 30-757.14 (a ) …………………………………………………. 15 M P P 30-757.14 (e ) …………………………………………………. 15 M P P 30-757.14(j ) ……………….. , ……………………………….. 15 M P P 30-757.17 …………………………………………………… 9, 15 M P P 30-757.171 …………………………………………………….. 9 -v- Cottrell v. Lightbourne, Sac. Co. Superior Court# 34-2016-800002332 Points an d Authorities In Support Of Petition For Writ Of A d ministrative Man date 1 2 3 4 5 6 Pag MPP 30-757.173 …………………………………………………….. 9 MPP 30-759.7 …………………………. ………. …………………. 9 MPP 30-763 …………………………………………………….. 4, 15 MPP 30-763.8 ………. …………………………. ………………….. 9 7 All Cou nty Information Notices s A C IN’ I-02-14 …………………………………………………… 6, 7, 11 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A C IN’ I-151-82 … ……………………………………………….. 6, 7, 11 AC IN’ I-66-08 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 – Vl – Cottrell v. Lightbourne, Sac. Co. Superior Court# 34-2016-800002332 Points an d Authorities In Support Of Pe tition For Writ Of Ad minis tra tive Ma nda te 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION This case challenges the hearing decision In Re Alicia C., DSS State Hearings Decision #2015054005 that onjurisdictional grounds only, Petitioner was not entitled to proceed with her request for an administrative hearing on the merits on six separate Notices of Action (hereinafter \”NOA\”) that were issued by the Sonoma County Welfare Department between November 14, 2008 through December 24, 2013. Respondent determined that each of the six Notices of Action were adequate as written. The decision found that since the request for hearing had not been filed until February 20, 2015, more than 180 days after the Notices of Action were issued, the request for hearing was not timely as no good cause existed to extend the time for filing a request for hearing. Petitioner contests Respondent’s decision that the six NOAs constituted legally adequate notices of action for purposes ofln-Home Supportive Services (IHSS). Ms. Cottrell contends that each Notice of Action (\”NOA\”) is defective in one or more ways. The defects include (a) not containing any information about how the county calculated the amount of services the Petitioner was authorized to receive; (b) no explanation as to the reason that Protective Supervision services (PS) were not authorized in the NOA date July 24, 2012; (c) the July 5, 2011 NOA did not explain why the county retroactively authorized PS effective April 2011; Some of the Notices contain generalized regulatory citations without identifying the specific regulations that apply to Ms. Cottrell. 1 The lack of specific, individualized details to support the county’s intended actions in the NOAs can, and in this matter did, prevent the beneficiary\/program 1 The Sonoma County Statement of Position by contrast includes the relevant regulations in detail describing and explaining IHSS services. (AR 40-58.) None of the NOAs reference these specific rules. – 2 – Cottrell v. Lightbourne, Sac. Co. Superior Court# 34-2016-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate 1 2 3 4 5 6 7 8 9 1 0 1 1 12 1 3 1 4 15 16 17 18 19 20 2 1 22 23 2 4 2 .5 26 27 28 participant from determining whether the county-proposed action were correct or whether it should be challenged through the request of an administrative hearing. The refusal to find that each of the NO As were legally inadequate as written deprived the Petitioner of the opportunity to challenge the county’s actions on each of these six NOAs on the merits. Ms. Cottrell asks for a writ of administrative mandate to reverse the Decision determining that the NOAs were legally adequate and direct that the matter be remanded for a hearing on the merits. STATEMENT OF FACTS Alicia Cottrell, at all pertinent times is an adult with Down Syndrome, Developmental Delay and Speech and Language Delay . (Decision, In the Matter of Alicia Cottrell, Hearing No. 20 1 5054005, Administrative Record (AR) 9, 1 6, 3 8, 86; Transcript (TR) 1 07 :27-28 ; 1 1 1 :25.) Per the record, Ms. Cottrell has been diagnosed with moderate or intermittent memory deficits; moderate disorientation\/confusion; and mildly impaired judgment. (AR 87.) Ms. Cottrell is the subject of a probate conservatorship. Her parents serve as their daughter’ s conservators. (AR 78.) Ms. Cottrell has received IHSS since 2007 . (AR 38 .) In July 20 1 1 , Sonoma County retroactively authorized Protective Supervision (PS), effective April 1 , 20 1 1 , without explanation, for the Petitioner. However in late July 201 2 PS was discontinued effective August 1 , 20 12 as a result of a mid-year reassessment, again without any explanation. AR: 8, 69; TR 1 03 : 1 2; 1 04 :7.) The NOA dated November 1 1 , 2008 issued by Sonoma County (NOA \”A\”) proposed to increase Ms. Cottrell ‘ s IHSS hours to 8 i .3 effective December 1 , 2008 . (AR 7, AR 3 7, AR 6 1 ; TR 1 02 : 1 2- 1 4 .) The County reduced the authorized time for shopping for food by the amount of 3 .2 hours per month. (AR 6 1 .) However, the county worker who issued the NOA in a handwritten note – 3 – Cottrell v. Lightbourne, Sac. Co. Superior Court # 34-20 1 6-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 13 1 4 15 1 6 1 7 18 19 20 2 1 22 23 2 4 2 5 2 6 2 7 2 8 wrote that the 8 1 . 3 total hours a month was actually an increase since the hours had been 8 . 6 instead of 8 1 .3 . (AR 6 1 .) The NOA dated August 25, 2009 (NOA \”B\”) reaffirmed that Ms. Cottrell was entitled to receive 8 1 .3 service hours per month. (AR 7, 37, 63; TR 1 02: 1 5-20. ) Although the hours remained the same, the authorized hours were changed by increasing the bowel , bladder care by 0.45 per week; decreasing menstrual care by 0 .08 per week and reducing baths, oral hygiene\/grooming by 0.35 per week. (Id.) The NOA dated July 5, 201 1 (NOA \”C\”) providing services retroactive to April l , 20 1 1 increased Ms. Cottrell ‘s IHSS hours from 8 1 .3 to 248.2 hours primari ly by granting the Petitioner 45 hours per week in Protective Supervision (PS) services. (AR 7, 37, 65 ; TR 1 03:5- 1 2.) The February 28, 20 1 2 NOA (NOA \”D\”) stated that the IHSS hours were reduced from 248 .2 hours per month to 239.2 hours effective April 1 , 20 1 2. (AR 7, 37, 67; TR 1 03 : 1 7-20.) The July 24, 20 1 2 NOA (NOA \”E\”) terminated the Petitioner’ s eligibility for PS and reduced her total monthly IHSS hours from 239.2 hours to 79.2 hours. (AR 7, 37, 69; TR 1 03:25-28.) This NOA increased Petitioner’s service hours in all other categories except for meal cleanup, where the hours were reduced by 0.79 hours. The NOA dated December 24, 20 13 (NOA \”F\”) notified Petitioner that her IHSS hours were increased from 79.2 to 8 1 :48 hours retroactive from November 1 5, 20 13. (AR 7, 37, 7 1 ; TR 1 04: 1 1 – 1 3.) This notice provided additional information about what IHSS hours were changed, that a state law mandated an 8 percent reduction in all IHSS hours, that some services were prorated and cited to the IHSS regulations. (AR 7, 73-75.) This is the only NOA issued in the NA 1 253-IHSS Change (04\/09) format that substantially changed the appearance and readability of the original format. (AR 7 1 .) The new notice includes slightly larger font, a substantial area for individualized comments by – 4 – Cottrell v. Lightbourne, Sac. Co. Superior Court # 34-201 6-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate 1 2 3 4 5 6 7 8 9 10 1 1 12 13 1 4 15 16 17 1 8 19 2 0 2 1 2 2 23 24 25 26 2 7 2 8 the county as well as a \”Description of Services\” which consists of a partial recitation to the IHSS regulations. (AR 7 1-75 .) PROCEDURAL HISTORY On February 20, 20 1 5 Ms. Cottrell ‘ s authorized representative (AR) requested an in-person hearing to challenge the six NOAs. (AR 3, 7- 1 1 ; TR 1 02 :8- 1 1 .) In response, Sonoma County filed a request to bifurcate the hearing to determine whether there was jurisdiction to hear the claims prior to considering the merits of the substantive issues . (AR 3, 38 , 59; TR 1 00 :27- 1 0 1 : 5 .) In a letter dated March 30, 20 1 5 , DSS notified Ms . Cottrell that the administrative hearing would be bifurcated to discuss whether DSS has jurisdiction to hear the case since the request for a state hearing on the six notices were filed more than 90 and 1 80 days after the issuance of the NOAs. (AR 3 , 76; TR 99 :26- 27; 1 04 :25-27.) The jurisdictional hearing was held on April 1 3, 20 1 5 with the authorized representative, county appeals representative and the IHSS Supervision appearing at the hearing. (AR 3, 97.) The County presented a Statement of Position (SOP) with attachments contending that the request for a hearing was not timely filed since the request for hearing was made February 20, 201 5 . (AR 37-88 .) During the hearing the County noted that Ms. Cottrell ‘ s address had not changed and that she had resided at the same address throughout the pertinent time period. (AR 4, 38 ; TRl 02:20- 27; 1 03 : 1 5-24; 1 04 :6-7; 1 04 :22-24; 1 05 :4-9.) None of the notices had been returned to the county as undeliverable. (AR 4.) The County SOP included with its evidence the IHSS needs assessment completed on Ms. Cottrell on November 1 5 , 201 3 . This included Ms. Cottrell ‘ s functional ranks for each service type and a total of assessed hourly needs based on an individualized assessment. (AR 38-39.) – 5 – Cottrell v. Lightbourne, Sac. Co. Superior Court # 34-20 1 6-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate 1 2 3 4 5 6 7 8 9 1 0 1 1 J.. 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 2 0 2 1 2 2 2 3 2 4 2 5 2 6 2 7 2 8 On Petitioner’s behalf, her AR submitted a written SOP that focused on the issue of jurisdiction. (AR 1 3 -36 .) The Claimant argued that the County did not assess Ms. Cottrell for PS until April 20 1 1 but it was taken away without explanation in August 2012 . (AR 1 3 .) The AR argued that the county did not document the reason for terminating Protective Supervision. (AR 14 ; TR 1 1 0 :7- 1 6.) The AR argued that PS is a complicated idea that was not explained in writing to Ms. Cottrell in the NOAs, especially NOAs \”C\”, \”D\” and \”E\”. (TR 1 1 1 :6-9.) The AR contended that NOA E was not adequate because it did not explain why the claimant was not eligible to receive proteciive supervision. (AR: 14 ; TR 1 07 :2-8.) As none of the NOAs meet the requirements of a legally adequate notice of action per CDSS regulations and interpretative authority , i .e . All County Information Notice (\” A CIN\”) I-02- 1 4 and A CIN I- 1 5 1 -82, the time limit for filing a timely hearing request never begins to run pursuant to MPP section 22-009. 1 1 . (AR 1 4 .) Ms. Cottrell ‘ s AR argued that the notices must contain infonnation needed to challenge the action taken, must be specific to the claimant\/beneficiary and must specifically discuss the needs of the recipient of benefits. (AR 1 4- 1 5 .) Fundamentally, none of the NOAs met these standards . (AR 20.) The in-person hearing on jurisdiction ended on April 1 3, 201 5 . (AR 2). DSS issued its unfavorable hearing decision on April 1 5, 201 5 Decision. (AR 2-6 .) The Decision held that the request for hearing on all notices must be dismissed for lack of jurisdiction as the NO As and each of them were legally adequate and hearings were not requested within 90 days of the issuance of each o the NOAs. (AR 3, 6.) The Decision found that the Claimant had received the six NOAs but taken no timely action to challenge any of them. (AR 4 .) The ALJ noted that legally adequate noiice is defined as \u25a0 written notice informing the claimant of the action that the county intends to take, \u25a0 the reasons for the intended action, – 6 – Cottrell v. Lightbourne, Sac. Co. Superior Court# 34-2016-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 2 0 2 1 2 2 2 3 2 4 2 5 2 6 2 7 2 8 \u25a0 the specific regulations supporting such action, \u25a0 an explanation of the claimant’ s right to request a state hearing and, if appropriate, \u25a0 the circumstances under which aid will be continued if a hearing is requested. (AR 5 . ) The Decision held that no \”good cause\” exception existed for disregarding the 90-day requirement for requesting a hearing on any of the NOAs. (AR 6.) Petitioner by her AR requested an in-person rehearing on the issue of jurisdiction on the grounds that none of the NOAs ever properly addressed PS. (AR 89-92 .) The AR contended. that none of the notices complied with the requirements an adequate notice so that the jurisdictional time limit for requesting a hearing had not run. (MPP 22-009. 1 1 , ACIN I- 1 5 1 -82 and ACIN I-02- 14 .) (AR 9 1 .) The rehearing request was denied in writing on August 1 1 , 20 1 5 . (AR 93 .) Petitioner has no other plain, speedy remedy to challenge the COSS hearing decision other than the prosecution of this writ petition which was timely filed on April 1 3 , 201 6. STANDARD OF REVIEW Courts review administrative decisions pertaining to fundamental vested rights using the independent judgment test. (Bixby v. Pierno ( 1 97 1 ) 4 Cal .3d 1 3 0, 1 43 – 144; See also Unterthiner v. Desert Hosp. Dist. ( 1 983) 33 Cal. 3d. 225 .) The purpose of IHSS benefits is to ensure that individuals with significant impairments can remain safely in their home and avoid institutionalization. (Welf & Inst. 1 2300(a).) As explained in Frink v. Prod ( 1 982) 3 1 Cal .3d 1 66, 1 78 : \”it is apparent that the right of the needy disabled to public assistance is of such significance as to require independent judgment review.\” (accord Cooper v. Kizer ( 1 990) 230 Cal.App.3d 1 29 1 , 1 299-300 [finding disability based Medi-Cal i s a fundamental vested right because \”the disabied applicant for medical benefits is in need because of deterioration in his or her life situation.\”] ; Calderon v. Anderson ( 1 996) 45 Cal.App.4th 607, 6 1 2 [noting with approval that trial court used – 7 – Cottrell v. Lightbourne, Sac. Co. Superior Court # 34-20 1 6-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate 1 2 3 4 5 6 7 8 9 1 0 11 12 13 14 15 1 6 1 7 18 19 20 21 22 23 2 4 2.5 2 6 27 28 independent judgment standard in IHSS PS case] ; see also Reilly v. Marin Housing Authority (20 1 8) 22 Cal .App. 5th 425 .) The independent judgment test therefore applies. The independent judgment test mandates that the court review the entire record and weigh the evidence to determine whether the decision of the administrative agency was correct. (Interstate Brands v. California Unemployment Insurance Appeals Board ( 1 980) 26 Cal .3d 770, 775 n.2.) Although the independent judgment test requires an initial presumption of the correctness of the agency’ s factual findings, the presumption is only a starting point for review and can be overcome. (Fukuda v . City of Angels ( 1 999) 20 Cal . 4th 805, 8 1 7-8 1 8 ; see also Mason v. OAH (200 1 ) 89 Cal . App. 4th 1 1 1 9.) The trial court ultimately must exercise its own judgment and i s free to substitute its own findings of both law and fact after first giving due respect to the agency’ s findings. (Fukuda, supra, 20 Cal .4th at p . 8 1 8 [emphasis added] .) STATUTORY AND REGULATORY FRAMEWORK A. The In-Home Supportive Services Program The purpose of the IHSS program is to enable aged, bFnd or disabled individuals with physical and\/or mental impairments who are unable to perform routine daily tasks which are vital for themselves and who cannot safely remain in their homes of their choosing unless these services are provided for them by others. (Welf. & Inst. Code 1 2300(a); MPP 30-700. 1 .) 1)1e Legislature authorized a broad range of support services to eligible persons. Welfare and Institutions Code Section 1 23 00 authorizes supportive services for: \”Domestic services and services related to domestic services, heavy cleaning, personal care services, accompanim.ent by a provider when needed during necessary travel to health related appointments or to alternative resource sites and other essential transportation as determined by the director, yard hazard abatement, protective supervision, teaching and demonstration directed at reducing the need for other supportive services, paramedical services, and other services as determined by the director which make it possible for the recipient to live in comfort and safety under an independent living arrangement. \” – 8 – Cottrell v. Lightbourne, Sac. Co. Superior Court# 34-2016-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 2 0 2 1 2 2 2 3 2 4 2 5 2 6 2 7 2 8 PS services authorized by Welfare & Institutions Code Section 12300 includes the monitoring of the behavior of non-self-directing, confused, mentally impaired, or mentally ill persons. (MPP 30-757 .17.) PS is available for \”observing recipient behavior in order to safeguard the recipient against injury, hazard, or accident. ‘ ‘ (MPP 30-757 . 171 .) To be eligible for such services, an individual must show \”that twenty-four hour need exists . . . and that the recipient can live at home safely if protective supervision is provided.\” (MPP 30-757 .173.) \\\\lhenever there is an IHSS assessment or reassessment or any other action taken regarding the an1ount of IHSS services the County must issue a notice of action to each recipient. (Welf. & Inst. Code 1 2300.2) The County must also send a description of each specific task authorized and the numbers of hours allotted. (Id. ) In the case of reassessment, the County must identify the hours for tasks increased or reduced and the difference from previous hours authorized. (Id. ) If the individual objects to the County’s proposed action, the individual can file a request for an administrative hearing with the State Hearings Division of the Department of Social Services . (Welf. & Inst. Code 10950; MPP 22-003.1). Any applicant or recipient of public social services is entitled to adequate written notice of any action that the county welfare agency proposes to take with respect to an individual IHSS beneficiary’s claims for services. (MPP 10-116; 22-071 .13; 30-759.7 and 30-763.8.) B. Medi-Cal Due Process Requires The Use Of Legally Adequate Written Notices Of Action. The IHSS program involves Medi-Cal (Medi-Caid) eligibility and receives some funding from the federal health care program. This connection requires that IHSS NOAs must also meet the requirements of 42 Code of Federal Regulations (\”CFR\”) Section 43 1 .2 1 0 which states in relevant part that a Medi-Caid required notice of action must include 1. A statement of what action the agency . . . intends to take and the effective date of such action; – 9 – Cottrell v. Lightbourne, Sac . Co . Superior Court # 34-20 1 6-800002332 Points and Authorities ln Support Of Petition For Writ Of Administrative Mandate 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 13 14 15 16 17 18 1 9 2 0 2 1 2 2 23 2 4 25 2 6 27 28 2. A clear statement of the specific reasons supporting the intended action; 3 . The specific regulations that support, or the change in Federal or State law that requires, the action; 4 . An explanation of . . . 1 . The individual’ s right to request a local evidentiary hearing if one is available, o r a State agency hearing; or . . . 2. An explanation of the circumstances under which Medicaid is continued if a hearing is requested. This CFR section is the basic guidance on adequacy of notice for federally funded health care programs including IHSS2 . NOAs that meet the requirement of due process must be sufficiently detailed and specific to enable a meaningful response. (Buckhannon v. Percy, (E.D. Wisc. 1982), 533 F. Supp 822, 833-834 aff’d in part, modified in part, 708 F.2d 1 209 (ih Cir, 1 983) [requiring that notices implementing Medicaid and cash assistance rules changes include individual information to allow individual to assess correctness of decision] .) Vague and generic reasons for adverse agency action, rather than specific individualized facts supporting the agency’s conclusion do not meet due process standards. (Rodriquez v. Chen, 985 F. Supp. 1 189, 1194 (D. Az. 1996) [invalidating Medicaid termination notices stating, for example, that \”net income exceeds maximum allowable\” because these reasons were \”so vague in as much as they fail to provide any basis upon which to test the accuracy of the decision.\”] .) C. A Legally Adequate Written Notice of Action Is A Due Process Requirement Under the California State Constitution The Califorr.iia Constitution Article 1 \ufffd Section 7(a) provides t.liat a person may not be denied due process of the law and requires that the NOA provide adequate explanation for its reasons in 2 David v. Heckler, (E.D.N.Y. 1984) 591 F.Supp. 1033 established the requirement that MediCaid funded programs must issue adequate notices of action. – 10 – Cottrell v. Lightbourne, Sac. Co. Superior Court# 34-2016-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate 1 2 3 4 5 6 7 8 9 1 0 11 12 13 1 4 15 16 17 1 8 19 20 21 22 23 24 25 26 27 2 8 order to avoid arbitrary actions by government agencies. \”The very essence of arbitrariness i s to have one’s status redefined by the state without an adequate explanation for its reasons for doing so .\” (People v. Ramirez ( 1 979) 25 Cal .3d 260, 266-267.) Petitioner need only identify a statutorily conferred interest to trigger due process in California. (Ryan v. California Interscholastic Federation-San Diego Section (2001 ) 94 Cal .App.4th 1 048 , 1 07 1 .) In this case, the statutorily conferred interest is IHSS services pursuant to Welfare and Institutions Code Sections 1 2300, et. seq. D. Notices of Action and the Administrative Hearing Process The Department of Social Services adopted formal regulations, Division 22 of the Manual of Policies and Procedures, which govern the state administrative hearing process for all public social services programs, including the In-Home Supportive Services Program. (Welf. & Inst. Code 1 0554 .) The DSS developed the Adequate Notice regulations and policies as the result of the Consent Decree in Turner v. McMahon (U .S . District Court, Northern District, CA filed on June 20, 1 983). A true and correct copy of the Turner Consent Decree is attached to the request for judicial notice. Turner challenged the adequacy of the notices being sent to Aid to Families With Dependent Children (now CalWORKs) recipients and applicants. ACIN I- 1 5 1 -82 was developed as part of the Turner settlement to provide guidance to counties on what constitutes an adequate notice of action. (A true and correct copy of ACIN 1 – 1 5 1 -82 is found at AR 27-30.) On January 3, 20 14, DSS issued ACIN I-02- 1 4 3 which reiterates the need for the counties to issue adequate notices of action in CalWORI(s cases. While ACIN 02- 1 4 focuses on the CaiVlORKs cash assistance program, MPP Division 22 applies to all California public social programs including IHSS. 3 A true and correct copy of ACIN I-02- 1 4 is included in the request for judicial notice. – 1 1 – Cottrell v. Lightbourne, Sac. Co. Superior Court# 34-2016-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 14 15 1 6 17 1 8 1 9 20 2 1 22 2 3 2 4 2 5 2 6 2 7 2 8 The purpose of a notice of action is to provide sufficient information to allow the individual to determine what the issue is, understand the action to be taken and if the individual does not agree, the individual has a right to request an administrative hearing to review the county’ s determination. (California Constitution Article I, Section 7(a) and MPP 22-00 1 (a)( l ) .) An adequate notice is defined as \”[A] written notice informing the claimant of the action the county intends to take, the reasons for the intended action, the specific regulations supporting such action, an explanation of the claimant’s right to request a state hearing, and if appropriate, the circumstances under which aid will be continued if a hearing is requested . . . \”. (MPP 22-00 l (a)(l ) .) An adequate notice must be prepared in clear, nontechnical language, and when appropriate also inform the claimant regarding what information or action, if any , is needed to reestablish eligibility or determine a correct amount of aid . (MPP 1 0- 1 1 6 .42; 22-071 .4 ; 22-07 1 .6.) When the notice of action is adequate, the claimant or recipient, per DSS regulations, generally has 90 days to request an administrative hearing if she believes that the agency’ s action or proposed action is incorrect. (Welf. & Inst. Code 1 095 l (a)(l ); MPP 22-07 1 et seq.) Welfare and Institutions Code section 1 095 l (a)(2) allows for an administrative fair hearing to be requested after more than 90 days at the discretion of the CDSS director if he or she makes a finding of \”good cause\” for the late filing of the request. (See ACIN I-66-08 [A true and correct copy of ACIN I-66-08 is found at AR 22-29] .) Although Welfare and Institutions Code section 1 095 1 (b )(2) states that a hearing may not be granted for a request that is more than 1 80 days after the issuance of the order or the action complained of by the applicant or beneficiary, subsection (b )(3) states : \”This section shall not preclude the application of principles of equity jurisdiction as otherwise provided by law.\” – 12 – Cottrell v. Lightbourne, Sac. Co. Superior Court# 34-2016-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate l 2 3 4 5 6 7 8 9 1 0 1 1 12 13 14 15 1 6 1 7 1 8 1 9 20 2 1 22 23 24 25 26 27 28 The above referenced statutes and regulations limiting the time for when a CDSS administrative hearing may be requested only apply when the county NOA qualifies as adequate written notice per the terms of the program for which the notice has been issued. (MPP 22-009 . 1 ) When an adequate NOA is required but not provided any hearing request (including an otherwise untimely hearing request) shall be deemed to be a timely hearing request. (MPP 22-009 . 1 1 .) I. THE ALJ LIMITED HIS EVALUATION OF THE SIX NOTICES OF ACTION TO THE DEFINITION OF \”ADEQUATE NOTICE\” AND DID NOT CONSIDER WHETHER THE NOTICES OF ACTION MEET ADDITIONAL REQUIREMENTS. Although the ALJ correctly identified that each of the six IHS S NOAs had to meet the requirements of an adequate notice, the ALJ impermissibly limited the scope of his inquiry to the definition of adequate notice. (MPP 22-00 l (a) .) (AR 6.) The ALJ ‘ s failure constitutes a prejudicial abuse of discretion and contrary to law in that the NOAs do not meet the requirements of an adequately written notice of action. The ALJ failed to consider whether the six notices adequately included sufficient information explaining the decision in each NOA how the county calculated the hours for each service so that Ms. Cottrell could reasonably decide whether or not to appeal the county’s action. Without this information, Petitioner could not decide whether to appeal any of or all of the NOAs. The ALJ also ignored the requirement that each NOA which denies, reduces, discontinues or suspends a service, or which increases a fee, shall include the information concerning the recipient’s circumstances which have been used to make the detennination and shall cite the regulations which support the action. (MPP 1 0- 1 1 6.42 .) First, each of the six NOAs which the ALJ deemed to be \”legally adequate\” suffer from the same two principal defects : none of the NOAs meet the second and third criteria for a legally adequate notice. (MPP 22-00l (a) .) : – 1 3 – Cottrell v. Lightbourne, Sac. Co. Superior Court # 34-20 1 6-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate 1 2 3 4 5 6 7 8 9 1 0 1 1 12 13 14 15 1 6 17 18 19 2 0 2 1 2 2 2 3 2 4 2 5 2 6 2 7 28 2. A clear statement of the specific reasons supporting the intended action; 3 . The specific regulations that support, or the change in Federal or State law that requires, the action. The ALJ disregarded that it is essential to a claimant\/recipient’ s ability to determine not only what action the county has taken but also the rationale that supports the change. In the context of the NOA \”C\”, the NOA shows that the county decreased routine laundry 0.33 per week. However, this NOA fails to explain the specific reason(s) supporting the intended action in a simple, easily understood language. (AR 65 .) The change may be, for example, a decrease in hours needed for doing laundry because the household acquires a washer and dryer and no longer needs to travel to the local laundromat Similarly, NOA \”A\” reduces weekly food shopping 0 .75 with the only explanation is that \”Your In Home Service Hours have been reduced.\” (AR 6 1 .) This explanation does not explain why or how the county determined that Ms. Cottrell ‘ s caretaker no longer needed 45 minutes in order to provide proper nutrition for her daughter. Specific to this case is the substantial change that occurred with NOA \”C\” that retroactively granted Ms. Cottrell IHSS PS hours at the rate of 45 hours per week, the maximum level, effective April 201 1 , three years after Ms. Cottrell was found eligible for IHSS benefits. This NOA is signed off on by the same county worker, Zoe Neely, whose name is on the original NOA \”A\” that granted IHSS benefits but not PS . No explanation for such a significant change in the rate of benefits paid and in a key type of IHSS service is included in writing on NOA \”C\”. Only guesses and conjecture might suggest what changes in Ms. Cottrell ‘ s living circumstances support such a significant change. Of course it is aiso possible that the rationale for this change is reflected in the caseworker’ s notes. Critically that information is not on the NOA and is unavailable for the Petitioner to understand and appreciate the \”what\” and the \”whys\” of the change. – 14 – Cottrell v. Lightbourne, Sac. Co . Superior Court # 34-20 1 6-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate 1 2 3 4 5 6 7 8 9 10 1 1 1 2 13 14 15 16 17 1 8 19 2 0 2 1 2 2 2 3 24 2 5 26 2 7 28 The same logic and the mistakes are key to NOA \”E\”, issued on July 24, 20 12, which summarily terminates Ms. Cottrell ‘ s IHSS PS eligibility giving the recipient less than a week to adjust to the loss of IHSS PS services effective August 1 , 20 1 2. (AR 69.) What is unstated is the reason for the change and does not reference which of the PS eligibility or ineligibility criteria either apply or no longer apply to Ms. Cottrell as an individual IHSS PS recipient. Again, without some detail based on a county employee’ s observations, there is no explanation of the rationale for the county’ s actions . Second, the ALJ faiied to consider whether the regulations cited on the six NOAs specific regulations support, or the change in Federal or State law that requires, the action. NOA \”A\” only cites MPP section 30-763, Service Authorization, which runs from page 82 to page 92 of Respondent’ s DSS regulations. (AR 6 1 .) The specific regulation that explains food shopping activities is MPP section 30-757 . 1 35 . NOA \”B\” fails to reference the regulations for bowel\/bladder care (MPP 30-757.1 4(a)), menstrual care (MPP 30-757. 1 40)), and bathe, oral hygiene and grooming (MPP 30-757 . 1 4(e) .) NOAs \”C\”, \”D\” and \”E\” change the weekly PS hours but fail to cite the PS regulations which provide specific reasons for the changes. (MPP 30-757.1 7.) (AR 65, 67, 69.) Third, the ALJ ignored Respondent’s own regulations that require that an adequate notice shall be prepared in clear, nontechnical language per MPP section 22-07 1 .4 . None of the notices explain the concept of \”Protective Supervision\” in clear, nontechnical language. Most notably, the three NOAs which authorized Protective Supervision do not explain what activities are covered as Protective Supervision. (AR 65, 67, 69.) NOAs \”B\”, \”C\”, \”D” and \”E\” inform Ms. Cottrell that \”your service assessment includes consideration of \”alternate resources\” . . . \” . (AR 63, 65, 67, 69 .) However, none of the notices explain what an alternate resource is or jdentifies the alternate resource. – 1 5 – Cottrell v. Lightbourne, Sac. Co. Superior Court # 34-201 6-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 15 16 1 7 1 8 19 20 2 1 2 2 2 3 2 4 2 5 26 2 7 2 8 Similarly, NO As \”E\” and \”F\” inform Ms. Cottrell that certain of her IHSS services were prorated without explaining what constitutes proration or how the county calculated the proration. (AR 69, 73 .) The defects to NOA \”F\” include a general explanation of the term \”proration\” without a specific explanation as to how this rule is being applied to the Petitioner. There is also a long boiler\u00ad plate paragraph addressing an issue of service reassessments that were based on litigation arising out of statewide IHSS reductions which would not qualify as language compliant. Fourth, the ALJ failed to consider that NOA\”E\” which reduced Protective Supervision, did not inform the claimant regarding what information or action, if any, is needed to reestablish eligibility or determine a correct amount of aid. (MPP 22-07 1 .4; 22-07 1 .6.) (AR 69 .) A. A Federal Court Has Opined That The IHSS Notice Forms Are Legally Inadequate. In an 2009 opinion by the federal District Court for the Northern District of California in VL. v. Wagner (2009) 669 F. Supp.2d 1 1 06, the decision in support of a class of disabled and elderly IHSS recipients granted a preliminary injunction on the showing that the plaintiffs were likely to prevail on the merits of their complaints against the institution of an IHSS evaluation system. One of the causes of action included in the federal case challenged the legal adequacy of the same type of IHSS notices of action4 format as the five NOAs that are the subject of this action, NOAs \”A\”-\”E\”. 4 Commenting on problems with the IHSS CMIPS notice, Wagner describes them as follows: \” The notice is also difficuit to read. The print is small, single spaced and in all capital letters. It contains unexplained acronyms and the description of numerical ranks and FI Scores if virtually unintelligible. The elderly and disabled individuals reading these notices will have a difficult time understanding them, let alone taking the affirmative action required. Many IHSS recipients cannot easily leave their homes due to their disabilities, the notice does not inform them of their right to have a hearing at home to dispute the service cuts .\” VL . v. Wagner, supra. , at p. 1 1 2 1 . – 1 6 – Cottrell v. Lightbourne, Sac. Co. Superior Court # 34-201 6-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate 1 2 3 4 5 6 7 8 9 1 0 1 1 12 13 14 15 16 17 18 19 20 21 22 23 2 4 25 26 2 7 28 In her discussion of the deficits of the IHSS NOA, the judge in Wagner cited Mullane v. Hanover Bank and Trust Co (( 1 950) 339 U.S. 306), Goldberg v. Kelly (( I 970) 397 U.S.254) and a tax case Jones v. Flowers (2006) 547 U.S. 220 . On the issue of individually tailored informing notices, the authorities cited are applied to IHSS recipients . . . must receive \”timely and adequate notice detailing the reasons for termination and an effective opportunity to defend\” themselves. Goldberg v. Kelly [citation omitted] To comport with due process, notice must be \”tailored to the capacities and circumstances\” of the recipients who must decide whether to request a hearing, [ emphasis added] Id. at 268 \” The government must consider unique information about an intended recipient regardless of whether a statutory scheme is reasonably calculated to provide notice in th\ufffd ordinarv case.\” [emphasis added] Jones v. Flowers, supra. , at 230. The six NO As that are the subjects of this writ petition are all defective in the ways noted by the Court in Wagner. The first five NOAs were produced in the CMIPS I format that was specified in Wagner. The guidance in Wagner focuses on the importance of a complete, individually tailored NOA as opposed to a cursory, jargon-filled, informing document. The latter does not meet federal standards of due process that requires : . . . notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Mullane at 3 14. The preceding discussion identifies the sources of law that define and describe legally adequate written notices of action. Respondent’s Decision that the NOAs issued by Sonoma County were \”adequate notices of action\” did not meet these standards. As such the Respondent ‘s Decision finding that all of the NOAs were adequate is unsupported by the relevant law and therefore constitutes a prejudicial abuse of discretion. II. RESPONDENT’S AFFIRMATIVE DEFENSES SHOULD BE OVERRULED Respondent raises four affirmative defenses to the Petition for Writ of Administrative Mandamus, none contain any factual allegations to support them. (Respondent’s Answer to Verified – 1 7 – Cottrell v. Lightbourne, Sac. Co. Superior Court# 34-2016-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate 1 2 3 4 5 6 7 8 9 1 0 l l 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 2 0 2 1 2 2 2 3 2 4 2 5 2 6 2 7 2 8 Petition For Administrative Writ Of Mandate [\”Answer\”], at 1 1 .) Each of the four affirmative defenses, consists of legal conclusions rather than presenting facts with as much detail as to constitute a cause of action. Respondent’ s pleading burden is identical to the petitioner’ s burden to plead the ultimate facts constituting the cause of action. (FP I Dev. , Inc. v. Nakashima, ( 1 99 1 ) 23 1 Cal .App.3d 3 67, 3 84 [ answer must aver facts \”as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.\”] .) A. Respondent’s First Affirmative Defense \”Petition Fails to State Facts Sufficient to Constitute A Cause of Action.\” Gressiey v Williams (1 96 1 ) 1 93 Cal .App.2d 636, 639 holds that all that is necessary to sustain a claim alleging a failure to state a cause of action is this : it appears that the petitioner is entitled to any relief at the hands of the court, notwithstanding that the facts may not be clearly stated, or may be intermingled with a statement of other facts. Those other facts may be irrelevant to the cause of action or the defense shown. This is also true when a plaintiff in his complaint or a defendant in her answer, demand relief for which the party is not entitled under the facts alleged. In this matter, Petitioner is entitled to relief from this Court, namely the vacating and remanding of the final administrative hearing decision, In Re Alicia Cottrell, State Hearing # 20 1 5 054005 . The decision denies Petitioner the right to proceed to a hearing on six separate defective NOAs issued between 2008 and 20 1 3 on the grounds that there is no jurisdiction for a DSS hearing. Petitioner avers that the Respondent ‘s decision cannot be sustained as a matter of law as the six IHSS NOAs lack the factual and other specificity needed to constitute legally adequate written notices of action. The Petition contains six causes of action-one for each IHSS NOA. Each cause of action challenges the validity of Respondent’s decision on the basis of not being legally valid. , (Verified Petition For Administrative Writ of Mandate [\”Petition\”], 1\ufffd 43 ; 5 1 ; 57; 64; 69 and 73 .) – 1 8 – Cottrell v. Lightbourne, Sac. Co. Superior Court # 34-20 1 6- 800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate 1 2 3 4 5 6 7 8 9 1 0 l l 1 2 1 3 14 1 5 16 1 7 18 19 20 2 1 22 2 3 2 4 25 26 2 7 2 8 Abuse of discretion is established if the Respondent did not proceed in the manner required by laws. (Code of Civ . Proc. 1 094 .S(b ).) Respondent failed to evaluate each NOA beyond the definition of adequate notice. The Petitioner is entitled to relief from the court. Petitioner requests a ruling that the six NOAs do not meet the standards for an adequate notice of action, to vacate the decision and remand for an administrative hearing on the merits. (See Gressley, supra. , at 639.) In each of the causes of action, the petition plead exhaustion of administrative remedied and that Petitioner has not other plain, speedy, and adequate remedy in the ordinary course of the law other than the relief sought in this petition. (Petition, ‘1\ufffd 43 ; 5 1 ; 57 ; 64; 69 and 73 .) For these reasons, the first affirmative defense should be ovenuled. B. Respondent’s Second Affirmative Defense \”Petitioner’s Claims Are Barred by Applicable Statutes of Limitations.\” Pursuant to Welfare and Institutions section 1 0962, within one year after receiving notice of the DSS ‘ final administrative hearing decision, a petition may be filed with the superior court, under the provisions of Code of Civil Procedure section 1 094.5 praying for a review of the entire proceedings in the matter, upon questions of law involved in the case . The Petitioner must ask for judicial review within one year from the date of receipt of the decision. (Id. [Emphasis added] .) Respondent’s Answer mistakenly identifies May 1 6, 20 1 6 as the date that the petition was filed. (Answer, at 1 .) The hearing decision was both adopted and released on April 1 5, 20 1 5 . (AR 2.) The Petition for Writ of Administrative Mandamus was filed in the Sacramento County Superior Court on April 1 3, 20 1 6, within one year of the release date. For this reason, the second affirmative defense should be overruled. II II – 1 9 – Cottrell v. Lightbourne, Sac. Co. Superior Court# 34-2016-800002332 Points and Authorities ln Support Of Petition For Writ Of Administrative Mandate 1 2 3 4 5 6 7 8 9 1 0 J. l 1 2 1 3 14 15 1 6 1 7 18 1 9 20 21 22 23 24 25 2 6 27 28 C. Respondent’s Third Affirmative Defense \”Petition Is Barred By the Doctrine of Lach es.\” Petitioner is informed and believes that the primary source of this affirmative defense is Respondent’s mistaken belief that the underlying petition was not timely filed. With respect to this affirmative defense, Petitioner restates the argument made with respect to the Second Affirmative Defense. Petitioner’ s second position on this affirmative defense is that laches, an equitable defense, is not appropriate as a means of effectively dismissing a matter that focuses on an exclusively legal issue: were the six NO As and each of them, legally deficient as written informing notices concerning the Petitioner’ s rights to receive IHSS benefits from Sonoma County . Per Abbott v. City of Los Angeles ( 1 958) 50 Cal .2d 438, 46 1 -462, }aches is not a defense to the petitioner’ s prosecution of this matter at the level of a Superior Court writ of mandate timely filed per W elf. and Inst. Code Section 1 0962. Petitioner’ s final position on this issue is to raise the counter defense of \”unclean hands\”. \”Unclean hands\” considers the responsibility of all parties including the party alleging the equitable defense. (See San Diego Dept. of Pub. Welfare v. Superior Court ( 1 972) 7 Cal. 3d 1 , 9.) Laches as an affirmative defense, should be considered unavailable to one who does not come to court with clean hands. (Wallace v. Board of Education, 63 Cal.App.2d 6 1 1 , 6 1 7.) In this matter, Petitioner’ s delay in seeking relief from the actions of Sonoma County clearly arise out of the county’ s failure to issue notices that were more than minimally informative. For this reason, the third affirmative defense should be overruled. II II – 20 – Cottrell v. Lightbourne, Sac. Co. Superior Court# 34-2016-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate 1 2 3 4 5 6 7 8 9 1 0 1 1 J._ _… 1 2 13 1 4 15 1 6 1 7 1 8 1 9 20 2 1 22 2 3 2 4 25 26 2 7 2 8 D. Respondent ‘s Fourth Affirmative Defense \”Petition For Writ For [Sic] Mandate, As A Whole, And Each Claim For Relief Asserted In It, Is Stated In Conclusory Terms, Respondent Cannot Fully Anticipate All Affirmative Defenses That May Be Applicable In This Action. \” Respondent ‘s purported Fourth Affirmative Defense is confusing, inconsistent and digressive. It is wholly unsupported by the pleading and the administrative record. Petitioner respectfully requests that this affirmative defense be stricken . CONCLUSION Petitioner herein is a particularly vulnerable IHSS program beneficiary. She was born with a congenital development.al disability that has left her wholly dependent on the support of others to manage her day-to-day affairs, provide her with safe and sound quality of life and to interpret for her the rules and regulations of a complex scheme of social, medical and financial support systems. The basic mechanism for assuring that this scheme is operating properly is a legally valid written notice of action. While it is important that this mere document of notice is (a) properly titled and addressed to the claimant\/beneficiary; (b) timely mailed to the claimant\/beneficiary; and ( c) presumptively received by the claimant\/beneficiary, what is essential is the actual content of the notice document. Petitioner is not seeking to require that DSS provide IHSS recipients with an extensively detailed uniquely personalized monogram as a notice of action. Petitioner is requesting only that the authorities discussed above be applied to the six IHSS notices of actions that she received. As the hearing decision as issued is not consistent with these legal requirements, Petitioner respectfully requests that the hearing decision be vacated and reversed. The Respondent should be directed to issue a decision finding that none of the six NOAs are legally adequate and the matter is t II II – 21 – Cottrell v. Lightbourne, Sac. Co. Superior Court# 34-2016-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate 1 be scheduled for a hearing on the merits as there is jurisdiction to conduct an administrative fair 2 hearing with respect to the substantive consequences of each of the six NO As and each of them. 3 4 5 6 7 8 9 1 0 : 1 .J.. .J.. 1 2 1 3 1 4 1 5 16 17 18 19 20 21 22 23 2 4 25 26 27 28 Respectfully submitted, Dated : \ufffd’5D; & D\/f:J Attorney for Petitioner Alicia Cortreil – 22 – Cottrell v. Lightbourne, Sac. Co. Superior Court # 34-20 16-800002332 Points and Authorities In Support Of Petition For Writ Of Administrative Mandate ”

pdf Cuff v. Lightbourne – WtW Supportive Services – Diaper

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” 05\/04\/2018 By Dollie Campos, Deputy Clerk 30-2018-00990481-CU-WM-CJC Judge Ronald Bauer Introduction Jurisdiction and Venue Parties Background of WTW Program Statement of the Facts Applicable Law General Allegations First Cause of Action – Writ of Mandate Section 1085 Second Cause of Action – Administrative Mandamus Third Cause of Action – Taxpayer Action Fourth Cause of Action – Declaratory Relief Prayer for Relief Verification Exhibit 1 – 8\/16\/16 Notice of Action Exhibit 2 – 5\/4\/17 Decision Exhibit 3 – 2\/6\/18 Request for Ancillary Services Exhibit 4 – 2\/9\/18 Notice of Action Exhibit 5 – Letter to Director Lightbourne Exhibit 6 – Assembly Bill 480 ”

pdf District of Columbia and Bread for the City v. USDA – 12-5-19 Federal Illegal ABAWDS Regulations Rescinded

