Smith v. Commissioner of Transitional Assistance, SJC-08169 (Mass. Sup. Judicial Court, May 26, 2000).
In a unanimous opinion, the Massachusetts Supreme Judicial Court has ruled that state law requires that TANF families seeking an extension at the end of the time limit must have the earned income disregard applied in determining eligibility for and the amount of the extension. The court upheld the lower court's orders detailing steps the department must take to comply with the order, rejecting the defendant's claims that the court had abused its discretion. This case challenged a Massachusetts TANF regulation which denied the earnings disregard in determining a family's eligibility for an extension to the time limit and in computing the extension grant, if the family was found eligible. Plaintiffs claimed the regulation violated provisions of the state TANF statute, a separate provision requiring that the TANF program be administered in a "fair, just and equitable" manner, and the federal and state constitutions. The lower court had granted summary judgment for plaintiffs on the claims that the regulation violated the state TANF statute and after the defendant delayed in restoring benefits subsequently entered various orders granting injunctive relief and requiring the defendant to take various steps. The defendant appealed and the Supreme Judicial Court transferred the case on its own motion from the Appeals Court. The Supreme Judicial Court has affirmed both the entry of summary judgment for plaintiffs and the injunctive orders and denied plaintiffs' motion to dismiss as moot the appeal with respect to two orders granting injunctive relief. With respect to the substantive claims, the court ruled that denial of the disregard in determining eligibility for an extension screens out families for an extension and constitutes a financial eligibility test that preempts consideration of the statutory factors for considering extension eligibility. It also interpreted the statute to require use of the disregards to determine eligibility and benefits throughout the eligibility period for benefits and "this would .include the period in which a recipient is eligible for benefits by way of an extension." It finds the department's regulation inconsistent with the statutory purpose of structuring incentives to promote individual responsibility and self-reliance. The court also affirmed the injunctive orders, rejecting defendant's claims that they violated separation of powers because they prescribed detailed implementation steps. The court upheld the orders, noting the court's concern with speedy restoration of wrongly denied benefits to those living on the financial edge; the defendant's delays, including delays in notifying those wrongly denied; and disregard of the judge's cautions about what was needed to avoid judicial intervention, including minimizing complexity for the families involved. According to the court, "[g]iven the urgent needs of those served by TAFDC, the judge could reasonably have determined that sufficient opportunity for the department to exercise its own discretion in undertaking corrective measures here was properly measured in days, not weeks or months. We cannot conclude that the judge abused her discretion in ordering steps she could have found were necessitated by the department's 'fail[ure] to rectify the problems with its policies and procedures, [such that] a more specific order, detailing particular steps to be taken, [was] appropriate."
Plaintiffs' attorneys: Deborah Harris (dharris@gbls.org) and Ruth Bourquin(rbourquin@gbls.org), Massachusetts Law Reform Institute, 90 Chauncey St., Suite 500, Boston, MA 02111-1722, tel. 617 357-0770, fax 617 357-0777.
Turner v. Glickman, No. 99-1923 (7th Cir. Mar. 16, 2000).
The Seventh Circuit, affirming the lower court's decision, has upheld the constitutionality of 21 U.S.C. 862a which permanently disqualifies individuals convicted of certain drug-related felonies from Food Stamp and TANF benefits. The case was brought by an individual disqualified from Food Stamps and raised Equal Protection, Due Process, and Fifth Amendment Double Jeopardy claims. The court applied the lenient rational basis test in analyzing the Equal Protection and substantive Due Process claims. Responding to plaintiffs' arguments that the statute has no rational relation to the statute's underlying purposes of deterring drug use, reducing fraud, and curbing welfare spending, the court concluded that it was not irrational for Congress to conclude that the disqualification would 1) discourage drug use among the eligible population; and 2) deter fraud, especially in light of concerns about fraud and testimony that food stamps were being traded for drugs. As to fraud, Congress could take steps to deter fraud in addition to the general Food Stamp anti-fraud provisions. In light of these conclusions, the court finds that plaintiffs' argument that the law was intended as punishment is not a sufficient basis for showing an Equal Protection or substantive Due Process violation. As to the Double Jeopardy claim, the court concludes that 1) Congress did not intend the statute to be a criminal penalty; and 2) that its nature is not so punitive as to transform a civil penalty into a criminal penalty. As to Congressional intent, the court concludes that the statute is a civil penalty despite its placement in the criminal code. Its placement in the criminal code is not evidence that it is a criminal punishment, because the placement decision