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” 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DISTRICT OF COLUMBIA, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants. Civil Action No. 20-cv-00119 (BAH) Chief Judge Beryl A. Howell BREAD FOR THE CITY, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants. MEMORANDUM OPINION Eight months into the COVID-19 pandemic, which has rocked the economy, killed nearly 220,000 Americans,1 quadrupled the national unemployment rate,2 and dramatically increased the number of Americans forced to reckon with hunger this year,3 the United States Department of Agriculture ( USDA ) is pursuing implementation of a Final Rule to dramatically alter the 1 See Cumulative Cases by Days Since 50th Confirmed Case, JOHNS HOPKINS UNIVERSITY (Oct. 18, 2020), https:\/\/coronavirus.jhu.edu\/data\/cumulative-cases (last visited Oct. 18, 2020). 2 See BUREAU OF LABOR STATISTICS, THE EMPLOYMENT SITUATION AUGUST 2020, USDL-20-1838 (Sept. 4, 2020), https:\/\/www.bls.gov\/news.release\/pdf\/empsit.pdf (last visited Oct. 18, 2020). 3 See ALISHA COLEMAN-JENSEN ET AL., U.S. DEP’T OF AGRIC., ERR-275, HOUSEHOLD FOOD SECURITY IN THE UNITED STATES IN 2019 12 (Sept. 2020), https:\/\/www.ers.usda.gov\/webdocs\/publications\/99282\/err- 275.pdf?v=9263.7 (last visited Oct. 18, 2020); The Impact of the Coronavirus on Food Security, FEEDING AMERICA, 3 (Apr. 22, 2020), https:\/\/www.feedingamerica.org\/sites\/default\/files\/2020- 04\/Brief_Impact%20of%20Covid%20on%20Food%20Insecurity%204.22%20%28002%29.pdf (last visited Oct. 18, 2020). Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 1 of 67 2 long-standing operations of the Supplemental Nutrition Assistance Program ( SNAP ), by stripping States of their current flexibility in providing this food assistance benefit. D.C. v. U.S. Dep’t of Agric. ( D.C. I ), 444 F. Supp. 3d 1, 6 (D.D.C. 2020); see Final Rule, Supplemental Nutrition Assistance Program: Requirements for Able-Bodied Adults Without Dependents, 84 Fed. Reg. 66782 (Dec. 5, 2019) (to be codified at 7 C.F.R. pt. 273). In March 2020, when this Court largely granted preliminary injunction requests from nineteen States, the District of Columbia and the City of New York, as well as private plaintiffs, USDA estimated the prospective changes to SNAP would affect over one million people, by newly subjecting them to time limits on their eligibility to receive food under this program, and kick almost 700,000 able-bodied adults without dependents ( ABAWDs ) out of the SNAP program altogether. See 84 Fed. Reg. 66782, 66807, 66809 (touting savings of about $1.1 billion per year from reduction in SNAP benefit payments and estimating that 1,087,000 individuals would be newly subject to eligibility time limits and 688,000 individuals, in fiscal year (FY) 2021, will neither meet the new waiver requirement nor be exempt); ABAWD00000431 (Regulatory Impact Analysis), ECF No. 105-1. The agency has been icily silent about how many ABAWDs would have been denied SNAP benefits had the changes sought in the Final Rule been in effect while the pandemic rapidly spread across the country and congressional action had not intervened to suspend any time limits on receipt of those benefits. In the pandemic’s wake, as of May 2020, SNAP rosters have grown by over 17 percent with over 6 million new enrollees.4 4 Ed Bolen, USDA Rolling Back SNAP Flexibility That States Need in Current Crisis, CENTER ON BUDGET AND POLICY PRIORITIES (Aug. 10, 2020, 11:00 AM), https:\/\/www.cbpp.org\/blog\/usda-rolling-back-snap-flexibility- that-states-need-in-current-crisis (last visited Oct. 18, 2020). Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 2 of 67 3 More than merely silent, USDA strenuously objects to consideration of estimates, for example, that under the new restrictions in the Final Rule, only 10 percent, rather than the current 97 percent, of U.S. counties would have the flexibility to extend SNAP benefits to ABAWDs. See State Pls.’ Mem. in Supp. of Mot. Summ. J. ( State Pls.’ MSJ ), Ex. 1, Decl. of Edward Bolen, Sr. Policy Analyst, Center on Budget and Policy Priorities (CBPP) ( Bolen Decl. ), \u00b6 13, ECF No. 65-1; Defs.’ Cross-Mem. in Supp. of Mot. Summ. J. and in Opp’n to State Pls.’ MSJ ( Defs.’ Opp’n ), at 44 n. 22, ECF No. 92. Despite the agency’s blinkered effort to downplay or disregard the predicted outcomes of the Final Rule, the backdrop of the pandemic has provided, in stark relief, its procedural and substantive flaws. To be sure, States bear the statutory responsibility of aiding ABAWD SNAP recipients to transition into the workforce by providing vocational training and transitional support. To that end, the statutory scheme sets up mechanisms for the federal government to spur States to provide better services to their citizens to enable their self-sufficiency and move them off government assistance. See 84 Fed. Reg. at 66796 ( the Department expects States to support ABAWDs in their efforts to find work and meet the work requirement by expanding access to work programs and other supportive services for ABAWDs. ); id. at 66807 ( the Department expects State agencies to do what they can to increase the employability of ABAWDs, and help them find and gain work. ). At the same time, however, the over-arching goal of SNAP is to enable States to target nutrition benefits to those residents in need, with statutory provisions that protect that critical function. See 7 U.S.C. 2011 (Congressional findings that the limited food purchasing power of low-income households contributes to hunger and malnutrition among members of such households and [t]o alleviate such hunger and malnutrition, a supplemental nutrition assistance program will permit low-income households to obtain a more nutritious Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 3 of 67 4 diet through normal channels of trade by increasing food purchasing power for all eligible households who apply for participation. ). The Final Rule at issue in this litigation radically and abruptly alters decades of regulatory practice, leaving States scrambling and exponentially increasing food insecurity for tens of thousands of Americans. Whether USDA could, using a legally proper process, adequately explain how the Final Rule’s changes both comport with the statutory scheme and make sense is a question for another day. For now, the agency has not done so. For the reasons stated below, plaintiffs’ motions for summary judgment are GRANTED while the defendants’ cross-motions for summary judgment are DENIED, and the Final Rule is VACATED. I. BACKGROUND Familiarity with the statutory framework, regulatory background leading up to the December 5, 2019 promulgation of the Final Rule and the procedural history of this case, as comprehensively detailed in this Court’s March 13, 2020 preliminary injunction decision, D.C. I, 444 F. Supp. 3d at 7 15, is assumed and only briefly summarized here. A. Brief Overview of Statutory Requirements and the Regulatory Scheme Changed by Final Rule Pursuant to the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which amended the Food Stamp Act of 1977, ABAWDs are generally limited to receiving SNAP benefits for 3 months in a 36-month period, unless certain work requirements are met. See 7 U.S.C. 2015(o)(2).5 This time limit on ABAWD’s SNAP benefits may be 5 The time limits applied to ABAWDS are not applicable to individuals who are: (A) under 18 or over 50 years of age; (B) medically certified as physically or mentally unfit for employment; (C) a parent or other member of a household with responsibility for a dependent child; (D) otherwise exempt under subsection (d)(2); or (E) a pregnant woman. 7 U.S.C. 2015(o)(3). These statutory exceptions to the time limits on eligibility for SNAP benefits are reflected in current regulations. See 7 CFR 273.24(c). Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 4 of 67 5 temporarily waived or exempted as provided in two separate statutory sections that the Final Rule is intended to implement. See 7 U.S.C. 2015(o)(4)(A) (waivers), 2015(o)(6) (exemptions). Those statutory provisions and associated long-standing implementing regulations, originally made effective in 2001, see Final Rule, Food Stamp Program: Personal Responsibility Provisions of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 66 Fed. Reg. 4438 (Jan. 17, 2001) (codified at 7 C.F.R. pt. 272, 273), are described below. 1. Waiver of Time Limits Applicable to ABAWDs The statute’s waiver provision authorizes the Secretary of Agriculture, upon request of a State agency, with the support of the State’s chief executive officer, to waive the applicability of the time limit and work requirement\u2014 to any group of individuals in the State if the Secretary makes a determination that the area in which the individuals reside (i) has an unemployment rate of over 10 percent; or (ii) does not have a sufficient number of jobs to provide employment for the individuals. 7 U.S.C. 2015(o)(4)(A) (emphasis supplied). The individuals referenced in this statutory provision are ABAWDs. See State Pls.’ MSJ at 13; Defs.’ Opp’n at 5. The current USDA regulation, in effect since 2001\u2014and continuing in effect during the pendency of this Court’s preliminary injunction, which stayed the waiver process changes in the Final Rule that would otherwise have been effective on April 1, 2020, 84 Fed. Reg. at 6680\u2014permits States to submit whatever data it deems appropriate to support a waiver request, with the caveat that requests based on unemployment rates or labor force data must use standard Bureau of Labor Statistics (BLS) data or methods. 7 C.F.R. 273.24(f)(2) (2001).6 To support waiver requests for an 6 7 C.F.R. 273.24(f)(2) (2001) largely codified USDA guidance issued in 1996, see ABAWD00000166 (U.S. DEP’T AGRIC., GUIDANCE FOR STATES SEEKING WAIVERS FOR FOOD STAMP LIMITS (1996)), ECF No. 105-1, at the time of PRWORA’s enactment, see State Pls.’ MSJ at 25; Defs.’ Opp’n at 7. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 5 of 67 6 area due to lack of sufficient jobs for ABAWDs, under prong (ii) of 2015(o)(4)(A), the current regulation provides [a] non-exhaustive list of the kinds of data a State agency may submit. Id.7 As evidence of a lack of sufficient jobs, six kinds of data are suggested, including data showing that an area is (1) designated as a Labor Surplus Area (LSA) by the Department of Labor ( DOL ); (2) qualifies for extended unemployment benefits; (3) has a low and declining employment-to-population ratio; (4) has a lack of jobs in declining occupations or industries; (5) is described in an academic study or other publications as an area where there are lack of jobs; and (6) has a 24-month average unemployment rate 20 percent above the national average for the same 24-month period, id. 273.24(f)(2)(ii). USDA concedes that the challenged Final Rule upends this long-standing USDA policy on States’ prerogatives by strictly delineating the area to which waivers may apply to a metric developed by the U.S. Department of Labor, called a labor market area ( LMA ), and also by eliminating flexibility in probative data sources to restrict the criteria States may use to demonstrate a lack of a sufficient number of jobs for ABWADs under 7 U.S.C. 2015(o)(4)(A)(ii). See Defs.’ Opp’n at 2, 32. 2. Discretionary Exemptions from Time Limits Applicable to ABAWDs The year following PRWORA’s enactment, the Balanced Budget Act ( BBA ) of 1997 again amended the Food Stamp Act and added the discretionary exemption provision, which 7 To support waiver requests under prong (i) of 7 U.S.C. 2015(o)(4)(A), the 2001 regulation suggested the following three kinds of data to show an unemployment rate of over 10 percent : (1) a recent 12 month average unemployment rate over 10 percent ; (2) a recent three month average unemployment rate over 10 percent ; or (3) an historical seasonal unemployment rate over 10 percent. 7 C.F.R. 273.24(f)(2)(i) (2001). The Final Rule eliminates States’ flexibility in submitting whatever data it deems appropriate to support its request under prong (i), id. 273.24(f)(2), to require requesting States to use only [d]ata from the Bureau of Labor Statistics (BLS) that shows an area has a recent 12-month average unemployment rate over 10 percent, 84 Fed. Reg. at 66811. This elimination of all but the single type of data under prong (i) was criticized during the rulemaking as inadequate and that other time periods should be allowed to demonstrate an unemployment rate over 10 percent. 84 Fed. Reg. at 66784. Plaintiffs do not challenge the Final Rule’s change to the implementation of prong (i) of 7 U.S.C. 2015(o)(4)(A). Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 6 of 67 7 provided flexibility to States to exempt up to 15 percent of ABAWDs in the State from the time limits on eligibility for SNAP benefits. See BBA, Pub. L. No. 105-33, 1001, 111 Stat. Ann. 251, 252 (1997); see also Final Rule, Food Stamp Program: Work Provisions of the [PRWORA] of 1996 and Food Stamp Provisions of the [BBA] of 1997, 67 Fed. Reg. 41589, 41591 (Jun. 19, 2002) (to be codified at 7 C.F.R. pts. 271, 272, 273, 275 and 277) ( 2002 Final Rule ). This percentage was recently reduced to 12 percent for fiscal year 2020 and each subsequent fiscal year in the Agriculture Improvement Act of 2018 ( 2018 Farm Bill ). 2018 Farm Bill, Pub. L. No. 115-334, 4005, 132 Stat. 4490, 4632 (2018); see also 84 Fed. Reg. at 66802. Each exemption used by a State provides one additional month of SNAP benefits to an ABAWD who would otherwise be ineligible for such benefits due to the time limit. See Proposed Rule, Supplemental Nutrition Assistance Program: Requirements for Able-Bodied Adults Without Dependents, 84 Fed. Reg. 980, 987 (Feb. 1, 2019); Advance Not. of Proposed Rulemaking (ANPRM), Supplemental Nutrition Assistance Program: Requirements and Services for Able- Bodied Adults Without Dependents, 83 Fed. Reg. 8013, 8014 (Feb. 23, 2018) ( Each 15 percent exemption extends eligibility to one ABAWD for one month. ). To calculate the number of discretionary exemptions each State is entitled to use for the fiscal year, 2015(o)(6) sets out in six subparagraphs specific directions to USDA’s Secretary, culminating in the final adjustment that: the Secretary shall increase or decrease the number of individuals who may be granted an exemption by a State agency under this paragraph to the extent that the average monthly number of exemptions in effect in the State for the preceding fiscal year under this paragraph is lesser or greater than the average monthly number of exemptions estimated for the State agency for such preceding fiscal year under this paragraph. 7 U.S.C. 2015 (o)(6)(G) (emphasis supplied). To comply with this mandate, the USDA Secretary must annually adjust the number of exemptions granted to each State based on the Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 7 of 67 8 difference between the average monthly number of exemptions in effect in the State and such number estimated for the State for the preceding fiscal year under paragraph (6). Id. This statutory direction is implemented in a regulation, 7 C.F.R. 273.24(h)(2) (2001), originally promulgated in 1999, see Interim Rule, Food Stamp Program: Food Stamp Provisions of the Balanced Budget Act of 1997, 64 Fed. Reg. 48246, 48257 58 (Sept. 3, 1999), that remained in effect until October 1, 2020, when the Final Rule changed it. See 84 Fed. Reg. at 66804. The prior regulation in effect for two decades provided that [i]f the State agency does not use all of its exemptions by the end of the fiscal year, [USDA] shall increase the estimated number of exemptions allocated to the State agency for the subsequent fiscal year by the remaining balance. 7 C.F.R. 273.24(h)(2)(i) (2001); see also Defs.’ Opp’n at 7 ( If a State does not use all of its earned exemptions for a given fiscal year, USDA increases the State’s estimated number of exemptions for the following year by the positive balance. ). Conversely, [i]f the State agency exceeds its exemptions by the end of the fiscal year, [USDA] shall reduce the estimated number of exemptions allocated to the State agency for the subsequent fiscal year by the corresponding number. Id. 273.24(h)(2)(ii). USDA acknowledged in the Final Rule that the prior regulation’s implementation or interpretation \u2014of 7 U.S.C. 2015 (o)(6)(G) allows any unused exemptions to carry over and accumulate from one year to the next, indefinitely, with the result that States have accumulated extremely high amounts of unused discretionary exemptions that well exceed the number allotted to each State for the fiscal year. 84 Fed. Reg. at 66783. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 8 of 67 9 The Final Rule, again, upends this long-standing USDA policy by altering the agency’s interpretation of the statutory mandate set out in 7 U.S.C. 2015 (o)(6)(G).8 Specifically, under the Final Rule, each State agency’s carryover adjustment would be based on the number of exemptions earned in the preceding fiscal year \u2014rather than allocated for use, under the prior regulation\u2014 minus the number of exemptions used in the preceding fiscal year, with any carryover adjustment to apply only to the fiscal year in which the adjustment is made. 84 Fed. Reg. at 66802 (emphasis supplied). The Final Rule’s switch to a use it or lose it system for exemptions would significantly reduce the discretionary exemptions available to States by eliminating accumulated exemptions amassed through judicious administration of the SNAP program over the last two decades. See id. at 66803. B. Preliminary Resolution of Plaintiffs’ Challenges to Final Rule Plaintiffs challenge multiple parts of the Final Rule on procedural and substantive grounds. Amended Compl. ( State Pls.’ Am. Compl. ), D.C. et al. v. U.S. Dep’t of Agric. et al., No. 20-cv-00119 (D.D.C. Jan. 29, 2020), ECF No. 19; Compl. ( Priv. Pls.’ Compl. ), Bread for the City, et al. v. U.S. Dep’t of Agric., et al., No. 20-cv-00127, (D.D.C. Jan. 16, 2020), consolidated sub nom, D.C. v. U.S. Dep’t of Agric., No. 20-cv-00119 (D.D.C. Jan. 23, 2020), 8 In addition, USDA plans in a future rulemaking to change what these exemptions are called. 84 Fed. Reg. at 66802. According to the agency, these exemptions had been generally referred to as 15 percent exemptions, id., but then, in the Proposed Rule, were referred to [] as ‘percentage exemptions’ as a way to avoid confusion as the calculation transitioned from 15 percent to 12 percent, id. In the Final Rule, USDA chose[] to refer to these exemptions as ‘discretionary’ exemptions because States have discretion on whether to use these exemptions, id., by contrast to other enumerated statutory exemptions, which are not discretionary insofar as States must exempt individuals from the ABAWD time limit if the individual meets at least one of those listed exemptions, id. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 9 of 67 10 ECF No. 1.9 Those challenges, and their preliminary resolution in D.C. I, are summarized next.10 1. Procedural Deficiencies in Promulgation of Final Rule Plaintiffs allege that the Final Rule is unlawful and must be set aside as promulgated without observance of procedure required by law, 5 U.S.C. 706(2)(D), because USDA failed to provide notice with an ability for meaningful comment for three key aspects of the Rule. State Pls.’ Am. Compl. \u00b6\u00b6 473, 477; see Priv. Pls.’ Compl. \u00b6 99. Despite, in plaintiffs’ view, no suggestion in the Proposed Rule of these changes, the Final Rule: (1) eliminated as a criterion for a waiver request that an area qualified for extended employment benefits, State Pls.’ Am. Compl. \u00b6 474; see Priv. Pls.’ Compl. \u00b6 102; (2) limited States’ discretion to seek waivers for substate areas like cities or counties, by making LMAs the exclusive area subject to a waiver, States’ Am. Compl. \u00b6 475; see Priv. Pls.’ Compl. \u00b6 102; and (3) changed the waiver process in reliance on USDA’s so-called operational experience, without defining or explaining the terms and bases to appraise interested parties fairly such that they had an opportunity to meaningfully comment, States’ Am. Compl. \u00b6 476; see Priv. Pls.’ Compl. \u00b6 100. 9 The private plaintiffs filed their complaint the same day as the State plaintiffs and [t]he two suits were consolidated under Federal Rule of Civil Procedure 42 without objection from the parties . . . . D.C. I, 444 F. Supp. 3d at 14. 10 USDA does not renew its prior challenge to private plaintiffs’ standing, see D.C. I, 444 F. Supp. 3d at 40, and the record at summary judgment confirms that all plaintiffs’ have standing\u2014an issue that must be established before a federal court may address the merits, see Hancock v. Urban Outfitters, Inc., 830 F.3d 511, 513 (D.C. Cir. 2016). Standing must be supported . . . with the manner and degree of evidence required at the successive stages of litigation. Lujan v. Defs. Of Wildlife, 504 U.S. 555, 561 (1992). Now, on summary judgment, the plaintiffs must prove injury in fact with ‘specific facts’ in the record. Humane Soc’y of the United States v. Perdue, 935 F.3d 598, 602 (D.C. Cir. 2019) (quoting Defs. Of Wildlife, 504 U.S. at 561). State plaintiffs plainly establish the requisite concrete, particularized, and actual or imminent injury-in-fact that would flow directly from the changes proposed in the Final Rule, including increased administrative burden on state-operated programs, rising health care costs for SNAP participants expelled from the program, and loss of tax revenue. See State Pls.’ MSJ at 41 42. Likewise, the findings, based on sworn affidavits in the record, regarding private plaintiffs’ standing remain intact. D.C. I, 444 F. Supp. 3d at 40-45. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 10 of 67 11 D.C. I declined to reach these procedural challenges and instead, as USDA suggested, postponed consideration of plaintiffs’ arguments regarding procedural deficiencies in promulgation of the Final Rule, until the full administrative record had been compiled for review. D.C. I, 444 F. Supp. 3d at 21 ( [P]laintiffs’ other APA claims\u2014that the Rule was promulgated without observing procedural requirements\u2014need not be addressed at this stage of the case. ); id. at 21 n.11 (accepting suggestion by USDA that these procedural challenges may be best evaluated on a full administrative record, which is currently being compiled (citing Defs.’ Opp’n to State Pls.’ Mem. Supp. Mot. for Prelim. Inj. ( Defs.’ PI Opp’n ) at 4, ECF No. 26). This Court made clear that [t]he decision to postpone consideration of any arguments [regarding lack of adequate notice] at this stage in no way reflects any assessment that those arguments are less likely to succeed. Id. 2. Plaintiffs’ Challenge to Waiver Changes D.C. I concluded that plaintiffs are likely to succeed on their claim that the waiver changes in the Final Rule are arbitrary and capricious, D.C. I, 444 F. Supp. 3d at 21, and ultimately enjoined these aspects of the Final Rule from going into effect as scheduled on April 1, 2020. Specifically, this Court found that USDA’s decision to eliminate the use of any metric for measuring insufficient jobs, under 7 U.S.C. 2015(o)(4)(A)(ii), other than the 24-month general unemployment rate, was inadequately explained and arbitrary and capricious, id. at 22 27, and that USDA’s new restrictive definition of the area subject to a waiver, under 7 U.S.C. 2015(o)(4)(A), as limited to only an LMA, was likewise arbitrary and capricious, id. at 27 33. 3. Plaintiffs’ Challenge to Final Rule’s Discretionary Exemption Change Plaintiffs were denied preliminary injunctive relief on their claims that the Final Rule’s changes limiting the carryover of discretionary exemptions to one year and eliminating the States’ stockpile of such exemptions were inconsistent with the statutory scheme and arbitrary Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 11 of 67 12 and capricious, despite the States’ conceded reliance on longstanding agency policy. Id. at 20. Moreover, plaintiffs were unable to show immediate irreparable harm, since the exemption changes in the Final Rule would not become effective until October 1, 2020, eight months away. Id. Plaintiffs argued that the Final Rule’s elimination of discretionary exemption carryovers was contrary to law, under the first step of the well-known test from Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984), which focuses on whether the statutory text at issue is ambiguous. On plaintiffs’ reading, the proposed elimination of these exemption carryovers was foreclosed by the plain meaning of the statutory language referring to the average monthly number of exemptions estimated for the State agency for the preceding fiscal year, 7 U.S.C. 2015(o)(6)(G) (emphasis added), which, in their view, unambiguously includes all available exemptions, including those carried over from previous years. D.C. I, 444 F. Supp. 3d at 17. As support, plaintiffs cited the 2018 Farm Bill, which reduced the available exemption percentage from 15 percent to 12 percent without touching the exemption carry over provision, and the Conference Report on that legislation, which stated that States will maintain the ability to . . . accrue exemptions and retain any carryover exemptions from previous years, consistent with current law. Id. at 17 18 (citing H.R. Rep. No. 115-1072, at 616 (2018) ( 2018 Farm Bill Conf. Rep. )). USDA countered that the statute was ambiguous at best and contrary to plaintiffs’ position at worst. Id. at 17. Finding the readings tendered by both parties to be plausible, the text was found to be ambiguous, warranting assessment of the Final Rule’s exemption change, under Chevron step two and the arbitrary and capricious standard. Id. at 18. Since USDA had both considered numerous comments relaying the importance of the carryover exemptions to enable States to Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 12 of 67 13 respond nimbly to economic downturns and explicitly noted the serious reliance interests of States after two decades of functioning under a regime permitting indefinite carryover, id. at 19 20, the Court concluded that USDA offered rational reasons for limiting such carryover exemptions, id. at 19. Regarding the undoubtedly serious reliance interests of the States, id. at 20, the Court applied the test from Encino Motorcars LLC v. Navarro, 136 S. Ct. 2117 (2016), which permits agencies to make policy changes adverse to affected parties’ reliance interests ‘as long as [agencies] provide a reasoned explanation for the change’ and ground the change in a reasonable interpretation of the governing statute, D.C. I, 444 F. Supp. 3d at 16 (quoting Encino, 136 S. Ct. at 2125), and determined USDA’s actions met that test, id. at 20. Thus, plaintiffs’ bid to enjoin the exemption change failed. Thus, as relief, the Final Rule’s changes only to the regulatory process for time limit waivers were temporarily enjoined. D.C. I at 46. C. Subsequent Procedural History Following entry of the preliminary injunction, USDA appealed this Court’s order to the D.C. Circuit Court, where the appeal remains pending. Notice of Appeal to D.C. Cir. Court, D.C. v. U.S. Dep’t of Agric., No. 20-cv-00119 (D.D.C. May 12, 2020), ECF No. 61; see Notice of Appeal, D.C. v. U.S. Dep’t of Agric., No. 20-5136 (D.C. Cir. May 14, 2020).11 Meanwhile, the parties filed and briefed cross motions for summary judgment, pursuant to a schedule adopted by the Court from the parties’ joint proposed schedule, see Min. Order (Mar. 23, 2020); Notice of Joint Proposed Schedule, ECF No. 53, and USDA compiled the administrative record, 11 A week after entry of the preliminary injunction, Congress passed the Families First Coronavirus Response Act ( FFCRA ), Pub. L. No. 116-127, 134 Stat. 178 (2020), which suspends ABAWD time limits until one month after the public health emergency declaration by the Secretary of Health and Human Services is lifted. FFCRA 2301. Thus, as soon as the state of emergency is over, the Final Rule will go fully into effect absent the relief plaintiffs request here. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 13 of 67 14 with a certified notice of the contents filed with the Court, see Notice Of Filing Of Certification Of Corrected Administrative Record, ECF No. 63.12 Upon filing by the parties of their Joint Appendix of Administrative Record, in four volumes, on September 11, 2020, see Joint App’x, ECF No. 105, the pending motions are ripe for resolution. II. LEGAL STANDARD The Administrative Procedure Act ( APA ) provides for judicial review of any final agency action for which there is no other adequate remedy in a court, 5 U.S.C. 704, and instructs a reviewing court to set aside agency action found to be ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ Cigar Ass’n of Am. v. United States FDA, 964 F.3d 56, 61 (D.C. Cir. 2020) (quoting 5 U.S.C. 706(2)(A)). This standard ‘requires agencies to engage in reasoned decisionmaking,’ and . . . . to reasonably explain to reviewing courts the bases for the actions they take and the conclusions they reach. Bhd. of Locomotive Eng’rs & Trainmen v. FRA, 972 F.3d 83, 115 (D.C. Cir. 2020) (quoting Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1905 (2020)). While judicial review of agency action is limited to the grounds that the agency invoked when it took the action, Regents, 140 S. Ct. at 1907 (quoting Michigan v. EPA, 576 U.S. 743, 758 (2015)), the agency, too, must defend its actions based on the reasons it gave when it acted, id. at 1909. 12 The Final Rule’s administrative record totals 187,464 pages and includes regulations, guidance documents, reports, USDA analyses for the rulemaking, websites referenced in rulemaking, waivers of the ABAWD time limit received by various states from 2007 to 2020, USDA correspondence, analysis of public comments for rulemaking, supplemental state waiver maps, and public comments. Defs.’ Notice of Filing Certification of Corrected Admin. Record, Att. 2 (List of Contents of AR), ECF No. 91-2; see Defs.’ Mem. Pts. & Auth. Supp. Cross Mot. for Summ. J. and Opp’n to Pls.’ Mot. for Summ. J. (Defs.’ Opp’n) at 15, ECF No. 92 (noting administrative record comprising nearly 180,000 pages of materials ). The parties’ Joint Appendix totals 1,784 pages. See Joint App’x of Administrative Record, ECF No. 105. State plaintiffs also submitted five declarations in support of their Motion for Summary Judgment. State Pls.’ Mot. Supp. Summ. J. ( State Pls.’ MSJ ), Exs. 1 5, ECF Nos. 65-1-5. In addition, the U.S. House of Representatives, counties, cities, think tanks, legal aid providers and various national and state- based non-profit organizations submitted nine amicus curiae briefs in support of plaintiffs. See ECF Nos. 70, 71, 81 86, 90. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 14 of 67 15 The law is well-settled that [a] rule is arbitrary and capricious if (1) the agency ‘has relied on factors which Congress has not intended it to consider’; (2) the agency ‘entirely failed to consider an important aspect of the problem’; (3) the agency’s explanation ‘runs counter to the evidence before the agency’; or (4) the explanation ‘is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’ Am. Bankers Ass’n v. NCUA, 934 F.3d 649, 663 (D.C. Cir. 2019) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. (State Farm), 463 U.S. 29, 43 (1983)). Notably, the court ‘may not substitute [its] own judgment for that’ of the agency, id. (quoting FERC v. Elec. Power Supply Ass’n, 136 S. Ct. 760, 782 (2016)), but nonetheless is not a ‘rubber stamp’ and [] must ensure that the agency considered all of the relevant factors. Oceana, Inc. v. Ross, 920 F.3d 855, 863 (D.C. Cir. 2019) (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir. 1976) (en banc)). III. DISCUSSION As discussed below, while D.C. I did not address plaintiffs’ procedural challenges to the Final Rule, with the benefit of the administrative record, the substantial flaws in USDA’s notice- and-comment process are apparent, requiring that this rule be set aside on this ground alone. See NRDC v. Wheeler, 955 F.3d 68, 85 (D.C. Cir. 2020) ( Failure to provide the required notice and to invite public comment\u2014in contrast to the agency’s failure . . . adequately to explain why it chose one approach rather than another for one aspect of an otherwise permissible rule\u2014is a fundamental flaw that normally requires vacatur of the rule. ) (quoting Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193, 199 (D.C. Cir. 2009) (internal quotation marks omitted)). Moreover, for the same reasons explained in D.C. I, 444 F. Supp. 3d at 21 34, the Final Rule’s significant changes to the current regulation’s implementation of 7 U.S.C. 2015(o)(4)(A)’s Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 15 of 67 16 waiver request process are arbitrary and capricious. Further, although D.C. I declined to find a likelihood of success on the merits of plaintiffs’ challenge to the Final Rule’s change in interpretation of 7 U.S.C. 2015(o)(6)(G) to eliminate discretionary exemption carryovers, D.C. I, 444 F. Supp. 3d at 17 21, a different conclusion is reached here, based on more detailed statutory interpretation arguments presented in the parties’ summary judgment briefing. Finally, USDA’s failure fully to consider both the significant cost impact on States and the disparate impact of the Final Rule bolster the conclusion that this agency is arbitrary and capricious for failure to consider significant critical comments relevant to the over-arching statutory purpose.13 A. USDA Failed to Provide Sufficient Notice of Changes Adopted In Final Rule Plaintiffs challenge the sufficiency of the notice provided by USDA in the Proposed Rule as to the fundamental changes to the waiver process adopted in the Final Rule, see State Pls.’ MSJ at 11; Private Pls.’ MSJ at 44, which reversed long-standing agency policy that states should have ‘broad discretion in defining areas that best reflect the labor market prospects of program participants and administrative needs.’ State Pls.’ MSJ at 5 (quoting 13 Private plaintiffs reiterate on summary judgment the argument that 7 U.S.C. 2015(o)(4)(A) requires the agency to determine job-insufficiency waivers on a case-by-case basis and that the Final Rule undermines this adjudicatory process by predetermin[ing] the outcome of States’ waiver applications through a prospective categorical rule and relegat[ing] case-specific waiver adjudications to rare situations involving ‘extraordinary circumstances’ or anomalous geographic areas . . . . Priv. Pls.’ MSJ at 9, ECF No. 64, 66. D.C. I did not address this argument. D.C. I, 443 F. Supp. 3d at 21, n.11. As an initial matter, the Final Rule simply does not change the requirement that USDA review, on a case-by-case basis, waiver requests when presented by a State. While the Final Rule aims to institute broader application of the time limit and reduce [ABAWD] dependence on government benefits by restricting how states can qualify for waivers, 84 Fed. Reg. at 66796; see also 84 Fed. Reg. at 981 82 (describing rulemaking to ensure the waivers are applied on a more limited basis by restricting how states can qualify for waivers), promulgating such general restrictions by rulemaking is entirely appropriate, see Am. Hosp. Ass’n v. NLRB, 499 U.S. 606, 612 (1991) (recognizing agency’s authority to rely on rulemaking to resolve certain issues of general applicability ). As USDA explains, the agency is expressly authorized to issue rules to administer SNAP, Defs.’ MSJ at 34; see 7 U.S.C. 2013(c) ( The Secretary shall issue such regulations consistent with this chapter as the Secretary deems necessary or appropriate . . . ), and, as private plaintiffs concede, agencies have discretion to proceed by rulemaking or adjudication, unless Congress has otherwise spoken, Priv. Pls.’ MSJ at 15; Defs.’ MSJ at 34. In short, 2015(o)(4)(A) does not bar USDA from establishing general principles to guide the required case-by-case . . . determinations. Am. Hosp. Ass’n v. NLRB, 499 U.S. at 612. Consequently, private plaintiffs’ argument carries little weight. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 16 of 67 17 ABAWD00000166 (U.S. DEP’T AGRIC., GUIDANCE FOR STATES SEEKING WAIVERS FOR FOOD STAMP LIMITS (1996) ( 1996 Guidance )), ECF No. 105-1). The procedural flaws identified by plaintiffs are fatal to the Final Rule. See State Pls.’ MSJ at 12 ( These failures alone require that the Rule be vacated. ). The APA requires agencies to provide the public with notice of a proposed rulemaking, an opportunity to comment, and, [a]fter consideration of the relevant matter presented, a concise general statement of the rule’s basis and purpose. Sherley v. Sebelius, 689 F.3d 776, 784 (2012) (quoting 5 U.S.C. 553); see also Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96, 135 S. Ct. 1199, 1203 (2015) (citing 5 U.S.C. 553(c) (describing three-step procedure for notice-and-comment rulemaking, including to ‘give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.’ )); Cigar Ass’n of Am., 964 F.3d at 63 64 (same). The importance of a robust notice-and-comment process is due to the central purpose served to subject agency decisionmaking to public input and to obligate the agency to consider and respond to the material comments and concerns that are voiced. Make the Rd. N.Y. v. Wolf, 962 F.3d 612, 634 (D.C. Cir. 2020); see also Nat’l Ass’n of Clean Water Agencies v. EPA, 734 F.3d 1115, 1148 (D.C. Cir. 2013) ( A purpose of notice- and-comment provisions under the APA . . . is ‘to ensure that affected parties have an opportunity to participate in and influence agency decision making at an early stage, when the agency is likely to give real consideration to alternative ideas.’ (quoting New Jersey, Department of Environmental Protection v. EPA, 626 F.2d 1038, 1049 (D.C. Cir. 1980)). In addition, part of the purpose of notice and comment rulemaking is to ensure the parties develop a record for judicial review. Wolf, 962 F.3d at 634 (quotation and citation omitted). Put simply, [rulemaking n]otice requirements are designed . . . to give affected parties an opportunity to Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 17 of 67 18 develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review. Int’l Union, United Mine Workers v. Mine Safety & Health Admin. ( Int’l Union ), 407 F.3d 1250, 1259 (D.C. Cir. 2005). As part of notice-and-comment rulemaking, the notice of proposed rulemaking must contain either the terms or substance of the proposed rule or a description of the subjects and issues involved, 5 U.S.C. 553(b)(3), a requirement construed to mean that the final rule the agency adopts must be a logical outgrowth of the rule proposed, Long Island Care at Home, Ltd. v. Coke ( Long Island Care ), 551 U.S. 158, 174 (2007) (internal quotation and citations omitted). The object, in short, is one of fair notice. Id. A final rule is the ‘logical outgrowth’ of a proposed rule if interested parties should have anticipated that the change was possible, and thus reasonably should have filed their comments on the subject during the notice- and comment period. Chesapeake Climate Action Network v. EPA, 952 F.3d 310, 319 (D.C. Cir. 2020) (quoting Clean Air Council v. Pruitt, 862 F.3d 1, 10 (D.C. Cir. 2017) (quoting CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076, 1080 (D.C. Cir. 2009)). An agency fails the logical outgrowth test if interested parties would have had to divine the agency’s unspoken thoughts, because the final rule was surprisingly distant from the proposed rule. Id at 319 20. Set against this standard, USDA failed to provide adequate notice of the Final Rule in three ways, which are discussed seriatim. 1. USDA Provided No Notice of Elimination of Extended Unemployment Benefits Criterion as Basis for Waiver Request No reference to extended unemployment benefits, let alone the potential elimination of this criterion for a State waiver request, was made in the Advance Notice of Proposed Rulemaking for the Final Rule. See generally 83 Fed. Reg. 8013. The Proposed Rule similarly gave no indication that such elimination was contemplated. See generally 84 Fed. Reg. 980. To Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 18 of 67 19 the contrary, the Proposed Rule expressly and repeatedly stated that extended unemployment benefits would be retained as a basis for State waiver requests. For example, the Proposed Rule provided explicit assurance that the agency would continue to approve a State’s waiver request that is based upon the requesting State’s qualification for extended unemployment benefits, 84 Fed. Reg. at 985, even going so far as to designate extended unemployment benefits as one of three core standards for [waiver] approval, id. ( [T]hree provisions . . . the unemployment rate over 10 percent standard, the 20 percent standard, and the qualification for extended unemployment benefits standard would be the core standards for [waiver] approval. ). While all other waiver criteria based on substate data would be eliminated, the Proposed Rule promised that extended unemployment benefits would be retained as a basis for statewide waivers. Id.; see also id. at 987 ( . . . as stated previously, the proposed rule would no longer provide for statewide waivers except for those waivers approved based upon a state’s qualification for extended unemployment benefits. ). Consistent with these assurances, the proposed amended language of the applicable regulation, 7 CFR 273.24, set out extended unemployment benefits as one criterion on the exhaustive list of waiver request qualifications. Id. at 992. The Final Rule, however, did exactly the opposite of what was promised and proposed and instead eliminated all bases, other than the prescribed unemployment rate, for a State’s waiver request, including a State’s qualification for extended unemployment benefits. 84 Fed. Reg. at 66789 (conceding that USDA proposed to continue to approve any waiver request that is supported by the requesting State’s qualification for extended unemployment benefits . . . [and] to prohibit statewide waivers when substate data is available, except for those States qualifying under the extended unemployment benefits standard. ). State plaintiffs correctly Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 19 of 67 20 point out that such a surprise switcheroo is impermissible under the APA. State Pls.’ MSJ at 11 (citing Envt’l. Integrity Project v. EPA, 425 F.3d 992, 996 (D.C. Cir. 2005)). USDA defends its about-face, arguing that an agency’s refusal to adopt its proposal is always a logical outgrowth of the proposal. Defs.’ MSJ at 67 (citing New York v. EPA, 413 F.3d 3, 44 (D.C. Cir. 2005) (per curiam) and Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1299 1300 (D.C. Cir. 2000)). To be sure, when an agency ultimately decides not to adopt a proposed change but instead to retain the status quo ante, the logical outgrowth test is satisfied because exercising the option of making no change is always, at least implicitly, on the table. See Long Island Care, 551 U.S. at 174 75 (rejecting procedural challenge, explaining that [s]ince the proposed rule was simply a proposal, its presence meant that the Department was considering the matter; after that consideration the Department might choose to adopt the proposal or to withdraw it and the possibility of such withdrawal was reasonably foreseeable ) (emphasis in original); Idaho Conservation League v. Wheeler, 930 F.3d 494, 508 09 (D.C. Cir. 2019) ( an agency’s decision to withdraw a proposed rule is a logical outgrowth of the proposal since a proposed rule adequately put interested parties on notice that the [agency] was planning regulatory action that might, as happened, not materialize ); New York v. EPA, 413 F.3d at 44 (rejecting procedural challenge where EPA proposed ‘menu of alternatives’ approach but instead adopted mandatory approach of the status quo ante, observing that EPA had received extensive comments on all aspects of the rule, including whether to integrate the menu elements into a set of minimum requirements, showing no mystification here, and opining that [o]ne logical outgrowth of a proposal is surely . . . to refrain from taking the proposed step (quoting Am. Iron & Steel Inst. v. EPA, 886 F.2d 390, 400 (D.C. Cir. 1989))). Likewise, when an agency adopts a sub-part of a proposed rule change, rather than the proposal in its entirety, Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 20 of 67 21 this, too, may be deemed reasonably noticed under the logical outgrowth test. See Arizona Pub. Serv. Co., 211 F.3d at 1299 1300 (finding sufficient notice where agency first proposed that Indian tribes be required to meet the same requirements as States with respect to judicial review of Clean Air Act, but then adopted a final rule that exempted tribes from some, though not all, such requirements). Neither of these scenarios occurred here: first, the Final Rule eliminates, rather than retains, the status quo ante authorizing waivers based on a State’s qualification for extended unemployment benefits, and, second, such elimination was never suggested as part of the proposed changes in the Proposed Rule, which instead assured retention of this criterion. USDA’s reliance on New York v. EPA, Defs.’ Opp’n at 67, and Arizona Pub. Serv. Co., Defs.’ Reply at 33, to excuse the agency’s lack of notice is therefore wholly misplaced. Essentially conceding, as it must, that no specific notice of the elimination of extended unemployment benefits was provided in the Proposed Rule, USDA falls back to posit that the full context of the Proposed Rule put interested parties on notice that the extended unemployment benefits qualification could be eliminated to avoid obvious tension with USDA’s proposal to drastically curtail the availability of statewide waivers. Defs.’ Opp’n at 68. This is not so. While [r]estricting [s]tatewide [w]aivers was an express goal of the rule changes, the two specific mechanisms outlined to achieve that goal in the Proposed Rule, 84 Fed. Reg. at 985-86 (describing elimination of statewide waiver approvals when substate data is available and prohibit[ing] States from grouping areas ), made no mention of eliminating extended unemployment benefits. In any event, USDA’s excuse of a wholesale revision to its waiver criteria, Defs.’ Opp’n at 68, does not overcome this procedural flaw since a generally announced goal does not Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 21 of 67 22 excuse adoption of a policy altering an aspect of the status quo ante that the agency promised to retain. Indeed, the D.C. Circuit has not hesitated to reject as procedurally deficient reliance on a generally outlined scheme of proposed agency action, explaining that general notice that a new standard will be adopted affords the parties scant opportunity for comment, and thus the agency’s obligation is more demanding–it must ‘describe the range of alternatives being considered with reasonable specificity. Otherwise, interested parties will not know what to comment on, and notice will not lead to better-informed agency decision-making.’ Horsehead Res. Dev. Co. v. Browner, 16 F.3d 1246, 1267-69 (1994) (quoting Small Refiner Lead Phase- Down Task Force v. EPA, 705 F.2d 506, 549 (D.C. Cir. 1983)). Given the Proposed Rule’s assurances that extended unemployment benefits would be retained, no reasonable interested party would have anticipated elimination of this criterion in the Final Rule and thus adoption of that position in the Final Rule was not reasonably on the table for comment. Cf. Long Island Care, 551 U.S. at 174-75; Idaho Conservation League v. Wheeler, 930 F.3d at 508-09; New York v. EPA, 413 F.3d at 44; see also CSX Transp. Inc. v. Surface Transp. Bd., 584 F.3d at 1079 80 (noting that final rule is only a logical outgrowth if interested parties ‘should have anticipated’ that the change was possible, and . . . reasonably should have filed their comments on the subject during the notice-and-comment period. (citing Ne. Md. Waste Disposal Auth. V. EPA, 358 F.3d 936, 952 (D.C. Cir. 2004)). Not surprisingly, USDA did not receive many comments with regard to retaining the extended unemployment benefits standard, 84 Fed. Reg. at 66789, because the agency failed to give the public any inkling that the extended unemployment benefits standard might be eliminated. Cf. New York v. EPA, 413 F.3d at 44 (noting extensive comments received). Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 22 of 67 23 The distance between the Proposed Rule’s assurances of retention of extended unemployment benefits to qualify for a waiver and the Final Rule’s elimination of that criterion altogether could not be greater. See Int’l Union, 407 F.3d at 1259 60 (finding notice insufficient where final rule is ‘surprisingly distant’ from the proposed rule (quoting Ariz. Pub. Serv. Co. v. EPA, 211 F.3d at 1299)). A blunder [in] a proposed rule may be remedied by a retreat to the status quo ante, but eliminating the latter without so much as a hint that the agency might do so is impermissible under the APA. Am. Iron & Steel Inst. v. EPA, 886 F.2d at 400. 2. USDA Provided No Notice of Limiting Waiver Area to LMA The rulemaking process leading up to promulgation of the Final Rule made no mention that the area subject to waiver, under 7 U.S.C. 2015(o)(4)(A), would be restricted only to LMAs. In its 2018 Advance Notice of Proposed Rulemaking, USDA recognized that States currently have discretion to define the area they are requesting to waive, 83 Fed. Reg. at 8015; id. ( The decision to request and implement an ABAWD time limit waiver rests with the States. ), and posed the questions, Should States maintain this flexibility? Should an ‘economic area’ be limited in geographic scope, such as to a single county, metropolitan area, or labor market area? id. To the extent this query obliquely alluded to restricting the area to an LMA, the next step of the rulemaking process, with issuance of the Proposed Rule, seemingly dropped this proposal. The Proposed Rule repeatedly acknowledged the fact that current regulations and agency guidance provide States with the discretion to define the areas to be covered by waivers, 84 Fed. Reg. at 985, and mentioned limiting, not eliminating, that flexibility in only two circumstances. First, USDA proposed to eliminate statewide waiver approvals when substate data is available . . . except for waivers based upon the State’s qualification for extended unemployment benefits, id., again providing false assurance that such extended unemployment Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 23 of 67 24 benefits would remain a waiver qualification, see supra Part III.A.1. USDA explained this proposal would allow States to target[] those particular areas in which unemployment rates are high, and that a more targeted approach would ensure that waivers exist only in areas that do not have a sufficient number of jobs to provide employment for the individuals living in that specific area. 84 Fed. Reg. at 985. This first proposed limitation on statewide waivers made no mention of restricting waiver areas to LMAs, but simply explained the proposal was intended to have States utilize substate data when such data was available for substate areas for a more targeted approach. Id. The second circumstance in which USDA proposed limiting State flexibility in defining the area subject to waiver, was in the grouping of areas, stating that [t]he proposed rule would prohibit States from grouping areas, except for areas that are designated a Labor Market Area (LMA) to ensure that only areas that are economically tied are grouped together, [such that] States would be unable to omit certain areas within the LMA in the State for the purpose of achieving a qualifying unemployment rate for part of an LMA. 84 Fed. Reg. at 986. As an alternative to limiting grouped areas to LMAs, the Proposed Rule asked whether USDA should prohibit grouping entirely, id., noting that [i]f grouping were prohibited entirely, waived areas would be limited to individually qualifying jurisdictions with corresponding data (for example, counties and their equivalents, cities, and towns), id. This focus on allowing grouping of areas only in LMAs, versus disallowing grouping altogether for substate areas, did not raise the prospect of eliminating altogether the long-standing policy of State flexibility in defining the area subject to waiver by restricting all waiver areas to an LMA, no matter the geographic size, scope, number of individual counties, cities or towns encompassed by an LMA. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 24 of 67 25 Nevertheless, in the Final Rule, USDA shifted gears to only allow for waivers covering LMAs; not individual jurisdictions within LMAs, such as counties or county equivalents, and not for any State-defined groupings of substate areas, in direct contradiction to the proposals set out in the Proposed Rule. 84 Fed. Reg. at 66796. Plaintiffs understandably complain that such an about-face in eliminating all State discretion in defining the area subject to waiver deprived [p]laintiffs and the public of the chance to comment on key provisions of the Rule. State Pls.’ MSJ at 12. The Court agrees. Merely mentioning in the Proposed Rule the potential usefulness of LMAs as a measure of waiver areas in a specific context of substate area grouping did not provide adequate notice that the Final Rule would adopt LMAs as the sole measure of any waiver area. See Horsehead Res. Dev. Co. v. Browner, 16 F.3d at 1267-68 (finding procedural fault with agency rulemaking that failed to indicate contemplation of the possibility of combining parts of proposals, explaining [t]his omission is critical because notice of individual parts of a proposed rule is not necessarily notice of the whole. One purpose of notice is to promote informed decisionmaking, and comments addressed to one specific component part of the standard do not necessarily bear on the viability as a whole. ). This is yet another fatal procedural flaw in the Final Rule. 3. USDA’s Opaque Reference to Operational Experience Provided Inadequate Notice of Elimination of State Flexibility in Both Defining Waiver Area and Using More Probative Data Finally, State plaintiffs posit that USDA denied the opportunity for meaningful comment by relying, vaguely, on the agency’s operational experience as the basis for its proposed changes. State Pls.’ MSJ at 12. That term certainly made no appearance in the agency’s Advance Notice of Proposed Rulemaking, when indicating that the ABAWD time limit waivers represent an area of concern for the Department. 83 Fed. Reg. at 8015. Indeed, rather than accuse States of waiver manipulation or abusive practices, the agency acknowledged that not all Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 25 of 67 26 States that are eligible for ABAWD time limit waivers request one, id., and, further, that as economic conditions [have] improved, there has been a decline in the use of these waivers. id. (citing that, in FY 2013, 45 States, D.C., Guam and the Virgin Island used waivers, with 42 covering the entire State or jurisdiction, compared, in FY 2017, to 33 States, D.C., Guam and the Virgin Islands using waivers, with only 9 covering the entire State or jurisdiction). Despite the overall decline in the number of waivers, marked by a deep decline in the number of Statewide waivers, the agency expressed concern that the number of areas waived has not decreased as much as would be expected during the continued decline in unemployment rates over this time period, id., though no information was provided about what that expected number might be. Consistent with the Advance Notice, the Proposed Rule issued the following year, documented a continuing decline in Statewide waivers, stating that as of April 2018, 8 waivers applied to an entire State, and 28 covered specific areas within a State. 84 Fed. Reg. at 982. Thus, between July 2013 and April 2018, the number of overall waivers dropped from 45 to 36 and the number of state-wide waivers dropped from 42 to 8, while the number of waivers covering only substate areas, reflecting a more targeted approach, increased from 6 to 28. Id. Nevertheless, the Proposed Rule viewed as problematic that [d]espite the national unemployment rate’s decline, . . . a significant number of States continue to qualify for and use ABAWD waivers under the current waiver standards. Id. at 981. While the number of waivers used over a five-year period show declining numbers of waivers and deep reductions in use of Statewide waivers in favor of more targeted substate waivers, USDA cited its operational experience, without offering any supporting definition, timeframe, or analytical framework for the term, as the basis for wholesale changes to the waiver process. The Proposed Rule identified key concerns, without specific identification of States Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 26 of 67 27 or jurisdictions for accurate rebuttal or commenters’ analysis, that some States have maximized the number of areas or people covered by waivers by combining data from areas with high unemployment with areas with low unemployment [such that] not all individual sub-areas would have qualified on their own, id.; and several States that have historically requested 12-month waivers on a fiscal year basis . . . have shifted their waiver request and implementation dates to later in the fiscal year . . . based on the 20 percent standard . . . to capitalize on older data and qualify for waivers of the ABAWD time limit for additional time, id. at 986. Plaintiffs take issue with USDA’s attempt to claim states have manipulated the waiver criteria to reciev[e] waivers in areas that do not clearly demonstrate a lack of sufficient jobs, id. at 981, by relying on operational experience, without specific backup, as the agency’s sole evidence for such conclusion. State Pls.’ MSJ at 12. The caselaw supports plaintiffs’ position. USDA’s vague invocations of operational experience reference no technical studies [or] data that [the agency] employed in reaching the decision[] to propose the rule at issue here. Conn. Light & Power v. Nuclear Regulatory Comm’n, 673 F.2d 525, 530 (D.C. Cir. 1982). Such evidence is necessary to allow for useful criticism, id., because in order to have a ‘meaningful’ opportunity to comment, [the public] must be aware of the information the agency finally decides to rely on in taking agency action. Nat’l Asphalt Pavement Ass’n v. Train, 539 F.2d 775, 779 n.2 (D.C. Cir. 1976) (citing Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 393 n.67 (D.C. Cir. 1973)). Instead, USDA offers only assertions that cannot be meaningfully tested or addressed. State Pls.’ MSJ at 12. USDA responds that the agency cited its own experience with the ABAWD time limit to identify perceived weaknesses in the 2001 Regulation, asserting that it clearly explained why it thought these were weaknesses and identified examples of exactly these sorts of requests. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 27 of 67 28 Defs.’ Opp’n at 69. The agency’s explanation was far from clear[] in at least three respects, however. First, the examples USDA offers do not identify any specific instances of alleged State abuse of waiver criteria to obtain a time limit waiver in an area that actually had a sufficient number of jobs for ABAWDs. Rather, the agency speaks only generally about state grouping practices that sometimes include low-unemployment areas for the general population, not the ABAWD population. Second, the agency justified effectively eliminating statewide waivers in order to minimize inclusion of low-unemployment areas and ensure that waivers of the ABAWD time limit are more appropriately targeted to those particular areas that have unemployment rates of over 10 percent or lack sufficient jobs, as required by the Act. 84 Fed. Reg. at 66790; see also id. (finding that waivers should be targeted to economically-tied areas with a lack of sufficient jobs, rather than entire states that contain distinct economic regions. ). Yet, the cited problem of statewide waivers is simply not borne out by the data. The agency had already documented a deep decline over five years in use of statewide waivers and more appropriately targeted use of substate waivers, undercutting the agency’s claimed operational experience showing manipulative practices by States. Third, and most notably, USDA’s complaint, based on purported operational experience of waiver misuse and abuse, id. at 66806, due to States inappropriately obtaining waivers in areas with sufficient jobs for ABAWDs, is contradicted by the agency’s description of its process of carefully review[ing] all State waiver requests, id. at 66800, includ[ing] independently obtaining and validating the data and evidence presented by the State in support of all requested areas to determine if the areas meet the standards for approval, id. As part of that process, the agency noted that discrepancies or inaccuracies in the data presented by the waiver Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 28 of 67 29 requesting State have been identified and, [i]n some cases, result in denial or only partial approval of the waiver request because not all areas meet the standards for approval. Id. 14 In other words, the approved waiver requests had been fully vetted by the agency as meeting the requirements for ABAWD time limits waivers. For the agency then to cite these vetted and agency-approved waiver requests as questionable as to whether the statutory conditions for approval are present, id. at 66783, and as evidence of States’ manipulation, id., not only makes questionable the operational experience justification for the waiver process changes and amplifies the need for clearer notice of the factual basis for the agency’s claim of States’ abuse of the waiver process. D.C. I determined, as a preliminary matter, that USDA provided ‘no evidence’ that such state manipulation is ‘a real problem’, D.C. I, 443 F.Supp.3d at 27 (citing Nat’l Fuel Gas Supply Corp. v. FERC, 468 F.3d 831, 841 (D.C. Cir. 2006)), explaining that, in order to rely on experience, an agency must ‘adequately record[] and explain[] that experience on the record.’ Id. (citing Nat’l Tour Brokers Ass’n v. ICC, 671 F.2d 528 (D.C. Cir. 1982)). The record on summary judgment does nothing to alter the Court’s prior conclusion that USDA failed to provide adequate factual support for the agency’s critical and predicate finding based on its experience that the States were receiving waivers in areas that do not clearly demonstrate a 14 At the same time USDA touts its rigorous vetting process for waiver requests, the agency doubles down on its years of experience for the belief that the 2001 Regulation included a weakness, and therefore that the regulatory framework needed strengthening, Defs.’ Opp’n at 54, because the very fact that, under the 2001 Regulation, waiver requests . . …. satisfied the standard for a lack of sufficient jobs was the impetus for the redefinition of the waiver area, id. n. 25, since under that framework, USDA simply could not reject waivers that, for example, grouped counties separated by hundreds of miles into a single area or conspicuously omitted nearby jurisdictions whose inclusion would mean the request no longer met the 20% standard, id. at 55; see also 84 Fed. Reg. at 982 ( current regulations give States an opportunity to qualify for waivers and avoid the ABAWD time limit when economic conditions do not justify such relief ). In faulting both the States’ purported abuse of the waiver process and the 2001 Regulation for permitting strategically grouped waivers, Defs.’ Opp’n at 54 n.23, the agency still fails to explain precisely why and identify which such groupings fall short of meeting the statutory requirement for a waiver, as plaintiffs correctly point out. State Pls.’ Reply at 30. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 29 of 67 30 lack of sufficient jobs for ABAWDS, 84 Fed. Reg. at 981, depriving plaintiffs and other interested parties of the opportunity to test the agency’s proffered conclusions and analysis, by providing correction, context or alternative interpretations of the data on which the agency relied. Consequently, the agency failed to provide a meaningfully opportunity to participate in the notice-and-comment process. *** The procedural flaws in USDA’s notice-and-comment process require vacatur of the Final Rule. As discussed further, procedural blunders by USDA are not the only shortcoming in the Final Rule. B. The Final Rule’s Waiver Changes are Arbitrary and Capricious and Not in Accordance with Law The Final Rule’s elimination of States’ historic flexibility in delineating the area for a requested waiver by limiting such an area to an LMA, is both contrary to law and inadequately justified. D.C. I, 444 F. Supp. 3d at 27 33. Compounding this error, the Final Rule’s elimination of all measures for assessing employment opportunities for ABAWDs, under 7 U.S.C. 2015(o)(4)(A)(ii), other than a measure based on a 24-month average standard unemployment rate, arbitrarily writes a statutory distinction out of the Rule, D.C. I, 444 F. Supp. 3d at 16, and is otherwise arbitrary and capricious, id. at 22-27. 1. Final Rule’s Restriction of Waiver Area to U.S. Department of Labor- Defined LMA is Both Contrary to Law and Arbitrary and Capricious The Final Rule profoundly re-interprets 7 U.S.C. 2015(o)(4)(A) by eliminating the States’ long-standing role in delineating the area for which a State may make a waiver request. The Final Rule accomplishes this by [e]stablishing a [s]trict [d]efinition of [w]aiver ‘[a]rea,’ 84 Fed. Reg. at 66793, using LMAs, a broad measure developed by the U.S. Department of Labor, without regard to political, geographic or State boundaries, to designate an economically Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 30 of 67 31 integrated area within which individuals can reside and find employment within a reasonable distance or can readily change jobs without changing their place of residence, id. USDA acknowledges that it was changing its position on the appropriate level of State flexibility, Defs.’ Opp’n at 50, but boldly asserts that [t]he States’ role was a matter of grace, not of right, id. at 32. USDA has overplayed its hand, however, in taking this aggressive stance vis a vis the States in altering the role of the Federal government in this program designed to operate as a partnership between the Federal and State governments. Plaintiffs are correct that this new policy is both contrary to law and arbitrary and capricious.15 a. Restricting Waiver Area to LMA Is Contrary to Law The parties agree that 2015(o)(4)(A) instructs USDA to determine the answer to a simple question: whether there are insufficient jobs to provide employment for a group of ABAWDs in the area where they reside? State Pls.’ MSJ at 13 (citing 7 U.S.C. 2015(o)(4)(A)); Defs.’ Opp’n at 19. In plaintiffs’ view, this question requires use of a definition of the area for purposes of a waiver request that corresponds to where group[s] of individuals live within a State. State Pls.’ MSJ at 15. By contrast, the LMA definition comprising a statistical area covering multiple states and tens of counties is, according to plaintiffs, inappropriate. Id. Although reference to any group of individuals, 7 U.S.C. 2015(o)(4)(A), may have a wide reach, State Pls.’ MSJ at 15 (quoting Babb v. Wilkie, 140 S. Ct. 1168, 1173 & n.3 (2020)), the Court agrees that the statutory text firmly tethers these individual ABAWDs for whom a State may request a time limit waiver to a specific State. The statutory language of 2015(o)(4)(A) referring to any group of individuals in the State, clearly contemplates that the individuals for whom a State may request a waiver are within the state, see Priv. Pls. MSJ at 41; otherwise, 15 D.C. I did not address whether USDA’s redefinition of waiver area was contrary to law at the preliminary injunction stage of these proceedings. See D.C. I, 444 F. Supp. 3d at 21. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 31 of 67 32 the text would have referred to only any group of individuals, without the qualifier in the State. Moreover, the statute grants each State the authority to request a waiver only for the benefit of individuals in the State, 7 U.S.C. 2015(o)(4)(A) ( On the request of a State agency . . . ), with the concomitant responsibility for designing the request, including selecting for what ‘group of individuals’ to request a waiver, State Pls.’ MSJ at 16 (citing Miller v. Casey, 730 F.2d 773, 776 77 (D.C. Cir. 1984)). USDA concedes that waivers are only issued at the request of a State agency, but counters that this language does not mean the scope of area . . . must be defined by the States. Defs.’ Opp’n at 30. That may be so. The statute gives the agency ultimate authority to grant or deny a waiver request, see 7 U.S.C. 2015(o)(4)(A) ( . . . the Secretary may waive the applicability of paragraph (2) . . . if the Secretary makes a determination that the area in which the individuals reside fits the waiver criteria), and, according to USDA, this broad delegation of authority to USDA implies that the agency retains the authority to define the scope of the area subject to a waiver approval because information about the labor market characteristics of the ‘area’ where the selected group resides is relevant to the statutory determination about job availability, Defs.’ Opp’n at 30.16 Even if USDA retains the authority to define the term area, however, this means only that the agency must exercise this responsibility by adopting a sensible definition that comports with the statute, including State-specific statutory directives. The Final Rule, however, adopts a definition of area using LMAs, notwithstanding the fact that 16 USDA further argues that, if States controlled the area subject to a waiver request, it would undercut the Secretary’s authority to ‘make[] a determination’ that an area qualifies for waiver and would effectively [] delegate[] the determination to States. Defs.’ Opp’n at 31 (citing 7 U.S.C. 2015(o)(4)(A)(i)). This argument is logically flawed. Merely because States’ waiver requests may identify an area with insufficient job opportunities for ABAWDs does nothing to curtail the Secretary’s authority to grant or deny the application based on the agency’s own assessment of the requests and the data on which the requests are predicated. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 32 of 67 33 some LMAs extend beyond state boundaries. This definition therefore contorts, rather than comports with, the State-specific statutory directives. This misfit between the new LMA definition of the area and the statutory directives in 2015(o)(4)(A) has at least two consequences that persuade this Court that the Final Rule’s definition is contrary to law. First, restricting waiver areas to LMAs is simultaneously too narrow and overbroad for the operation of the statute. An LMA may define too narrow an area, because the key phrase any group of individuals in the State is not limited to only all ABAWDs living in the expansive boundaries of a particular statistical designation, State Pls.’ MSJ at 15, such as an LMA, but allows States to seek relief for any defined group of ABAWDs residing in towns, cities or counties in the State, whether in a DOL-defined LMA or not. An LMA may also define an overbroad area because LMAs can cover[] multiple states and tens of counties, id., while the area subject to waiver must be for individuals in the State where the individuals reside, 7 U.S.C. 2015(o)(4)(A). Second and related to the overbroad aspect of the LMA definition restricting the term area to an LMA renders the phrase ‘any group of individuals’ largely meaningless. State Pls.’ MSJ at 16. If the statute were intended to allow waivers only in federally-defined statistical areas that cross numerous state and county boundaries to the exclusion of all other metrics, id. at 16 17, then the law would have no need to require States to identify any group of individuals in the State, for whom employment opportunities were insufficient. Instead, however, neighboring statutory subsections require state-designed programs responsive to ‘State or local workforce needs.’ Id. at 16 n.4 (citing 7 U.S.C. 2015(d)(3)). Statutory construction requires statutes to be construed so as to ‘give effect . . . to every clause and word of a statute.’ Duncan v. Walker, 533 U.S. 167, 174 (2001) (citing U.S. v. Menasche, 348 U.S. 528, 538 39 (1955)), Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 33 of 67 34 and the Final Rule’s definition of waiver area runs afoul of this requirement by shifting focus far from the group of individuals, for whom a waiver request must be tailored in a State and where they reside. See Nat’l Credit Union Admin v. First Nat. Bank & Trust Co., 522 U.S. 479, 501 (1998) (finding administrative interpretation, which rendered a statutory phrase surplusage, out of step with what the statute provides). As the next part of this discussion illustrates, the misfit of restricting the area under 2015(o)(4)(A) to LMAs is so great that this agency choice is also arbitrary and capricious. b. Restriction of Waiver Area to LMA was Arbitrary and Capricious D.C. I granted plaintiffs’ request for temporary injunctive relief as to the Final Rule’s adoption of LMA to define a waiver area because this change was likely arbitrary and capricious in two respects: first, USDA’s state abuse justification was wholly unsupported, D.C. I, 444 F. Supp. 3d at 27, and, second, the agency failed adequately to respond to the considerable evidence suggesting that the new definition of area was inappropriate, id. Nothing in the record at summary judgement warrants altering these findings. See id. at 27-33.17 The Proposed Rule justified the rulemaking to address States’ abuse of the waiver process by receiving waivers in areas that do not clearly demonstrate a lack of sufficient jobs, 84 Fed. Reg. at 981, leading to the Final Rule’s adoption of a restrictive definition of waiver area that was predicated on operational experience showing States had too much flexibility and were grouping areas in such a way to maximize waived areas, 84 Fed. Reg. at 17 Private plaintiffs also argue that the waiver area definition change is merely an effort by the agency to remove people from the SNAP roster, as evidenced by internal inconsistencies in USDA’s reasoning. Priv. Pls. MSJ at 35 36. Even if the agency’s underlying purpose for the Final Rule is to reduce ABAWDs’ reliance on SNAP, this purpose is within the agency’s discretion. As the Final Rule explains, the purpose of PRWORA was to ‘[promote] work over welfare and self-reliance over dependency, thereby showing true compassion for those in America who need a helping hand, not a handout.’ 84 Fed. Reg. at 66782 (quoting H.R. REP. NO. 104-725, at 261 (1996) (Conf. Rep.)). As such, Congress’ intent for the agency, in enacting time limits and work requirements for ABAWDs, was to encourage those who can work . . . [to] work, id. at 66783, and the agency cannot be faulted for pursuing that end, except insofar as it does so in violation of the law, including the APA. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 34 of 67 35 66794. D.C. I determined that the agency ‘provided no evidence’ that such state manipulation [was] ‘a real problem,’ D.C. I, 444 F. Supp. 3d at 27 (citing Nat’l Fuel Gas Supply Corp. v. FERC, 468 F.3d 831, 841 (D.C. Cir. 2006)), and that states’ practice of grouping contiguous counties with relatively high unemployment while omitting contiguous counties with relatively low unemployment was entirely consistent with good faith efforts by states to target waiver requests to areas that lack sufficient jobs for ABAWDs, id. at 28 29. The agency’s own documentation, showing a five-year decline in States’ use of waivers generally and deep decline in statewide waivers, from 45 in 2013 to only 8 in 2018, in favor of more targeted use of substate waivers, already reflects a trend in line with the agency’s view that statewide waivers should be restricted to more appropriately target[] areas of need rather than the larger areas of entire states. 84 Fed. Reg. at 66790. USDA permitted states to exercise broad discretion in defining areas that best reflect the labor market prospects of program participants for nearly twenty-five years. ABAWD00000166 68 (1996 Guidance), ECF No. 105-1; see also ABAWD00000089 (Proposed Rule, Food Stamp Program: Personal Responsibility Provisions of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 64 Fed. Reg. 70920, 70945 (Dec. 17, 1999) (same)), ECF No. 105-1; ABAWD00000316 (U.S. DEP’T AGRIC., SUPPORTING REQUESTS TO WAIVE THE TIME LIMIT FOR ABLE-BODIED ADULTS WITHOUT DEPENDENTS (2016) (same)), ECF No. 105-1; ABAWD00000124 (66 Fed. Reg. at 4463 (maintaining that State agencies have complete discretion to define the geographic areas covered by waivers )), ECF No. 105-1; ABAWD00000212 (U.S. DEP’T AGRIC., GUIDANCE ON REQUESTING ABAWD WAIVERS (2006) ( 2006 Guidance ) (confirming that the State is responsible for clearly saying which areas are to be waived and under what criteria. )), ECF No. 105-1. An agency proposing to make a Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 35 of 67 36 significant change to an existing policy based upon factual findings that contradict those which underlay its prior policy, is required to support its good reasons for the new policy with a more detailed justification than what would suffice for a new policy created on a blank slate. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). Such good reason requires more than nodding to [commenters’] concerns . . . only to dismiss them in a conclusory manner. Gresham v. Azar, 950 F.3d 93, 103 (D.C. Cir. 2020) (citing Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 932 (D.C. Cir. 2017) and then citing Getty v. Fed. Savs. & Loan Ins. Corp., 805 F.2d 1050, 1055 (D.C. Cir. 1986)). Further, when the agency is rescinding a prior policy, its reasoned analysis must consider the ‘alternative[s]’ that are ‘within the ambit of the existing [policy].’ Regents, 140 S. Ct. at 1913 (quoting State Farm, 463 U.S. at 51). Failing to provide such an explanation can render the agency action arbitrary and capricious. See Wisconsin Valley Improvement v. FERC, 236 F.3d 738, 748 (D.C. Cir. 2001) ( [A]n agency acts arbitrarily and capriciously when it abruptly departs from a position it previously held without satisfactorily explaining its reason for doing so. ). USDA’s reliance on States’ purported abuse of the waiver process to restrict waiver areas to LMAs fails to meet this standard for the same reason that the agency failed to provide adequate notice, with underlying and specific data, for meaningful comment. See supra Part III.A.3. Specifically, the agency neither grappled with nor sufficiently analyzed reasons provided in the administrative record for States’ grouping practices. For example, the Final Rule asserts that flexibility allows States to strategically group substate areas to maximize the geographic coverage of waived areas rather than to demonstrate high unemployment or a lack of sufficient jobs for ABAWDs, 84 Fed. Reg. at 66794, and cited this flexibility as a problem and one of the primary reasons why about half of the ABAWDs participating in SNAP live in Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 36 of 67 37 waived areas, despite current low unemployment levels across the majority of the country, id. Citing national standard unemployment rates, however, does not address the sufficiency of jobs for ABAWDs in the waived areas and therefore does not show that States’ grouping practices produced any outcomes inconsistent with the statute. See State Pls. MSJ at 32. Indeed, commenters provided ample alternative explanations for why states would group towns other than by LMA, including cost of living, lack of access to or availability of transportation, or lack of employers with a certain job field. ABAWD00008242 (U.S. DEP’T AGRIC., FOOD & NUTRITION SERV., FNS-2018-0004, SUPPLEMENTAL NUTRITION ASSISTANCE PROGRAM: REQUIREMENTS FOR ABLE-BODIED ADULTS WITHOUT DEPENDENTS, SUMMARY OF PUBLIC COMMENTS (2019) ( Summary Comment )), ECF No. 105-2. Without engaging these comments, the Final Rule merely disagree[d] with comments supporting States’ flexibility to group substate areas. 84 Fed. Reg. at 66794. USDA takes issue with several points made on this issue in D.C.I, but none of the agency’s arguments holds up. First, D.C. I found the agency’s assertion that half of ABAWDs live in waived areas to be unsurprising, since the waived areas are supposed to be targeted to areas where ABAWDs actually live and cannot find sufficient jobs. D.C. I, 444 F. Supp. 3d at 28. Although the agency stated that half was a suspiciously high share of ABAWDs . . . living in waived areas, the insinuation that this exemplified an abuse of the waiver process was simply unsupported. Id. On this point, USDA points to evidence confirm[ing] that strategic grouping was a real problem, Defs.’ Opp’n at 51, citing (1) the agency’s 2016 OIG Report findings that States had specifically requested ABAWD time limit waivers in as many parts of the State as possible to minimize the areas where they needed to track the ABAWD time limits, and that waivers covered even parts of the States where unemployment rates [were] as low as 0 Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 37 of 67 38 percent, id. (citing ABAWD00000289 (U.S. DEP’T AGRIC., OFFICE OF INSPECTOR GEN., Audit Report 27601-0002-31, FNS CONTROLS OVER SNAP BENEFITS FOR ABLE-BODIED ADULTS WITHOUT DEPENDENTS, (2016) ( OIG Report )), ECF No. 105-1); and (2) individual waiver requests from States that grouped the majority of counties in the State to reach the 120% national unemployment rate threshold, id. 52 54 (citing ABAWD00002477 78 (Georgia FS ABAWD Waiver Request for FY2016), ECF No 105-2; ABAWD00003536 (California FS ABAWD Waiver Request for FY2018), ECF No. 105-2). As noted in D.C. I, the OIG Report findings were not recounted or even referenced as justification for the Final Rule, and thus are not properly considered.18 D.C. I, 444 F. Supp. 3d at 28 n.16. Further, examples of gerrymander[ed] waiver areas neither explain why States’ efforts to maximize waivers are impermissible, nor whether or how the State grouping practices have provided benefits to ABAWDs whom the statute is not meant to cover. See State Pls. MSJ at 32; see also D.C. I, 444 F. Supp. 3d at 28 n.16 (finding that the OIG report was consistent with the idea that the state grouping behavior USDA deemed manipulative is a feature of the statutory design rather than a product of state abuse. ). Indeed, given USDA’s avowed careful[] review[] of all State waiver requests by independently obtaining and validating the data and evidence to 18 USDA vigorously argues that the OIG Report should be considered as an amplified explanation for the reasons [the agency] offered at the time of the action, rather than presenting a new basis for its action. Defs.’ MSJ at 51 n.23 (citing Nat’l Oilseed Processors Ass’n v. Browner, 924 F. Supp. 1193, 1204 (D.D.C. 1996)). If that were true, the omission of any reference to this OIG Report in the Proposed and Final Rules is even more puzzling. In any event, the agency may only present these findings as a clearer or more detailed explanation of the justification offered in the Final Rule if it offered any explanation to speak of. Nat’l Oilseed Processors Ass’n, 924 F. Supp. at 1204. Here, the agency offered only conclusory justifications based on vague claims of operational experience and problems of state abuse, while failing altogether to refute the various, good faith explanations for state waiver grouping. An agency explanation not described in any meaningful way in a Final Rule cannot be amplified, after the fact, for the purposes of litigation. See D.C. I, 444 F. Supp. 3d at 28 n.16 (citing SEC v. Chenery Corp., 318 U.S. 80, 94 95 (1943)). Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 38 of 67 39 determine if the areas meet the standards for approval, 84 Fed. Reg. at 66800, the agency’s current critique of agency-vetted and approved waivers as somehow improper is strained. Second, D.C. I determined that the agency’s new policy eliminating States’ flexibility in determining waiver areas was a solution in search of a problem, taking note that the agency could simply take the sensible course of denying or requesting review of inappropriate waiver applications. D.C. I, 444 F. Supp. 3d at 31.19 Plaintiffs observe that no evidence has been presented that USDA took steps to address any state abuse, either by notifying the state in question, seeking a modified waiver application, or denying an application in whole or in part. State Pls. MSJ at 32. The Final Rule itself touts the thoroughness of agency review of waiver requests, with in-depth analysis of the data presented, identification of discrepancies or inaccuracies, and denial in whole or in part of the waiver request because not all areas meet the standards for approval. 84 Fed. Reg. at 66800. USDA now tries to walk away from the thoroughness of its waiver review process, saying that the agency simply could not reject waivers that . . . grouped counties separated by hundreds of miles into a single area or conspicuously omitted nearby jurisdictions whose inclusion would mean the request no longer met the 20% standard, when such grouping was authorized under the 2001 regulation. Defs.’ Opp’n at 55. This is a punt. As USDA concedes, the Secretary has broad discretion over the determination of whether the waiver request meets the statutory qualification under 7 U.S.C. 2015(o)(4)(A)(i) or (ii), see Defs.’ MSJ at 18 19, and if, as USDA alleges, States are seeking 19 The Final Rule mentioned the agency’s effort in 2016 to clarify its intention that areas be economically tied through policy guidance, D.C. I, 444 F. Supp. 3d at 31 n.18 (citing 84 Fed. Reg. at 66794 & n.8), but did not address why that guidance failed to deter any purportedly improper grouping to maximize waiver areas and the agency did not then begin denying or questioning waiver areas that it viewed as inconsistent with this guidance, id. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 39 of 67 40 waivers for areas with sufficient jobs for ABAWDs, the Secretary may deny the request, a power the Final Rule says has been exercised, 84 Fed. Reg. at 66800. Further, USDA’s expressed concern about State manipulation of large waiver areas, Defs.’ MSJ at 51 54, is difficult to reconcile with the agency’s new commitment to LMAs, which multiple commenters claim are too large to be appropriate for a measure of ABAWDs job opportunities, State Pls.’ MSJ at 34; see ABAWD00008242 (Summary Comment ( [L]ocal economic conditions may not be captured by BLS data ), ECF No. 105-2). This concern also ignores the fact that the number of statewide waivers has already sharply dropped in the five years between 2013 and 2018, with States opting for a more targeted substate approach, suggesting that rather than use statewide unemployment averages, which, in the agency’s view, may mask ‘slack’ job markets (insufficient jobs) in some substate areas, and also tight labor markets in some substate areas, 84 Fed. Reg. at 66790, States were relying on available data sources to identify those areas of the State with insufficient jobs for ABAWDS. In sum, the Final Rule provided insufficient evidence and inadequate explanation that States were abusing their authority by requesting and obtaining time limit waivers in areas where sufficient jobs actually existed for ABAWDs to support the severe restriction on State flexibility in delineating waiver areas imposed by limiting such areas to LMAs. Third, D.C. I was unconvinced by USDA’s alternative justification to State abuse for adopting LMA as a strict definition of waiver ‘area.’ Id. at 66795. Specifically, the Final Rule adopted LMAs because they are economically integrated area[s] within which individuals can reside and find employment within a reasonable distance or can readily change jobs without changing their place of residence, id. at 66793, citing the usefulness of LMAs in delineating commuting patterns of the general workforce, id. (emphasis supplied). D.C. I found a Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 40 of 67 41 fundamental mismatch between available employment for ABAWDs and available employment across an LMA, D.C. I, 444 F. Supp. at 31, since LMAs do not capture available employment for ‘low-income, low-skilled ABAWDs who lack affordable transportation options,’ id. (citing 84 Fed. Reg. at 66793), rendering LMAs an unsuitable\u2014and therefore unreasonable\u2014measure of sufficient jobs where ABAWDs reside. One example of the insufficiency of using LMAs for the express statutory purpose is in large urban areas, such as New York City and the District of Columbia, where LMAs include multiple adjacent counties that extend well into areas of bordering states that are inaccessible to low-income ABAWDs for work. Id. at 31 32 (observing that the new LMA definition of area would subject ABAWDs residing in the District to the work requirement if the unemployment rate is low in the suburbs and exurbs of the District as far out as West Virginia, although these out-of-state counties are inaccessible by public transportation from the District and although unemployment rates in parts of the District are as high as 11.6% ). Despite considerable evidence before [the agency] on this point, the agency ignored critical factors and merely nodd[ed] to concerns raised by commenters only to dismiss them in a conclusory manner, which is not a hallmark of reasoned decisionmaking. Id. at 31 32 (quoting Gresham, 950 F.3d at 103). The full administrative record supports the conclusion in D.C. I that the agency failed to contend with the evidence presented during the rulemaking that the LMA definition is too attenuated from ABAWDs’ residential, transportation, and job patterns to inform effectively the statutorily-mandated inquiry into whether there are sufficient jobs for ABAWDs in the area[s] in which [they] reside. 7 U.S.C 2015(o)(4)(A). Numerous comments before the agency explained and provided research that the use of LMAs for waiver areas would fail to incorporate local nuances in work opportunities, see ABAWD00008242 (Summary Comment), ECF No. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 41 of 67 42 105-2, and hamper states’ ability to target waivers to specific areas, State Pls.’ MSJ at 34 (citing ABAWD00008239-40 (Summary Comment), ECF No. 105-2), remarking on the significant issues that arise when using LMAs to assess waivers in both rural and urban parts of a State, see ABAWD00008239, -8243 (Summary Comment), ECF No. 105-2. The Final Rule summarizes comments expressing these facts. See, e.g., 84 Fed. Reg. at 66793 (noting examples in which some LMAs are too big to properly define commuting patterns for ABAWDs because it could take more than two hours without traffic to commute one way from one end of an LMA to another by car and [additional] examples where it is impossible to access most of communities within an LMA using public transportation. ); id. (acknowledging that in some counties, workers may have to travel in all directions and often beyond a contiguous county for their job, and, therefore LMAs are too small in some cases and citing research [that] poor, minority residents [are] seeing the biggest decline in jobs within a reasonable commuting distance. ). Yet, USDA made no effort to rebut these comments nor the underlying research cited in the comments. Instead, the agency offered only the blunt conclusory statement that, [t]he Department is not compelled by the commenters’ suggestions . . . [and] as there are no Federally-designated areas that specifically assess commuting patterns and other related economic factors for ABAWDs, . . . the Department maintains that [LMAs] are the best available and most appropriate area delineation at this time. Id. USDA concedes, as it must in the face of the many comments and research cited in the Final Rule, that LMAs are not perfectly aligned with job markets solely for ABAWDs. Defs.’ Opp’n at 33; see also id. at 57 (recognizing that LMA delineation is not a perfect fit for ABAWDs ). Absent anything closer to an administrable definition of an ABAWD-labor market area, id. at 33, however, the agency contends that use of LMAs is particularly Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 42 of 67 43 reasonable compared to the alternative of a civil jurisdiction . . . based on a political boundary, id.; see also id. at 56 (asserting that LMA definition was motivated by the need to align waiver areas with job markets unlike individual jurisdictions, which turn on invisible boundaries . . . . ). In this line-drawing exercise, id. at 57, USDA argues that the agency has been tasked with broad discretionary authority to determine how best to strike the balance inherent in defining a waiver area, id. at 58; see also 84 Fed. Reg. at 66794 (asserting that USDA is within its authority to revise its regulations [since] the statute does not define what constitutes an ‘area’ ), concluding that ‘in light of the alternatives, the agency construction was reasonable,’ Defs.’ MSJ at 58 (quoting Bernhart v. Thomas, 540 U.S. 20, 21 (2003)). This convoluted response argument needs unpacking, because the inferential leaps tying it together are flawed. At the outset, broad discretion to define terms does not give an agency carte blanche to adopt new standards unsupported by the record before the agency and by the agency’s explanation. D.C. I, 444 F. Supp. 3d at 32. The agency’s choice to use only LMAs meant disregarding political boundaries, including State geographic limits, even though State agencies are tasked statutorily with making waiver requests for ABAWDs only within the State, as well as providing those ABAWDs with opportunities to transition to jobs, creating an inherent administrative tension. See, e.g., ABAWD00168348 (Food Research & Action Center, Comment Letter on Proposed Rule: SNAP Requirements for Able-Bodied Adults without Dependents RIN 0584-AE57 (2019) (noting the proposed rule would make it more difficult for states and counties to coordinate effective employment and training efforts, including for areas covered by Workforce Development Boards that are inconsistent with the BLS labor market area definition )), ECF No. 105-4. This tension is only exacerbated by the new restriction on data sources for waiver approvals imposed by the Final Rule. See infra Part III.B.2. Ultimately, Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 43 of 67 44 USDA’s argument boils down to LMAs being the best measure of job markets, even if not precisely measuring the job market for ABAWDs. To reach that conclusion, however, the Final Rule had to examine the criticisms about, and alternatives to, LMAs, and this is exactly where the Final Rule falls far short. As to whether LMAs are actually the best measure of job markets for ABAWDs, many commenters said otherwise and pointed to States as being in the best position to assess such job opportunities. The Final Rule, again, summarizes the many commenters pointing out that each State has the contextual knowledge and experience to identify the most appropriate grouping areas for waiver, 84 Fed. Reg. 66793-94; that the agency’s prior findings that county unemployment rates were the most available measure of the vitality of local labor markets and that States were best-equipped to determine whether high unemployment in some areas adversely affect employment prospects in others, id. at 66794; and that over the past two decades, the agency has never expressed that commuting patterns [should] be the primary or only basis for whether or not substate areas could be grouped together, id. Again, USDA did not rebut, refute or even debate these points about States’ expertise in identifying waiver areas. Rather, the agency merely stated the Department disagrees, id., citing its extensive operational experience, to conclude that strategic grouping of substate areas was a problem of State flexibility addressed by the LMA definition, id. The agency highlighted as examples of such problematic substate grouping to maximize [the] waived areas in the State, id.\u2014without specific details that could be subjected to challenge or rebuttal\u2014that some States have grouped nearly all contiguous counties in the State together while omitting a few counties with relatively low unemployment and others have grouped certain towns together that share the same economic region while omitting others with relatively low unemployment from the group, id. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 44 of 67 45 These examples gloss over, without addressing, the numerous reasons commenters suggested for such grouping, such as cost of living, lack of access to or availability of transportation, lack of employers with a certain job field, or other demographic considerations, id.; the fact, previously accepted by USDA, that patterns of employment and mobility for the low-skilled employment market can be quite different from those for the overall employment market, id.; and economic ties in grouped areas, such as employer recruiting practices, regional workforce development strategies, regional economic development and investment patterns, service delivery models and migration patterns, id. at 66795. In other words, the agency rejected its long-standing policy of States’ flexibility in delineating the areas for which a State believes a waiver request is warranted with only lip service acknowledgement of the problems with the LMA alternative adopted, and without any consideration of the complex factors underlying the substate groupings the agency seized on as problems. USDA’s treatment of even other problems commenters pointed out with restricting waiver areas to LMAs, including reliance on outdated data, infrequent updating to capture recent labor market trends, cautions from OMB about use of LMA delineations to develop and implement Federal, State, and local non-statistical programs and policies, id., was similarly dismissive. In response to these additional problems with LMAs, USDA stated that [t]he Department is resolute that LMAs represent the best available and most practical solution, to the problem of States’ manipulative usage of grouping substate areas to maximize waived areas. Id. at 66795. Thus, the agency’s reasoning may be summed up as follows: LMAs do not measure what the statute requires in terms of job opportunities for ABAWDs, but this metric at least addresses an issue of substate grouping that the agency holds up as a problem without addressing any of the cited complex factors showing this may be no problem at all. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 45 of 67 46 As determined in D.C. I, in defending the reasonableness of the Final Rule’s adoption of LMAs, USDA did little more than state that the agency was rejecting critical comments about problems with this choice as a definition for areas. See D.C. I, 444 F. Supp. 3d at 32. As such, the agency’s failure to contend meaningfully with the valid concerns and criticisms raised by commenters renders the waiver area redefinition to LMA arbitrary. 2. Final Rule’s Adoption of Standard Unemployment Rate Criteria as Sole Basis for Time Limit Waiver Is Arbitrary and Capricious Recall, as described, supra, in Part I.A.1, that waivers of the time limits on ABAWDs’ eligibility for SNAP benefits are statutorily authorized in the area in which ABAWDs reside if the area either (i) has an unemployment rate of over 10 percent; or (ii) does not have a sufficient number of jobs to provide employment for ABAWDs. 7 U.S.C. 2015(o)(4)(A). The Final Rule eliminates the flexibility States have been granted for over two decades to support waiver requests with whatever data [they] deem appropriate, 7 C.F.R. 273.24(f)(2) (2001), and restricts States to using only the standard U-3 unemployment rate generated by BLS for both prongs (i) and (ii), see supra note 7. The U-3 unemployment rate is one of six measures of labor underutilization published by BLS and represents the total number of unemployed persons available to take a job and actively seeking a job in the past four weeks, and, thus, unlike other BLS unemployment rates, does not include so-called discouraged workers, who looked for a job in the past twelve months, or involuntary part-time workers, who would like to work full time. 84 Fed. Reg. at 66788 & n.5. The Final Rule would implement prong (ii) by requiring States requesting waivers under this provision to show the LMA at issue has a recent 24-month average unemployment rate 20 percent of more above the national rate but no less than 6 percent. Id. at 66811. This Rule, had it been in effect during the COVID-19 pandemic, would have prevented almost every area throughout the country from qualifying. As a result, despite record Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 46 of 67 47 unemployment, the final rule would offer almost no relief to unemployed workers and overwhelmed state benefit systems and local food banks. Bolen Decl. at \u00b6 8. In making this significant policy change to rely solely on the U-3 standard unemployment rate for a 24-month period, USDA concedes that this new required measure fails to gauge what prong (ii) of the statute calls for, namely: whether an area has a sufficient number of jobs to provide employment for ABAWDs. As USDA points out, no available BLS statistical data provides a measure tailored to this statutory requirement. See 84 Fed. Reg. at 66787 ( recogniz[ing] that there is no measure available for determining the number of available jobs specifically for ABADS participating in SNAP in any given area. ). Furthermore, despite adopting this standard unemployment rate as the measure of the availability of jobs in an area where ABAWDs reside, USDA also concedes that ABAWDs face difficulties in finding jobs different than the general population. Id. ( recogniz[ing] that ABAWDs may face barriers to employment and have more limited employment prospects than the general public due to low educational attainment or other factors . . . . ). Notwithstanding the conceded misfit between the standard unemployment rate and the statutory waiver provision in prong (ii), however, the Final Rule eliminates States’ flexibility in garnering relevant evidence to meet this statutorily authorized basis for waiver by making the sole data source for such waiver requests the 24-month average U-3 standard unemployment rate. Id. at 66785, 66790, 66811. Plaintiffs challenge this change in implementation of prong (ii) as arbitrary and capricious. State Pls.’ MSJ at 24 28; Private Pls.’ MSJ at 24 32. The Court agrees the Final Rule’s adoption of standard unemployment rates as the measure for prong (ii) is flawed because, first, this change conflates and obstructs the purpose of this statutory provision Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 47 of 67 48 without adequate justification and, second, fails adequately to address the significant critiques and alternatives to the option adopted. First, to the extent general unemployment data is relevant to time limit waivers, that kind of evidence is expressly cited in prong (i), which provides that waiver requests may be based on an unemployment rate over 10 percent. 7 U.S.C. 2015(o)(4)(A). By contrast, prong (ii) requires more nuanced and targeted focus on job opportunities for ABAWDs in the area where ABAWDs reside. If Congress intended for the agency to use only general unemployment rates to determine whether to grant waivers, either prong (ii) would have been unnecessary or would have mirrored the language from prong (i). See Dep’t of Homeland Sec. v. MacLean, 574 U.S. 383, 391 (2015) ( Congress generally acts intentionally when it uses particular language in one section of a statute but omits it in another. ); Office of Consumers’ Counsel v. FERC, 783 F.2d 206, 222 (D.C. Cir. 1986) (explaining that requiring a term in the statute to encompass a definition that is flatly inconsistent with Congress’ clear message on [a] precise issue is impermissible). The Final Rule’s reliance on general unemployment data for both prongs of 2015(o)(4)(A) largely conflates the two statutory provisions, forces States to rely on the same kind of data, subject to slightly different parameters, for waiver requests under both prongs and functionally forecloses the specific focus on ABAWD job opportunities that is called for under prong (ii).20 The Final Rule never adequately explains why the changes made in prong (ii) 20 State plaintiffs press their argument that the Final Rule’s singular reliance on unemployment rates flunks the Chevron step one test, State Pls. MSJ at 13 15, because eliding the distinction in the statute’s two-pronged structure disqualifies this agency action. See New York v. EPA, 443 F.3d at 887 (setting aside an agency action where the action rendered the words in the statute insignificant or superfluous ); Shays v. FEC, 414 F.3d 76, 105 (D.C. Cir. 2005) (vacating agency rules at Chevron step one because the agency’s narrow interpretation of a statutory term was implausible. ). As explained in D.C. I, 444 F. Supp. 3d at 24 n.13, however, the broad discretion granted to the USDA Secretary to make the requisite determination under 2015(o)(4)(A)(ii), compounded by the broad scope of what data may\u2014or may not\u2014be covered in prong (ii), means both that this language is not obviously unambiguous at Chevron Step one, id., and that the agency’s interpretive overlay relying solely on general unemployment rates as the measure in prong (ii) is not barred at Chevron Step two. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 48 of 67 49 furthers this statutory directive in a manner different than prong (i), nor even appears to acknowledge this problem. Further, as explained in D.C. I, by adopting unreasonably narrow criteria for implementing the statutory requirements for evaluating waivers, D.C. I, 444 F. Supp. 3d at 25, the Final Rule frustrates the statute’s tacit instruction to the agency to calculate sufficient jobs with some attention . . . to ABAWD-related measures, by making the sole criteria one that is incapable of measuring what the statute requires, id. No more than a passing relationship exists between the 24-month unemployment rate and ABAWD job availability and USDA does not claim otherwise, asserting only that the Department finds the 20 percent [general unemployment rate] standard . . . to be one of the most objective and defensible ways of determining a lack of sufficient jobs, without claiming this measures a lack of sufficient jobs for ABAWDs. 84 Fed. Reg. at 66787. Indeed, the statutory phrase any group of individuals in the State for which waivers may be requested signals that such requests may be granted when the area in the State where ABAWDs reside lacks jobs for the individuals, 7 U.S.C. 2015(o)(4)(A)(ii), meaning ABAWDs. While U-3 standard unemployment data may show the percentage of jobless persons looking for work the past month, this measure misses the requisite focus on ABAWDs, who face labor market disadvantages that the general public does not, including low levels of education, part-time work, irregular hours, seasonal work, underemployment, high turnover, homelessness, former incarceration, racial and ethnic discrimination, and therefore have significantly higher unemployment rates than that reflected in the general unemployment rate. 84 Fed. Reg. at 66787. Consequently, plaintiffs’ assert, this Nonetheless, as discussed in the text, USDA’s rationales for adoption of this policy must still be adequately explained and in furtherance of the statute, and the agency fails to do this under an arbitrary and capricious analysis. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 49 of 67 50 concededly imperfect measure would prevent states from securing waivers for areas that lack sufficient jobs for ABAWDs, contrary to the intent of the statute. State Pls.’ MSJ at 25. Despite this mismatch between the standard unemployment rate and measuring job opportunities for ABAWDs, USDA’s explanation for eliminating the multi-criteria waiver basis set out in 7 C.F.R. 273.24(f)(2)(ii) (2001), repeatedly cites the preferred reliability and consistency of standard unemployment data in demonstrating a lack of sufficient jobs. 84 Fed. Reg. at 66791. This explanation simply avoids grappling with the fact that this data source is not more reliable and consistent for showing the lack of sufficient jobs for ABAWDs, as the statute directs. Rather than address the multiple comments that said just this, see e.g., id. ( commenters assert, as previously noted, that unemployment rates do not precisely capture job availability for ABAWDs ); id. (commenters noted that not including these criteria . . . would undercut a more nuanced understanding of local job markets ), USDA simply rejects these comments as not sufficiently compelling to justify making changes to the proposed rule. Id. In doing so, the agency expresses the suspicion that areas that do not clearly lack sufficient jobs [are] qualify[ing] for waivers, id. at 66787, noting that a state could . . . qualify for a waiver in areas with an unemployment rate as low as 4.7 percent, id. Thus, the agency’s over-arching intent in dramatically restricting waiver criteria was to address the suspected misuse of waivers, not to identify areas with insufficient jobs for ABAWDs, which at least partially explains why the new rule adopts a measure inherently ill-suited for the statutory purpose and the agency made little effort to explain how the general unemployment rate was supposed to serve the specific statutory directive of measuring job opportunities for a particular group of ABAWDs. Second, and relatedly, as explained in D.C. I, USDA’s jettisoning of two decades of reliance on a multiple criteria to measure job opportunities for ABAWDS, in favor of singular Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 50 of 67 51 reliance on the standard unemployment rate in both prongs of 2015(o)(4)(A), was arbitrary because the agency failed adequately to respond to commenter concerns and data showing that the general unemployment rate was so general as to be an inappropriate measure of lack of sufficient jobs for ABAWDs. D.C. I, 444 F. Supp. 3d at 23; see also State Pls. MSJ at 24 25 (contending that rule change restricting waiver criteria to 24-month average standard unemployment rate, combined with an unemployment rate floor, is contradicted by both the agency’s prior factual findings and evidence provided by commenters that unemployment levels alone are not an adequate measure of sufficient jobs for ABAWDs. ). USDA has long deemed the general unemployment rate alone as inadequate for measuring ABAWD employment opportunities, stating twenty-five years ago that [t]he statute recognizes that the unemployment rate alone is an imperfect measure of the employment prospects of individuals with little work history and diminished opportunities. ABAWD00000166 (1996 Guidance), ECF No. 105-1. The agency has also consistently maintained, and reiterated, in 1999, 2001, 2006, and 2016 the position that there are no singular standard data or methods to make the determination of the sufficiency of jobs for ABAWDS. ABAWD00000090 (64 Fed. Reg. at 70946 (conceding that there are no standard data or methods to make the determination of the sufficiency of jobs )), ECF No. 105-1; ABAWD00000212 (2006 Guidance (maintaining position)), ECF No. 105-1; ABAWD00000330 31 (U.S. DEP’T AGRIC., SUPPORTING REQUESTS TO WAIVE THE TIME LIMIT FOR ABLE-BODIED ADULTS WITHOUT DEPENDENTS (2016) (maintaining position)), ECF No. 105- 1. Given the conceded lack of available BLS or other precise measures of job opportunities for ABAWDs in the areas where they reside, USDA policy and regulations have long permitted Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 51 of 67 52 States to use different kinds of evidence to inform this query with a focus, as the statutory directive requires, on the availability of jobs for ABAWDs. USDA concedes that these different kinds of evidence authorized in the 2001 regulation, such as low and declining employment-to-population ratio, a lack of jobs in declining occupations or industries, or an academic study or other publication(s)[,] can enhance the understanding of the job market. 84 Fed. Reg. at 66791. In fact, the Final Rule continues to include these otherwise eliminated criteria as appropriate alternative measures when standard unemployment data is not available for an area, id., such as a reservation or U.S. Territory, id. at 66811. Not surprisingly, given the reliance among States and other stakeholders on this long- standing policy, many of the over 100,000 comments before the agency, id. at 66787, opposed eliminating the multiple criteria basis to implement 2015(o)(4)(A)(ii), and supported retention as data sources employment-to-population ratios, see, e.g., ABAWD00008237 (Summary Comment), ECF No. 105-1, information about declining industries or occupations, see, e.g., ABAWD00008238 (Summary Comment), ECF No. 105-2, and academic studies and LSAs, see 84 Fed. Reg. at 66791. The Final Rule summarily dismissed such data sources as less reliable and consistent than standard unemployment data based on the agency’s operational experience, id., or inconsistent with the final rule’s definition of an area, id. at 66800; see id. at 66791 (adopting a set of consistent criteria for [waiver] approval based on reliable and robust available evidence for evaluating labor market conditions ). While BLS’ U-3 standard unemployment rate may be reliable and consistent for some purposes, extensive comments and research data before the agency demonstrated the distinct demographic factors unique to ABAWDs that make a general unemployment measure Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 52 of 67 53 inadequate for identifying sufficient jobs under the statute, as the agency’s long-standing position had previously acknowledged. ABAWD unemployment is significantly higher than that of the general population, particularly during economically depressed periods because the ABAWD population intersects with a variety of socio-economic factors that make finding employment especially difficult. Priv. Pls. MSJ at 26 30. For example, 75 percent of SNAP beneficiaries have only a high school education or less, making them four to six percent more likely to be unemployed than those with bachelor’s degrees, see ABAWD00110132-33 (CBPP, Comment Letter on Proposed Rule: SNAP Requirements for Able-Bodied Adults without Dependents RIN 0584-AE57 (Apr. 1, 2019) ( CBPP Comment )), ECF No. 105-3; 40 percent of SNAP participants are African American or Latino, which are populations that had unemployment rates averaging between two and three percent above the overall unemployment rate for white workers in 2018, ABAWD00110136 (CBPP Comment), ECF No. 105-3; see, e.g., Priv. Pls.’ MSJ at 28 (explaining that the unemployment rate for African Americans in the District of Columbia is nearly 8.5 times higher than that of white residents); and 20 percent of ABAWDs reported a health problem or disability that prevents them from working or limits the type of work they can do, ABAWD00110142 (CBPP Comment), ECF No. 105-3. In addition, some of the most commonly reported occupations for ABAWDs are in sales or service, which are sectors that report unemployment rates between 23 percent and 56 percent higher than the general rate. ABAWD00110139 (CBPP Comment), ECF No. 105-3. The inadequacies of the general unemployment rate as a tool for assessing sufficient jobs for ABAWDs were highlighted by comments comparing other data sources and criteria, which incorporated factors pertinent to ABAWDs: BLS’s U-6 unemployment rate, low and declining employment-to-population ratio, and the State’s qualification for extended unemployment Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 53 of 67 54 benefits. Priv. Pls.’ MSJ at 31 32; State Pls.’ Reply at 15. For example, commenters urged consideration of the U-6 unemployment rate, which more broadly than the U-3 standard unemployment rate, includes the unemployed, those marginally attached to the labor force, who have been looking for work for longer than four weeks, and involuntary part-time workers. ABAWD00110183-85 (CBPP Comment), ECF No. 105-3; see ABAWD00034696 (Harry J. Holzer, Comment Letter on Trump Administration Proposal to Limit SNAP Waivers for the ABAWD Population (Mar. 2019)), ECF No. 105-3; Priv. Pls. MSJ at 31. Commenters explained that the U-6 rate would more accurately capture[] the condition of the labor market for ABAWDs, 84 Fed. Reg. at 66789, and that the the employment-to-population ratio, along with BLS’ U-6 measurement, captures valuable information about adults who are not actively looking for work, ABAWD00008237 38 (Summary Comment), ECF No. 105-2. The Final Rule rejected both measures solely because [they are] not available at the substate level, 84 Fed. Reg. at 66789 90, the same reason the USDA abruptly eliminated, without appropriate notice, see supra Part III.A.1, a State’s qualification for extended unemployment benefits to support a waiver, 84 Fed. Reg. at 66789 90 (eliminating the criterion because qualification for extended unemployment benefits is designated only at the state level, not at the LMA level ). Elimination of the extended unemployment benefits criterion is particularly troubling since USDA specifically noted that this qualification has been a clear indicator of lack of sufficient jobs and an especially responsive indicator of sudden economic downturns, such as the Great Recession, 84 Fed. Reg. at 985, and an appropriate indicator that a State lacks sufficient jobs, 84 Fed. Reg. at 66789. These comments put into stark relief the fact that more suitable measures are available for the ABAWD population, who, due to their distinguishing attributes, are likely excluded from the general unemployment rate applicable to the conventional civilian labor force. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 54 of 67 55 The agency’s rejection of these more appropriate measures due solely to the simultaneous adoption in the Final Rule of LMAs as the only definition of waiver area, and concomitant elimination of Statewide waivers, only bolsters the conclusion that this agency action is arbitrary and capricious. Such radical changes in long-standing policies, on which States, their agencies and others have long relied for such a critical purpose as necessary nutritional assistance, requires that the agency adequately consider the ‘alternative[s]’ that are ‘within the ambit of the existing [policy].’ Regents, 140 S. Ct. at 1913 (quoting State Farm, 463 U.S. at 51). USDA’s explanation that more appropriate measures of ABAWD job opportunities than the measure adopted were rejected due to their mismatch with the new LMA waiver area definition, does not provide a sufficiently reasoned explanation, Fox, 556 U.S. at 515, why carve-outs or exceptions to the LMA waiver area were impossible or otherwise unacceptable. In failing to meaningfully contend with submitted comments, the agency did not consider an important aspect of the problem, producing a decision that runs counter to the evidence the agency received, which renders it arbitrary. State Farm, 463 U.S. at 43. C. The Final Rule’s Discretionary Exemption Change is Contrary to Law State agencies may use discretionary exemptions, authorized under 7 U.S.C. 2015(o)(6), to provide SNAP benefits to ABAWDs, who do not reside in a waiver area and are otherwise subject to time limits. Recall that paragraph (6) of 2015(o) sets out directions to USDA’s Secretary on how to calculate the number of exemptions each State is awarded annually. See supra in Part I.A.2. As a general matter, the number of discretionary exemptions available for use by each State is a percentage\u2014currently 12 percent, under subparagraph (E)\u2014 of the number of covered individuals in the State, subject to various adjustments by the Secretary. 7 U.S.C. 2015(o)(6)(E) (making the number of exemptions that a State agency may provide [s]ubject to subparagraphs (F) through (H) ). Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 55 of 67 56 As such, the 12 percent of the covered individuals in the State provides the baseline number of exemptions available, which number is then adjusted for the total number of discretionary exemptions allocated or available for the State’s use. Id. One such adjustment by the Secretary is to reflect changes in the State’s caseload, id., and is guided by subparagraph (F), titled Caseload adjustments. The adjustment at issue here is set out in subparagraph (G), titled Exemption adjustments, and directs that in each fiscal year\u2014 the Secretary shall increase or decrease the number of individuals who may be granted an exemption by a State agency under this paragraph to the extent that the average monthly number of exemptions in effect in the State for the preceding fiscal year under this paragraph is lesser or greater than the average monthly number of exemptions estimated for the State agency for such preceding fiscal year under this paragraph. 7 U.S.C. 2015(o)(6)(G) (emphasis supplied). As described, supra in Part I.A.2, the Final Rule changed USDA’s long-standing policy that States were entitled, under subparagraph (G), to carryover from year to year, the number of exemptions that had been estimated for the State agency, meaning allocated by operation of the other subparagraphs, but unused, and adopted a use it or lose it policy for such exemptions. 84 Fed. Reg. at 66802 03. Specifically, the Final Rule now allows carryover of only a portion of the unused exemptions not to exceed 12 percent of the covered individuals in the State estimated by [USDA] for the preceding fiscal year. 84 Fed. Reg. at 66811. Plaintiffs argue that USDA’s elimination of discretionary exemptions accumulated over the last twenty years and the new limitation on carryover exemptions beyond one year contravene the statutory text and Congress’ clearly articulated intent. State Pls.’ MSJ at 18; State Pls.’ Reply at 18. D.C. I declined to temporarily enjoin the effectiveness of this part of the Final Rule at the preliminary injunction stage of proceedings, 444 F. Supp. 3d at 16-19, but, based on plaintiffs’ new interrogation of the Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 56 of 67 57 dense statutory language and additional briefing at summary judgment, the contrary to law challenge to this aspect of the Final Rule now persuades. Plaintiffs read the distinct steps for computing discretionary exemptions under 2015(o)(6)(G) as requiring, first, a comparison of the average monthly number of exemptions in effect, meaning used, during the preceding fiscal year with such number of exemptions estimated for the State agency for such preceding fiscal year under this paragraph. State Pls. MSJ at 18; see also State Pls.’ Reply at 19 ( Nobody disputes that Y [the number of exemptions in effect in the State for the preceding fiscal year] is the number of exemptions the state actually used last year. ). Second, if the number in effect (or used) is less[] than the number estimated, subparagraph (G) directs that the Secretary ‘shall increase’ the state’s exemptions for the present fiscal year by the difference. Id. (quoting 7 U.S.C. 2015(o)(6)(G)). Plaintiffs posit that the only question is whether the number ‘estimated under this paragraph’ includes the number of carryover exemptions that also were available in the preceding fiscal year, id. (emphasis in original), and contend [t]he statute’s plain language demonstrates that it does, id. The last phrase in subparagraph (G) expressly states that the discretionary exemption adjustment is increased (or decreased) by the exemptions estimated for the State agency for such preceding fiscal year under this paragraph, thereby includ[ing] exemptions carried into the preceding fiscal year from the prior year. State Pls.’ Reply at 19. As plaintiffs point out, agency guidance and rules over the last two decades have, until the challenged Final Rule, reflected this reading of 2015(o)(6)(G). USDA’s 2002 Rule explained the operation of paragraph (6)(G), stating [i]f the State agency does not use all of its exemptions by the end of the fiscal year, [USDA] will increase the estimated number of exemptions allocated to the State agency for that subsequent fiscal year by the remaining Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 57 of 67 58 balance. 2002 Final Rule, 67 Fed. Reg. 41619. Conversely, [i]f more exemptions are used than authorized in a fiscal year, the State’s allocation for the next year will be reduced. Id. Notably, the agency made clear that [t]he Department has no discretion in implementing this provision. Id. at 41602. Given its conceded lack of discretionary authority to modify the statutorily required calculation of discretionary exemptions, the Final Rule simply reinterprets the text of subparagraph (G).21 Plaintiffs’ argument is persuasive. When read as a whole, subparagraph (G)’s explicit inclusion of all unused exemptions from the preceding fiscal year in the calculation of the available exemptions for the current fiscal year, necessarily includes those carried over. While subparagraph (G) may be ambiguous in isolation, in context and clarified by the remainder of the statutory scheme . . . , United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371 (1988), the exemption adjustments required under subparagraph (G) are a distinct step in the exemption calculation rubric. By design, the exemption adjustment for any given year is necessarily informed by the exemption estimate of the previous year, which is, in turn, informed by the exemption estimate of the year before that, and so on in a procedure that creates a carryover effect. USDA disputes this interpretation with a repeat of its earlier arguments during preliminary injunction proceedings, contending that plaintiffs point to no text in the statute that 21 Plaintiffs point to the 2018 Farm Bill’s rejection of a House proposal to eliminate the carryover of discretionary exemptions as suggesting Congressional support for their interpretation of the 2015(o)(6)(G). State Pls.’ MSJ at 20 21. D.C. I concluded that the Conference Report’s statement was made in the specific context of explaining the Conference Committee’s decision to reject the House’s total elimination of carryover exemptions and that the report does not purport to bar agency action in the future. D.C. I, 443 F. Supp. 3d at 18. To be sure, the Conference Report for the 2018 Farm Bill confirms Congressional support for the prevailing and long-standing agency regime permitting indefinite carryover of discretionary exemptions, but that support alone simply does not mean the statutory text is either clear or ambiguous. Given the finding that subparagraph (G), in the context of the full paragraph (6), is clear in requiring such carryover, no more need be said about the 2018 Farm Bill and its Conference Report. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 58 of 67 59 entitles States to indefinitely stockpile unused exemptions for use at any point in the future. Defs.’ Opp’n at 36. Certainly, the text of 2015(o)(6)(G) does not use the terms indefinite or stockpile, but the structure of this whole paragraph, paired with close examination of how the calculation works in practice, demonstrates a clear meaning that aligns only with plaintiffs’ construction. See State Pls.’ MSJ at 18 19; State Pls.’ Reply at 19 20. The Secretary shall carryover from the preceding FY unused discretionary exemptions that were estimated for the State agency for that year by operation of the other subparagraphs. The mandate to the Secretary to calculate the carryover adjustment as directed simply leaves little wiggle room for the limitations USDA now seeks to impose. USDA next argues that, even if subparagraph (G) is construed to refer to the number exemptions computed under all of paragraph (6), this does nothing to alter the statute’s focus on the ‘preceding fiscal year,’ Defs.’ Opp’n at 37 (quoting 7 U.S.C. 2015(o)(6)(G)), such that the one-year time limit on carryover exemptions adopted in the Final Rule can also make sense. Not so. The exemption estimate for the current fiscal year is informed by the number of exemptions estimated for the previous fiscal year. 7 U.S.C. 2015(o)(6)(G). This means that for each subsequent year, one of the distinct steps in the exemption calculation process will pull the difference between the estimated exemptions and the used exemptions from the preceding year to inform the estimated exemptions for the current year, thus incentiviz[ing S]tates to use fewer than the available number of exemptions in a given year in better economic times . . . . State Pls.’ Reply at 20. Defendants’ focus on the preceding fiscal year fails to take into account that each preceding fiscal year, under the design of the statute, relies on the year preceding the preceding fiscal year. USDA’s reading would require a re-write of subparagraph (G). Instead of requiring carryover, if a State has unused exemptions at the end of a fiscal year, of the Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 59 of 67 60 greater number of exemptions estimated for the State agency for such preceding fiscal year under this paragraph, 7 U.S.C. 2015(o)(6)(G), the Final Rule would implement the statute as if it were written to allow carryover of the greater number of exemptions estimated for the State agency in only the immediately preceding fiscal year but not to exceed the pre-adjustment number of exemptions under subparagraph (E) for that year. Thus, USDA’s new interpretation in the Final Rule of the discretionary exemption adjustment is predicated on wishful thinking about what the statute says, not its plain text.22 The text, structure and complex operation of 2015(o)(6) shows that the Final Rule’s elimination of all accumulated discretionary exemptions and imposition of a limit on carryover to only one year’s worth of exemptions from the prior year, is contrary to law, requiring vacatur of this part of the Final Rule.23 22 State plaintiffs revive an argument made briefly during preliminary injunction proceedings that the Final Rule’s extinguishing of carryover discretionary exemptions is also contrary to law for violating the APA’s prohibition on retroactive rules. See State Pls’s MSJ at 23 (contending Final Rule summarily extinguished accumulated exemptions usable within an agency-run regulatory scheme under clear prior regulation with the agency’s repeated assurance and recognition of those balances, representing millions of dollars in vital food assistance to state residents ). In D.C. I, at least as [then] presented, the argument was rejected since the legal status quo ante did not create inalienable rights to maintain unused exemptions beyond the next fiscal year. 444 F. Supp. 3d at 18 n.10 (internal quotations omitted). This conclusion must be adjusted in light of the Court’s determination that subparagraph (G) requires carryover of unused exemptions from year to year. The law is well- settled that an agency may not promulgate retroactive rules without express congressional authorization, Arkema Inc. v. EPA, 618 F.3d 1, 7 (D.C. Cir. 2010) (citing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988)), and [a] rule operates retroactively if it takes away or impairs vested rights, id. (quoting Nat’l Mining Ass’n v. United States Dep’t of Interior, 177 F.3d 1, 8 (D.C. Cir. 1999) (quoting Ass’n of Accredited Cosmetology Sch. v. Alexander, 979 F.2d 859, 864 (D.C. Cir. 1992)). USDA does not claim to have congressional authorization for a retroactive rule, basing the Final Rule’s elimination of carryover exemptions on the agency’s change in interpretation of 2015(o)(6)(G). In so doing, USDA has done more than merely alter[] the future effect of the regulation and upset[] expectations based on prior law, Mobile Relay Assocs. v. FCC, 457 F.3d 1, 11 (D.C. Cir. 2006), but in fact altered the past legal consequences of past actions, id., making this part of the Final Rule an improper retroactive rule requiring vacatur. See Arkema, 618 F.3d at 7 (where agency changed its interpretation of statutory requirement, contradict[ing]s its past practice, with the effect of undo[ing] what [the agency] had, in practice, approved, thereby attaching new legal consequences to past actions, the challenged rule is impermissibly retroactive ); Ne. Hosp. Corp. v. Sebelius, 657 F.3d 1, 13-15 (D.C. Cir. 2011) (concluding that Secretary’s decision to apply her present interpretation of the DSH statute to fiscal years 1999 2002 violates the rule against retroactive rulemaking. ). 23 Given this conclusion that the Final Rule’s changes to the discretionary exemptions are contrary to law, the parties’ arguments regarding whether these changes are also arbitrary and capricious need not be considered. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 60 of 67 61 D. Final Rule’s Consideration of Cost and Disparate Impact Are Arbitrary and Capricious Plaintiffs contend that USDA failed adequately to consider the cost and disparate impact of the Final Rule and that these shortcomings render the Final Rule arbitrary and capricious for ignor[ing] evidence of the Rule’s significant impacts on state governments and protected groups. State Pls.’ MSJ at 37. Despite the abundance of comments citing these adverse impacts, the agency gave them short shrift and concluded that the Final Rule’s changes will result in only a small increase ($1.4 million) in certain administrative costs to States, 84 Fed. Reg. at 66807, and that the changes will affect potential SNAP program participants in all groups who are unable to meet the ABAWD work requirements, id. at 66808. The Court agrees with plaintiffs that the agency’s treatment of these two issues of cost and disparate impact bolster the finding that the Final Rule is based on flawed and inadequate reasoning. 1. Cost Impact of Final Rule Throughout the Final Rule, USDA notes that commenters repeatedly raised alarms about the downstream administrative costs to the States likely to result from its significant changes to the waiver process. For example, commenters advised that restricting waiver areas to LMAs would reduce States’ ability to allocate and coordinate E&T resources effectively [and] make State planning more difficult, id. at 66795, but despite appreciat[ing] the States’ administrative needs, id., the agency was not compelled by [these] arguments and chose to move forward without any analysis of the associated costs. Similarly, commenters complained that the Final Rule’s restriction of statewide waivers would limit State flexibility and . . . increase administrative complexities and burdens, id. at 66798, but, again, the agency was not compelled by commenters’ suggestions that the elimination of statewide waivers is arbitrary, id., citing its operational experience, id., without any analysis of the associated costs. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 61 of 67 62 Commenters also explained that eliminating the LSA designation criterion would increase administrative burden on States and the Department, id. at 66799, since the LSA designation criterion is one of the least burdensome ways for States to submit a request and for the Department to evaluate a request, id. Again, USDA expressed appreciat[ion] for comments but, without any analysis of the associated costs, moved ahead with the proposal, because LMAs and LSAs are often geographically inconsistent, id. at 66800. USDA was plainly cognizant that the changes made by the Final Rule would generate many administratively burdensome tasks for the States. To comply with the changes in the Final Rule, States would have to, inter alia, obtain clarifying guidance from the agency, id. at 66802; send the agency request[s] to amend their current waivers and have those requests reviewed, id. at 66801; devote resources to quickly analyz[e] data for new requests and implement[] the time limit in new areas, id.; coordinate with counties and provide adequate notice so that individuals properly understand the ABAWD time limit, id. at 66801-02; plan sufficiently and provide appropriate oversight and training for counties, id. at 66802; provide guidance and coordination for E&T providers and community based organizations to prepare for the impacts of the waiver changes, id.; train individuals who develop waiver requests, id. at 66809; issue Notice of Adverse Action (NOAAs) to those 688,000 ABAWDs who do not meet the work requirement under the new rule, id.; and verify work hours and exemptions for 399,000 ABAWDs newly subject to the work requirement, id. In fact, USDA responded to complaints about administrative burden arising from these myriad implementation tasks by slightly shifting the effective date for the waiver process changes from October 1, 2019 to April 1, 2020. Id. at 66802. Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 62 of 67 63 Despite this recognition of the breadth of the tasks confronting States in implementing the Final Rule’s wholesale changes in the waiver process, USDA estimated in its Regulatory Impact Analysis ( RIA ) that the increase in costs to States would be a paltry $1.4 million related to [the] administrative burden for verifying work hours and exemptions and sending notices, id. at 66807, without calculating any other associated costs of compliance.24 On that point, the agency bluntly states, this rule does not impose substantial or direct compliance costs on State and local governments . . . . Id. at 66808. This conclusion, given the many comments about the increased administrative burdens and associated costs, is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. State Farm, 463 U.S. at 43. The inadequacies of the agency’s regulatory impact analysis are illuminative of its overall failure to consider fully or provide any substantive analysis of the costs to States of complying with the policy and process changes reflected in the Final Rule, as well as other foreseeable costs of the Rule, detailed in critical comments, including costs to amplify current state programs to accommodate the increased number of ABAWDs subject to the time limit, [i]ncreased poverty and hunger, health care costs, and the impact on economic activity of cutting SNAP benefits. State Pls.’ MSJ at 39 & n.18 (citing ABAWD00008257-60 (Summary 24 USDA argues that judicial review of the cost analysis in the RIA is impermissible because the analysis was conducted pursuant to Executive Orders 12,866, 13,563, and 13,771 instead of a statutory mandate and that ‘Executive Orders cannot give rise to a cause of action’ under the APA. Defs.’ Opp’n at 59 (citing Fla. Bankers Ass’n v. U.S. Dep’t of Treasury, 19 F. Supp. 3d 111, 118 n.1 (D.D.C. 2014), vacated on other grounds, 799 F.3d 1065 (D.C. Cir. 2015)). This argument is not responsive, however, to plaintiffs’ point. Plaintiffs do not challenge the adequacy of the agency’s performance of the RIA, but instead challenge the sufficiency of the agency’s consideration of significant evidence regarding States’ costs. See State Pls.’ MSJ at 37 ( The Rule also is arbitrary and capricious because it ignores evidence of the Rule’s significant impacts on state governments and protected groups. ). The agency’s choice to brush[] aside critical facts about States’ costs presented to the agency by commenters and the agency’s subsequent failure to give those facts any meaningful consideration is appropriately reviewed under the APA. See Am. Wild Horse Preservation Campaign v. Perdue, 873 F.3d 914, 932 (D.C. Cir. 2017). Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 63 of 67 64 Comment), -110316 17; -168812 14; -78135 36; -79151 52; -168358 59; -173986 89), ECF No. 105-2; State Pls.’ MSJ, Ex. 3, Decl. of Alexis Carmen Fern\u00e1ndez, Chief of CalFresh & Nutrition Branch, California Department of Social Services ( Fern\u00e1ndez Decl. ) \u00b6 16, ECF No. 65-3 ( . . . any reduction in CalFresh eligibility has a negative impact on an already hard-hit economy . . . [and] the Final Rule would increase state and local administrative costs during a time when public entities are experiencing significant budget cuts. ); id., Ex. 5, Decl. of Laura Zeilinger, Director of the District of Columbia Department of Human Services ( Zeilinger Decl. ) \u00b6 11, ECF No. 65-5 ( The economic impact of the public health crisis is likely to last long after the emergency declarations are lifted, leaving many without jobs in the coming months who will still need to rely on . . . providers of nutrition assistance. These providers cannot realistically absorb the demand that would be created if individuals subject to ABAWD requirements in the District cannot receive SNAP benefits. ); D.C. I, 444 F. Supp. 3d at 39 (finding likelihood of immediate, irreparable harm from Final Rule due to significant regulatory and administrative burden[] on the States); id. at 41 (same for private plaintiff Bread for the City, which would have to expend additional resources on non-educational services, including food assistance and ‘medical and social work.’ (citing Jones Decl. \u00b6\u00b6 9, 11, 13, ECF No. 1-6)). In sum, the comments were replete with concerns about administrative burdens on and associated costs for States, but USDA did little more than express appreciation for their receipt, essentially dismissing the concerns as unpersuasive for the agency’s goal of establish[ing] clear limitations under which waivers can be approved. 84 Fed. Reg. at 66810. This goal, standing alone, may be unassailable. Yet, when commenters complain that the mechanisms used in the Final Rule to achieve this goal significantly increase States’ administrative burdens and costs, with concomitant adverse second order impacts on health and local economies, to such an extent Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 64 of 67 65 that the rule risks undermining the over-arching policy of the statutory scheme to safeguard the health and well-being of the Nation’s population by raising levels of nutrition among low- income households, 7 U.S.C. 2011, the agency’s utter failure to address the issue renders the agency action arbitrary and capricious. See Reytblatt v. U.S. Nuclear Regulatory Comm’n, 105 F.3d 715, 722 (D.C. Cir. 1997) ( An agency need not address every comment, but it must respond in a reasoned manner to those that raise significant problems. (citing Action on Smoking and Health v. Civil Aeronautics Bd., 699 F.2d 1209, 1216 (D.C. Cir. 1983))). 2. Disparate Impact of Final Rule Hundreds of comments submitted to USDA provided quantified feedback as to the impacts of the proposed rule on protected populations. ABAWD00008226 (Summary Comment), ECF No. 105-2. Indeed, [m]any of the 430 commenters who submitted such comments argued that several vulnerable populations, including racial and ethnic minorities, LGBT populations, veterans and those with disabilities . . . would be disproportionately harmed by the proposed rule. ABAWD00008263 (Summary Comment), ECF No. 105-2. Commenters explained that the Final Rule would likely have a disproportionate impact on racial minorities, who in addition to facing higher unemployment rates, [] are more likely to be marginally attached to the workforce, and thus ignored by the U-3 unemployment rates, id. at 66789, and provided research indicating that the change in proximity to jobs in recent years varies by socioeconomic characteristics, with poor, minority residents seeing the biggest decline in jobs within a reasonable commuting distance, id. at 66793. USDA corroborated these critiques, conceding in a self-described comprehensive Civil Rights Impact Analysis ( CRIA ), 84 Fed. Reg. at 66808, that implementation of the final rule may impact African Americans and Hispanic groups at a higher rate due to factors more strongly associated with potential program users in these minority groups, ABAWD00000358 (CRIA), ECF No. 105-1, and has the Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 65 of 67 66 potential for impacting certain protected groups due to factors affecting rates of employment of members of these groups, 84 Fed. Reg. at 66808. See also id. ABAWD00000351 (CRIA), ECF No. 105-1 ( The Department acknowledges the changes outlined in the final rule will likely impact members of the populations outlined above, i.e., vulnerable populations, including racial and ethnic minorities, LGBTQ populations, veterans, homeless populations, and those with disabilities, given the disproportionate rate of food insecurity and unemployment in those communities. ). Notwithstanding the comments alerting the agency to the adverse disparate impact of the Final Rule on minorities, women and persons with disabilities, USDA essentially kicked this problem bucket down the proverbial road, citing a lack of [s]pecific race, ethnicity, and gender data regarding the ABAWDs that will be impacted by the Final Rule. ABAWD00000358 (CRIA), ECF No. 105-1; see Defs.’ Opp’n at 63. That excuse rings hollow given the many comments supported by empirical data. See, e.g., ABAWD00008264 (Summary Comment), ECF No. 105-2; id. ( 50 percent of the individuals that would be impacted by the proposed rule come from communities of color ). Despite asserting that the implementation of mitigation strategies and monitoring by the [agency’s] Civil Rights Division and [] SNAP may lessen these impacts, id. at 66808, the agency remains vague as to what precisely those mitigation strategies may be, retorting only that plaintiffs cite nothing for the proposition that USDA was required to prospectively set forth how it would respond to hypothetical circumstances, Defs.’ Opp’n at 63. As with USDA’s dismissive treatment of the increased costs and administrative burdens to States’ resulting from the Final Rule, the agency’s recognition of the disparate impact on protected groups, without any meaningful discussion of the issue in the context of alternatives to Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 66 of 67 67 the rule’s policy choices, points to the agency’s failure to consider an important aspect of the effects of the Rule. State Farm, 463 U.S. at 43; see also Am. Bankers Ass’n v. NCUA, 934 F.3d 649, 656 (2019) (remanding, as arbitrary and capricious under 5 U.S.C.S. 706(2)(A), part of agency rule intended to promote credit union growth among suburban residents, because agency did not adequately respond to comments objecting that low-income and minority residents in urban core areas would be disparately impacted and excluded). IV. CONCLUSION For the foregoing reasons, state plaintiffs and private plaintiffs are entitled to summary judgment and the Final Rule must be vacated. Accordingly, the plaintiffs’ motions for summary judgment, ECF Nos. 64, 65 and 66, are GRANTED, and defendants’ Cross-Motion for Summary Judgment, ECF No. 92, is DENIED. An Order consistent with this Memorandum Opinion will be filed contemporaneously. Date: October 18, 2020 __________________________ BERYL A. HOWELL Chief Judge Case 1:20-cv-00119-BAH Document 107 Filed 10\/18\/20 Page 67 of 67 I. BACKGROUND I. BACKGROUND A. Brief Overview of Statutory Requirements and the Regulatory Scheme Changed by Final Rule A. Brief Overview of Statutory Requirements and the Regulatory Scheme Changed by Final Rule 1. Waiver of Time Limits Applicable to ABAWDs 1. Waiver of Time Limits Applicable to ABAWDs 2. Discretionary Exemptions from Time Limits Applicable to ABAWDs 2. Discretionary Exemptions from Time Limits Applicable to ABAWDs B. Preliminary Resolution of Plaintiffs’ Challenges to Final Rule B. Preliminary Resolution of Plaintiffs’ Challenges to Final Rule 1. Procedural Deficiencies in Promulgation of Final Rule 1. Procedural Deficiencies in Promulgation of Final Rule 2. Plaintiffs’ Challenge to Waiver Changes 2. Plaintiffs’ Challenge to Waiver Changes 3. Plaintiffs’ Challenge to Final Rule’s Discretionary Exemption Change 3. Plaintiffs’ Challenge to Final Rule’s Discretionary Exemption Change C. Subsequent Procedural History C. Subsequent Procedural History II. LEGAL STANDARD II. LEGAL STANDARD III. DISCUSSION III. DISCUSSION A. USDA Failed to Provide Sufficient Notice of Changes Adopted In Final Rule A. USDA Failed to Provide Sufficient Notice of Changes Adopted In Final Rule 1. USDA Provided No Notice of Elimination of Extended Unemployment Benefits Criterion as Basis for Waiver Request 1. USDA Provided No Notice of Elimination of Extended Unemployment Benefits Criterion as Basis for Waiver Request 2. USDA Provided No Notice of Limiting Waiver Area to LMA 2. USDA Provided No Notice of Limiting Waiver Area to LMA 3. USDA’s Opaque Reference to Operational Experience Provided Inadequate Notice of Elimination of State Flexibility in Both Defining Waiver Area and Using More Probative Data 3. USDA’s Opaque Reference to Operational Experience Provided Inadequate Notice of Elimination of State Flexibility in Both Defining Waiver Area and Using More Probative Data B. The Final Rule’s Waiver Changes are Arbitrary and Capricious and Not in Accordance with Law B. The Final Rule’s Waiver Changes are Arbitrary and Capricious and Not in Accordance with Law 1. Final Rule’s Restriction of Waiver Area to U.S. Department of Labor-Defined LMA is Both Contrary to Law and Arbitrary and Capricious 1. Final Rule’s Restriction of Waiver Area to U.S. Department of Labor-Defined LMA is Both Contrary to Law and Arbitrary and Capricious a. Restricting Waiver Area to LMA Is Contrary to Law a. Restricting Waiver Area to LMA Is Contrary to Law b. Restriction of Waiver Area to LMA was Arbitrary and Capricious b. Restriction of Waiver Area to LMA was Arbitrary and Capricious 2. Final Rule’s Adoption of Standard Unemployment Rate Criteria as Sole Basis for Time Limit Waiver Is Arbitrary and Capricious 2. Final Rule’s Adoption of Standard Unemployment Rate Criteria as Sole Basis for Time Limit Waiver Is Arbitrary and Capricious C. The Final Rule’s Discretionary Exemption Change is Contrary to Law C. The Final Rule’s Discretionary Exemption Change is Contrary to Law D. Final Rule’s Consideration of Cost and Disparate Impact Are Arbitrary and Capricious 1. Cost Impact of Final Rule D. Final Rule’s Consideration of Cost and Disparate Impact Are Arbitrary and Capricious D. Final Rule’s Consideration of Cost and Disparate Impact Are Arbitrary and Capricious 1. Cost Impact of Final Rule 2. Disparate Impact of Final Rule 2. Disparate Impact of Final Rule IV. CONCLUSION IV. CONCLUSION 2020-10-18T11:29:32-0400 Beryl A. Howell ”

pdf E.T.,K.R, C.B v. Ronal George, Judicial Council – Deficient Representation of Defendants in Child Welfare Services Court

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” Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 1 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 2 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 3 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 4 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 5 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 6 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 7 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 8 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 9 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 10 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 11 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 12 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 13 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 14 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 15 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 16 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 17 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 18 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 19 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 20 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 21 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 22 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 23 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 24 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 25 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 26 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 27 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 28 of 29 Case 2:09-at-01115 Document 2 Filed 07\/16\/2009 Page 29 of 29 ”

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pdf Fabelo (formerly Amin) v Colvin-SSI Appeals Process Case

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” 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK —————————————————————————-X SYLVIA FABELO; JUDY MENCZER, on behalf of E.M., a minor; LIAM BECK, on behalf of M.B., a minor; ICHO COHEN, on behalf of S.C., a minor; CONSTANTIN KEHAYA; ARON BRAVER, on behalf of R.B., a minor; NABIL SARGA, on behalf of K.S., a minor; and STAVROULA KAPELES, Plaintiffs, -against- CAROLYN W. COLVIN, Acting Commissioner of Social Security, and FRED M. MAURIN, Regional Commissioner of Social Security, New York Region, Defendants. —————————————————————————-X FIRST AMENDED COMPLAINT 2015 CV 07429 (FB) Plaintiffs, by their attorneys, allege as follows: PRELIMINARY STATEMENT 1. Plaintiffs or their minor children are or were all recipients of Supplemental Security Income ( SSI ) benefits. The Social Security Administration ( SSA or the agency ) has determined that they are ineligible or have been overpaid SSI benefits or both, and attempted to file appeals of the agency’s determinations. This case concerns the continuous and repeated failure of defendants Carolyn W. Colvin, the Acting Commissioner of Social Security, and Fred M. Maurin, the SSA New York Regional Commissioner, to follow the agency’s regulations and written procedures in New York City to process appeals and document them in its system in a timely manner. This failure blocks plaintiffs and their children from exercising their due process, statutory, and regulatory rights because those rights are triggered with the filing of an appeal. These rights include the right to continued benefits, the right to appear and submit evidence, the right to cross-examine witnesses, and to present arguments, which are guaranteed Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 1 of 48 PageID #: 69 2 by the Social Security Act ( the Act ), SSA’s regulations and written procedures, and the United States Constitution. SSA regulations and procedures comport with due process protections; the agency simply fails to adhere to them. 2. Defendants are directly responsible for the implementation of a reliable, consistent, and uniform practice in New York City to timely document appeals in its system to comply with federal law. However, under defendants’ current practice, there are significant, unjustified, unnecessary, and illegal delays in documenting appeals. 3. By continuing to operate this dysfunctional practice in SSA offices in New York City, defendants have repeatedly and unjustifiably denied eligible SSI recipients access to crucial benefits and due process protections, in violation of the Due Process Clause of the Fifth Amendment to the United States Constitution, the Act, and SSA’s own regulations and written procedures. 4. Low income disabled and elderly residents of New York City are unnecessarily suffering a loss of the very means by which to live as a result of defendants’ abject failure to follow their own regulations and written procedures to timely document appeals related to ongoing eligibility for SSI benefits. JURISDICTION, VENUE, and RELIEF 5. This Court has subject matter jurisdiction over the federal claims under 28 U.S.C. 1331 for questions arising under the Constitution and the laws of the United States. 6. This court has subject matter jurisdiction under 28 U.S.C. 1361 by which this Court has original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to a plaintiff. Mandamus jurisdiction is especially appropriate here because plaintiffs allege that there is a Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 2 of 48 PageID #: 70 3 system-wide practice that is in direct violation of the established regulations and written procedures of a federal agency. 7. This Court has subject matter jurisdiction under 42 U.S.C. 405(g) for the collateral procedural issue of whether SSA offices in New York City afford plaintiffs or their children the regulatory and constitutional due process protections required by federal law prior to reducing or terminating their SSI benefits. In the circumstances of this case, it would be futile for them to exhaust their administrative remedies because the available remedies will not provide the procedural safeguards they should have received prior to SSA’s actions to reduce or terminate their SSI benefits. Due to SSA’s periodic reviews of the financial and medical eligibility of SSI recipients, there is reasonable expectation that the plaintiffs or their children could be found ineligible for or overpaid SSI benefits in the future, and SSA will utilize the same unlawful practices challenged in this lawsuit, leading the plaintiffs or their children to once again suffer irreparable harm. 8. Plaintiffs reside in the New York State counties of Kings, Queens, or New York. Venue is proper in the Eastern District of New York pursuant to 28 U.S.C. 1391(b) and 1391(e). 9. Plaintiffs seek declaratory and injunctive relief authorized by 28 U.S.C. 2201(a), 2202, and Rules 57 and 65 of the Federal Rules of Civil Procedure and mandamus relief authorized by 28 U.S.C. 1361. PARTIES Plaintiffs 10. Plaintiff Sylvia Fabelo ( Ms. Fabelo ) resides in New York, New York. 11. Ms. Fabelo is over 65 years of age and receives SSI benefits based on her age and poverty. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 3 of 48 PageID #: 71 4 12. Plaintiff Judy Menczer ( Ms. Menczer ) is suing on behalf of her minor child, E.M. 13. Ms. Menczer and E.M. reside in Brooklyn, New York. 14. E.M. receives SSI benefits based on her disability and her family’s poverty. 15. Plaintiff Liam Beck ( Mr. Beck ) is suing on behalf of his minor child, M.B. 16. Mr. Beck and M.B. reside in Brooklyn, New York. 17. M.B. receives SSI benefits based on her disability and her family’s poverty. 18. Plaintiff Icho Cohen ( Mr. Cohen ) is suing on behalf of his minor child, S.C. 19. Mr. Cohen and S.C. reside in Brooklyn, New York. 20. S.C. receives SSI benefits based on her disability and her family’s poverty. 21. Constantin Kehaya ( Mr. Kehaya ) resides in New York, New York. 22. Mr. Kehaya is over 65 years of age and receives SSI benefits based on his age and poverty. 23. Plaintiff Aron Braver ( Mr. Braver ) is suing on behalf of his minor child, R.B. 24. Mr. Braver and R.B. reside in Brooklyn, New York. 25. R.B. receives SSI benefits based on his disability and family’s poverty. 26. Plaintiff Nabil Sarga ( Mr. Sarga ) is suing on behalf of his minor child, K.S. 27. Mr. Sarga and K.S. reside in Queens, New York. 28. K.S. receives SSI benefits based on his disability and family’s poverty. 29. Stavroula Kapeles (\”Ms. Kapeles\”) resides in Queens, New York. 30. Ms. Kapeles receives SSI benefits based on her disability and poverty. Defendants Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 4 of 48 PageID #: 72 5 31. Defendant Carolyn W. Colvin, as the acting Commissioner of Social Security, has full power and responsibility to ensure that the SSI program is administered in compliance with the United States Constitution, the Act, and SSA regulations and written procedures. She is being sued in her official capacity. 32. Defendant Fred W. Maurin, as the Regional Commissioner for SSA’s New York Region, which includes New York City, has full power and responsibility to ensure that SSA’s local offices in New York City comply with the United States Constitution, the Act, and SSA regulations and written procedures. He is being sued in his official capacity. 33. The defendants are collectively referred to as SSA or the agency. STATUTORY, REGULATORY, AND PROCEDURAL SCHEME Constitutional and Federal Law Framework 34. The Fifth Amendment to the United States Constitution provides that No person shall be deprived of life, liberty, or property, without due process of law. 35. The Declaratory Judgment Act states that a federal court upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. 28 U.S.C. 2201(a). The Declaratory Judgment Act also permits further necessary relief based on a declaratory judgment, such as injunctive relief. 28 U.S.C. 2202. 36. Mandamus jurisdiction is appropriate under 28 U.S.C. 1361 where a federal agency has a clear duty to follow its own regulations and procedures; the plaintiffs, as recipients of federal benefits administered by the agency, have a clear right to the relief sought (proper application of the agency’s regulations and procedures); no other adequate remedy is available to Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 5 of 48 PageID #: 73 6 the plaintiffs because the regulations and procedures are already in place but there is a systemic failure of the federal agency to follow those regulations and procedures; and the claims are procedural, and unrelated to the merits of the plaintiffs’ actual claims for federal benefits. Procedural Scheme 37. The basic purpose underlying the [SSI] program is to assure a minimum level of income for people who are age 65 or over, or who are blind or disabled and who do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level. 20 C.F.R. 416.110. [P]ayments are made under conditions that are as protective of people’s dignity as possible. 20 C.F.R. 416.110(c). 38. SSA stores and maintains data concerning applicants for or recipients of benefits in a federal electronic database. The SSA computer system includes various storage subsystems including the Supplemental Security Master Record ( SSR ), the Modernized Supplemental Security Income Claims Systems ( MSSICS ), and the notice retrieval system. MSSICS stores financial eligibility information obtained from SSI applicants. MSSICS was designed as an on- line computer system available to SSA workers during interviews with applicants or recipients so that SSA workers can view data on file and add data to the file. Moreover, MSSICS stores data obtained from applicants or recipients during interviews to evaluate initial and ongoing SSI eligibility. 39. While MSSICS does not itself perform any of the computations necessary to assess eligibility or determine benefits, it employs a separate software program to perform such calculations and feeds the results back to MSSICS so that SSA workers can view the results of new information added to MSSICS. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 6 of 48 PageID #: 74 7 40. SSA periodically reviews an SSI recipient’s financial eligibility to ensure the recipient is still eligible and receiving the correct amount of SSI benefits. This review generally happens annually and deals with the requirements for eligibility other than whether the recipient is still blind or disabled. 20 C.F.R. 416.204. 41. SSA may also redetermine an SSI recipient’s financial eligibility when SSA learns of a change in the recipient’s situation that affects eligibility or the amount of the SSI benefits. 20 C.F.R. 416.204. 42. SSA also periodically reviews an SSI recipient’s impairments to determine if the recipient is still eligible for SSI benefits based on blindness or disability. 20 C.F.R. 416.989, 416.989a, and 416.990. 43. As a result of these periodic reviews, an SSI recipient could be found to be no longer eligible for SSI benefits or to have been overpaid benefits. 44. A recipient determined by SSA to be ineligible for continued SSI benefits or to have received an overpayment of benefits can appeal by filing a Request for Reconsideration ( reconsideration request ) or a Request for Waiver of Overpayment Recovery ( waiver request ) or both. When a recipient files either type of appeal request, SSA is required to document it in MSSICS. POMS1 SI 04020.020 and 02260.001. 45. When a reconsideration request or waiver request is timely made and documented in MSSICS, significant due process protections are triggered, especially the right to have SSI benefits continue unchanged pending the appeal. If a reconsideration request or waiver request is 1 The SSA Program Operations Manual System ( POMS ), a manual promulgated by the Commissioner of Social Security, is SSA’s authorized means for issuing written program instructions for adjudicating claims and performing its mission. The POMS is a primary source of information used by SSA employees to process claims. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 7 of 48 PageID #: 75 8 timely made but not documented in MSSICS, no due process protections attach and benefits are terminated or reduced. Reconsideration Requests 46. SSI benefits are paid based on numerous factors, such as living arrangements, income, and resources. 20 C.F.R. 416.1100, 416.1201, and 416.1210. 47. SSA follows the rules and guidelines contained in its regulations and procedures to determine if an SSI recipient no longer meets the income or resource criteria for SSI. 20 C.F.R. 416.1320 .1340. 48. If SSA determines that an SSI recipient is no longer financially eligible for benefits and intends to reduce benefits, SSA must provide the recipient with advance written notice. The recipient has the right to appeal the determination of ineligibility within 60 days by filing a reconsideration request. 20 C.F.R 416.1336. 49. If SSA determines that an SSI recipient was overpaid benefits yet remains financially eligible and SSA intends to reduce benefits, SSA must provide the recipient with advance written notice. 20 C.F.R. 416.535. The notice must explain SSA’s determination and the reasons for the overpayment. 20 C.F.R. 416.558 and POMS SI 02201.025. The recipient has the right to appeal an overpayment determination within 60 days by filing a reconsideration request. 20 C.F.R. 416.1413b. 50. 20 C.F.R. 416.1404 provides assurance that, If our initial determination is that we must suspend, reduce or terminate your benefits, the notice will also tell you that you have a right to a reconsideration before the determination takes effect (see 416.1336). Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 8 of 48 PageID #: 76 9 51. Any writing or timely submission of additional evidence by the SSI recipient after receipt of an initial determination notice that clearly implies a disagreement with that determination constitutes a reconsideration request. POMS SI 04020.020. 52. Upon the filing of a reconsideration request, SSA must review the case and issue a written reconsideration determination. 20 C.F.R. 416.1413 and 416.1422. 53. A reconsideration request affords the SSI recipient with the right to rebut the agency’s findings. These rights include the ability to request a case review, which allows the recipient to review the paper file on the issues and then to present oral or written evidence to the agency. 20 C.F.R. 416.1413(a). Or, the recipient may ask for an informal conference, with all the rights of the case review, plus the right to present witnesses. A summary of the informal conference becomes part of the record. 20 C.F.R. 416.1413(b). As a third alternative, the SSI recipient can challenge the findings through a formal conference. A formal conference gives all the rights of the informal conference, plus the right to subpoena adverse witnesses and relevant documents, and the right to cross-examine adverse witnesses. A summary record also is made for the formal conference and becomes part of the record. 20 C.F.R. 416.1413(c). If a recipient is unsatisfied with the reconsideration determination the recipient has the right to appeal by requesting review by an administrative law judge. 20 C.F.R. 416.1407. 54. The reconsideration appeal, be it case review or a form of conference, occurs at the recipient’s local SSA office. 20 C.F.R. 416.1413c. 55. Conferences, informal or formal, should generally be scheduled within 15 days of the request. 20 C.F.R. 416.1413c. The agency shall set a time, place, and date for the conference as soon as it receives the request. 20 C.F.R. 416.1413a. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 9 of 48 PageID #: 77 10 56. If a reconsideration request is filed within 15 days2 of the date of the notice, SSI benefits shall remain unchanged pending review of the reconsideration request and written notice of SSA’s determination. 20 C.F.R. 416.1336(b); POMS SI 02301.300. For recipients facing termination of their SSI benefits, this means that their benefits will not terminate. For recipients facing a reduction in their SSI benefits, this means that their benefits will not be reduced. 57. Most importantly, recipients facing a reduction in benefits who file a request for reconsideration within the 60-day time period are entitled to have the reduction stopped pending a determination on the reconsideration request. POMS SI 02220.017. Waiver Requests 58. If SSA believes an SSI recipient was overpaid benefits but remains financially eligible for benefits, the recipient has the right to request that full recovery of the overpayment be waived by filing a waiver request. 20 C.F.R. 416.550. 59. SSA will waive an overpayment of benefits if: (a) [t]he overpaid individual was without fault in connection with an overpayment, and (b) [a]djustment or recovery of such overpayment would either: (1) [d]efeat the purpose of title XVI, or (2) [b]e against equity and good conscience, or (3) [i]mpede efficient or effective administration of title XVI due to the small amount involved. 20 C.F. R. 416.550. See also 42 U.S.C. 1383(b) and 20 C.F.R. 416.552 .554. 60. 42 U.S.C. 1383(b)(1) specifically directs the Commissioner of Social Security to recover overpayments from individuals with a view to avoiding penalizing such individual or his eligible spouse who was without fault in connection with the overpayment. 2 Whenever SSA sends any notice, it assumes that the notice was received within 5 days, unless otherwise proven. For example, a recipient has 15 days to appeal a 10-day notice. 20 C.F.R. 416.1336(b) and 416.1401. In addition, SSA can extend the time to request a reconsideration. 20 C.F.R. 416.1409(b). Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 10 of 48 PageID #: 78 11 61. Waiver of an overpayment frees the overpaid person from the obligation to repay. 20 C.F.R. 416.551. 62. A waiver request can be filed at any time. POMS SI 02220.017. 63. If SSA cannot grant a waiver request made on the record, the agency must provide a personal conference. 20 C.F.R. 416.557. At a personal conference, the recipient has the right to appear personally, testify, cross-examine witnesses, and make arguments. 20 C.F.R. 416.557(c)(1). The recipient also has the right to be represented and to submit documents. 20 C.F.R. 416.557(c)(2)-(3). 64. At a personal conference, the decisionmaker must be a person who has not previously made a determination in the case. 20 C.F.R. 416.557(d)(1). The decisionmaker is charged with writing a determination that includes findings of facts and conclusions that support the determination to approve or to deny the waiver. 20 C.F.R. 416.557(e). 65. If the decisionmaker denies the waiver, the recipient has the right to appeal by requesting reconsideration of the waiver denial. 20 C.F.R. 416.557(f). At that point, all the rights for reconsideration requests apply. 66. Receipt of the waiver request stops overpayment recovery in the month SSA receives the written waiver request. POMS SI 02260.001. Further, if the agency cannot make a waiver determination within 10 days of the date the request is filed, it stops or adjusts any reductions to SSI benefits and refunds any amount reduced for the month in which the waiver is filed and any subsequent months. POMS SI 02260.001A. Recovery must not commence, or, if has begun, must stop, until SSA issues a determination denying the waiver request. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 11 of 48 PageID #: 79 12 67. If SSA determines that full recovery cannot be waived, SSA can adjust ongoing benefits to recoup the overpaid benefits. 20 C.F.R. 416.570. This means that SSA can adjust ongoing benefits only after it determines that a waiver is not applicable. 20 C.F.R. 416.570(a). STATEMENT OF FACTS Background 68. SSI recipients depend on SSI benefits for food, shelter, and other necessities of life. SSI benefits are extremely modest. A person living alone in New York State in 2016 could receive a maximum of $820 a month. SSI recipients also receive SSI-related Medicaid benefits. When SSI benefits are reduced or terminated, recipients face irreparable harm in the form of rent and utility arrears, loss of medical coverage, and often a decompensation of chronic medical or psychiatric conditions. 69. Even a small reduction in SSI benefits can be the difference between maintaining a delicate financial equilibrium and facing hunger, eviction proceedings, and homelessness. Back payments can have some ameliorative effect; they at least set the Secretary’s ledgers straight. Yet they cannot erase either the experience or the entire effect of several months without food, shelter or other necessities. Briggs v. Sullivan, 886 F.2d 1132, 1140 (9th Cir. 1989). 70. When SSA determines that a recipient has been overpaid, it immediately schedules an automatic reduction or termination of benefits to start the following month. This automatic change in benefits is scheduled without regard to a recipient’s right to appeal or to maintain ongoing benefits. If a reconsideration request or waiver request is not timely documented in MSSICS, the automatic change takes effect without allowing the recipient to exercise their right to be heard. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 12 of 48 PageID #: 80 13 71. The United States Supreme Court, in Goldberg v. Kelly, 397 U.S. 254 (1970), held that the basic elements of due process require that public assistance recipients receive advance notice of a proposed adverse action and an effective opportunity to defend by confronting witnesses and presenting arguments and evidence before the adverse action is taken. Thus, the crucial factor in this context is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate. 397 U. S. at 265. 72. When SSA fails to timely document reconsideration requests and waiver requests in MSSICS, the agency violates the most basic due process protections provided under the Due Process Clause in the Fifth Amendment to the United States Constitution, as well as its own regulations and written procedures. 73. Plaintiffs, like all SSI recipients, are among the poorest and most vulnerable citizens, and they depend upon continued benefits to meet their basic financial and medical needs. Because of plaintiffs’ critical dependency on SSI benefits, an erroneous termination [of benefits] would damage [Plaintiffs] in a way not recompensable through retroactive payments. Mathews v. Eldridge, 424 U.S. 319, 331, (1976). SSA’s Failure to Follow Rules to Process Appeals 74. SSA workers in New York City routinely disregard regulations and written procedures that allow SSI recipients to exercise their due process rights, including the right to appeal a planned action to reduce or terminate SSI benefits prior to SSA’s taking the action. 75. SSA workers in New York City routinely and wrongly instruct SSI recipients to submit a reconsideration request or waiver request in person at the recipient’s local SSA office. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 13 of 48 PageID #: 81 14 76. However, submission of reconsideration requests and waiver requests in person is only one of several methods recipients can utilize. Other methods include submission by regular mail, certified mail, and by facsimile. 77. Recipients cannot submit reconsideration requests or waiver requests over the internet. 78. SSA workers in New York City routinely instruct SSI recipients that reconsideration requests and waiver requests can only be submitted on SSA forms (SSA’s Request For Reconsideration form (SSA-561) or Request For Waiver Of Overpayment Recovery Or Change In Repayment Rate form (SSA-632)) and that SSA is unable to accept attachments with the forms, including advocacy letters and supporting evidence. 79. However, any writing or timely submission of additional evidence by the recipient to SSA, clearly indicating a disagreement with a planned action, constitutes a reconsideration request. In addition, SSA offices in New York City resist acceptance of advocacy letters and supporting evidence, which directly violates the recipient’s due process, statutory, and regulatory rights to be heard. 80. All timely reconsideration requests and waiver requests must be accepted and processed. On many occasions, when a reconsideration request form or waiver request form is proffered in person, the recipient is told, wrongly, by an SSA worker in New York City that the recipient does not have a good reason to appeal the determination and the SSA worker refuses to even accept the proffered form. 81. A vast number of reconsideration requests and waiver requests must be submitted two or more times in SSA offices in New York City before SSA workers document the requests in MSSICS. Even if a recipient is able to submit a request (in person, by mail or by facsimile), Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 14 of 48 PageID #: 82 15 SSA fails to follow its own regulations and written procedures to ensure that the appeal is documented in MSSICS. Recipients and advocates following up on these requests are regularly told that the requests are not in MSSICS but might be on someone’s desk. 82. The timely submission of a reconsideration request or waiver request has the dual impact of stopping a pending action (reduction or termination of benefits) and triggering significant due process, statutory, and regulatory rights. However, in practice, none of these protections are triggered until an SSA worker actually documents a reconsideration request or waiver request in MSSICS. 83. SSA currently lacks a reliable, consistent, and uniform practice to ensure that timely reconsideration requests and waiver requests are in fact documented in MSSICS in SSA offices in New York City in sufficient time to prevent the reduction or termination of SSI benefits. As a result, due process, statutory, and regulatory protections are not triggered and benefits are reduced or terminated despite the timely filing of a request. Documentation of Violations 84. From 2014 to 2015, in a significant number of cases at 16 local SSA offices in New York City, the New York Legal Assistance Group ( NYLAG ) documented SSA’s failure to enter reconsideration requests into MSSICS in a timely manner, which would have prevented the reduction or termination of SSI benefits. 85. Out of 24 SSI reconsideration requests filed, 17 had to be submitted more than once before SSA workers documented the request in MSSICS. 86. In SSI overpayment cases, where the underlying overpayment itself was in dispute, out of 27 reconsideration requests filed, 10 had to be submitted more than once before SSA workers documented the requests in MSSICS. Generally, repeated telephone calls had to be Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 15 of 48 PageID #: 83 16 made to ensure that the reconsideration requests were found and then documented in MSSICS, so that benefits were continued. 87. Often, despite advocacy, SSI benefits were not continued and the recipient only received the withheld benefits after a favorable determination had been made on the reconsideration request. 88. From 2014 to 2015, in a significant number of cases at 15 local SSA offices in New York City, NYLAG tracked SSA workers’ failure to timely document waiver requests in MSSICS. 89. For overpayment cases, out of 41 waiver requests filed, 19 had to be submitted more than once. Generally, repeated telephone calls were necessary to ensure that the waivers were found and documented in MSSICS. 90. Many follow up telephone calls were also required to ensure that the recoupment was stopped pending a determination on the waiver request. 91. Often, despite advocacy, the recoupment continued unchanged and the recipient only received the withheld benefits after the waiver request had been granted. 92. In 2014, SSA attempted to address the overwhelming paper work load at local offices by requiring the local offices to clear the decks, which meant, in part, to enter the paper appeals into the system. This was a one-time temporary fix to address untended paper requests; however, no new practice was adopted to ensure timely documentation of reconsideration requests or waiver requests in MSSICS. 93. SSA workers in New York City themselves acknowledge they are unable to meet the demands. Workers have made the following comments to NYLAG representatives: One worker said, when asked to comply with time sensitive request, I know what the rules are but I Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 16 of 48 PageID #: 84 17 am only one person and you have to be realistic. At the Flushing and Midtown Manhattan field offices, separate workers asked the NYLAG representative to contact a supervisor so that a supervisor could set aside time for the worker to work on those cases. At the Boro Hall field office, although she understood the urgency of the case, the worker commented that there were so many more requests like the one just made waiting to be processed. Another worker at Boro Hall indicated that there was no one available to work on a case because of understaffing. Plaintiff Sylvia Fabelo 94. Ms. Fabelo has been in receipt of SSI benefits since 2013, when she turned 65 years of age. Her local SSA office is the Midtown Office in New York, New York. 95. Ms. Fabelo meets the categorical and financial eligibility requirements for entitlement to SSI benefits. 96. In September 2014, Ms. Fabelo began receiving foster care benefits for her grandson. 97. Under the SSI program, foster care benefits are not considered income of the foster care parent. 98. On January 15, 2015, Ms. Fabelo attended an SSI redetermination appointment at her local SSA office and provided information about the foster care benefits. SSA immediately scheduled the automatic termination of Ms. Fabelo’s SSI benefits. She was told to provide additional proof of the source of the foster care payments by January 30, 2015. 99. On January 30, 2015, Ms. Fabelo returned to her local SSA office with a letter from the foster care agency documenting the exempt income; however, she was told that the letter was insufficient evidence and she was turned away at the check-in window. SSA provided no additional information about what would constitute sufficient evidence. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 17 of 48 PageID #: 85 18 100. Ms. Fabelo did not receive her SSI benefits in February 2015. 101. Ms. Fabelo did not receive any advance notice that she would not receive her SSI benefits in February 2015. 102. On February 17, 2015, Ms. Fabelo received a notice of termination that indicated her SSI benefits had been terminated as of February 1, 2015, and that she had been overpaid from September 2014 to January 2015. 103. On March 20, 2015, Ms. Fabelo’s representative filed a reconsideration request with Ms. Fabelo’s local SSA office appealing the termination of benefits. 104. SSA failed to follow procedures to document Ms. Fabelo’s reconsideration request in MSSICS. Her representative contacted Ms. Fabelo’s local SSA office seven times by telephone, from April 1, 2015 to May 4, 2015, to obtain information regarding the processing of the reconsideration request. Despite these telephone calls, the reconsideration request was never processed and Ms. Fabelo was not provided with continuing benefits pending a determination on her reconsideration request. 105. On May 5, 2015, Ms. Fabelo’s representative accompanied her to her local SSA office. At the appointment, the SSA worker requested additional information from the foster care agency, which was promptly submitted. 106. Ms. Fabelo’s representative contacted the office three times by telephone, from May 14th to May 18th 2015, to check on the status of the case since Ms. Fabelo was still without her SSI benefits. 107. On May 19, 2015, a favorable reconsideration decision was issued. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 18 of 48 PageID #: 86 19 108. On May 27, 2015, Ms. Fabelo’s SSI benefits were finally reinstated but she was not issued the benefits withheld for February, March, and April 2015. Due to her representative’s continued advocacy, Ms. Fabelo’s missing benefits were released on June 24, 2015. 109. Ms. Fabelo’s only source of income is her SSI benefits, which she relies upon to pay all her living expenses. During the period she did not receive her benefits (February to May 2015), her daughter had to loan her money to pay her rent. She also fell behind in paying her electricity and telephone bills. 110. SSA failed to provide Ms. Fabelo with statutory and regulatory due process when SSA immediately scheduled the automatic termination of her SSI benefits and failed to: provide timely notice of the termination and overpayment prior to the termination; timely document her reconsideration request in MSSICS; and provide the right to reconsideration before the determination took effect and her benefits were terminated. 111. SSA’s wrongful behavior toward Ms. Fabelo reasonably can be expected to reoccur. A redetermination of Ms. Fabelo’s financial eligibility for SSI benefits generally occurs annually and can occur at any time if there is a change in her situation. If SSA finds Ms. Fabelo to be once again ineligible for or overpaid SSI benefits, SSA will utilize the same unlawful practices challenged in this lawsuit. 112. In fact, Ms. Fabelo and her representative received a letter dated April 21, 2016, indicating that her local SSA office had reviewed a written statement made by Ms. Fabelo on January 11, 2016, and needed additional information regarding two overpayments. 113. Ms. Fabelo’s statement read, For the months 6\/2015 8\/2015 I received retroactivity SSI payments (2\/2015-4\/2015) in the amount of $1979.10. I am not responsible for the overpayment for that period. SSA’s letter requested clarification on whether this statement Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 19 of 48 PageID #: 87 20 was a request for reconsideration or waiver. The statement had been completed at the local SSA office so it is not clear why the appropriate form was not completed at the same time as the statement was taken. SSA also requested clarification about whether the statement pertained to the overpayment on her record from February to April 2015 or for the overpayment from June to August 2015. 114. Ms. Fabelo’s representative contacted Ms. Fabelo’s local SSA office and attempted to obtain a copy of the original overpayment notice for the period June to August 2015. The office was inexplicably unable to provide a copy of that notice or any additional information regarding the cause of the overpayment. 115. On May 9, 2016, a reconsideration request was submitted by facsimile at Ms. Fabelo’s local SSA office. The representative called the office on May 12, 2016 to confirm that the request was received. The SSA worker remembered it coming in but told the representative she needed to follow up with a different worker to get it processed and entered into the system. The representative left a message for that worker on May 12, 2016 and May 17, 2016, but received no response. 116. When Ms. Fabelo’s representative called her local SSA office on May 20, 2016, the SSA worker who answered the phone was unable to confirm the reconsideration request had been processed. The representative left a message for the worker assigned to the case. 117. On May 24, 2016, the representative called Ms. Fabelo’s local SSA office and was transferred to the worker assigned to the case who checked MSSICS for the reconsideration but did not see it. 118. The representative asked for more information about the June to August 2015 overpayment. The worker confirmed that this overpayment was caused by SSA’s erroneously Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 20 of 48 PageID #: 88 21 counting Ms. Fabelo’s SSI retroactive payment (for February to April 2015) as a resource, and she stated that the overpayment for that period had already been removed from her record. However, the worker stated there was also an overpayment for the period February to April 2015 due to excess resources in her bank accounts, not foster care payments. 119. The representative subsequently called Ms. Fabelo, who stated that when she went to her local SSA office in January 2016, she told SSA that one of those accounts held the foster care funds belonging to her foster son. The SSA worker told Ms. Fabelo that she needed to change the name on the account, which she did. 120. On May 31, 2016, her representative filed a new reconsideration request by facsimile for the February to April 2015 overpayment. The representative provided bank statements and a summary of Ms. Fabelo’s resources. The bank statements showed that SSA had erroneously included her foster son’s bank account as one of Ms. Fabelo’s resources, despite her explanation that it only contained foster care funds. SSA also used the account balances for the account as of the 20th or 22nd of each month, rather than as of the 1st of each month, as required. These errors led SSA to believe that Ms. Fabelo’s resources exceeded the $2,000 limit. 121. On May 31, 2016, the representative left a message for the worker assigned to the case, to inform her that the new reconsideration request had been faxed. On June 7, 2016, the representative left another message for the same worker. 122. The representative subsequently received a Request for Reconsideration Summary dated June 2, 2016, which erroneously stated that the representative had requested a case review rather than an informal conference. A case review does not allow the recipient the opportunity to meet with an SSA worker face-to-face to dispute the overpayment. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 21 of 48 PageID #: 89 22 123. On June 8, 2016, the representative called Ms. Fabelo’s local SSA office and explained to the worker who answered the phone that there was an error with the processing of the reconsideration request. The worker advised the representative that Ms. Fabelo needed to file a waiver request in order to receive a personal conference. The representative explained to the worker that Ms. Fabelo was entitled to an informal conference based on the reconsideration request. The worker then checked MSSICS and saw that a favorable decision had already been made on the reconsideration request on June 2, 2016. Plaintiff Judy Menczer, on behalf of her minor child, E.M. 124. E.M. is a disabled 14-year-old girl who lives with her parents. Her local SSA office is the Bushwick Office in Brooklyn, New York. 125. E.M. meets the categorical and financial eligibility requirements for entitlement to SSI benefits. 126. An SSA bank data match for the family brought up three bank accounts: an account for E.M.’s SSI benefits, a joint account owned by her parents, and a business account owned by her uncle. 127. Under SSA regulations, the business account is not a countable resource because her father’s name is on the account solely to access it for business purposes. 128. In 2012, E.M.’s SSI benefits were terminated, an overpayment was posted to her SSI record, and she was not reinstated until SSA had accepted all the business account documents and found the business account to not be a countable resource. This took nine months, from the date of the notice to the final resolution. 129. In 2014, E.M.’s SSI benefits were again terminated and an overpayment was posted to her SSI record because of the same business account. That took five months to resolve. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 22 of 48 PageID #: 90 23 130. In 2015, for the third time, E.M.’s SSI benefits were terminated and an overpayment was posted to her SSI record because of the same business account. 131. The first SSA notice was dated August 5, 2015, and SSA immediately scheduled the automatic reduction or termination of E.M.’s SSI benefits. 132. E.M.’s parents timely filed a request for reconsideration. A reconsideration request was sent by facsimile to E.M.’s local SSA office that same day with a request for continued benefits under SSA’s Goldberg v. Kelly provisions. 133. The second notice, which added additional months to the overpayment, was dated August 6, 2015, and within 15 days a second reconsideration request was sent by facsimile to E.M.’s local SSA office with a request for continued benefits. 134. On August 17, 2015, supporting documentation, including bank statements and an advocacy letter were mailed to E.M.’s local SSA office with the two previously submitted reconsideration requests. 135. SSA failed to follow procedures to document E.M.’s reconsideration requests in MSSICS. On August 20, 2015, E.M.’s local SSA office received the documentation, bank statements, and advocacy letter. The next day an SSA worker stated that the reconsideration requests were not in MSSICS but it might be on someone’s desk. Two more follow up telephone calls were made to the local SSA office without response. 136. SSA immediately scheduled the automatic termination of E.M.’s SSI benefits. E.M. did not receive her SSI benefits for September 2015, despite the timely reconsideration request, so another telephone call was placed to her local SSA office. The worker stated that she did not see any appeal on file in MSSICS. A request for continued benefits was again made but SSA took no action. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 23 of 48 PageID #: 91 24 137. A week later, a notice scheduling an informal conference was received but benefits were still not restored pending the conference. At the September 18, 2015, conference, the issue was apparently resolved once again in E.M.’s favor. However, by notice dated October 7, 2015, the reconsideration request was denied. 138. On October 16, 2015, E.M. filed an appeal by requesting review by an administrative law judge. 139. E.M.’s SSI benefits have not been restored despite the timely filing of the reconsideration request. An appeal is currently pending. 140. SSA failed to provide E.M. with statutory and regulatory due process when SSA immediately scheduled the automatic termination of her SSI benefits and failed to: timely document her reconsideration requests in MSSICS; provide the right to reconsideration before the determination took effect and benefits were terminated; provide continued benefits under SSA’s Goldberg v. Kelly provisions after timely filing of a reconsideration request and a request for continued benefits; and reinstate her SSI benefits pending a decision on the reconsideration request after learning that it had been timely filed. 141. SSA’s wrongful behavior toward E.M. reasonably can be expected to reoccur. A redetermination of E.M.’s financial eligibility for SSI benefits generally occurs annually and can occur at any time if there is a change in her situation. A review of her continued disability also occurs periodically. If SSA determines E.M. to once again be ineligible for or overpaid SSI benefits, SSA will utilize the same unlawful practices challenged in this lawsuit. 142. SSA has terminated E.M. on this same issue three times despite previously resolving the issue in her favor twice. SSA’s repeated terminations of E.M.’s SSI benefits and its Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 24 of 48 PageID #: 92 25 failure to document in MSSICS timely reconsideration requests caused and continues to cause this family increased stress and significant financial instability. Plaintiff Liam Beck, on behalf of his minor child, M.B. 143. M.B. is 11 years old and receives SSI benefits for her severe mental illness. Her local SSA office is the Boro Hall Office in Brooklyn, New York. 144. M.B. meets the categorical and financial eligibility requirements for entitlement to SSI benefits. 145. M.B.’s family belongs to a religious congregation, where M.B.’s father assists with the accounting. Mr. Beck’s name, along with other names, appears on the congregation’s bank account. 146. On June 29, 2015, SSA sent M.B.’s family a notice indicating her SSI benefits would be terminated in August 2015 because M.B.’s family no longer met the SSI program’s financial eligibility criteria. Specifically, the notice indicated that SSA was counting the congregation’s bank account as a resource belonging to M.B. SSA immediately scheduled the automatic termination of M.B.’s SSI benefits. 147. On July 13, 2015, M.B. appealed by filing a a request for reconsideration objecting to the allegations in the notice, and provided SSA with copies of bank statements explaining the congregation’s bank account. 148. SSA failed to follow procedures to document M.B.’s reconsideration request in MSSICS. M.B.’s family filed the reconsideration request three times and their representative placed six telephone calls to M.B.’s local SSA office. 149. On July 31, 2015, SSA notified M.B.’s family that more information was needed to process the reconsideration request. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 25 of 48 PageID #: 93 26 150. M.B. did not receive her SSI benefits in early August 2015, as expected, but with legal assistance, M.B.’s family was able to secure her August 2015 SSI benefits later in the month. 151. Because of SSA’s failure to provide continued benefits pending the outcome of the reconsideration, the family was late paying rent and had to borrow money to pay M.B.’s school fees. 152. SSA failed to provide M.B. with due process when SSA immediately scheduled the automatic termination of her SSI benefits and failed to: timely document her reconsideration request in MSSICS; provide the right to reconsideration before the determination took effect and benefits were terminated; and provide continued benefits under SSA’s Goldberg v. Kelly provisions after timely filing of a reconsideration. 153. SSA’s wrongful behavior reasonably can be expected to reoccur. A redetermination of M.B.’s financial eligibility for SSI benefits generally occurs annually and can occur at any time if there is a change in her situation. A review of her continued disability also occurs periodically. If SSA finds M.B. to once again be ineligible or to be overpaid SSI benefits, SSA will utilize the same unlawful practices challenged in this lawsuit. 154. If SSA once again retrieves the congregation’s account by data match and counts it as a resource of M.B., she could once again be found to have excess resources and her SSI benefits could be terminated. It is not clear whether SSA has input into MSSICS information sufficient to guarantee that the congregation’s account will not again counted as M.B.’s resource. Plaintiff Icho Cohen, on behalf of his minor child, S.C. 155. S.C. is a 17-year-old disabled girl. Her local SSA office is the New Utrecht Office in Brooklyn, New York. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 26 of 48 PageID #: 94 27 156. S.C. lives with her parents. 157. S.C. meets the categorical and financial eligibility requirements for entitlement to SSI benefits. 158. S.C. was in receipt of SSI benefits until January 2014 when SSA immediately scheduled the automatic termination of her SSI benefits and placed an overpayment on her record due to excess resources. 159. The resource in question was an exempt business loan made to S.C.’s mother by S.C.’s grandfather. 160. On February 14, 2014, S.C.’s father, Mr. Cohen, filed a timely request for waiver of the overpayment in person at S.C.’s local SSA office. A reconsideration was apparently discussed but the SSA worker refused to provide continuing benefits pending the outcome of an appeal in the belief that the family continued to be ineligible due to excess resources. 161. On May 22, 2014, a second waiver request was filed, by certified mail, to S.C.’s local SSA office. 162. On June 23, 2014, a third waiver request was filed, by certified mail, to the SSA Mid-Atlantic Service Center in Philadelphia, Pennsylvania, because an overpayment notice had been sent to S.C.’s family from that office. 163. SSA failed to follow procedures to document S.C.’s waiver request in MSSICS. 164. On September 5, 2014, Mr. Cohen and his representative attended an appointment at S.C.’s local SSA office. The SSA worker claimed that the waiver request was never received. Mr. Cohen’s attempt to give the worker a copy of the waiver request was refused on the ground that the worker did not handle overpayment waivers. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 27 of 48 PageID #: 95 28 165. In September 2014, the representative filed the waiver request with S.C.’s local SSA office by facsimile and certified mail. 166. On October 3, 2014, Mr. Cohen received a letter from S.C.’s local SSA office for an October 3rd appointment about the waiver request. Mr. Cohen tried to reschedule the appointment by telephone due to lack of timely notice, but SSA refused to reschedule the appointment. 167. On April 2, 2015, S.C.’s local SSA office informally denied the waiver request. No written waiver denial was sent to S.C. or S.C.’s representative. 168. On May 24, 2015, a reconsideration of the waiver denial was filed at S.C.’s local SSA office by S.C.’s representative based on SSA’s oral representation that the waiver had been denied. The appeal of the waiver denial was also denied orally and no written denial has ever been received. 169. On July 14, 2015, S.C. appealed by filing a request for review by an administrative law judge. 170. On January 21, 2016, an administrative law judge issued an unfavorable decision. 171. On March 4, 2016, S.C. filed an appeal by requesting review by the Appeals Council. The request is pending. 172. SSA failed to provide S.C. with due process when SSA immediately scheduled the automatic termination of her SSI benefits and failed to: timely document her waiver request in MSSICS; provide written notice of the denial of the waiver request; and provide written notice of the denial of the reconsideration of the waiver denial. 173. S.C.’s SSI benefits have not been restored due to deeming of her parents’ current income but a large overpayment is still posted to her record. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 28 of 48 PageID #: 96 29 174. SSA’s wrongful behavior toward S.C. reasonably can be expected to reoccur in the next eligibility review made when she turns age 18 and can apply for SSI and not have her parent’s income is counted as available to her. If SSA finds S.C. to once again be ineligible for or overpaid SSI benefits, SSA will utilize the same unlawful practices challenged in this lawsuit. In addition, SSA still holds S.C. liable for the overpayment in question. Plaintiff Constantin Kehaya 175. Mr. Kehaya, aged 71, receives SSI benefits based on his age. His local SSA office is the Uptown Office, in New York, New York. 176. Mr. Kehaya meets the categorical and financial eligibility requirements for entitlement to SSI benefits. 177. SSA requires Mr. Kehaya to receive his SSI benefits by electronic deposits directly into a bank account. 178. In May 2014, two SSI payments were electronically deposited into his bank account: one in the beginning of the month and one at the end of the month. He did not receive his SSI benefits in the calendar month of June because the SSI deposit in late May was actually his benefits for June. 179. In both August and October 2014, two SSI payments were electronically deposited into his bank account in a single calendar month following the same pattern with benefits electronically deposited in the beginning of the month and at the end of the month. He did not receive his SSI benefits in September 2014 or November 2014. Instead, the second benefit payment received in August was an early deposit of his benefits for September. Likewise, the second benefit payment received in October was an early deposit of his benefits for November. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 29 of 48 PageID #: 97 30 180. In December 2014, Mr. Kehaya’s local SSA office asked him to come in for an interview on January 20, 2015, in order to redetermine his financial eligibility for SSI benefits. 181. On January 19, 2015, the day before the scheduled interview, SSA issued Mr. Kehaya a notice that he had been overpaid SSI benefits for three months in 2014 because his bank balances in June, September, and November 2014 appeared to exceed the $2,000 SSI resource limit for a single person. SSA considered the second SSI payments electronically deposited into his bank account in the same month to be savings so that it appeared as if Mr. Kehaya had excess resources. Mr. Kehaya was informed that the overpaid benefits would be added to a prior overpayment on his record. SSA immediately applied the new overpayment amount to the prior overpayment and continued the reduction of his SSI benefits. 182. The prior overpayment arose in 2013, when SSA also paid Mr. Kehaya two SSI payments in a single calendar month. SSA treated the double-month payments as extra savings in 2013 as well. In addition, Mr. Kehaya had a small overpayment caused by a modest annuity that had placed him barely over the resource limit. 183. Overall, SSA assessed Mr. Kehaya an overpayment of more than $9,000. 184. The January 2015 notice informed Mr. Kehaya that SSA would reduce his monthly SSI benefits in order to recoup the overpayment. It did not inform him that he could appeal this reduction in his benefits. 185. On February 20, 2015, after consultation with counsel, a reconsideration request was timely submitted to SSA, pointing out the errors in the overpayment determination. 186. SSA failed to follow procedures to document the reconsideration request in MSSICS and or to stop recoupment following its submission. 187. In April 2016, SSA contacted Mr. Kehaya to request a copy of the February 2015 Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 30 of 48 PageID #: 98 31 Request for Reconsideration. 188. In May 2016, Mr. Kehaya submitted a copy of the February 2015 request, plus additional documents. 189. Mr. Kehaya has no control over the timing of when his SSI benefits are electronically deposited into his bank account. On occasion, multiple SSI benefit payments are issued in a single calendar month. Mr. Kehaya did not request this payment pattern, nor is he told in advance that it will happen. SSI calls this method of payment an early deposit month and benefits paid in this manner are supposed to be treated as income in the following month, not as a resource. 190. SSA failed to provide Mr. Kehaya with due process when SSA immediately scheduled the automatic reduction of his SSI benefits and failed to: timely document his reconsideration request in MSSICS; provide the right to reconsideration before the determination took effect and benefits were reduced; and restore his benefits pending a decision on the reconsideration after learning that it had been timely filed. 191. Mr. Kehaya’s SSI benefits have not been fully restored despite the timely filing of a reconsideration request. 192. SSA’s wrongful behavior toward Mr. Kehaya reasonably can be expected to reoccur. A redetermination of Mr. Kehaya’s financial eligibility for SSI benefits generally occurs annually and can occur at any time if there is a change in his situation. If SSA finds Mr. Kehaya to once again be ineligible for or overpaid SSI benefits, SSA will utilize the same unlawful practices challenged in this lawsuit. It appears likely that Mr. Kehaya will again receive more than one SSI benefit payment in a calendar month so this exact issue can reoccur for him. Plaintiff Aron Braver, on behalf of his minor child, R. B. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 31 of 48 PageID #: 99 32 193. R.B. is 8 years old and disabled. Her local SSA office is the Boro Hall Office, in Brooklyn, New York. 194. R.B. meets the categorical and financial eligibility requirements for entitlement to SSI benefits. 195. In October 2013, R.B. received a settlement from the medical malpractice lawsuit filed on her behalf in 2011. 196. The malpractice settlement precludes R.B. and her parents from accessing the settlement funds until she is 18 years old without court approval. 197. R.B.’s parents received a Notice of Planned Action from SSA dated December 15, 2014, to terminate R.B.’s SSI benefits because of the settlement funds. SSA immediately scheduled the automatic termination of R.B.’s SSI benefits. 198. On December 24, 2014, R.B.’s parents timely filed a request for reconsideration advising SSA that R.B. and her parents did not have access to the settlement funds and included a copy of the court-ordered settlement. 199. Despite the timely filing of the reconsideration request, R.B.’s SSI benefits were discontinued in January 2015. 200. SSA failed to timely document R.B.’s reconsideration request in MSSICS. R.B.’s parents obtained legal assistance on January 12, 2015. When R.B.s local SSA office was asked about the status of R.B.’s request for reconsideration of the termination, the representative was told that no record existed in MSSICS but it was likely sitting somewhere on a desk. 201. The objections and documentation were resent to R.B.’s local SSA office and an additional follow up call was made by the representative. R.B.’s benefits were reinstated on January 22, 2015. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 32 of 48 PageID #: 100 33 202. Months later, SSA issued a new notice of termination, dated October 9, 2015, stating that R.B.’s benefits would be terminated as of November 2015. 203. The notice indicated R.B. had been found to be over the resource limit due to funds kept in a separate savings account. SSA immediately scheduled the automatic termination of SSI benefits. 204. The separate savings account is a dedicated account that SSA requires minors, such as R.B., to have for their retroactive SSI benefits. The dedicated account is excluded as a resource for eligibility purposes. 205. The dedicated account had been with Capital One Bank until January 2014, when it was transferred to a different bank in order to secure a higher interest rate. 206. It appears that SSA thought it had discovered a new account and failed to realize that it was actually the same retroactive monies now in a different account. 207. On October 23, 2015, R.B.’s father sent the Request for Reconsideration form and bank statements, by facsimile, to the R.B.’s local SSA office. This appeal was filed within 15 days of the date of the notice. 208. SSA failed to follow procedures to document R.B.’s reconsideration request in MSSICS. R.B.’s father followed up with the local SSA office on October 29, 2015, only to be told that the reconsideration request had not been recorded in MSSICS. In response, R.B.’s father submitted the documents again, by facsimile. 209. On October 30, 2015, R.B.’s father confirmed that R.B.’s local SSA office had received the reconsideration request and bank statements. He was also informed that SSA could not provide continuing benefits because the documents lacked a signed statement from him. 210. R.B.’s father drafted and signed a statement and sent it, by facsimile, to R.B’s Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 33 of 48 PageID #: 101 34 local SSA office. 211. SSA immediately scheduled the automatic termination of R.B.’s SSI benefits. No SSI benefits were paid to R.B. in November 2015. 212. In November 13, 2015, a notice to R.B. from SSA indicated the reconsideration request had been granted. 213. Further inquiry to SSA yielded a statement from R.B.’s local SSA office that R.B.’s November 2015 benefits would be released on December 1, 2015. 214. In December 2015, R.B. received SSI benefits for December 2015 but did not receive the withheld November 2015 benefits. The representative contacted SSA four times from December 3rd to 16th regarding R.B.’s November 2015 SSI benefits. In late December 2015, the SSA finally released R.B.’s November 2015 benefits. 215. SSA failed to provide R.B. with due process when SSA immediately scheduled the automatic termination of her SSI benefits and failed to: timely document her reconsideration request in MSSICS; provide the right to reconsideration before the determination took effect and benefits were terminated; provide continued benefits under SSA’s Goldberg v. Kelly provisions after timely filing of a reconsideration; and reinstate benefits pending a decision on the reconsideration after learning that the reconsideration had been timely filed. 216. SSA’s wrongful behavior toward R.B. reasonably can be expected to reoccur. A redetermination of R.B.’s financial eligibility for SSI benefits generally occurs annually and can occur at any time if there is a change in her situation. A review of her continued disability also occurs periodically. If SSA finds R.B. to once again be ineligible for or overpaid SSI benefits, SSA will utilize the same unlawful practices challenged in this lawsuit. 217. In fact, on April 11, 2016, SSA sent a notice to R.B. requesting a copy of the Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 34 of 48 PageID #: 102 35 court order from the medical malpractice settlement (which had previously been provided to SSA) and documentation about which account or accounts held the funds since the court order was signed. The notice stated that R.B.’s SSI may be stopped if she did not respond to SSA by May 11, 2016. 218. SSA contacted R.B.’s new representative on April 14, 2016, to request this information. A copy of the court order was once again provided to SSA. SSA then contacted the representative on May 5, 2016, to request additional financial records that are all related to issues that were already resolved by the prior two reconsiderations. Plaintiff Nabil Sarga, on behalf of his minor child, K.S. 219. K.S. is 13 years old and disabled. His local SSA office is the Flushing Office in Queens, New York. 220. K.S. meets the categorical and financial eligibility requirements for entitlement to SSI benefits. 221. In April 2014, K.S.’s SSI benefits were terminated due to excess resources from June 2013 to April 2014 but because a timely reconsideration was not filed his SSI benefits were terminated and an overpayment was posted to his record. 222. K.S.’s father, Mr. Sarga, had deposited his own tax refund into Mr. Sarga’s bank account, which made K.S. appear to have excess resources. However, tax refunds are exempt as a resource for 12 months after receipt. 223. K.S.’s father filed a new application for SSI benefits for K.S., which was granted. 224. On January 9, 2015, K.S. received a Notice of Planned Action from SSA stating that his SSI benefits would be terminated in February 2015 due to excess resources from June 2014 to the present. SSA immediately scheduled the automatic termination of K.S.’s SSI Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 35 of 48 PageID #: 103 36 benefits. 225. Mr. Sarga had again deposited his tax refunds into his bank account which made K.S. appear to have excess resources. 226. K.S. did not receive his SSI benefits in February 2015. 227. On February 2, 2015, K.S. received a Notice of Overpayment for $2,221.00 for the June 2014 to January 2015 overpayment. The notice stated that the new overpayment was in addition to the prior overpayment of $6,803.00. 228. On February 18, 2015, K.S. filed a timely request for reconsideration appealing the 2015 termination and the overpayment, with bank statements attached, by facsimile, with K.S.’s local SSA office. 229. SSA failed to follow procedures to document K.S.’s reconsideration request in MSSICS. K.S.’s representative had to follow up with the local office on February 20th and 26th before the reconsideration request was entered into MSSICS. 230. On March 2, 2015, K.S.’s representative was told by telephone that K.S. had been found not to have had excess resources from December 2014 to April 2015 and his SSI benefits would be reinstated in April 2015, with retroactive benefits to follow. However, SSA failed to address the excess resource issue back to June 2014. 231. On April 17, 2015, K.S.’s family received a written favorable decision finding K.S. did not have excess resources and ongoing benefits were reinstated. K.S. received the missing SSI benefits for February and March 2015. 232. However, SSA failed to resolve the overpayment piece of the reconsideration that arose due to the same alleged resource. 233. On June 8, 2015, K.S.’s representative spoke with SSA about the overpayment Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 36 of 48 PageID #: 104 37 and was told K.S. had filed a request for waiver of overpayment previously and that a personal conference had been held on April 14, 2015. K.S.’s family had filed a waiver request prior to engaging a representative and filing the more appropriate reconsideration; however, they had never attended a personal conference. 234. On June 9, 2015, K.S.’s representative was informed that the original request for reconsideration had been only partially approved as of December 2014 and an appointment was scheduled to bring in tax returns and bank statements. 235. On June 30, 2015, the representative and K.S.’s father attended a personal conference at K.S.’s local SSA office and showed the tax returns and spenddown of the exempt resources within 12 months. The SSA worker said she did not have time to make copies of all the bank statements and asked that they be dropped off at the SSA office in an envelope to her attention within 10 days. 236. On July 10, 2015, the representative and K.S.’s father went to K.S.’s local SSA office with the requested documentation but SSA refused to accept it. A manager was requested, who told them they needed to wait to see someone even though a personal conference had already been held. They waited for two hours until K.S.’s father had to leave to return to work. 237. On July 21, 2015, K.S.’s father received a denial of K.S.’s waiver request. 238. On August 4, 2015, the representative faxed a request for reconsideration of the waiver denial to K.S.’s local SSA office. 239. On August 17, 2015, the representative called the K.S.’s local office regarding the reconsideration of the waiver denial and was transferred to an SSA worker’s voice mail. On August 26, 2015, she was able to reach the worker who said she could not see the reconsideration of the waiver denial in MSSICS and asked that it be resubmitted by mail. It was Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 37 of 48 PageID #: 105 38 resent and followed by additional calls to SSA. 240. On September 30, 2015, the SSA worker assigned to the reconsideration request told the representative that the overpayment should have been addressed by the person who handled the original reconsideration request back in April 2015. In that case, a waiver would not have been necessary. 241. On October 13, 2015, the SSA worker called K.S.’s father and asked him to come in for an appointment the next day. On October 14, 2015, the representative and K.S.’s father went to K.S.’s local SSA office but they were sent home since the worker said he needed time to review the case and would call them for another appointment. 242. On October 20, 2015, a different SSA worker called K.S.’s father to come in for an appointment. The representative called the original worker and was told to disregard that phone call. 243. After repeated attempts, the representative was able to schedule an appointment for November 13, 2015. After the appointment, they waited for a determination on the reconsideration of the waiver denial to arrive in the mail. 244. On February 18, 2016, the representative spoke with the SSA worker who said he was having technical problems with the waiver of overpayment but expected to resolve the issue within the next week. 245. Beginning March 2016, K.S.’s new representative has contacted K.S.’s local SSA office nine times. The reconsideration request remains pending with the SSA worker. 246. K.S. is still being recouped 10% of his SSI benefits each month. 247. SSA failed to provide K.S. with due process when SSA immediately scheduled the automatic termination of his SSI benefits and failed to: timely document his reconsideration Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 38 of 48 PageID #: 106 39 requests in MSSICS; provide the right to reconsideration before the determination took effect and benefits were terminated; timely document his waiver request in MSSICS; and stop reduction of his SSI benefits pending a determination on the waiver request. 248. SSA’s wrongful behavior toward K.S. reasonably can be expected to reoccur. A redetermination of K.S.’s financial eligibility for SSI benefits generally occurs annually and can occur at any time if there is a change in his situation. A review of his continued disability also occurs periodically. If SSA finds K.S. to once again be ineligible for or overpaid SSI benefits, SSA will utilize the same unlawful practices challenged in this lawsuit. 249. SSA does not distinguish between exempt and non-exempt resources when it data matches bank account balances. Thus because tax returns are filed annually the issue could be expected to reoccur every year the family receives an exempt tax return. In addition, issues that appear to be resolved by a favorable reconsideration decision continue to be unresolved more than a year after the original resolution and recoupment continues. Plaintiff Stavroula Kapeles 250. Ms. Kapeles is 24 years old and disabled. Her local SSA office is the Flushing Office in Queens, New York. 251. Ms. Kapeles meets the categorical and financial eligibility requirements for entitlement to SSI benefits. 252. On August 22, 2013, plaintiff’s mother set up a modest third party supplemental needs trust (\”SNT\”) for the benefit of Ms. Kapeles. The trust conforms to the provisions of Section 7-1.12 of the New York Estates, Powers and Trusts Law and should therefore not be counted as a resource under SSA regulations. 253. In 2015, Ms. Kapeles underwent a periodic disability review and was found to Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 39 of 48 PageID #: 107 40 remain disabled and eligible for SSI benefits. 254. Ms. Kapeles’ local SSA office reviewed her financial eligibility for SSI and found the SNT to be a countable resource. A Notice of Planned Action dated January 12, 2016, stated that her SSI benefits would terminate in February 2016 and that she had been overpaid benefits. SSA immediately scheduled the automatic termination of SSI benefits. 255. On January 20, 2016, SSA issued a Notice of Termination. 256. On January 22, 2016, Ms. Kapeles visited her local SSA office and appealed by filing a Request for Reconsideration and continued benefits. 257. SSA failed to follow procedures to document her reconsideration request in MSSICS. Ms. Kapeles was not paid SSI benefits on February 1, 2016. 258. On February 3, 2016, an Overpayment Notice was issued for $20,846.88. By that point, her Medicaid health insurance had been terminated as well. 259. On March 15, 2016, Ms. Kapeles went to her local SSA office for what she thought was an appointment regarding her appeal. However, the reconsideration and the request for continued benefits was not in MSSICS and Ms. Kapeles was treated as a walk-in. She waited for three hours to be seen. At the meeting, Ms. Kapeles had to submit the reconsideration and request for continued benefits a second time but it was not documented in MSSICS at that time either. 260. A new appointment was given for March 22, 2016, SSA refused to provide access to the case file on the overpayment and refused to allow any additional evidence or argument to be submitted. The representative later resubmitted all the documentation, including information about the SNT as well as deposits and disbursements from it, which had been previously submitted at the March 15, 2016 meeting, to the office manager. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 40 of 48 PageID #: 108 41 261. In April 2016, Ms. Kapeles began receiving her SSI benefits again, including her missing benefits from February and March 2016. 262. On June 22, 2016, her local SSA office denied the reconsideration request, stating that Ms. Kapeles had missed a conference appointment and had not submitted new documentation. 263. On June 30, 2016, Ms. Kapeles appealed by filing a request for review by an administrative law judge. 264. Ms. Kapeles is not currently receiving her SSI benefits. 265. Ms. Kapeles has experienced a great deal of stress. She lost her Medicaid coverage and was unable to access services at her treating mental health care provider. She has been unable to pay her share of the rent. Her mother must to cover her portion of the rent while Ms. Kapeles is not receiving SSI benefits. 266. SSA failed to provide Ms. Kapeles with due process when SSA immediately scheduled the automatic termination of her SSI benefits and failed to: timely document her reconsideration request in MSSICS; provide the right to reconsideration before the determination took effect and benefits were terminated; provide continued benefits under SSA’s Goldberg v. Kelly provisions after timely filing of a reconsideration and a request for continued benefits; provide access to the plaintiff’s case file; and to allow the plaintiff to submit documentation to support her request for reconsideration. 267. SSA’s wrongful behavior reasonably can be expected to reoccur. A redetermination of financial eligibility for SSI benefits generally occurs annually and can occur at any time if there is a change in the recipient’s situation. A review of her continued disability also occurs periodically. If SSA finds the plaintiff to be once again be ineligible for or overpaid Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 41 of 48 PageID #: 109 42 SSI benefits, SSA will utilize the same unlawful practices challenged in this lawsuit. STATEMENT OF CLAIMS FIRST CLAIM: Violation of Federal Regulations 268. Plaintiffs repeat and reallege the above paragraphs as if fully set forth herein. 269. Plaintiffs are or have been eligible for SSI benefits and have legitimate claims to those benefits. 270. When plaintiffs are confronted with a determination by SSA that they have been paid too much in SSI benefits, they have the right under federal regulations to appeal. 20 C.F.R. 416.550 and 416.1336. Appeal rights include the right to appear in person, to cross-examine witnesses, to submit evidence that rebuts the determination, and to present arguments. See, for example, 20 C.F.R. 416.1336, 416.1413, 416.557. These rights also include the right to continued benefits. 20 C.F.R. 416.1336 and 416.570(a). 271. These protections attach once the plaintiffs file an appeal. 20 C.F.R. 416.1336, 416.1413, 416.557; see also 20 C.F.R. 416.1336 and 416.570(a). 272. Plaintiffs are entitled to secure their due process rights by being allowed to file and to have SSA properly and timely document the filing of reconsideration requests and waiver requests. 273. It is SSA’s practice to intentionally and negligently fail to follow its own regulations and procedures mandating the timely documenting of reconsideration requests and waiver requests in MSSICS. SSA’s practice, in failing to follow regulations and procedures, effectively denies plaintiffs access to their due process rights. 274. SSA’s unlawful practice is aggravated by SSA’s intentional adoption of a shortcut which immediately schedules the reduction or termination of SSI benefits where it is alleged that Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 42 of 48 PageID #: 110 43 the recipient is ineligible for continued SSI benefits or has been overpaid SSI benefits. The automatic reduction or termination is only stopped when a worker timely documents a recipient’s reconsideration request or waiver request in MSSICS. 275. SSA’s practice of intentionally and negligently failing to ensure that its workers in its local offices in New York City timely document plaintiffs’ or their children’s reconsideration requests and waiver requests in MSSICS causes plaintiffs or their children to suffer substantial and irreparable harm by denying access to due process rights, including the right to be heard and the right to maintain SSI benefits pending the determination of their appeal. 276. By blocking access to due process protections and reducing or terminating plaintiffs’ or their children’s SSI benefits, defendants violated their rights under the Act and its own regulations and written procedures, 42 U. S. C. 1383(b)(1); 20 C. F. R. 416.1336 and 416.1404; POMS SI 02301.300, SI 02220.017, and SI 02260.001. 277. Plaintiffs, their children and other SSI recipients in New York City remain at considerable risk of suffering substantial and irreparable harm of having their rights violated under the Act and SSA regulations and procedures when SSA intentionally and negligently failing to ensure that its workers in its local offices in New York City timely document plaintiffs’ or their children’s reconsideration requests and waiver requests in MSSICS in sufficient time to prevent the reduction or termination of their SSI benefits. SECOND CLAIM: Violation of Due Process Clause 278. Plaintiffs repeat and reallege the above paragraphs as if set forth fully above. 279. The Due Process Clause to the Fifth Amendment of the U.S. Constitution guarantees that individuals shall not be deprived of property, including statutorily created entitlements, without due process of law. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 43 of 48 PageID #: 111 44 280. Plaintiffs are or have been eligible for SSI benefits and have legitimate claims to those benefits. As such, they have a property right to those benefits. 281. Plaintiffs’ and their children’s interest in continuing to receive SSI benefits is a property right covered by the Due Process Clause of the Fifth Amendment to the United States Constitution, which protects individuals from deprivations of life, liberty, and property without due process of law. 282. Plaintiffs are entitled to secure their due process rights by being allowed to file, and having SSA properly and timely document the filing of, reconsideration requests and waiver requests. 283. It is SSA’s practice to intentionally and negligently fail to follow its own regulations and procedures mandating the timely documenting of reconsideration requests and waiver requests in MSSICS. SSA’s practice, in failing to follow regulations and procedures, effectively denies plaintiffs access to their due process rights. 284. SSA’s unlawful practice is aggravated by SSA’s intentional adoption of a shortcut which immediately schedules the automatic reduction or termination of SSI benefits where it is alleged that the recipient is ineligible for continued SSI benefits or has been overpaid benefits. The automatic reduction or termination is only stopped when a worker timely documents a recipient’s reconsideration request or waiver request in MSSICS. 285. SSA’s practice of intentionally and negligently failing to ensure that its workers in its local offices in New York City timely document plaintiffs’ or their children’s reconsideration requests and waiver requests in MSSICS causes plaintiffs and\/or their children to suffer substantial and irreparable harm by denying access to due process rights, including the right to be heard and the right to maintain SSI benefits pending the determination of their appeal. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 44 of 48 PageID #: 112 45 286. The reduction or termination of plaintiffs’ or their children’s SSI benefits violated their rights under the Due Process Clause of the Fifth Amendment to the United States Constitution. 287. Plaintiffs, their children and other SSI recipients in New York City remain at considerable risk of suffering substantial and irreparable harm of having their rights violated under the Due Process Clause when SSA intentionally and negligently failing to ensure that its workers in its local offices in New York City timely document plaintiffs’ or their children’s reconsideration requests and waiver requests in MSSICS in sufficient time to prevent the reduction or termination of their SSI benefits. THIRD CLAIM: Mandamus 288. Plaintiffs repeat and reallege the above paragraphs as if fully set forth herein. 289. Defendants are required by their own regulations and written procedures to accept and to document requests for both reconsideration and waiver. 20 C.F.R. 416.1336, 416.1413b, and 416.550. 290. Under the regulations and written procedures, requests for reconsideration must be filed within specific timeframes; accordingly, defendants must accept and document appeals in a timely manner. 20 C.F.R. 416.1336, 416.1413(a-c), and 416.550; see also 20 C.F.R. 416.1336(b) and POMS SI 02301.300 and 02260.001A. 291. Also, under the regulations and written procedures, defendants have a duty to permit plaintiffs or their children to exercise their due process, regulatory and statutory rights to appeal planned adverse determinations. 20 C.F.R. 416.1336, 416.1413b, and 416.550. Accordingly, defendants have a duty to accept and document appeals in a timely manner so that plaintiffs or their children are not, in effect, blocked for exercising important rights. Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 45 of 48 PageID #: 113 46 292. Defendants’ actions to accept and to document appeals are official actions. 293. Defendants’ duty to act is plainly prescribed and without discretion. 294. Defendants fail to perform a non-discretionary administrative duty owed to plaintiffs or their children when workers in its local offices in New York City fail to timely document reconsideration requests and waiver requests in MSSICS, which results in the unlawful reduction or termination of plaintiffs’ or their children’s SSI benefits and blocks access to due process protections and any meaningful right to be heard. 295. By failing to follow current regulations and written requirements for processing requests for reconsideration and requests for waiver, SSA has violated 20 C.F.R. 416.1336, 416.1413, 416.557. 296. Plaintiffs seek to compel defendants to perform this non-discretionary administrative duty owed by a federal agency to plaintiffs or their children. 297. No alternative means of relief exists. REQUEST FOR RELIEF Wherefore, plaintiffs request that this Court enter a final judgment: (a) Declaring, pursuant to 28 U.S.C. 2201(a) and Rule 57 of the Fed. R. Civ. P., that SSA’s practice of intentionally and negligently failing to ensure that its SSA offices in New York City timely documented plaintiffs’ or their children’s reconsideration requests and waiver requests in MSSICS violated their rights under current law, regulations, and the Due Process Clause of the Fifth Amendment to the United States Constitution; 42 U. S. C. 1383(b)(1); 20 C.F.R. 416.1336 and 416.1404; POMS SI 02301.300, SI 02220.017, and SI 02260.001; (b) Compelling, pursuant to 28 U.S.C. 1361, defendants to comply with current law, regulation and written procedures to ensure that its SSA offices in New York City timely Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 46 of 48 PageID #: 114 47 document reconsideration requests and waiver requests in MSSICS as required by the Due Process Clause of the Fifth Amendment to the United States Constitution; 42 U. S. C. 1383(b)(1); 20 C.F.R. 416.1336 and 416.1404; POMS SI 02301.300, SI 02220.017, and SI 02260.001; (c) Declaring, pursuant to 28 U.S.C. 2201(a) and Rule 57 of the Fed. R. of Civ. P., that SSA’s practice in its SSA offices in New York City of immediately scheduling the automatic reduction of plaintiffs’ or their children’s SSI benefits, while also blocking plaintiffs’ and their children from asserting appeal rights when it continuously and repeatedly fails to comply with its duty to document appeals, violates their rights under the Due Process Clause of the Fifth Amendment to the United States Constitution; 42 U.S.C. 1383(b)(1); 20 C.F.R. 416.1336 and 416.1404 POMS SI 02301.300, SI 02220.017, and SI 02260.001; (d) Granting injunctive relief, pursuant to 28 U.S.C 2202 and Rule 65 of the Fed. R. Civ. P.,: (1) enjoining SSA from allowing its offices in New York City to fail to timely document reconsideration requests and waiver requests in MSSICS; (2) directing SSA to implement a practice to ensure that its offices in New York City timely document reconsideration requests and waiver requests in MSSICS; (3) enjoining SSA from allowing its offices in New York City to reduce or terminate SSI benefits without first allowing recipients access to due process protections and a meaningful right to be heard. (e) Granting reasonable attorney fees, and costs and disbursements; and Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 47 of 48 PageID #: 115 48 (f) Granting such other and further relief as this Court may deem just and proper. Dated: July 1, 2016 New York, New York By: ____\/s_________________ NEW YORK LEGAL ASSISTANCE GROUP 7 Hanover Square, 18th Floor New York, New York 10004 Beth E. Goldman, President Michelle Spadafore, Of Counsel (212) 613-5024 [email protected] By: ___\/s___________________ ANN P. BIDDLE QUEENS LEGAL SERVICES 89-00 Sutphin Boulevard, 5th Floor Jamaica, New York 11435 (347) 592-2214 [email protected] Ian F. Feldman, Of Counsel Attorneys for Plaintiffs Case 1:15-cv-07429-FB Document 16 Filed 07\/01\/16 Page 48 of 48 PageID #: 116 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK —————————————————————————X EMAD AMIN; JUDY MENCZER, on behalf of E.M., a minor; SYLVIA FABELO; LIAM BECK, on behalf of M.B., a minor; MARTHA RIVAS; ICHO COHEN, on behalf of S.C., a minor; JESSICA VALLADARES; JOSHUA RYLAND; CONSTANTIN KEHAYA; MYRNA MERCEDES ALVAREZ; and ARON BRAVER, on behalf of R.B., a minor, Plaintiffs, -against- CAROLYN W. COLVIN, Acting Commissioner of Social Security, and FRED M. MAURIN, Regional Commissioner of Social Security, New York Region, Defendants. —————————————————————————X COMPLAINT 2015 CV Plaintiffs, by their attorneys, allege as follows: PRELIMINARY STATEMENT 1. Plaintiffs or their minor children are recipients of benefits from the Social Security Administration ( SSA ) under the Social Security Act’s ( Act ) Supplemental Security Income for the Aged, Blind, and Disabled ( SSI ) program. SSI recipients depend on SSI benefits for food, shelter, and other necessities of life. SSI benefits are extremely modest. For example, a person living alone in New York State in 2015 could receive a maximum of $820 a month. When SSI benefits are suspended, reduced, or terminated, recipients face irrevocable harm in the form of hunger, rent and utility arrears, and loss of medical coverage. Even a small reduction in SSI benefits can be the difference between maintaining a delicate financial equilibrium and facing hunger, eviction proceedings, and homelessness. 2. A recipient determined by SSA to be ineligible for continued SSI benefits or to have received an overpayment of benefits can appeal the determinations by filing a Request for Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 1 of 36 PageID #: 1 2 Reconsideration ( reconsideration request ) or a Request for Waiver of Overpayment Recovery ( waiver request ) or both. 3. When a recipient files either kind of appeal request, SSA is supposed to capture this data by documenting the request in its system, called the Modernized Supplemental Security Income Claims Systems ( MSSICS ). If a reconsideration request is timely made and documented in the MSSICS, then the recipient has the right to have SSI benefits continue pending the appeal. If a waiver request is timely made and documented in the MSSICS, then the recipient has the right to have her SSI benefits continued without reductions in subsequent months while the appeal is pending. 4. SSA offices in New York City intentionally and negligently fail to document reconsideration requests and waiver requests in the MSSICS in sufficient time to avoid reduction or termination of recipients’ SSI benefits. 5. If a reconsideration request or waiver request is not properly documented in the MSSICS, the recipient loses the valuable right to have benefits maintained in full pending appeal. 6. In fact, when SSA determines that a recipient has been overpaid, it immediately schedules an automatic reduction or termination of benefits to start the following month. This automatic change is scheduled without regard to a recipient’s right to appeal or to maintain ongoing benefits. 7. The United States Supreme Court, in Goldberg v. Kelly, 397 U.S. 254 (1970), held that the basic elements of due process require that public assistance recipients receive advance notice of a proposed adverse action and an effective opportunity to defend by confronting witnesses and presenting arguments and evidence before the adverse action is taken. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 2 of 36 PageID #: 2 3 Thus, the crucial factor in this context is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate. 397 U. S. at 265. 8. When SSA fails to (1) timely document reconsideration requests and waiver requests in the MSSICS or (2) when it immediately schedules the automatic reduction or termination of SSI benefits, the agency violates the most basic due process protections provided under the Due Process Clause in the Fifth Amendment to the United States Constitution as well as its own regulations and procedures. 9. Plaintiffs seek a declaratory judgment, pursuant to 28 U.S.C. 2201(a) and Rule 57 of the Federal Rules of Civil Procedure ( Fed. R. Civ. P. ), declaring (a) that SSA’s practice and policy of intentionally and negligently failing to ensure that SSA offices in New York City in fact documented plaintiffs’ or their children’s timely reconsideration requests and waiver requests in the MSSICS in a timely manner in order to prevent the unlawful reduction or termination of plaintiffs’ or their children’s SSI benefits, violated their due process rights, the Act, and SSA’s regulations and procedures; and (b) that SSA’s practice and policy of allowing its offices in New York City to immediately schedule the automatic reduction or termination of SSI benefits violates plaintiffs’ or their children’s due process rights, the Act, and SSA’s regulations and procedures. 10. Plaintiffs seek injunctive relief, pursuant to 28 U.S.C 2202 and Rule 65 of the Fed. R. Civ. P.,: (a) enjoining SSA from allowing its offices in New York City to fail to document reconsideration requests and waiver requests in the MSSICS; (b) directing SSA to implement a practice and policy to ensure that its offices in New York City in fact document Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 3 of 36 PageID #: 3 4 reconsideration requests and waiver requests in the MSSICS in order to prevent the reduction or termination of SSI benefits; (c) enjoining SSA from allowing its offices in New York City to immediately schedule the automatic reduction or termination of SSI benefits; and (d) enjoining SSA from allowing its offices in New York City to reduce or terminate SSI benefits without first allowing recipients a meaningful right to be heard. JURISDICTION AND VENUE 11. This Court has subject matter jurisdiction over the federal claims under 28 U.S.C. 1331 for questions arising under the Constitution and the laws of the United States. 12. This Court has subject matter jurisdiction under 42 U.S.C. 405(g) for the collateral procedural issue of whether the SSA in New York City affords plaintiffs or their children appropriate regulatory and due process safeguards prior to reducing or terminating their SSI benefits. In the circumstances of this case, it would be futile for them to exhaust their administrative remedies because the available remedies would not provide the procedural safeguards they should have received prior to SSA’s actions to reduce or terminate their SSI benefits. Should SSA determine in the future that any plaintiff or their child is ineligible or was overpaid SSI benefits, SSA will utilize the same practices and policies challenged in this lawsuit, leading the plaintiff or their child to suffer irreparable harm. 13. Plaintiffs reside in the New York State counties of Kings, Queens, or New York. Venue is proper in the Eastern District of New York pursuant to 28 U.S.C. 1391(b) and 1391(e). PARTIES Plaintiffs 14. Plaintiff Emad Amin ( Mr. Amin ) resides at 360 63rd Street, Apt. 3R, Brooklyn, New York 11220. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 4 of 36 PageID #: 4 5 15. Mr. Amin receives SSI benefits based on his disability and poverty. 16. Plaintiff Judy Menczer ( Ms. Menczer ) is suing on behalf of her minor child, E.M. 17. Ms. Menczer and E.M. reside at 115 Lorimer Street, Apt. 2A, Brooklyn, New York 11206. 18. E.M. receives SSI benefits based on her disability and her family’s poverty. 19. Plaintiff Sylvia Fabelo ( Ms. Fabelo ) resides at 572 Amsterdam Avenue, Apt. 2, New York, New York 10024. 20. Ms. Fabelo is over 65 years of age and receives SSI benefits based on her age and poverty. 21. Plaintiff Liam Beck ( Mr. Beck ) is suing on behalf of his minor child, M.B. 22. Mr. Beck and M.B. reside at 1337 45th Street, Brooklyn, New York 11219. 23. M.B. receives SSI benefits based on her disability and her family’s poverty. 24. Plaintiff Martha Rivas ( Ms. Rivas ) resides at 41-25 Case Street, Apt. 1C, Elmhurst, New York, 11373. 25. Ms. Rivas is 59 years of age and receives SSI benefits based on her disability and poverty. 26. Plaintiff Icho Cohen ( Mr. Cohen ) is suing on behalf of his minor child, S.C. 27. Mr. Cohen and S.C. reside at 2245 East 19th Street, Apt. 3G, Brooklyn, New York 11229. 28. S.C. receives SSI benefits based on her disability and her family’s poverty. 29. Jessica Valladares ( Ms. Valladares ) resides at 34-33 43rd Street, Apt. 1R, Long Island City, New York 11101. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 5 of 36 PageID #: 5 6 30. Ms. Valladares receives SSI benefits based on her disability and poverty. 31. Joshua Ryland ( Mr. Ryland ) resides at 4005 College Point Boulevard, Apt 9E, Flushing, New York 11354. 32. Mr. Ryland receives SSI benefits based on his disability and poverty. 33. Constantin Kehaya ( Mr. Kehaya ) resides at 625 West 140th Street, Apt. 7K, New York, New York 10031. 34. Mr. Kehaya is over 65 years of age and receives SSI benefits based on his age and poverty. 35. Myrna Mercedes Alvarez ( Ms. Alvarez ) resides at 60-32 71st Avenue, Ridgewood, New York 11385. 36. Ms. Alvarez receives SSI based on her disability and poverty. 37. Plaintiff Aron Braver ( Mr. Braver ) is suing on behalf of his minor child, R.B. 38. Mr. Braver and R.B. reside at 70 Morton Street, Brooklyn, New York 11249. 39. R.B. receives SSI benefits based on his disability and family’s poverty. Defendants 40. Defendant Carolyn W. Colvin, as the acting Commissioner of Social Security, has full power and responsibility to ensure that the SSI program is administered in compliance with the United States Constitution, the Act, and SSA regulations, policies, and procedures. She is being sued in her official capacity. 41. Defendant Fred W. Maurin, as the Regional Commissioner for SSA’s New York Region, which includes New York City, has full power and responsibility to ensure that SSA’s local offices in New York City comply with the United States Constitution, the Act, and SSA regulations, policies, and procedures. He is being sued in his official capacity. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 6 of 36 PageID #: 6 7 42. The defendants are collectively referred to as SSA. STATUTORY, REGULATORY, AND PROCEDURAL SCHEME 43. The basic purpose underlying the [SSI] program is to assure a minimum level of income for people who are age 65 or over, or who are blind or disabled and who do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level. 20 C.F.R. 416.110. [P]ayments are made under conditions that are as protective of people’s dignity as possible. 20 C.F.R. 416.110(c). 44. SSA stores and maintains data concerning claimants for or recipients of benefits in a federal electronic database. The SSA computer system includes various storage subsystems including the Supplemental Security Master Record ( SSR ), the MSSICS, and the notice retrieval system. Created in May 1992, the MSSICS stores financial eligibility information obtained from SSI applicants. MSSICS was designed as an on-line computer system available to SSA workers during interviews with claimants or recipients so that SSA workers can view data on file and add data to the file. Further, MSSICS stores data obtained from claimants or recipients during interviews to evaluate initial and ongoing SSI eligibility. 45. While the MSSICS does not itself perform any of the computations necessary to assess eligibility or determine benefits, it employs a separate software program to perform such calculations and feeds the results back to the MSSICS so that SSA workers can view the results of new information added to the MSSICS. Reconsideration Requests 46. Federal rules allow SSI recipients to challenge a finding of improperly paid SSI benefits by filing a reconsideration request. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 7 of 36 PageID #: 7 8 47. SSI benefits are paid based on numerous factors such as living arrangements, income, and resources. 20 C.F.R. 416.1100, 416.1201 and 416.1210. 48. SSA follows the rules and guidelines contained in its regulations and procedures to determine if an SSI recipient no longer meets the income or resource criteria for SSI. 20 C.F.R. 416.1320 .1340. 49. If SSA believes an SSI recipient is no longer financially eligible for benefits, SSA must provide the recipient with advance written notice of its intent to suspend or terminate benefits. The recipient may appeal the determination of a suspension or termination within 60 days by filing a reconsideration request. 20 C.F.R 416.1336. 50. If SSA believes an SSI recipient was overpaid benefits but remains financially eligible, SSA must provide the recipient with advance written notice of its intent to reduce ongoing benefits. 20 C.F.R. 416.535. The notice must explain, in simple and clear language, SSA’s determination and the reasons for the overpayment. 20 C.F.R. 416.558 and SSA Program Operations Manual System ( POMS ) SI 02201.025. The recipient may appeal an overpayment determination within 60 days by filing a reconsideration request. 20 C.F.R. 416.1413b. 51. 20 C.F.R. 416.1404 provides assurance that, If our initial determination is that we must suspend, reduce or terminate your benefits, the notice will also tell you that you have a right to a reconsideration before the determination takes effect (see 416.1336). 52. Any writing or timely submission of additional evidence by the recipient after receipt of an initial determination notice that clearly implies a disagreement with that determination constitutes a reconsideration request. POMS SI 04020.020. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 8 of 36 PageID #: 8 9 53. If a reconsideration request objecting to the initial determination is filed, SSA must review the case and issue a written notice of its reconsidered determination. 20 C.F.R. 416.1413 and 416.1422. 54. If a reconsideration request is filed within 15 days1 of the date of the notice, SSI benefits should remain unchanged pending review of the reconsideration request and written notice of SSA’s determination. 20 C.F.R. 416.1336(b); POMS SI 02301.300. For recipients facing termination of their SSI benefits, this means that their benefits will not terminate. For recipients facing recoupment or a reduction in their SSI benefits, this means that their benefits will not be reduced. 55. Further, recipients facing a reduction in benefits who file a request for reconsideration within the 60-day time period are entitled to have recoupment stopped pending a determination on the reconsideration request. POMS SI 02220.017. Waiver Requests 56. Federal rules allow an SSI recipient to challenge a repayment requirement for allegedly overpaid benefits. 57. If SSA believes an SSI recipient was overpaid but remains financially eligible for benefits, the recipient may also request that the full recovery of the overpayment be waived by filing a waiver request. 20 C.F.R. 416.550. 58. SSA will waive an overpayment of benefits if: (a) [t]he overpaid individual was without fault in connection with an overpayment, and (b) [a]djustment or recovery of such overpayment would either: (1) [d]efeat the purpose of title XVI, or (2) [b]e against equity and 1 Whenever SSA sends any notice, it assumes that the notice was received within 5 days, unless otherwise proven. For example, a recipient has 15 days to appeal a 10-day notice. 20 C.F.R. 416.1336(b) and 416.1401. In addition, SSA can extend the time to request a reconsideration. 20 C.F.R. 416.1409(b). Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 9 of 36 PageID #: 9 10 good conscience, or (3) [i]mpede efficient or effective administration of title XVI due to the small amount involved. 20 C.F. R. 416.550. See also 42 U.S.C. 1383(b) and 20 C.F.R. 416.552 .554. 59. 42 U.S.C. 1383(b)(1) specifically directs the Commissioner of Social Security to recover overpayments from individuals with a view to avoiding penalizing such individual or his eligible spouse who was without fault in connection with the overpayment. 60. Waiver of an overpayment frees the overpaid person from the obligation to repay. 20 C.F.R. 416.551. 61. A waiver request can be filed at any time. Receipt of the waiver request stops overpayment recovery in the month SSA receives the written waiver request. POMS SI 02260.001. Recovery should not commence, or, if has begun, should stop, unless SSA issues a determination denying the waiver request. 62. If SSA determines that full recovery cannot be waived, then SSA can adjust ongoing benefits to recoup the overpaid benefits. 20 C.F.R. 416.570. This means that SSA can adjust ongoing benefits only after it determines that a waiver is not applicable. 20 C.F.R. 416.570(a). Constitutional and Federal Law Framework 63. The Fifth Amendment to the United States Constitution provides that No person shall be deprived of life, liberty, or property, without due process of law. 64. The Declaratory Judgment Act ( DJA ) states that a federal court upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 10 of 36 PageID #: 10 11 as such. 28 U.S.C. 2201(a). The DJA also permits further necessary relief based on a declaratory judgment, such as injunctive relief. 28 U.S.C. 2202. STATEMENT OF FACTS Background 65. Like public assistance recipients, SSI recipients must meet financial eligibility requirements, which place them substantially below the federal poverty level. 66. SSI recipients, by definition, confront the challenges of disabling illness, blindness, or advanced age. This makes the proper and timely implementation of SSA’s due process, regulatory, and procedural protections even more crucial. An SSI recipient’s loss of the only means of financial support portends a loss of stable housing, insufficient food, and discontinuance of utilities. In addition, termination of SSI benefits can lead to the loss of health care benefits. Many recipients face increased uncertainty, anxiety, and fear. Many require additional medication, therapy, and sometimes hospitalization. For parents with disabled children, SSI benefits can be a financial lifeline that allows them to procure necessary educational and support services. SSI benefits, like public assistance, are not mere charity, but a means to promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity. The same governmental interests that counsel the provision of welfare, counsel as well its uninterrupted provision to those eligible to receive it. Goldberg, 397 U.S. at 265. Agency Failure to Follow Rules to Process Overpayment Appeals 67. In New York City, SSA routinely disregards the rules in place that would allow SSI recipients to exercise their due process rights, namely the rights to object to a planned action to reduce or terminate SSI benefits prior to SSA’s taking the action. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 11 of 36 PageID #: 11 12 68. SSA workers in New York City routinely instruct SSI recipients that the best method for submitting a reconsideration request or waiver request is in person at the recipient’s local SSA office. 69. Submission of reconsideration requests and waiver requests in person is only one of several methods recipients can utilize. Other methods include submission by mail or by facsimile. 70. Recipients cannot submit reconsideration requests or waiver requests over the Internet. 71. SSA workers in New York City routinely instruct SSI recipients that reconsideration requests and waiver requests can only be submitted on SSA forms (SSA’s Request For Reconsideration form (SSA-561) or Request For Waiver Of Overpayment Recovery Or Change In Repayment Rate form (SSA-632)) and that SSA is unable to accept attachments with the forms, including supporting evidence. 72. However, SSA will not grant a reconsideration request or waiver request unless the recipient submits sufficiently strong objections to the proposed action with evidence to support the recipient’s argument. 73. On many occasions, when a reconsideration request form or waiver request form is proffered in person, the recipient is told by an SSA worker in New York City that the recipient does not have a good reason to appeal the determination and then the SSA worker refuses to accept the proffered form. 74. On one notable occasion, an SSA worker in New York City tore up the form and threw it in the waste paper basket in front of the recipient. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 12 of 36 PageID #: 12 13 75. A vast majority of reconsideration requests and waiver requests must be submitted two or more times in SSA offices in New York City before SSA workers document the requests in the MSSICS. 76. The timely submission of a reconsideration request or waiver request has the dual impact of stopping a pending action (reduction or termination of benefits) and triggering significant due process, statutory, and regulatory rights. However, none of these protections are triggered until an SSA worker actually documents a reconsideration request or waiver request in the MSSICS. 77. However, SSA currently lacks a system to ensure that timely written reconsideration requests and waiver requests are in fact documented in the MSSICS in sufficient time to prevent the reduction or termination of SSI benefits. If the reconsideration requests and waiver requests are not documented in the MSSICS in a timely manner, then the due process, statutory, and regulatory protections are not triggered. As a result, benefits are reduced or terminated despite the timely filing of a request. SSA Automatically Reduces or Terminates SSI Benefits 78. At the same time SSA issues a notice of intent to reduce or terminate SSI benefits, it immediately schedules an automatic reduction or termination of SSI benefits for the next month. 79. SSA uses this automatic scheduling function as an administrative convenience. 80. The scheduled reduction or termination is supposed to take effect fifteen days after the issuance of the notice. 81. SSA must take an affirmative step to stop the automatic reduction or termination of SSI benefits. If the reconsideration request or waiver request is not documented in the Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 13 of 36 PageID #: 13 14 MSSICS quickly enough, then the automatic reduction or termination of benefits takes effect. Further, even if SSA takes an affirmative step to stop the automatic reduction or termination, the scheduled reduction or termination will go forward regardless if SSA acts mid-month or later in a calendar month. Documentation of Violations 82. From 2014 to 2015, in a significant number of cases at 16 local SSA offices in New York City, the New York Legal Assistance Group ( NYLAG ) documented SSA’s failure to enter reconsideration requests into the MSSICS in a timely manner, which would have prevented the suspension, reduction, or termination of SSI benefits. 83. Out of 24 SSI suspension or termination reconsideration requests filed, 17 had to be submitted more than once before SSA workers documented the request in the MSSICS. 84. In SSI overpayment cases, where the underlying overpayment itself was in dispute, out of 27 reconsideration requests filed, 10 had to be submitted more than once before SSA workers documented the requests in the MSSICS. Generally, repeated telephone calls had to be made to ensure that the reconsideration requests were found and then documented in the MSSICS, so that benefits were continued. 85. Often, despite advocacy, benefits were not continued and the recipient only received the withheld benefits after a favorable determination had been made on the reconsideration request. 86. From 2014 to 2015, in a significant number of cases at 15 local SSA offices in New York City, NYLAG tracked SSA workers’ failure to timely document waiver requests in the MSSICS. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 14 of 36 PageID #: 14 15 87. For overpayment cases, out of 41 waiver requests filed, 19 had to be submitted more than once. Generally, repeat telephone calls were necessary to ensure that the waivers were found and documented in the MSSICS. 88. In one case, the waiver request was submitted only once but six follow up telephone calls had to be made over a three-week period until the waiver request was finally found and documented in the MSSICS. 89. In one case, an SSA worker refused to accept a waiver request form that was submitted in person because, in his opinion, a prior reinstatement had not been warranted. 90. In another case, the recipient attempted to file a completed waiver request at an SSA appointment on a separate issue. But the SSA worker refused to accept the proffered waiver request and told her to schedule another appointment to submit the waiver request. 91. Generally, many follow up telephone calls occurred to ensure that the recoupment was stopped pending a determination on the waiver request. 92. Often, despite advocacy, the recoupment continued unchanged and the recipient only received the withheld benefits after the waiver request had been granted. Plaintiff Emad Amin 93. Mr. Amin has been receiving SSI benefits since 2012 due to a heart condition and a work-related injury. His local SSA office is the Boro Hall Office in Brooklyn, New York. 94. In March 2015, when Mr. Amin’s wife and three children were finally able to join him in the United States from Egypt, they had to move into a larger apartment whose rent was more than his monthly SSI benefits. His wife immediately began searching for work. In the meantime, Mr. Amin’s application for public assistance and food stamps for his family was delayed. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 15 of 36 PageID #: 15 16 95. In April 2015, Mr. Amin’s SSI benefits were terminated without notice due to SSA’s erroneous belief that he had unstated income, which SSA based solely on the increase in his rent. 96. On May 8, 2015, a reconsideration request was filed stating that he did not have unstated income and, in fact, was in rent arrears due to the loss of his SSI benefits and difficulties accessing public assistance. The reconsideration request included a request for continued SSI benefits pending a determination by SSA. 97. Mr. Amin’s representative submitted the reconsideration request two more times, visited the local SSA office to submit the information in person once, and placed nine telephone calls to the local SSA office. 98. A personal conference was not scheduled until June 25, 2015, and Mr. Amin’s SSI benefits were not reinstated until June 30, 2015. At that time, he received withheld benefits for June and July but not for May. 99. Mr. Amin did not receive his SSI benefits for May until August 3, 2015, after his representative had to make four more telephone calls to the local SSA office. 100. This was a very stressful time for Mr. Amin because he did not have money with which to purchase necessities for himself, his wife, and their children. The rent arrears on the new apartment mounted. He has high blood pressure; he was always anxious. He had to borrow money from a friend to survive and had to max out his credit card. In addition, he fell behind on his electricity and gas payments and now owes utility arrears. 101. Such harm would have been avoided if SSA had timely documented his reconsideration request in the MSSICS and provided SSI benefits unchanged while a determination on Mr. Amin’s request for reconsideration was pending. SSA terminated Mr. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 16 of 36 PageID #: 16 17 Amin’s SSI benefits without notice and then failed to provide continued benefits pending the outcome of his appeal, leaving the newly reunited family of five destitute. Plaintiff Judy Menczer, on behalf of her minor child, E.M. 102. E.M. is a disabled 13-year-old girl who lives with her parents and five siblings. Her local SSA office is the Bushwick Office in Brooklyn, New York. 103. An SSA bank data match for the family brought up three bank accounts: an account for E.M.’s SSI benefits, a joint account owned by her parents, and a business account owned by her uncle. 104. The business account is not a countable resource under SSA regulations because her father’s name is on the business account in order to access it for business purposes. 105. In 2012, E.M.’s SSI benefits were terminated and an overpayment was posted to her SSI record until SSA accepted all the business account documents. This took nine months, from the date of the notice to the final resolution. 106. In 2014, E.M.’s SSI benefits were terminated and an overpayment was posted to her SSI record because of the same business account. That took five months to resolve. 107. In 2015, for the third time, E.M.’s SSI benefits were terminated and an overpayment was posted to her SSI record because of the same business account. The first SSA notice was dated August 5, 2015, and a reconsideration request was sent by facsimile to SSA that same day with a request for continued benefits under SSA’s Goldberg v. Kelly provisions. The second notice, which added additional months to the overpayment, was dated August 6, 2015, and within 15 days a reconsideration request was sent by facsimile to SSA with a request for continued benefits. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 17 of 36 PageID #: 17 18 108. On August 17, 2015, supporting documentation, including bank statements and an advocacy letter were mailed to SSA with the two previously submitted reconsideration requests. 109. On August 20, 2015, SSA received the documentation, bank statements, and advocacy letter. The next day an SSA worker stated that it was not in the computer system but it might be on someone’s desk. Two more follow up telephone calls were made to the local SSA office without response. 110. E.M. did not receive her SSI benefits for September 2015, despite the timely reconsideration request, so another telephone call was placed to the local SSA office. The worker stated that she did not see any appeal on file in the MSSICS. A request for continued benefits was made again but SSA took no action. A week later, a notice scheduling a personal conference was received but benefits were still not restored pending the appointment. At the September 18, 2015, personal conference, the issue was apparently resolved once again in E.M.’s favor. However, by notice dated October 7, 2015, the reconsideration request was denied. On October 16, 2015, a request for hearing was filed. 111. To date, E.M.’s SSI benefits have not been restored, despite the timely filing of the reconsideration request on the same day the termination notice was received. SSA’s repeated terminations of E.M.’s SSI benefits every year for the same reason and its failure to document in the MSSICS timely reconsideration requests caused and continues to cause this family increased stress and significant financial instability. Plaintiff Sylvia Fabelo 112. Ms. Fabelo has been in receipt of SSI benefits since 2013, when she turned 65 years of age. Her local SSA office is the Midtown Office in New York, New York. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 18 of 36 PageID #: 18 19 113. In September 2014, Ms. Fabelo began receiving foster care benefits for her grandson. 114. Under the SSI program, foster care benefits are considered exempt income. 115. On January 15, 2015, Ms. Fabelo attended an SSI recertification appointment at her local SSA office and provided information about the foster care benefits. She was told to provide additional proof of the source of the benefits by January 30, 2015. On January 30, 2015, Ms. Fabelo returned to her local SSA office with a letter from the foster care agency documenting the exempt income; however, she was told that the letter was insufficient evidence and she was turned away at the check-in window. SSA provided no additional information about what would constitute sufficient documentation. 116. Ms. Fabelo did not receive any advance notice that she would not receive her SSI benefits in February 2015. 117. On February 17, 2015, Ms. Fabelo received a notice of termination that indicated her SSI benefits had been terminated as of February 1, 2015, and that she had been overpaid from September 2014 to January 2015. 118. On March 20, 2015, Ms. Fabelo’s representative filed a reconsideration request with Ms. Fabelo’s local SSA office objecting to the termination. 119. Her representative contacted Ms. Fabelo’s local SSA office seven times by telephone, from April 1, 2015, to May 4, 2015, to obtain information regarding the reconsideration request. Despite these telephone calls, the reconsideration request was never processed and Ms. Fabelo was not provided with continuing benefits. 120. On May 5, 2015, Ms. Fabelo’s representative accompanied her to the local SSA office. At the appointment, the SSA worker requested additional information from the foster care Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 19 of 36 PageID #: 19 20 agency, which was promptly submitted. Ms. Fabelo’s representative contacted the office three times by telephone, from May 14, 2015, to May 18, 2015, to check on the status of the case. On May 19, 2015, a favorable reconsideration decision was issued. 121. On May 27, 2015, Ms. Fabelo’s SSI benefits were finally reinstated but she was not issued the benefits withheld for February, March, and April 2015. On June 16, 2015, her representative again contacted the local SSA office and was told that SSA had kept the withheld benefits to pay back an old overpayment \u2014 all without notice. Due to her representative’s advocacy, the missing benefits were released on June 24, 2015, and the old overpayment began to be recouped at a rate of 10% per month. 122. Ms. Fabelo’s only source of income is her SSI benefits, which she relies upon to pay all her living expenses. During the period she did not receive her SSI benefits (February 2015 to May 2015), her daughter had to loan her money to pay her rent. She also fell behind in paying her electricity and telephone bills. Such harm would have been avoided had SSA timely documented the reconsideration request in the MSSICS and provided continued SSI benefits to Ms. Fabelo while the reconsideration request was pending. Plaintiff Liam Beck, on behalf of his minor child, M.B. 123. 86. M.B. is 10 years old and receives SSI benefits for her severe mental illness. Her local SSA office is the Boro Hall Office in Brooklyn, New York. 124. M.B.’s family belongs to a religious congregation, where M.B.’s father assists with the accounting. Mr. Beck’s name, along with other names, appears on the congregation’s bank account. 125. On June 29, 2015, SSA sent M.B.’s family a notice indicating her SSI benefits would be terminated in August 2015 because M.B.’s family no longer met the financial Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 20 of 36 PageID #: 20 21 eligibility criteria. Specifically, the notice indicated that SSA was counting the congregation’s bank account as belonging to M.B.’s family and a resource. 126. On July 13, 2015, M.B.’s family filed a reconsideration request objecting to the allegations in the notice, and provided SSA with copies of bank statements explaining the congregation’s bank account. 127. M.B.’s family filed the reconsideration request three times and their representative placed six telephone calls to the local SSA office. 128. On July 31, 2015, SSA notified M.B.’s family that more information was needed to process the reconsideration request. 129. M.B. did not receive her SSI benefits in early August 2015, as expected, but with legal assistance, M.B.’s family was able to secure her August 2015 SSI benefits later in the month. 130. Because of SSA’s failure to provide continued benefits pending the outcome of the reconsideration, the family was late paying rent and had to borrow money to pay M.B.’s school fees. Plaintiff Martha Rivas 131. Ms. Rivas receives SSI benefits. Her local SSA office is the Rego Park Office in Rego Park, New York. 132. On September 8, 2015, she went to her local SSA office, at the invitation of SSA, where she was asked her about a one-time payment of $14,985.00 Ms. Rivas had received from her divorce settlement. Ms. Rivas explained that she no longer had the funds, which were paid in June 2013 and spent by January 2014 on expenses for herself and her children. She was asked to bring proof of the expenditures, such as receipts and bank statements, within 10 days. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 21 of 36 PageID #: 21 22 133. Eight days later, on September 16, 2015, when Ms. Rivas returned to her local SSA office with her bank statements and receipts, she was handed a letter dated September 9, 2015, indicating that SSA proposed to terminate her SSI benefits effective October 1, 2015. The worker who handed her the letter also took her papers and made copies. 134. A week later, on September 23, 2015, Ms. Rivas returned to the local SSA office to request an update about her case. The worker informed her that there was no record of any documents submitted the prior week. The worker also handed her a Request for Reconsideration form to complete. 135. On September 30, 2015, Ms. Rivas returned the Request for Reconsideration form to her local SSA office, with, for the third time, supporting documents. 136. When Ms. Rivas did not receive her SSI benefits in October 2015, she returned to her local SSA office to inquire about her case. She was given a copy of her Request for Reconsideration, with a date stamp of October 13, 2015, even though she had submitted it on September 30, 2015. She was also provided with a Request for Waiver of Overpayment form to complete and was told to return the waiver request by November 7, 2015. 137. Ms. Rivas returned to her local SSA office on or about November 5, 2015, to return the completed waiver request. However, when Ms. Rivas attempted to submit the form, the SSA worker refused to take it because Ms. Rivas had not attached any receipts to it for her current expenses. 138. Ms. Rivas contacted an attorney and was advised to return to the local SSA office on November 6, 2015, to attempt to file the waiver request. When she returned to the SSA office, Ms. Rivas was told by another worker that she could not physically accept her waiver request. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 22 of 36 PageID #: 22 23 The worker directed Ms. Rivas to mail the request at the mailbox around the corner. He also told her that she should not attach any receipts or documents to it. 139. Ms. Rivas has exhausted her savings. To provide for her urgent needs, she was compelled to reapply for public assistance benefits. Ms. Rivas lives with her two sons. Her older son, who is 18 and in school, attempted part-time work briefly to help with rent. Her younger son is severely disabled and receives SSI. To keep current in her rent, Ms. Rivas also spends less money on food for herself and her sons. Plaintiff Icho Cohen, on behalf of his minor child, S.C. 140. S.C. is a 16-year-old girl with a severe neurological disorder. Her local SSA office is the New Utrecht Office in Brooklyn, New York. 141. S.C. was in receipt of SSI benefits until January 2014. 142. She lives with her parents and three siblings. Her mother lost her job last year. 143. On February 14, 2014, S.C.’s father, Mr. Cohen, filed a waiver request at the local SSA office. However, SSA would not provide continuing benefits pending the outcome of an appeal because it believed her family still had excess resources. 144. The resource was an exempt business loan. 145. On May 22, 2014, the waiver request was filed by certified mail to the local SSA office. 146. On June 23, 2014, the waiver request was also filed by certified mail to the SSA Mid-Atlantic Service Center in Philadelphia, in Pennsylvania, because an overpayment notice had been sent to the family from that address. 147. On September 5, 2014, Mr. Cohen and his representative attended an appointment at the local SSA office. The SSA worker stated that the waiver was never received. Mr. Cohen Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 23 of 36 PageID #: 23 24 attempted to give the worker the waiver request but it was refused on the ground that the worker did not handle overpayment waivers. 148. In September 2014, the representative filed the waiver request by facsimile and certified mail to the local SSA office. 149. On October 3, 2014, Mr. Cohen received a letter from the local SSA office for an October 3 appointment about the waiver request. Mr. Cohen tried to reschedule the appointment by telephone due to lack of timely notice, but SSA refused to reschedule the appointment. 150. On April 2, 2015, the local SSA office informally denied the waiver request. No written waiver denial has ever been received. 151. On May 24, 2015, a request for reconsideration of the waiver denial was filed at the local SSA office. The reconsideration was also denied orally and no written denial has ever been received. On July 14, 2015, a request for hearing was filed because of SSA’s failure to properly process the waiver request and provide continuing benefits. 152. The family is struggling to provide S.C. with necessities of therapy, educational assistance, and clothes. Plaintiff Jessica Valladares 153. Ms. Valladares is 18 years old with mental health issues. She began receiving SSI in 2013 and her mother, Martha Penaloza ( Ms. Penaloza ), is her representative payee. Her local SSA office is the Long Island City Office, in Long Island City, New York. 154. Ms. Penaloza, a native Spanish speaker with limited English proficiency, opened the SSA required bank account for the direct deposit of Ms. Valladares’ SSI benefits. 155. On March 16, 2015, Ms. Penaloza received an overpayment notice, which was only in English, stating that $2,908.00 in SSI benefits were overpaid from November 2014 Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 24 of 36 PageID #: 24 25 through February 2015. Two weeks later, on April 8, 2015, Ms. Penaloza received a second overpayment notice, also only in English, stating that SSA had allegedly overpaid her $10,349.00 in SSI benefits from September 2013 through October 2014. 156. Ms. Valladares and Ms. Penaloza brought the notices to Ms. Valladares’ therapist, who directed them to go to their local SSA office. 157. Ms. Valladares and Ms. Penaloza went to the local SSA office with the notices to request clarification. Ms. Penaloza asked SSA to mail her the letters in Spanish so that she could understand them and explain them to her daughter. However, she was informed that SSA mails letters only in English. Ms. Penaloza was provided with an interpreter by telephone but Ms. Penaloza could not understand what the interpreter was saying. Further, Ms. Penaloza was told that an SSA worker would only speak with Ms. Valladares about the overpayment even though Ms. Penaloza was her representative payee. 158. Ms. Penaloza was given a waiver request form, which she returned to SSA on April 29, 2015. 159. On July 9, 2015, Ms. Valladares and Ms. Penaloza returned to the local SSA office because they had not received any information about the waiver request. 160. They were handed an overpayment letter, again only in English, dated May 21, 2015, which stated that SSA could not approve the waiver request. Neither Ms. Valladares nor Ms. Penaloza had previously received a copy of this letter by mail or other means. They were also told that they had missed an appointment in June for a personal conference in order to discuss the waiver request. 161. That day, Ms. Valladares and Ms. Penaloza filed an appeal of the overpayment determination. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 25 of 36 PageID #: 25 26 162. Also in July 2015, Ms. Valladares and Ms. Penaloza received a letter, again only in English, stating that Ms. Valladares’ SSI benefits would be reduced 10%, starting in August; however, they also received a letter that Ms. Valladares was no longer eligible for any SSI benefits. 163. Ms. Valladares received her SSI benefits for August, at a reduced rate, but no subsequent benefits. 164. Ms. Valladares provided the local SSA office with more information on August 4, 2015. She was told that her waiver request was still pending. 165. SSA later corrected itself, finding no overpayment had occurred from September 2013 to December 2014. SSA had inappropriately counted retroactive her SSI benefits as a resource but these payments are excluded as countable resources for 9 months after the payments are received. 166. Ms. Valladares’ SSI benefits were not reinstated, despite clear proof that she did not have excess resources. 167. To date, SSA has not issued a final determination on the waiver request. Plaintiff Joshua Ryland 168. Mr. Ryland is nineteen years old, struggling with mental health issues and a learning disability. His local SSA office is the Flushing Office, in Flushing, New York. 169. Mr. Ryland lives with his mother, Nadine Abitol, who suffers from Meniere’s disease, which causes violent dizzy spells, and severe arthritis, which limits her day-to-day mobility. Ms. Abitol relies on a walker or cane to ambulate. She receives SSI benefits based on her disability 170. Ms. Abitol is Mr. Ryland’s representative payee and manages his SSI benefits. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 26 of 36 PageID #: 26 27 171. Mr. Ryland began receiving SSI benefits as a child; however, when he turned eighteen, SSA claimed he no longer qualified for benefits under the adult standards. 172. Mr. Ryland was, and is in high school, and will continue until he is twenty-two years old. 173. He is eligible for SSI benefits until age 22, even if his disability ceases, so long as he remains in high school. 174. In December 2014, Mr. Ryland received a notice from SSA that he was no longer disabled and his SSI benefits would cease in February 2015. 175. Mr. Ryland continued to receive his SSI benefits, uninterrupted, through May 2015. 176. His SSI benefits were terminated without notice as of June 2015. 177. On or about July 16, 2015, Ms. Abitol received an overpayment notice dated July 1, 2015. 178. She immediately called the local SSA office and was told that Mr. Ryland’s SSI benefits could not be reinstated because the ten days in which to file an appeal had passed. Believing she had no options and limited in mobility due to her impairment, Ms. Abitol did not go in person to the local SSA office to discuss the notice. 179. Ms. Abitol spoke with counsel on July 28, 2015, and learned of her right to appeal the overpayment determination. 180. On, or about July 29, 2015, Ms. Abitol went to the local SSA office and objected to the determination and the termination of her son’s SSI benefits. Plaintiff Constantin Kehaya 181. Mr. Kehaya, aged 71, receives SSI benefits based on his age. His local SSA Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 27 of 36 PageID #: 27 28 office is the Uptown Office, in New York, New York. 182. SSA requires Mr. Kehaya’s SSI benefits to be directly deposited into a bank account. 183. In May 2014, Mr. Kehaya received two SSI benefit deposits in that same calendar month, one at the beginning of the month and one at the end of the month. He did not receive his SSI benefits in the June calendar month. The SSI deposit in late May was actually his benefits for June. 184. In both August and October 2014, he again received two deposits in a single calendar month following the same pattern with a benefit received in the beginning of the month and another one received at the end of the month. He did not receive his SSI benefits in September 2014 or November 2014. Instead, the second benefit payment received in August was the benefits for September. Likewise, the second benefit payment received in October was the benefits for November. 185. In December 2014, the local SSA office asked Mr. Kehaya to come in for an interview on January 20, 2015, in order to evaluate his SSI financial eligibility. 186. On January 19, 2015, the day before the scheduled meeting, SSA issued Mr. Kehaya a notice that he had been overpaid SSI benefits for three months, in 2014, because his bank balances in June, September and November 2014 appeared to exceed the $2,000 SSI program resource limit for a single person. SSA considered the second SSI payments received in the same month to be savings so that Mr. Kehaya had savings over the resource limit. Had Mr. Kehaya’s SSI benefits been paid by SSA in the correct calendar month, the benefits would be income and not savings. This excess amount of savings made it appear that Mr. Kehaya was not eligible for any SSI benefits in those months. Mr. Kehaya was informed that the Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 28 of 36 PageID #: 28 29 overpaid benefits would be added to a prior overpayment on his record. 187. The January 2015 notice informed Mr. Kehaya that SSA would reduce his monthly SSI benefits in order to recoup the overpayment. It did not tell him that he could appeal this reduction in his benefits. 188. On February 20, 2015, after consultation with counsel, a reconsideration request was submitted, pointing out the errors in the overpayment determination. 189. In 2013, Mr. Kehaya had a small overpayment caused by a modest annuity that placed him barely over the resource limit. 190. In 2013, SSA also paid Mr. Kehaya two SSI payments in a single calendar month. SSA also treated the double-month payments as extra savings in 2013 and charged Mr. Kehaya with overpayments. 191. Overall, SSA assessed an overpayment of more than $9,000. 192. Along the way, Mr. Kehaya requested that the recoupment be limited to $20 a month rather than $73 a month, which SSA agreed to, effective January 2015. 193. In January 2015, the recoupment rate was automatically reset to $73 a month for the February payment when SSA issued a new overpayment notice to cover the 2014 overpayments. 194. Recoupment for the 2014 overpayments did not change once the reconsideration request was submitted. 195. On occasion, multiple SSI benefit payments are issued in a single calendar month. Mr. Kehaya did not request this payment pattern, nor is he told in advance that it will happen. Mr. Kehaya has no control over the timing of his SSI benefit payments. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 29 of 36 PageID #: 29 30 Plaintiff Myrna Mercedes Alvarez 196. Ms. Alvarez, 59 years old, and receives SSI benefits based on physical impairments including heart disease. Her local SSA office is the Rego Park Office, in Rego Park, New York. 197. In 2013, SSA assessed Ms. Alvarez with an overpayment. 198. SSA mistakenly found that Ms. Alvarez had rental income in 2013. With advocacy, the matter was resolved and SSA’s determination reversed. 199. Months later, in November 2014, SSA issued an overpayment notice on the same issue. A reduction of benefits took effect immediately without allowing Ms. Alvarez an opportunity to file an appeal prior to the adverse action taking effect. 200. Again, with the help of counsel, Ms. Alvarez objected to the reduction. Counsel wrote on her behalf and spoke with the District Manager at the Rego Park office in July 2015. 201. In November 2015, she received another notice again stating that benefits would be reduced. Plaintiff Aron Braver, on behalf of his minor child, R. B. 202. R.B. is 8 years old and has developmental disabilities following complications at her birth. Her local SSA office is the Boro Hall Office, in Brooklyn, New York. 203. In October 2013, R.B. received a settlement from the medical malpractice lawsuit filed on her behalf in 2011. 204. The malpractice settlement precludes access by R.B. and her parents to the settlement funds until she is 18 years old or has a medical emergency. 205. R.B.’s parents received a Notice of Planned Action from SSA dated December 15, 2014, to discontinue R.B.’s SSI benefits because of the settlement funds. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 30 of 36 PageID #: 30 31 206. On December 24, 2014, R.B.’s parents filed objections by mail advising SSA that R.B. and her parents did not have access to the settlement funds. They included a copy of the court-settled order. 207. Despite the timely filing of the appeal, R.B.’s SSI benefits were discontinued in January 2015. 208. R.B.’s parents obtained legal assistance on January 12, 2015. When SSA was asked about the status of R.B.’s parents’ appeal, counsel was told that no record existed in the MSSICS but it was likely sitting somewhere on a desk. 209. The objections and documentation were resent to the local SSA office and an additional follow up call was made. R.B.’s benefits were finally reinstated on January 22, 2015. 210. Months later, SSA issued a new notice of termination, dated October 9, 2015, stating that R.B.’s benefits would be terminated as of November 2015. 211. The notice indicated R.B. had been found to be over the resource limit due to funds kept in a separate dedicated savings account. 212. R.B., as a minor, must have a dedicated savings account for his retroactive SSI benefits. The dedicated account is excluded as a resource for eligibility purposes. 213. The dedicated account had been with Capital One Bank until January 2014, when it was transferred in order to secure a higher interest rate. 214. It appears that SSA thought it had discovered a new account and failed to realize that it was actually the dedicated account. 215. R.B.’s father completed a Request for Reconsideration form and sent it by facsimile, with bank statements, to the local SSA office on October 23, 2015. This appeal was filed within 15 days of the date of the notice. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 31 of 36 PageID #: 31 32 216. R.B.’s father followed up with the local SSA office on October 29, 2015, only to be told that the reconsideration request had not been recorded in the system. In response, R.B.’s father submitted the documents again by facsimile. 217. On October 30, 2015, R.B.’s father confirmed that the local SSA office had received the reconsideration request and documents. He was also informed that SSA could not provide continuing benefits because the documents lacked a signed statement from R.B.’s father. 218. R.B.’s father drafted and signed a statement and sent it by facsimile to the local SSA office. 219. No SSI benefits were paid to R.B. in November 2015. 220. In November 13, 2015, a notice to R.B. from SSA indicated the reconsideration request reconsideration had been granted. 221. Further inquiry to SSA yielded a statement from the local SSA office that R.B.’s November 2015 benefits would be released on December 1, 2015. STATEMENT OF CLAIMS FIRST CLAIM Plaintiffs Emad Amin, Judy Menczer, on behalf of E.M.; Sylvia Fabelo; Liam Beck, on behalf of M.B., Martha Rivas; Icho Cohen, on behalf of S.C.; Jessica Valladares; Joshua Ryland; Constantin Kehaya; Myrna Mercedes Alvarez; and Aron Braver, on behalf of R.B. 222. Plaintiffs repeat and reallege paragraphs 1-221. 223. Plaintiffs’ and their children’s interest in continuing to receive SSI benefits is a property right covered by the Due Process Clause of the Fifth Amendment to the United States Constitution, which protects individuals from deprivations of life, liberty, and property without due process of law. 224. SSA has a practice and policy of intentionally and negligently failing to ensure Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 32 of 36 PageID #: 32 33 that its workers in its local offices in New York City in fact document reconsideration requests and waiver requests in the MSSICS, which results in the unlawful reduction or termination of SSI benefits. 225. SSA’s practice and policy of intentionally and negligently failing to ensure that its workers in its local offices in New York City in fact documented plaintiffs’ or their children’s timely reconsideration requests and waiver requests in the MSSICS caused plaintiffs or their children to suffer substantial and significant harm when their SSI benefits were reduced or terminated and deprived them of their rights to ongoing benefits unchanged pending the determination of their appeal. 226. The reduction or termination of plaintiffs’ or their children’s SSI benefits violated their rights under the Due Process Clause of the Fifth Amendment to the United States Constitution, 42 U. S. C. 1383(b)(1), 20 C. F. R. 416.1336 and 416.1404, and POMS SI 02301.300, SI 02220.017, and SI 02260.001. 227. Plaintiffs and their children and other SSI recipients in New York City remain at considerable risk of suffering substantial and significant harm of having their rights violated under the Due Process Clause, the Act, and SSA regulations and procedures unless SSA ensures that its workers in its local offices in New York City in fact document any future reconsideration requests and waiver requests of plaintiffs or their children in the MSSICS in sufficient time to prevent the reduction or termination of their SSI benefits. SECOND CLAIM Plaintiffs Emad Amin, Judy Menczer, on behalf of E.M.; Sylvia Fabelo; Liam Beck, on behalf of M.B., Martha Rivas; Icho Cohen, on behalf of S.C.; Jessica Valladares; Joshua Ryland; Constantin Kehaya; Myrna Mercedes Alvarez; and Aron Braver, on behalf of R.B. 228. Plaintiffs repeat and reallege paragraphs 1-221. Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 33 of 36 PageID #: 33 34 229. Plaintiffs’ and their children’s interest in continuing to receive SSI benefits is a property right covered by the Due Process Clause of the Fifth Amendment to the United States Constitution, which protects individuals from deprivations of life, liberty and property without due process of law. 230. As an administrative convenience, SSA intentionally adopted a practice and policy in its local offices in New York City of immediately scheduling the automatic reduction or termination of SSI benefits where it is alleged that the recipient is ineligible for continued SSI benefits or has been overpaid SSI benefits. 231. SSA’s intentional adoption of a practice and policy in its local offices in New York City of immediately scheduling the automatic reduction or termination of SSI benefits where it is alleged that the recipient is ineligible for continued SSI benefits or has been overpaid SSI benefits caused plaintiffs or their children to suffer significant and substantial harm when their SSI benefits were reduced or terminated and deprived them of their rights to ongoing benefits unchanged pending the appeal decision. 232. The Act and SSA regulations and procedures protect SSI recipients who timely file reconsideration requests or waiver requests from reductions or terminations of their SSI benefits until the reconsideration requests or waiver requests are decided by SSA. 42 U.S.C. 1381(b), 20 C. F. R. 416.1336 and 416.1404, and POMS SI 02301.300, SI 02220.017, and SI 02260.001. 233. Plaintiffs and their children and other SSI recipients in New York City remain at considerable risk of suffering substantial and significant harm of having their rights violated in the future under the Due Process Clause, the Act, and SSA regulations and procedures unless SSA discontinues its practice and policy in its local offices in New York City of immediately Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 34 of 36 PageID #: 34 35 scheduling the automatic reduction or termination of SSI benefits where it is alleged that the recipient is ineligible for continued SSI benefits or has been overpaid SSI benefits. REQUEST FOR RELIEF Wherefore, plaintiffs request that this Court enter a final judgment: (a) Declaring, pursuant to 28 U.S.C. 2201(a) and Rule 57 of the Fed. R. Civ. P., that SSA’s practice and policy of intentionally and negligently failing to ensure that its workers in SSA offices in New York City in fact documented plaintiffs’ or their children’s timely reconsideration requests and waiver requests in the MSSICS in a timely manner, in order to prevent the unlawful reduction or termination of their or their children’s SSI benefits, violated their rights under the Due Process Clause of the Fifth Amendment to the United States Constitution, 42 U. S. C. 1383(b)(1), 20 C. F. R. 416.1336 and 416.1404, and POMS SI 02301.300, SI 02220.017, and SI 02260.001; (b) Declaring, pursuant to 28 U.S.C. 2201(a) and Rule 57 of the Fed. R. of Civ. P., that SSA’s practice and policy in New York City of immediately scheduling the automatic reduction or termination of plaintiffs’ or their children’s SSI benefits violates their rights under the Due Process Clause of the Fifth Amendment to the United States Constitution, 42 U. S. C. 1383(b)(1), 20 C. F. R. 416.1336 and 416.1404, and POMS SI 02301.300, SI 02220.017, and SI 02260.001; (c) Granting injunctive relief, pursuant to 28 U.S.C 2202 and Rule 65 of the Fed. R. Civ. P.,: (a) enjoining SSA from allowing its offices in New York City to fail to document reconsideration requests and waiver requests in the MSSICS; (b) directing SSA to implement a practice and policy to ensure that its offices in New York City in fact document reconsideration requests and waiver requests in the MSSICS in order to prevent the reduction or termination of Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 35 of 36 PageID #: 35 36 SSI benefits; (c) enjoining SSA from allowing its offices in New York City to immediately schedule the automatic reduction or termination of SSI benefits ; and (d) enjoining SSA from allowing its offices in New York City to reduce or terminate SSI benefits without first allowing recipients a meaningful right to be heard. (d) Granting reasonable attorney fees, and costs and disbursements; and (e) Granting such other and further relief as this Court may deem just and proper. Dated: December 23, 2015 New York, New York By: ____\/s_________________ NEW YORK LEGAL ASSISTANCE GROUP 7 Hanover Square, 18th Floor New York, New York 10004 Beth E. Goldman, President Michelle Spadafore, Of Counsel (212) 613-5024 [email protected] By: ___\/s___________________ ANN P. BIDDLE QUEENS LEGAL SERVICES 89-00 Sutphin Boulevard, 5th Floor Jamaica, New York 11435 (347) 592-2214 [email protected] Amy Leipziger Ian F. Feldman, Of Counsel Attorneys for Plaintiffs Case 1:15-cv-07429-FB Document 1 Filed 12\/31\/15 Page 36 of 36 PageID #: 36 ”

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” The Public Interest Law Project 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JUDITH Z. GOLD (Bar No. 97098) STEPHEN RONFELDT (Bar No. 41044) E-mail: [email protected]; [email protected] PUBLIC INTEREST LAW PROJECT 449 15th Street, Suite 301 Oakland, CA 94612 Telephone: (510) 891-9794 x 127 or 111 Facsimile: (510) 891-9727 SUSUN KIM (Bar. No. 154437) KATHERINE SIEGFRIED (Bar. No. 250558) E-mail: [email protected] BAY AREA LEGAL AID 1025 Macdonald Avenue Richmond, CA 94801 Telephone: (510) 233-9954 Facsimile: (510) 236-6846 GRACE A. CARTER (Bar No. 101610) JASON K. SONODA (Bar No. 248105) MICHAEL W. STEVENS (Bar No. 258042) E-mail: [email protected]; [email protected]; [email protected] PAUL, HASTINGS, JANOFSKY & WALKER LLP 55 Second Street, 24th Floor San Francisco, CA 94105 Telephone: (415) 856-7015 Facsimile: (415) 856-7100 Attorneys for Petitioners JOSEPH LUGO, KENYONTA DOWNS, FREDERICK SMITH, RODERICK HENDERSON, KIM FORTUNE, and DEBRA CHEATHAM CALIFORNIA SUPERIOR COURT In and For the County of Contra Costa JOSEPH LUGO, KENYONTA DOWNS, FREDERICK SMITH, RODERICK HENDERSON, KIM FORTUNE, and DEBRA CHEATHAM, Petitioners, v. COUNTY OF CONTRA COSTA, BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CONTRA COSTA COUNTY HEALTH AND HUMAN SERVICES DIVISION, CONTRA COSTA COUNTY EMPLOYMENT AND HUMAN SERVICES DEPARTMENT, DOROTHY SANSOE (IN HER OFFICIAL CAPACITY AS SENIOR DEPUTY COUNTY ADMINISTRATOR, CONTRA COSTA COUNTY HEALTH AND HUMAN SERVICES DIVISION), and JOE VALENTINE (IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE EMPLOYMENT AND HUMAN SERVICES DEPARTMENT); and DOES 1-10, inclusive, Respondents. Case No.: VERIFIED PETITION AND APPLICATION FOR ISSUANCE OF PEREMPTORY OR ALTERNATIVE WRIT OF MANDAMUS (CCP 1085 et. seq.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 1 SUMMARY OF THE CASE 1. This action challenges Respondents’1 extreme delays, averaging about six months, in processing applications for General Assistance ( GA ), the last resort subsistence aid for indigent residents who lack any other means to provide for their basic needs; Petitioners also challenge Respondents’ failure to provide GA benefits for eligible applicants accruing from the date of application. Delaying the eligibility determination and commencement of aid for many months, and not providing benefits accruing from the date of application during Respondents’ improperly protracted application processing period, means that eligible applicants who are finally granted aid are denied months of critically needed GA, leaving them destitute, often homeless, and a burden to the community. 2. Respondents’ delays are caused in large part by illegal pre-eligibility requirements for numerous unnecessary in-person interviews, meetings, orientations, disability and employability assessments, medical verification of disabilities, and job search efforts. The Welfare & Institutions Code2 requires Respondents to provide aid to all indigent residents without other means of support (Section 17000); to construe GA laws fairly and equitably to effectuate the intent and purpose of GA (id., Section 11000); and to provide assistance to people in need in a prompt and humane manner, so as to encourage self-respect [and] self-reliance. Id., 10000. Program requirements must be reasonably necessary to effectuate legitimate GA program purposes. Respondents’ delays and pre-eligibility requirements violate these requirements. 3. Respondents’ refusal to grant aid as of the date of application is also illegal. W & I Code Section 11056 requires aid to be granted from the date of application if the applicant meets all eligibility conditions on that date. The common law also recognizes the obligation to provide retroactive aid for eligible applicants for public benefits. 4. Petitioners are informed and believe that in 2008, a Contra Costa County applicant 1 Respondents include Contra Costa County and its departments and public officials responsible for the County’s GA program, more fully described in Paragraphs 79-85. 2 Hereafter, the W & I Code. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 2 for General Assistance waited an average of three months between the filing of an application for these critically needed subsistence benefits and an ultimate eligibility determination and the commencement of aid. Respondents have publicly stated that in 2009, this waiting time between the filing of an application and the commencement of any aid would increase to five to six months, and Petitioners are informed and believe that this has been true. 5. Respondents’ illegal practices prevent and discourage GA applicants from obtaining critically needed subsistence benefits to which they are entitled. The delays and barriers to General Assistance imposed by Respondents are extreme, unusual, and have led to a gross disparity between Contra Costa County’s GA caseload and that in other neighboring counties. 6. Petitioners,3 GA applicants and recipients in Contra Costa County, therefore seek a writ of mandate, more fully described in the Prayer hereof, commanding Respondents to: (i) cease their unnecessary and unlawful delays and job search, orientation, disability, employability, and substance abuse evaluations, medical verification, and similar pre- eligibility requirements before the provision of any aid; (ii) promptly process applications within a specified time limit, after which applicants must be presumed eligible, and aid payments must begin; and (iii) pay aid accruing from the date of their applications for persons found to be eligible. A writ is necessary to compel Respondents’ compliance with law and to prevent extreme and irreparable hardship to Petitioners, other GA applicants and recipients, and the community. FACTUAL ALLEGATIONS Contra Costa County’s General Assistance Program 7. W & I Code 17000 mandates that each county in California shall relieve and support its indigent and disabled residents who cannot support themselves. Respondents operate a GA program in Costa County pursuant to Sections 17000, et seq. 3 JOSEPH LUGO, KENYONTA DOWNS, FREDERICK SMITH, RODERICK HENDERSON, KIM FORTUNE, and DEBRA CHEATHAM (collectively Petitioners, more fully identified in Paragraphs 34-78). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 3 8. GA provides a monthly grant for indigent adults, which functions as a safety net primarily for single indigent adults without children who cannot qualify for any other public benefit program. Recipients are in desperate financial circumstances, with essentially no assets or income. In Contra Costa County, a person is ineligible if he or she has more than $500 in assets (with certain exclusions, such as for an automobile worth less than $500 and for tools of trade). Any income is deducted dollar-for-dollar from the grant amount. Contra Costa County GA Handbook (hereinafter County Regulations ), 49-301. Recipients are entitled to a very small stipend, the amount of which depends on whether he or she has been found employable, whether he lives alone, shares housing, or is homeless, and other factors. By way of example, a single person, living alone, who has been deemed employable receives $336 per month — about 37% of the federal poverty line of $10,400 annually. A homeless employable recipient receives almost half that amount ($157 per month) if he or she is living in a homeless shelter, or has refused an available shelter bed. County Regulations, 49-402. Whether or not he is actually able to find any work, a person who is deemed by Respondents to be employable may only receive any aid for three months per year. Id., 49-102.1.F.5. Contra Costa County’s GA caseload has remained relatively steady in recent years, at about 340 people. Respondents Have Built Delays Into Their Application Process 9. Respondents have built delays into their GA application process. After one or more initial meetings, Respondents require an orientation meeting, which is only one step in Respondents’ application process, before the application can proceed. County Regulations, 49- 102.VI.B. In 2008, applicants waited for an average of more than five weeks, and sometimes longer, for the orientation alone. Respondents’ Revised Budget Plan projected that in 2009 the length of time for orientations [would] double to three months. The delays do not end there. 10. Following the orientation meeting, applicants are required to attend a Comprehensive Assessment Meeting ( CAM ). Respondents use this meeting to assign applicants to employability levels. Level 1 applicants are purportedly employable; Level 2 applicants have a verifiable physical or mental disability which precludes any employment, and which is expected to last less than twelve months. Level 3 applicants have a verifiable physical 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 4 or mental disability which precludes any employment, and which has lasted or is expected to last twelve months or longer. County Regulations, 49-102.VI.C, 51-501. This CAM meeting is followed by a separate Intake Appointment, at which point the applicant is re-interviewed and given verification forms for income, rent, etc. 11. After the orientation and CAM sessions, and before Respondents will continue to process the application, applicants whom Respondents assign to Level 1 must complete three job search activities, and these activities must be verified, before any aid is provided. Applicants must apply in person for three bona fide jobs, where vacancies exist and the employer is actually hiring. County Regulations, 49-102.3.II.D.3. Except for four bus tickets which may be provided, a Level 1 GA applicant is not given help with transportation costs of the job search. Id., 49-102.3.II.D.4. Nor does he or she receive any help in looking for scarce bona fide job openings, any training in how to interview, any help with clothing or hygiene, or any other assistance in competing effectively for work in our increasingly recessionary labor market. Id., 49-102.3.II.D.4, 49-102.3.II.D.5. 12. Once the applicant has attended the several initial meetings, evaluations, etc. described above, and has been classified as a Level 1 applicant and been provided by Respondents with the required job search forms — which may be many weeks or months into the application process — an applicant then has five working days in which to satisfy the job search requirement and return a form documenting his or her job search efforts. If the applicant misses this deadline, the application will be denied, unless the applicant can demonstrate good cause. Id., 49-102.3 D.II.2.a, 49-102.3.D.II.7. If the applicant returns the form on time, the case worker will verify the job application by calling the employer (id., 49-102.3 II.D.6), who may not recall receiving the job application. When this happens, aid is denied or further delayed. Id. Respondents also disqualify job applications under rules that they have not adequately explained to applicants, which also results in denial of aid or further delay. See Paragraphs 34-43, infra, describing Petitioner Downs’ experience, which resulted in his being denied the aid to which he is indisputably eligible despite his strenuous, good faith efforts to comply with Respondents’ job search requirement. Although this requirement is a significant obstacle to aid, Petitioners are 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 5 informed and believe that it almost never leads to employment. 13. A Level 2 or Level 3 applicant (except an applicant who is 65 or older) must verify that he or she has a medical disability before the process can continue. The applicant must have a form GA-341 Medical Assessment of Employability Status filled out by a medical professional. County Regulations, 49-102.3.III. Applicants with significant disabilities, who lack money, health insurance, transportation, and regular physicians, experience long delays while trying to gain access to a doctor, and sometimes find it impossible to have these forms executed. In that case, they will be treated as Level 1 applicants and must perform the job search. Petitioner Kim Fortune’s experience, described in Paragraphs 65-70, provides one example of how this requirement blocks or significantly delays critically needed aid for eligible persons. 14. Respondents’ GA application process is riddled with more unnecessary delays and traps. Exhibit A hereto is a diagram of Contra Costa County’s application process, which is included in its GA Handbook for eligibility workers. It depicts a multi-step process of at least four in-person meetings, with delays between these meetings, and requirements for numerous forms and follow-up verifications. In addition to the meetings and interviews already described, applicants must attend meetings to be pre-screened for possible mental health problems, other meetings to be screened for possible substance abuse, and further meetings and evaluations, depending upon the results of these screenings, all before Respondents will make an eligibility determination. Petitioners are informed and believe that Respondents require completion of at least 17 separate forms in most cases, and sometimes many more, almost none of which seek information that is necessary for a proper eligibility determination. (For example, one form requires a lengthy employment history, which is not relevant to eligibility for GA, for which current indigence is what matters.) If a recipient misses one of these many meetings or fails to return a required form by the Respondents’ deadline, aid can be denied or delayed. Only after all of these interviews, forms, job searches, psychological and other evaluations, have been completed will the County tak[e] action to grant or deny the application within 7 working days following the receipt of the last piece of verification. County Regulations, 49-102.VI.D.17. 15. As a result of these and other delays that Respondents build in to their application 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 6 process, Petitioners are informed and believe that many eligible applicants for General Assistance in Contra Costa County abandon their applications. Respondents have publicly touted that fact, and have even touted the amount of money purportedly saved as a result (e.g., $1,394,400 in 2002). It is also notable that the County Employment and Human Services Fiscal Year 2009- 2010 Recommended Budget projected spending nearly 3.8 times more money on eligibility for GA ($3,862,554) than on actual benefit payments ($1,043,154). (The eligibility costs apparently include costs of the unreasonable work programs, substance abuse programs (see Paragraphs 58-64, describing Petitioner Roderick Henderson’s experience), other programs that Respondents require recipients to participate in to maintain their eligibility, and shelter costs.) Contra Costa’s County’s Burdensome Application Process Includes Many Elements That Are Not Necessary For Determining Eligibility 16. A proper GA eligibility determination process is very simple. GA eligibility is essentially based on indigence (lack of income or significant assets) and residence in the county. Disability assessment is not a requirement for eligibility. The worker may need to verify that no disqualifying factors exist, and thus may need to verify immigration status, may need to determine that a period of ineligibility has expired (e.g., a period of suspension of GA as a sanction (see W & I Code 17001.5(a)(3)), or previous receipt of time-limited CalWORKs benefits), or may need to verify that the applicant is not a fleeing felon. Little else is needed to verify eligibility for GA. 17. Databases are available to the county welfare agency to quickly check information that is relevant to eligibility for GA. An applicant’s earned income or lack of income can be checked in a matter of moments, using the applicant’s Social Security number with the various computer matching systems that counties already use to prevent fraud in the welfare program. Criminal background checks, and verification that an applicant is not currently ineligible due to an unexpired sanction period or previous receipt of CalWORKs benefits, are similarly simple. 18. In the county-administered Food Stamp program, Contra Costa County must verify similar eligibility criteria and complete nearly all Food Stamp eligibility determinations within 30 days. Petitioners are informed and believe that counties, including Contra Costa 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 7 County, are nearly always able to determine eligibility for Food Stamps and begin providing aid in 30 days or less. 19. Counties may require employable recipients of GA to participate in job training or job search efforts, and\/or to limit the number of months in any twelve-month period when a person who is employable may receive GA — both only if job skills or job training sessions are offered to such recipients. Counties may also require recipients of GA to pursue applications for other benefits for which they may qualify, such as SSI benefits for the aged, blind, or totally disabled. In order to implement these statutory provisions, and\/or to provide potentially useful SSI advocacy, job training, or other services to recipients, GA recipients may be required to cooperate with a county’s reasonable procedures for evaluating their employability and\/or their potential disabilities, and\/or requirements for job searches as a condition of maintaining their eligibility for GA benefits once those benefits have begun. There is no need and no authority, however, for Respondents’ requirements that applicants for General Assistance have their employability or disabilities evaluated, or perform job searches, as preconditions of eligibility for General Assistance. Respondents Have No Overall Time Limit For Granting GA Applications 20. Respondents’ regulations include many deadlines for GA applicants and references to the applicant’s duty of promptness. See, e.g., County Regulations, 49- 111.1.B; 49-102.II.B.5; 49-102.III.A. However, Respondents’ regulations impose no overall time limit for their own GA eligibility determinations. Under Respondents’ improper regulations, Respondents’ eligibility workers must only determine eligibility within seven working days of receipt of the ‘last piece of verification’ (County Regulations, 49-102.IV.D.17), but have unfettered discretion as to when to schedule the many meetings and other steps that their application process requires, and how quickly to obtain the verifications referred to in section 49- 102.IV.D.17 of the County Regulations. 21. In comparison, although San Francisco County has many thousands more GA applicants than Contra Costa County, Petitioners are informed and believe that it currently schedules most intake appointments within 5 days of the application, and completes the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 8 application process within another 15 days. If approved, the client will receive benefits starting the following day. If the applicant was presumptively eligible, he or she may even receive shelter and other benefits following the intake appointment. Many other counties mandate that GA applications be processed in no more than thirty days. See, e.g., Sacramento GA Handbook Chapter 100-103.4.41; Los Angeles GA Regulation 40-103.2; Mono County GA Regulation 7.50.040.A.6; Inyo County Standards and Regulations for General Assistance, I.E.6. 22. Also unlike many other counties, Contra Costa County provides only extremely limited emergency aid, generally limited to persons who are applying for SSI, and those in emergency situations who have non-liquid assets that they are trying to make available. In comparison, other counties provide for immediate emergency aid, eligibility for which is more closely tied to severity and immediacy of the need. As a further comparison, Federal law requires counties to process applications for expedited food stamps in three business days. 7 C.F.R. 273.2(a)(2). Under TANF, there must be arrangements to help applicants obtain emergency services on a 24-hour basis, 7 days a week. 45 C.F.R. 206.10(a)(5)(i). Respondents’ Failure To Pay Benefits Accruing From The Date Of Initial Application 23. For applicants who are finally deemed eligible for General Assistance, Respondents’ GA program precludes the payment of benefits accruing from the application date, no matter how long the applicant has been forced to wait for the application to be processed. Respondents’ regulations provide: The beginning date of aid is the date of application or the first of the month in which aid is authorized, whichever is later. County Regulations, 49-501.II.A. Thus, aid begins as of the first of the month in which the application is finally acted upon, except in the unusual case when an applicant applied after the first of the month and was approved in that same month, in which case aid would begin as of that later date of application. 24. In comparison, Petitioners are informed and believe that many other counties require that aid be paid retroactively to the date of application. See, e.g., Alameda County GA Regulations, 9-3-2.51; Inyo County Standards and Regulations for General And Emergency Assistance, E.6; Sacramento GA Handbook, Chapter 400-401.2; Riverside County Department Policy — General Assistance — 90-006.3; Los Angeles General Assistance Regulations, 44- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 9 307.1; Mono County GA Regulations, 7.50.040.B.1. Many other counties require aid to begin within a stated period of time after the filing of the application, even if processing of the application has not been completed (in some cases, with an exception if the delay is caused by the applicant). See, e.g., San Francisco County Adult Assistance Program Regulations, 93-1, p.407; 93-7, p.481; Santa Clara County GA Regulation 6.1.1; Alameda County GA Regulations, 9-1-6; Mono County GA Regulation 7.50.040.A.6. Respondents’ De Facto Limitation of Aid, For Purportedly Employable Recipients, To Only Three Months Out of Every Fifteen Months 25. W & I Code 17001.5(a)(4) permits counties to limit employable GA recipients to as little as three months of aid during any twelve month period (if such recipients have been offered job skills or job training sessions), whether or not such recipients remain unemployed and indigent. 26. Respondents take full advantage of Section 17001.5(a)(4), by limiting Level 1 purportedly employable recipients to just three months of aid during any twelve-month period. County Regulations Section 49-102.1.F.5. With Respondents’ built-in application processing delays, however, a person may wait for up to six months for aid to begin, only to have it terminated three months later. After nine more months without aid, such a purportedly employable recipient could begin the entire application process again, and would again be required to wait for an average of five to six months for aid to begin. After three months of subsistence aid, the entire cycle would begin again. The practical effect under Respondents’ system is that purportedly employable recipients are effectively limited to three months of aid in a fifteen month (or even longer) period, rather than the three-months-in-twelve that is the maximum aid limitation that W & I Code 17001.5(a)(4) permits. Contra Costa’s Disproportionately Low GA Caseload Reflects That Barriers To Aid In The County Are Anomalous And Unreasonable 27. Petitioners are informed and believe that these facts and other barriers to aid in Contra Costa County have resulted in a grossly disproportionate GA caseload in comparison with nearby counties. As of October 2008, 329 residents of the county received GA out of a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 10 population of about 1,019,640. In comparison, the neighboring Alameda County had a population of about 1,464,202 people, and a GA caseload of over 9,000. San Louis Obispo, a much smaller county with a population of about 260,000 had about 340 people on its GA caseload, about the same number of people as Contra Costa County. Petitioners are informed and believe that similar disparities are apparent when one compares counties’ GA caseloads as a percentage of the number of people within each county who are receiving Non-assistance Food Stamps ( NAFS ) (i.e., Food Stamps not tied to another federal public benefit such as CalWORKs or SSI). Statewide, 11.69% of people receiving NAFS receive General Assistance. Petitioners are informed and believe that in many large, urban, densely-populated counties that are comparable to Contra Costa in terms of their levels of poverty and unemployment, those percentages are much higher, for example: 33.9% in San Francisco, 29.02% in Alameda, 23.51% in Los Angeles, and 16.81% in Sacramento. In Contra Costa County, however, only 2.78% of people receiving NAFS receive General Assistance. Petitioners are also informed and believe that despite rising unemployment, Contra Costa County has kept its caseload steady for the past 4 years, at about 300 to 350. Respondents’ Actions Are Causing Irreparable Harm 28. Petitioners and other GA applicants have suffered and are continuing to suffer grievous and irreparable harm as a result of the facts alleged herein. By definition, General Assistance is last resort aid: Respondents’ delays in administering GA applications leave applicants without money to pay for their most basic needs for weeks or months. Even if applicants are able to ward off starvation or find shelter, they must struggle to survive without any money to pay for basic necessities such as food, clothing, shelter, utilities, hygiene, or transportation to medical appointments and job applications. 29. Petitioners are informed and believe that many applicants for GA are already homeless; many others are threatened with the imminent loss of their housing. Because homelessness is at record highs, and continues to increase, there are few, if any, shelter beds or other services available for GA applicants to rely upon while they are waiting for Respondents to decide their GA applications. Some are forced to sleep in parks, cars, churches, and the streets of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 11 the community, or in already overcrowded homeless shelters. Many applicants go hungry. Many applicants suffer declines in their physical health. While living on the streets, or in overcrowded and substandard conditions, applicants are exposed to the elements, to an increased risk of violence, and to communicable diseases and to other risks to their health. Waiting for weeks or months for Respondents to determine their eligibility for General Assistance, applicants often experience severe anxiety and depression; some suffer mental health crises. 30. Petitioners are informed and believe that General Assistance not only provides a subsistence cash stipend, but can also be a gateway to case management and to other public and private supportive services; the GA program can help to transition recipients into other benefit programs, or into self-sufficiency. GA caseworkers can help recipients to identify and apply for Food Stamps, Supplemental Security Income, Social Security Disability Insurance Benefits, Unemployment Insurance Benefits, and other public benefits for which they may be eligible, ultimately reducing the financial burden on the County as well as providing better support for the recipient. GA caseworkers can also provide recipients with referrals to public and private resources that can help with housing, medical care, mental health, job training, domestic violence, substance abuse, and other issues. Petitioners and other applicants whose General Assistance is delayed are deprived of ready access to these services, as well as of last resort financial help. 31. Petitioners are further informed and believe that Respondents’ pattern and practice of delaying the processing of GA applications has significant community impacts, and likely costs Contra Costa County taxpayers far more money than it may save. Living in destitution for indeterminate periods of time is physically unsafe and emotionally destabilizing for this vulnerable and fragile population. To live in such poverty triggers, among other things, physical and mental health crises that place burdens on County resources such as shelters, law enforcement, and public health facilities. As Respondents’ delays increase, affected applicants will crowd local hospitals. They are forced into increasingly crowded and unsafe housing, contributing to the spread of communicable diseases such as tuberculosis and HIV. They have difficulties maintaining hygiene. Some are forced to live on the streets, suffering from exposure to the elements, to the risk of violence, and to illnesses. These conditions increase emergency 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 12 room visits and impose other, already heavy burdens on public hospitals, law enforcement, charities, and other public and private resources, almost certainly resulting in increased public health costs far in excess of any savings to the county resulting from its illegal policies and practices. 32. Petitioners’ situations, described immediately below, are illustrative of the suffering and community-wide effects that Respondents’ delays will cause and are already causing. 33. Petitioners have no plain, speedy, and adequate remedy in the ordinary course of law other than the issuance by this Court of a writ of mandamus pursuant to the authority set forth in Code of Civil Procedure 1084 et seq. THE PARTIES Petitioner KENYONTA DOWNS 34. Petitioner KENYONTA DOWNS, an individual, is now, and at all times mentioned in this petition was, a resident of Contra Costa County, California. Mr. Downs is severely indigent and eligible for General Assistance under proper criteria, but he has been unable to receive GA, due primarily to Respondents’ job search requirement. After attempting for several months to have his eligibility determined, Mr. Downs became so discouraged that he gave up. 35. Mr. Downs has severe learning disabilities. He has difficulty reading and writing. He also has almost no work experience. These factors severely hamper Mr. Downs’ efforts to find work in today’s labor market. Mr. Downs has attempted to find work, but he has not been able to do so. 36. After unsuccessfully seeking employment, Mr. Downs applied for GA in Contra Costa County in January, 2008. He had earlier applied for GA in San Francisco, and was able to begin receiving help in two days. Respondents, however, told Mr. Downs that his application would take a long time. After submitting his application in January 2008, Mr. Downs did not even receive an appointment for the orientation session that Respondents require until March. 37. At about that time, Mr. Downs received a brief mental health examination, at 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 13 which he was merely asked if he was suicidal or had any health problems. Respondents labeled Mr. Downs as employable, and told him that he must apply for three jobs. 38. Applying for three jobs was very difficult for Mr. Downs, and there was no realistic prospect that it would lead to any work for him. He had little work experience and did not know how to look for job openings. Respondents did not help him with this. He had no transportation, and had to rely on family members to take him to prospective employers’ businesses when they could. Because of his difficulty with reading and writing, Mr. Downs also had to ask family members to go with him to help him to understand and fill out the job applications. 39. Despite all of these hardships, and with great effort, Mr. Downs did apply for three jobs. On April 8, 2008, however, three months after he initially applied, after he had made at least three separate trips to the GA office and many trips to apply for jobs, and after he had submitted all of the required paperwork, Mr. Downs’ application for General Assistance was denied. All of the job applications that Mr. Downs had made were disallowed based on criteria that Respondents had not adequately explained in advance. 40. Respondents disallowed one application because according to Respondents, and unbeknownst to Mr. Downs, the employer had no job openings, even though it was taking applications. Respondents disallowed another application that Mr. Downs had submitted to Starbucks because, according to Respondents, there were no job openings at the specific Starbucks location where Mr. Downs submitted his application, and this disqualified the job application under Respondents’ unwritten criteria. Respondents rejected the third application, which Mr. Downs submitted to Express Personnel Services, because the prospective employer was a temporary agency. Unbeknownst to Mr. Downs, and for reasons that Respondents have not explained, Respondents would not count such an agency as an employer. Respondents also gave other reasons for denying Mr. Downs’ application for General Assistance, claiming not to have received information regarding his housing situation that Mr. Downs had in fact submitted. Thus, three months after Mr. Downs had filed his application, he was still without any aid. 41. Mr. Downs did not file a timely appeal of this decision because he did not 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 14 understand the procedural requirements. He has been told that his only recourse is to start the application process again. The process was so time-consuming, burdensome, expensive, and discouraging for both Mr. Downs and his family members that he has not done so. 42. Mr. Downs continues to be unemployed, indigent, and in desperate need of assistance. He is forced to rely on his mother, who is also disabled and very poor, for help. They struggle to meet their basic needs. 43. In addition to his own interest in having his application acted upon promptly, and in not being subject to improper pre-eligibility requirements if and when he reapplies for benefits, Mr. Downs is interested as a citizen in having the GA laws executed and the duties that they establish enforced. Petitioner JOSEPH LUGO 44. Petitioner JOSEPH LUGO, an individual, is now, and at all times mentioned in this petition was, a resident of Contra Costa County, California. Mr. Lugo is a 50-year-old resident of Richmond. He is indigent. Although he is now receiving General Assistance, Mr. Lugo was forced to survive without any aid for six months while Respondents processed his application. He suffered great hardship during that time, with severe and lasting effects to this day. Even though Mr. Lugo was eligible for aid on the date when he applied, Respondents have refused to pay aid retroactively to that date, and have thus effectively denied Mr. Lugo many months of aid for which he was eligible. 45. Mr. Lugo is indigent because he is unable to work. Although Mr. Lugo was employed for many years, a back injury has made it impossible for him to work since about 1989. He was receiving Social Security Disability Insurance benefits until they ran out in August, 2006. After that, he was receiving Supplemental Security Income benefits because of his disability, but his SSI was terminated, after which he had no income at all. 46. Mr. Lugo owns his home, where he has lived for about 25 years. While receiving SSDI, and later SSI, he was able to make his mortgage payments. Since losing his SSI, however, Mr. Lugo has exhausted his savings to make those payments and meet his other basic needs. 47. Mr. Lugo first applied to Respondents for GA in 2007, but Respondents’ staff 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 15 treated him so rudely that he dropped that application. On July 21, 2008, Mr. Lugo again applied for GA because he had spent all of his savings, could not pay his mortgage, and was desperate. Respondents told Mr. Lugo that his application could take up to three months. 48. Respondents did not give Mr. Lugo his first intake appointment until October 16, 2008, nearly three months after he applied for aid. At that appointment, Respondents’ worker repeatedly asked Mr. Lugo how he was going to make his mortgage payments. Mr. Lugo explained that his plan was to work on having his SSI reinstated, and make the mortgage payments at that time; in the meantime, he was not making the payments, but the lender was not threatening any action. Eventually, in late October 2008, Respondents denied Mr. Lugo’s application on the basis that he had excess housing costs. Mr. Lugo filed an administrative appeal, and in early January, 2009 the Agency settled with him, determining that he is, in fact, eligible for GA. Mr. Lugo did not actually begin to receive any assistance until mid-February, 2009 — more than six months after he applied. 49. Although they have now finally agreed that Mr. Lugo is eligible for benefits, and was eligible for benefits when he applied in July of 2008, Respondents will only pay benefits going back to November, 2008. Respondents refuse to pay benefits accruing from the date of Mr. Lugo’s application. 50. The six month period that Mr. Lugo waited for Respondents to process his GA application was a traumatic experience that continues to affect him today. He suffered severe depression and anxiety, as well as privation. He felt hopeless, despondent, and humiliated by his inability to pay for his most basic needs, and by Respondents’ treatment of him. Mr. Lugo’s utilities were cut off, including his water. He had to borrow water from neighbors to drink, to cook, and even to give to his pet cat. 51. In addition to the severe anxiety and fear that Mr. Lugo has suffered, and continues to suffer, concerning his own circumstances, he is concerned about the homelessness, illness, hunger, and other hardships faced by other indigent people whose applications for subsistence benefits Respondents will unlawfully delay. In addition to his own interests in having his application promptly processed, and in obtaining the retroactive benefits to which he is 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 16 entitled, Mr. Lugo is also interested as a citizen in having the GA laws executed and the duties that they establish enforced. Petitioner FREDERICK SMITH 52. Petitioner FREDERICK SMITH, an individual, is now, and at all times mentioned in this petition was, a resident of Contra Costa County, California. Mr. Smith is severely indigent, and he was eventually found to be eligible for General Assistance. He receives a total GA grant of $134 per month. In order to receive that very small amount of assistance, Mr. Smith was forced to wait for five months without any aid, traveling to Respondents’ GA office many times, only to find that no one was available to see him at the appointed times, or that Respondents had lost paperwork that he had previously provided. 53. Mr. Smith is 56 years old. He has lived in Contra Costa County for all of his life. He was an architectural designer, working in the city of Richmond, California. However, Mr. Smith has suffered two strokes, resulting in disabilities that have made it impossible for him to work since 2000. As a result of the strokes, Mr. Smith has great difficulty communicating. He also suffers from arthritis and has pinched nerves in his back. He has applied for Social Security Disability benefits and is waiting for a hearing. 54. Mr. Smith did not apply for GA immediately after he became disabled, in part because he had heard that the process was so time-consuming and frustrating that it was not worth it. He did obtain Food Stamps, and his Food Stamp application was decided in only three days. 55. After unsuccessfully attempting to support himself with odd jobs while waiting for his Social Security application to be acted upon, Mr. Smith finally applied for GA in Contra Costa County in September, 2008. He did not even receive an appointment for the orientation session that Respondents require until October 22, 2008. At the orientation, he told the worker that he was disabled and could not work, and was told to return in 30 days. 56. Mr. Smith did return to Respondents’ office the following month, but thereafter he had to go back and forth to Respondents’ office several times because he was told he did not have the right forms, Respondents had lost paperwork that he had previously provided, the eligibility worker was not in the office at the time of his appointment, the office was closed, and so on. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 17 Through no fault of his own, meetings were rescheduled three and four times. 57. Mr. Smith finally had an intake appointment on January 27, 2009 and began receiving GA benefits on February 4, 2009, about five months after he had first applied. His GA grant is only $134 per month. Respondents did not provide aid to cover the period between the date of his application for benefits and the date when Respondents finally acted on it. Apart from leaving him penniless for close to half a year, the entire experience has left Mr. Smith feeling degraded and humiliated. In addition to his own interest in not experiencing future delays if he is ever required to reapply for benefits, and his interest in obtaining the retroactive benefits to which he is entitled, Mr. Smith is interested as a citizen in having the GA laws executed and the duties that they establish enforced. Petitioner RODERICK HENDERSON 58. Petitioner RODERICK HENDERSON, an individual, is and at all times pertinent hereto has been a resident of Contra Costa County, California. He moved to Contra Costa County from Sacramento in September 2008 because he heard that there were more opportunities for work than in Sacramento, where he had been unable to find work, and was homeless, for a year. Although Mr. Henderson has an Associate Degree and no criminal record, he still could not find work in Contra Costa County, due to the recent economic situation. 59. In October 2008, Mr. Henderson applied for General Assistance and Food Stamp benefits. He was approved for Food Stamps in November 2008, but waited six weeks before even being given an orientation appointment for General Assistance. At the orientation, in late November, he was given another appointment to come back to the office at a later date. 60. Over the next few months, between November and March, Mr. Henderson was required to bring additional paperwork to his GA worker many times. This was very difficult for him, because he did not have any money and could not afford bus fare. For example, Mr. Henderson was told he had to bring additional paperwork because he purportedly was eligible for Unemployment Insurance Benefits, even though he explained that he had not been working for the past year. He was ultimately found ineligible for Unemployment Insurance Benefits, and this served no purpose other than to delay and complicate his application for General Assistance. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 18 61. While waiting for General Assistance benefits, Mr. Henderson was without shelter. He slept wherever he could, mainly in public places or in the woods. He had no possessions. He received food from a church, and people in the community helped him occasionally, or let him use their shower. 62. In December 2008, while still waiting for his application for GA to be decided, Mr. Henderson was hired at United Parcel Service (UPS). However, shortly thereafter, he was injured at work when a large box fell on his knee. He tore his meniscus and could not work anymore. In April 2009, Mr. Henderson finally received his first General Assistance payment, five months after he applied. He did not receive aid to cover the period after he applied for aid, during which he waited for Respondents to find that he was eligible. 63. One month later, in May 2009, Mr. Henderson’s benefits were wrongfully terminated. During the application process, in a questionnaire that Respondents required him to fill out, Mr. Henderson had disclosed that he had previously smoked marijuana, even though he had not done so for two years before applying for General Assistance. Respondents required him to attend meetings of GAADDS, which is Contra Costa County’s General Assistance program’s drug and alcohol dependency program, even though he did not use marijuana anymore. Unable to walk and under a doctor’s care due to his knee injury, Mr. Henderson could not attend the April GAADDS meeting. Although he brought his medical documentation and doctor’s recommendation to the General Assistance office, Respondents refused to reschedule his GAADDS appointment and terminated his aid. Mr. Henderson had waited for more than five months for his benefits to begin, and had received them for only one month. 64. In addition to his own interest in not experiencing future delays if and when he reapplies for benefits, and his interest in obtaining the retroactive benefits to which he is entitled, Mr. Henderson is interested as a citizen in having the GA laws executed and the duties that they establish enforced. Petitioner KIM FORTUNE 65. Petitioner KIM FORTUNE, an individual, is and at all times pertinent hereto has been a resident of Contra Costa County, California. She has lived in the county for over 15 years. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 19 Ms. Fortune worked for thirty years, but she lost her job when the national economy fell into a recession. She lived for a short time on the money from a small retirement account, but it ran out, and by September of 2008, Ms. Fortune could no longer afford to pay her home mortgage. By November of 2008, she was relying on Food Stamps to get enough to eat. 66. Ms. Fortune applied for GA benefits in November of 2008, did not have her first appointment until January 7, 2009, did not meet her case worker until February 4, 2009, and did not receive any benefits until April, 2009. During the protracted application process, Ms. Fortune had no money, was living on Food Stamps, and was in poor health from Graves’ disease. She informed the worker of her health condition and the worker gave Ms. Fortune the Medical Assessment of Employability form. However, the form was required to be signed by a doctor, and Ms. Fortune had no health coverage, no doctor, and no money to hire one. She therefore tried to apply for GA as an employable person. 67. As a purportedly employable person, Ms. Fortune was required to conduct a job search before receiving assistance. Without any money, Ms. Fortune could not buy soap, toothpaste or toilet paper, so she was required to perform this job search without being able to get herself clean, and with unwashed clothes. She was given only three bus passes for local routes, so she was limited to searching for work within the city limits. She had to give Respondents’ worker prospective employers’ phone numbers, even though phone calls by a GA worker to these employers would be very embarrassing and likely to diminish Ms. Fortune’s chance of being hired. Requiring her to attend interviews unclean, effectively restricting her travel to the city limits, and insisting on obtaining prospective employers’ phone numbers damaged Ms. Fortune’s chance of obtaining work. 68. When she was unable to meet the physical demands of the required job searches, Ms. Fortune returned to her case worker and explained that she needed to change her application status to that of a non-employable person. Although the worker told Ms. Fortune that the Contra Costa Regional Medical Center would give her a health exam free of charge, Respondents’ requirement for a doctor’s examination as part of her GA application turned out to be a Catch-22. The Medical Center required Ms. Fortune to apply for Basic Health Care, and warned her that if 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 20 she was found ineligible for that coverage, she would have to reimburse the Medical Center for the exam and all related costs. Ms. Fortune could not risk owing the County this money, so she applied for the health coverage and waited for it to be approved. Ms. Fortune’s GA case worker wanted all the forms to determine my GA eligibility by February 26, 2009. Ms. Fortune asked for more time to complete the medical exam. But the case worker said she needed to make a determination based on the information Ms. Fortune had given her by that date. Although Contra Costa Health Services approved Ms. Fortune’s application for Basic Health Care on February 24, and gave her an appointment to see a doctor on March 3, 2009, Ms. Fortune received a GA denial on March 4 due to the absence of a medical certification in her file — even though by that time she finally did have a signed medical release from a doctor. (Ms. Fortune was also denied GA benefits because, based on a used car salesperson’s guesstimate, her 1992 Subaru was valued at $100 over the $500 limit applicable to a car.) 69. After Ms. Fortune appealed Respondents’ denial of General Assistance, her application, first made in November 2008, was finally approved on April 1, 2009. During the five month long process, her water was shut off, her phone was disconnected, her utility service was threatened with disconnection, and her mortgage lender had begun foreclosure proceedings on her home of 15 years. She did not receive aid to cover this period. 70. In addition to her own interest in not experiencing future delays if she is ever required to reapply for benefits, and her interest in obtaining the retroactive benefits to which she is entitled, Ms. Fortune is interested as a citizen in having the GA laws executed and the duties that they establish enforced. Petitioner DEBRA CHEATHAM 71. Petitioner DEBRA CHEATHAM, an individual, is now, and at all times mentioned in this petition was, a resident of Contra Costa County, California. She lives in Richmond. Ms. Cheatham is 55 years old and is indigent. Ms. Cheatham waited for three months for Respondents to determine that she was eligible for benefits, during which she was required to subsist without the aid for which she was eligible. Respondents have not paid aid accruing from the date of her application. Even now, Ms. Cheatham does not receive the full 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 21 grant amount to which she is entitled, and receives only $158 per month to meet all her needs because Respondents are refusing to remit the rent portion of her grant either to Ms. Cheatham or to her landlord as a result of the landlord’s (not Ms. Cheatham’s) inability to provide certain information that Respondents require. As a result, Ms. Cheatham is threatened with the loss of her home. 72. Ms. Cheatham is a survivor of domestic violence, who had to live in a shelter for battered women for a time. As a result, she has lifelong scars and suffers from Post Traumatic Stress disorder, as well as seizures, migraines, chronic pain, and other disorders. The combination of these factors makes it impossible for her to work. 73. Ms. Cheatham first applied to Respondents for GA in 2004, but was told that she could only receive benefits for three months (apparently because Respondents had deemed Ms. Cheatham to be employable and intended to time-limit her aid on that basis). As a result, Ms. Cheatham dropped that application, and moved in with a roommate, who paid the rent. Ms. Cheatham’s roommate died in May of 2008, and Ms. Cheatham again applied for GA. 74. Respondents took three months to act on Ms. Cheatham’s application. She was without any aid during that entire time. Even though her application was eventually granted, Respondents refuse to pay benefits accruing from the date of Ms. Cheatham’s application. 75. During the three months that Ms. Cheatham was forced to wait for her GA application to be resolved, her bills became delinquent and her telephone was cut off. Especially because of her experience as a victim of domestic violence, Ms. Cheatham became terrified about how she could call for help if there were an emergency. Her privation and anxiety worsened her already serious mental health problems. 76. Respondents’ conduct has also destabilized Ms. Cheatham’s housing situation, Since her application was granted, Ms. Cheatham has received $158 per month, which is intended to cover all her needs other than rent. Respondents refuse to disburse the balance of Ms. Cheatham’s GA grant amount, representing rent, either to her or to her landlord; they have repeatedly rejected information that the landlord has supplied, which they insist upon having before they will begin making the rent payments. (Respondents claim that the landlord’s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 22 taxpayer identification number is incorrect.) Every month, the manager of the property where Ms. Cheatham lives becomes angry with her because Respondents have not paid the rent on her behalf, nor have Respondents paid the housing portion of the grant to Ms. Cheatham so that she can pay her landlord. Ms. Cheatham fears losing her housing, and this causes her extreme, continuing anxiety. 77. Ms. Cheatham is also worried about Respondents’ plan to shut down many of their GA offices. Her disabilities would make it very hard to get to any other office if the one in Richmond, where she lives, were shut down. 78. In addition to the anxiety and fear that Ms. Cheatham has suffered, and continues to suffer concerning her own circumstances, she is concerned about the homelessness, illness, hunger, depression, fear, and other hardships faced by other indigent people whose applications for subsistence benefits have been or will in the future be unlawfully delayed. In addition to her own interests in having her application promptly processed should she ever need to reapply for GA, and in obtaining the retroactive benefits to which she is entitled, Ms. Cheatham is also interested as a citizen in having the GA laws executed and the duties that they establish enforced. Respondents 79. Respondent COUNTY OF CONTRA COSTA ( Contra Costa County ) is a political body of the State of California and pursuant to W & I Code 17000, is responsible to relieve and support all incompetent, poor, indigent persons, and those incapacitated by age, disease, or accident. 80. Respondent BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY (the Board of Supervisors ) is the legislative body charged by law with adopting proper standards of general assistance aid and care for county indigent residents pursuant to the Welfare and Institutions Code. 81. Respondent CONTRA COSTA COUNTY HEALTH AND HUMAN SERVICES DIVISION is responsible for administering Contra Costa County’s GA program within Contra Costa County, and responsible for supervision and oversight of Respondent CONTRA COSTA COUNTY EMPLOYMENT AND HUMAN SERVICES DEPARTMENT. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 23 82. Respondent CONTRA COSTA COUNTY EMPLOYMENT AND HUMAN SERVICES DEPARTMENT is directly responsible for administering Contra Costa County’s GA program within Contra Costa County, including the administration of applications for GA benefits described herein. 83. Respondent DOROTHY SANSOE is the Deputy County Administrator of Respondent CONTRA COSTA COUNTY HEALTH AND HUMAN SERVICES DIVISION. Petitioners sue Ms. Sansoe in her official capacity only. Ms. Sansoe is responsible for the enforcement, operation and execution of laws pertaining to the Contra Costa County Health and Human Services Division’s and Contra Costa County Employment and Human Services Department’s administration of the GA program, including the administration of applications for GA benefits described herein. 84. Respondent JOE VALENTINE is the Director of RESPONDENT CONTRA COSTA COUNTY EMPLOYMENT AND HUMAN SERVICES DEPARTMENT. Petitioners sue Mr. Valentine in his official capacity only. Mr. Valentine is responsible for the enforcement, operation and execution of laws pertaining to Respondents’ administration of the GA program, including the administration of applications for GA benefits described herein. 85. Petitioners are ignorant of the true names and capacities of Respondents herein named as respondents DOES 1 through 10 and therefore sue these Respondents by these fictitious names. Petitioners will amend this petition to sue these Respondents by their true names when they are ascertained. JURISDICTION AND VENUE 86. This Court has jurisdiction over this matter pursuant to Code of Civil Procedure section 1085. 87. Venue in Contra Costa County is proper under Code of Civil Procedure section 394. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 24 FIRST CAUSE OF ACTION For A Writ of Mandate To Compel Respondents To Comply With The Mandates To Provide General Assistance In A Prompt and Humane Manner (W & I Code 17000, 10000, 11000 and 11055 and Contra Costa County GA Regulations) 88. Petitioners incorporate by reference herein each and every allegation of Paragraphs 1 through 87 as though fully set forth herein and allege: 89. W & I Code 17000 mandates counties to relieve and support all incompetent, poor, and indigent persons. Section 10000 requires that the GA program be administered to achieve its purpose of providing appropriate aid and services to all of [the State’s] needy and distressed . . . promptly and humanely . . . . Section 11000 requires that GA laws be construed fairly and equitably. In addition, Section 11055 mandates that The county shall promptly investigate all applications for public assistance as prescribed by the regulations of the department. 90. At all times relevant to this action, Respondents have had clear, mandatory duties and prohibitions imposed by 17000, 10000, 11000 and 11055. 91. Respondents’ practice of taking three to six months to determine applicants’ eligibility for GA conflicts with these mandates, in particular the duty to administer aid promptly and humanely. 92. Petitioners are directly and beneficially interested in having Respondents comply with all applicable provisions of law and their legal duties, as set forth herein. 93. Unless compelled by this Court to refrain from acts as required by law, Respondents will continue to refuse to perform said duties and continue to violate the law, and Petitioners will be injured as a result. SECOND CAUSE OF ACTION For A Writ of Mandate Compelling Respondents To Cease Imposing Their Pre- Eligibility Orientation, Employability Evaluation, Disability Evaluation And Verification, And Job Search Requirements (W & I Code 17000, 10000, And 11000 To Aid All Of The County’s Indigent Residents Promptly And Humanely ) 94. Petitioners incorporate by reference herein each and every allegation of Paragraphs 1 through 93 as though fully set forth herein and allege: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 25 95. Under W & I Code 17000, Respondents must support all of the County’s indigent residents promptly and humanely, and therefore may not erect unreasonable obstacles to such aid that are not narrowly tailored to serve a legitimate governmental purpose. Respondents lack discretion to exclude eligible classes of people. 96. At all times relevant to this action, Respondents have had clear, mandatory duties and prohibitions imposed by 10000, 11000, and 17000. 97. Respondents’ application requirements for orientations, employability assessments, disability evaluations and verifications, and job search efforts, all as pre-conditions for eligibility that must be satisfied before aid begins, are unlawful because they violate these prohibitions and are unnecessary and unreasonable to effectuate GA program purposes. 98. Petitioners are directly and beneficially interested in having Respondents comply with all applicable provisions of law and their legal duties, as set forth herein. 99. Unless compelled by this Court to refrain from acts as required by law, Respondents will continue to refuse to perform said duties and continue to violate the law, and Petitioners will be injured as a result. THIRD CAUSE OF ACTION For A Writ of Mandate Compelling Respondents To Comply With Their Duty To Provide Retroactive Aid To Applicants Determined To Be Eligible (California Constitution, Article 1, Section 7; W & I Code 10000, 11000, 11056) 100. Petitioners incorporate by reference herein each and every allegation of Paragraphs 1 through 99 as though fully set forth herein and allege: 101. W & I Code 11056 mandates that Respondents must pay aid effective as of GA applicants’ application dates if they meet all eligibility conditions (e.g., residence, resource limitations, immigration status, and the like) on that date. Section 11056 provides: If the applicant is determined to be eligible, aid shall be granted from the date of application if the applicant meets all eligibility conditions on that date, or from the date on which the applicant meets all eligibility conditions, whichever is later. Under any proper and equitable interpretation of that statute, it is unlawful for Respondents to create purported eligibility conditions, such as 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 26 their job search requirement, which cannot be satisfied as of the date of application, and Respondents may not defeat the intent and purpose of 11056 in this manner. 102. In addition, under the common law, including California Supreme Court authorities, when a person who applies for aid is ultimately found to be eligible, the aid must date back to the day of application. Otherwise, Respondents have every incentive to use the application process as a waiting period, and effectively deny benefits to which applicants are indisputably entitled, in breach of a debt which is owed by Respondents to such applicants, an injustice with constitutional implications under the due process clause of the California Constitution, Article 1, Section 7.4 103. W & I Code 10000 requires that aid shall be administered and services provided promptly and humanely. Respondents’ indefinite delay in the provision of aid, combined with their failure even to pay retroactive benefits after indigent, eligible applicants have waited weeks or months for aid, violates this mandate. 104. At all times relevant to this action, Respondents have had clear, mandatory duties and prohibitions imposed by the California Constitution, Article 1, 7, and W & I Code 10000, 11000, and 11056. 105. Petitioners are directly and beneficially interested in having the Respondents comply with all applicable provisions of law and their legal duties, as set forth herein. 106. Unless compelled by this Court to refrain from acts as required by law, Respondents will continue to refuse to perform said duties and continue to violate the law, and Petitioners will be injured as a result. FOURTH CAUSE OF ACTION For A Writ of Mandate Compelling Respondents To Comply With Their Duty To Pay Aid That Accrued From The Date of Application To The Date As Of Which Aid Actually Commenced, To Past And Present Recipients Of General Assistance (California Constitution, Article 1, Section 7; W & I Code 10000, 11000, 11056) 107. Petitioners incorporate by reference herein each and every allegation of 4 Petitioners do not allege a violation under federal due process law. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 27 Paragraphs 1 through 106 as though fully set forth herein and allege: 108. W & I Code 11056 mandates that Respondents must pay aid effective as of GA applicants’ application dates if they meet all eligibility conditions (e.g., residence, resource limitations, immigration status, and the like) on that date. 109. Respondents have failed and refused to pay current recipients of General Assistance, and past recipients, aid accruing between the dates of their applications and the dates as of which aid finally began, as required by law. 110. As stated above in Paragraphs 101 and 102, the payment of aid accruing from the date of application is required by statute, and by the common law, which recognizes such aid as a debt due to the applicant for benefits who is ultimately found to be eligible. Nonpayment of such aid, permitting Respondents to use the application process as a waiting period, and deny benefits to which applicants are indisputably entitled, is an injustice with constitutional implications under the due process clause of the California Constitution, Article 1, Section 7.5 111. At all times relevant to this action, Respondents have had clear, mandatory duties and prohibitions imposed by the California Constitution, Article 1, 7, and sections 10000, 11000, and 11056. Petitioners are directly and beneficially interested in having the Respondents comply with all applicable provisions of law and their legal duties, as set forth herein. 112. Unless compelled by this Court to refrain from acts as required by law, Respondents will continue to refuse to perform said duties and continue to violate the law, and Petitioners will be injured as a result. FIFTH CAUSE OF ACTION For A Writ of Mandate Compelling Respondents To Comply With Their Duty To Adopt Proper Standards Of Aid And Care (California Constitution, Article 1, Section 7; W & I Code 10000, 11000, 17001) 113. Petitioners incorporate by reference herein each and every allegation of Paragraphs 1 through 112 as though fully set forth herein and allege: 114. W & I Code 17001 mandates that Respondents must adopt standards of aid and 5 Petitioners do not allege a violation under federal due process law. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 28 care. Under the Due Process Clause of the California Constitution, and a proper interpretation of W & I Code 10000 and 11000, and under Respondents’ own policies and practices, such standards include the procedural requirements for the General Assistance application process, including time limits applicable to such requirements. 115. Respondents’ standards, however, do not include any promptness standards within which Respondents must make an eligibility determination, except that their regulations require that the determination must be made seven working days of receipt of the last piece of verification. County Regulations, 49-102.IV. D.17. Respondents’ failure to adopt any standard requiring Respondents to take any other step in the application process within a specific period of time (such as scheduling the orientation and employability and disability assessments that Respondents require, or obtaining verifications that they obtain independently of the applicant), and Respondents’ failure to adopt any maximum time between the application date and the eligibility determination, or even to adopt a standard requiring that they decide applications and administer aid promptly, violates these mandates and has constitutional implications under the due process clause of the California Constitution, Article 1, Section 7.6 116. At all times relevant to this action, Respondents have had clear, mandatory duties and prohibitions imposed by the California Constitution, Article 1, 7, and W & I Code sections 10000, 11000, and 11056. 117. Petitioners are directly and beneficially interested in having the Respondents comply with all applicable provisions of law and their legal duties, as set forth herein. 118. Unless compelled by this Court to refrain from acts as required by law, Respondents will continue to refuse to perform said duties and continue to violate the law, and Petitioners will be injured as a result. SIXTH CAUSE OF ACTION For A Writ of Mandate Compelling Respondents To Comply With Their Duty To Comply With W & I Code 17001.5(a)(4); And Their Own Regulation 119. Petitioners incorporate by reference herein each and every allegation of 6 Petitioners do not allege a violation under federal due process law. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 29 Paragraphs 1 through 118 as though fully set forth herein and allege: 120. W & I Code 17001.5(a)(4) permits counties to limit employable GA recipients to as little as three months of aid during any twelve month period, whether or not such recipients remain unemployed and indigent. The County limits Level 1 purportedly employable recipients to three months of aid during any twelve-month period. After nine months off aid, such persons can then reapply for aid, but under Respondents’ system will likely have to wait another five to six months before any aid begins. After three months of aid, they will be cut from the GA rolls and the entire cycle will begin again. 121. The practical effect is that Respondents will often limit purportedly employable recipients to three months of aid in a fifteen month (or even longer) period. 122. The maximum aid limitation based on a recipient’s purported employability that W & I Code 17001.5(a)(4) and County Regulations Section 49-101.1 permit, is a limitation to three months of aid in any twelve month period. 123. At all times relevant to this action, Respondents have had clear, mandatory duties and prohibitions imposed by W & I Code 17001.5(a)(4) and County Regulations Section 49- 101.1. 124. Petitioners are directly and beneficially interested in having the Respondents comply with all applicable provisions of law and their legal duties, as set forth herein. 125. Unless compelled by this Court to refrain from acts as required by law, Respondents will continue to refuse to perform said duties and continue to violate the law, and Petitioners will be injured as a result. PRAYER FOR RELIEF WHEREFORE, Petitioners pray for relief as follows: 1. Issue an alternative or peremptory writ of mandate commanding Respondents to administer their General Assistance program promptly and humanely, including without limitation, commanding Respondents to assure that no application is unreasonably delayed and that aid commences for every eligible applicant, and every applicant whose eligibility cannot immediately be conclusively determined, without delay. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 30 2. Issue an alternative or peremptory writ of mandate commanding Respondents to: (a) process applications and begin aid within ten days (or other specified time that the Court deems prompt and humane in the context of General Assistance, a last resort subsistence benefit for severely indigent people); or adopt a standard of aid consisting of a time limit within which Respondents must process applications and begin aid, and submit such regulation to this Court for approval under the prompt and humane requirement of the Welfare and Institutions Code; and (b) for any applicant for whom the period allowed has expired, presume that such applicant is eligible and pay aid to such applicant (at the highest GA grant level for which he may be eligible), until the application is resolved. 3. Issue an alternative or peremptory writ of mandate commanding Respondents not to impose pre-eligibility requirements, such as orientations, disability assessments, mental health and\/or substance abuse screenings, medical verification of disabilities, or job search efforts as pre-conditions for eligibility determinations or for the inception of any aid. 4. Issue an alternative or peremptory writ of mandate commanding Respondents (1) to pay benefits retroactively for Petitioners, and for all current applicants who are ultimately found to be eligible (a) as of the application date, or (b) if the applicant did not satisfy lawful and proper eligibility conditions (such as residence, resource limitations, citizenship\/immigration status, etc.) on the application date, as of the date when such lawful proper eligibility conditions were satisfied, both without regard to the date(s) when Respondents obtain any verifications of eligibility that they may require; and (2) commanding Respondents to exempt such retroactive payments from any calculation of income or resources that may affect a recipient’s eligibility for aid, or the amount of aid for which a recipient is eligible. 5. Pending judgment, issue a writ of mandate, requiring that Respondents comply with all of the requirements in Paragraphs 1 through 4 hereinabove in the interim. 6. Issue an alternative or peremptory writ of mandate commanding that for each current recipient of General Assistance in Contra Costa County, and each person who received General Assistance in Contra Costa County during any part of the three years before the filing of this 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 31 Petition (or such other period of time as may be equitable), Respondents shall: (1) pay benefits accrued between the date of such current or past recipient’s application (or the date on which such recipient satisfied all eligibility conditions as described in paragraph 4 hereinabove) and the date as of which Respondent paid aid to such recipient; and (2) exempt such payments from any calculation of income or resources that may affect a person’s eligibility for aid, or the amount of aid for which a such person is eligible. 7. Except for Bay Area Legal Aid, grant to Petitioners an award of appropriate attorneys’ fees and costs; and 8. Such other and further relief the Court considers proper. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDAMUS 32 Dated: July 22, 2009 THE PUBLIC INTEREST LAW PROJECT By:_________________________ JUDITH Z. GOLD BAY AREA LEGAL AID KATHERINE SIEGFRIED PAUL HASTINGS JANOFSKY & WALKER L LP GRACE CARTER Attorneys for Petitioners EXHIBIT A APPENDIX B REPLACES: GA HANDBOOK SECTION: 49-102 ISSUED\/REVISED: 01-01-2002 Application and Determination of Eligibility SECTION: 49-102 PAGE NO.: 1 EFFECTIVE: 01-23-2008 DMCL # 08-07 Contra Costa County Issued\/Revised: 01-30-2008 Employment and Human Services Department Manual Distribution: 1, 43, 46, H-32 DNA PROCESS STOPS DENYDENY DNA GENERAL ASSISTANCE SERVICE DELIVERY SYSTEM DENY DENY PRELIMINARY INTERVIEW PRELIMINARY INTERVIEW APPLICATI ON. TAKEN APPLICATI ON. TAKEN ORIENTATION BSI and SFIS ORIENTATION BSI and SFIS SAC CAM MSE LEVEL 1 EMPLOYABLE LEVEL 3 UNEMPLOYABLE LEVEL 2 CONDITIONALLY EMPLOYABLE ELIGIBILITY INTERVIEW ACCEPTABLE VERIFICATION RETURNED GA IS GRANTED GAADDS NO YES DNANO APPENDIX B REPLACES: GA HANDBOOK SECTION: 49-102 ISSUED\/REVISED: 01-01-2002 Application and Determination of Eligibility SECTION: 49-102 PAGE NO.: 2 EFFECTIVE: 01-23-2008 DMCL # 08-07 Contra Costa County Issued\/Revised: 01-30-2008 Employment and Human Services Department Manual Distribution: 1, 43, 46, H-32 CLIENT RECEPTION\/ APPLICATION CLERK PRELIMINARY INTERVIEWER (Case Manager) MSE INTERVIEWER CASE MANAGER WALK IN STEP 1 CLIENT COMES INTO OFFICE TO APPLY FOR GA LOGS CLIENT IN FOR PRELIMINARY INTERVIEW; OBTAINS NAME, SSN, DOB & PRINTS CLEARANCES TO BE GIVEN TO INTERVIEWER CONDUCTS PRELIMINARY INTERVIEW OF APPLICANT. REVIEWS SAWS-1 AND ASKS CLIENT TO SIGN IT IF APPROPRIATE. COMPLETES GA 4, GA 82 AND GA 341 IF APPROPRIATE GIVES THE SAWS1 AND COMPLETED FORMS TO RECEPTION CLIENT ATTENDS ORIENTATION. LOGS CLIENT IN FOR GROUP ORIENTATION CONDUCTS GROUP ORIENTATION GIVES INSTRUCTIONS FOR BSI. SFIS IS COMPLETED. APPOINTMENTS FOR MSE \/ SAC \/ CAM ARE MADE & GIVEN TO CLIENT. GA 4 CAN BE COMPLETED AT ANY TIME. BSI IS COMPLETED DURING ORIENTATION AND THEN SCANNED. ABS CLERK (SFIS-BSI Scheduling Clerk) SUBSTANCE ABUSE COUNSELOR APPLICATION IS REGISTERED IN CalWIN; ORIENTATION APP, GA 4 FILED FOR ORIENTATION APPENDIX B REPLACES: GA HANDBOOK SECTION: 49-102 ISSUED\/REVISED: 01-01-2002 Application and Determination of Eligibility SECTION: 49-102 PAGE NO.: 3 EFFECTIVE: 01-23-2008 DMCL # 08-07 Contra Costa County Issued\/Revised: 01-30-2008 Employment and Human Services Department Manual Distribution: 1, 43, 46, H-32 STEP 4 CLIENT RECEPTION\/ APPLICATION CLERK PRELIMINARY INTERVIEWER (Case Manager) CLIENT SENDS OR BRINGS IN REQUIRED\/ACCEPTABLE VERIFICATIONS LOGS CLIENT IN AND NOTIFIES INTAKE WORKER ACCEPTS VERIFICATIONS FROM CLIENT. SETS ALERTS FOR FOLLOW UP. DETERMINES ELIGIBILITY. DOCUMENTS IN CalWIN AND IN GA 158 X G. A. IS GRANTED. IF APPLICABLE, SCHEDULES GAADDS INTAKE APPOINTMENT. REFERRAL SENT TO ADVOCACY SERVICES FOR APPROPRIATE LEVEL 2 & 3. ALERTS SET AS APPROPRIATE. STEP 3 CLIENT RETURNS FOR INTAKE INTERVIEW; CHECKS IN WITH RECEPTION LOGS CLIENT IN, NOTIFIES INTAKE. ASKS CLIENT FOR INTAKE PACKET, CHECKS FOR COMPLETION AND GIVES ADDITIONAL PACKET IF NEEDED INITIATES THE GA INTAKE PROCESS. REVIEWS INFORMATION IN CalWIN AND CaseSTAR. IF APPROPRIATE, GIVES APPLICANT TASKS AND VERIFICATION DEADLINES CLIENT RETURNS FOR CAM AND MSE OR SAC LOGS CLIENT IN FOR CAM AND MSE OR SAC . ASKS FOR GA-41 AND GA 13, CHECKS FOR COMPLETION\/ GIVES ADDITIONAL COPY IF NEEDED. INTERVIEWS CLIENT. MAKES DETERMINATION. GIVES PAPERWORK TO CLERK. ABS CLERK (SFIS-BSI Scheduling Clerk) MSE INTERVIEW ER SUBSTANCE ABUSE COUNSELOR CASE MANAGER INTERVIEWS CLIENT. GIVES DETERMINATION TO CLERK. ENTERS SAC AND MSE RESULTS INTO CalWIN INTERVIEWS CLIENT FOR CAM. REVIEWS ALL APPLICABLE FORMS, CaseSTAR AND CalWIN. REVIEWS MSE AND SAC RESULTS, GA 41, GA 13 AND GA 341 AND DETERMINES LEVEL OF EMPLOYABILITY. COMPLETES PRELIMINARY CASE PLAN, ENTERS INFORMATION IN CALWIN. DOCUMENTS UNDER CAM COMMENTS IN CalWIN. SCHEDULES INTAKE APPOINTMENT. GIVES INTAKE PACKET AND VENDOR PACKET IF APPROPRIATE . FOR LEVEL 1: GIVES INSTRUCTIONS ABOUT JOB SEARCH AND INFORMS OF EMPLOYMENT SERVICES WORKSHOP AND BUS PASS AND 3 MONTH TIME LIMIT AND ASKS APPLICANT TO SIGN GA 34. FOR LEVEL 2: EXPLAINS GAADDS IF APPLICABLE. FOR LEVEL 3: EXPLAINS SSI APPLICATION REQUIREMENTS. HAS APPLICANT SIGN GA-34 AND CASE PLAN (GA-3), GATHERS FORMS (GA 41 & GA-13), GIVES TO RECEPTION CLERK. IF CASE MANAGER IS FIRST TO I.D. AOD INDICATORS, SCHEDULES A SAC AND RE-CAM AND COMPLETES GA-4. AT FINAL CAM APPT. WILL MAKE LEVEL DETERMINATION . STEP 2 ”

pdf Hall v USDA Class Action Complaint regarding SNAP pandemic supplemental payments

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” 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Alexander Prieto (SBN 270864) Richard Rothschild (SBN 67356) Antionette D. Dozier (SBN 244437) Rebecca Miller (SBN 317405) WESTERN CENTER ON LAW & POVERTY 3701 Wilshire Blvd., Suite 208 Los Angeles, CA 90010-2826 Tel: (213) 487-7211 Fax: (213) 487-0242 [email protected] [email protected] [email protected] [email protected] Lindsay Nako (SBN 239090) Jocelyn D. Larkin (SBN 110817) David S. Nahmias (SBN 324097) IMPACT FUND 2080 Addison Street, Suite 5 Berkeley, CA 94704-1693 Tel: (510) 845-3473 Fax: (510) 845-3654 [email protected] [email protected] [email protected] Attorneys for Plaintiffs and the Plaintiff Class UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ROBIN HALL and STEVEN SUMMERS, individually and on behalf of all others similarly situated, Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE and GEORGE ERVIN SONNY PERDUE III, in his official capacity as United States Secretary of Agriculture, Defendants. Case No. 3:20-cv-3454 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CLASS ACTION Case 3:20-cv-03454 Document 1 Filed 05\/21\/20 Page 1 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT [CASE NO. 3:20-cv-3454] 1 1. The United States is in the grip of the COVID-19 global pandemic, the worst in more than a century. It has created a dangerous public health crisis, unprecedented rates of unemployment, and profound social and economic disruption. Among the most immediate and urgent problems arising from the pandemic is hunger. Food prices are higher, many food staples are scarce, and shelter-in-place orders make food less accessible, particularly for those most vulnerable to the health risks of the coronavirus. One in four California households is now food insecure, telling public health researchers that the food we bought just didn’t last, and we didn’t have enough money to buy more. 2. In response to this public health crisis, Congress passed the Families First Coronavirus Response Act ( Families First Act ). Among its goals, the Act sought to address rising food insecurity and hunger with significant additional resources for the federal government’s Supplemental Nutrition Assistance Program ( SNAP, formerly known as the Food Stamp program). Congress directed the Secretary of Agriculture to approve state requests for emergency benefits to be distributed to current SNAP recipients to help them meet temporary food needs during the public health emergency. 3. The United States Department of Agriculture ( USDA ) has implemented an interpretation of the Act that departs from the statute’s directive and prevents state SNAP administrators, including the California Department of Social Services, from providing emergency food benefits to households that are receiving the maximum SNAP monthly benefit. These are the households with the lowest incomes, fewest resources, and greatest likelihood of hunger. USDA is denying emergency food assistance to those who need it the most in the midst of this unparalleled economic and health catastrophe. 4. Plaintiffs Robin Hall and Steven Summers challenge USDA’s interpretation of the Families First Coronavirus Response Act in a manner that denies emergency food benefits to the Californians most in need. \/\/ \/\/ \/\/ Case 3:20-cv-03454 Document 1 Filed 05\/21\/20 Page 2 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT [CASE NO. 3:20-cv-3454] 2 JURISDICTION, VENUE, AND RIGHT OF ACTION 5. This action is brought against an Executive Branch agency and a current Executive Branch official in his official capacity. The Court has subject matter jurisdiction pursuant to 28 U.S.C. 1331 (federal question jurisdiction), 28 U.S.C. 1346 (actions against the United States), and 5 U.S.C. 702 (providing for judicial review of agency action under the Administrative Procedure Act). 6. Venue in this judicial district is proper under 28 U.S.C. 1391(e)(1) because Plaintiffs Robin Hall and Steven Summers reside in the District. 7. Plaintiffs’ action for declaratory and injunctive relief is authorized by 28 U.S.C. 2201(a) and 2202 and by Rules 57 and 65 of the Federal Rules of Civil Procedure. 5 U.S.C. 702 confers rights of action to enforce the statutes cited in this complaint. PARTIES 8. Plaintiff Robin Hall is a resident of Santa Rosa in Sonoma County, California. She is currently eligible for and receiving the maximum SNAP benefits for her household size of one person. 9. Plaintiff Steven Summers is a resident of Oakland in Alameda County, California. He is currently eligible for and receiving the maximum SNAP benefits for his household size of one person, less $10 each month due to an earlier overissuance of benefits. 10. Defendant United States Department of Agriculture is the federal agency charged with implementing SNAP, which provides nutritional assistance to low-income individuals throughout the United States. 7 U.S.C. 2013(a). USDA’s component agency, the Food and Nutrition Service, administers SNAP. 7 C.F.R. 2.57(a)(1), 271.3(a). 11. Defendant George Ervin Sonny Perdue III is the current U.S. Secretary of Agriculture. As Secretary, he is responsible for all actions taken by USDA. 7 U.S.C. 2013(a). Secretary Perdue is sued in his official capacity. Case 3:20-cv-03454 Document 1 Filed 05\/21\/20 Page 3 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT [CASE NO. 3:20-cv-3454] 3 FACTS I. SNAP is an Essential Anti-Hunger Program, Serving Millions of Californians Through the CalFresh Program. 12. SNAP is the country’s largest anti-hunger program. It provides food to over forty million low-income individuals and families and is often the last resource to stave off hunger for children and adults across the country. 13. Recognizing that the limited food purchasing power of low-income households contributes to hunger and malnutrition among members of such households, Congress created SNAP to safeguard the health and well-being of the Nation’s population and alleviate . . . hunger and malnutrition by permit[ing] low-income households to obtain a more nutritious diet through normal channels of trade. 7 U.S.C. 2011. The federally funded program provides benefits that qualifying individuals can redeem for eligible foods at authorized retailers. Id. 2013(a). The program helps create financial stability for low- income individ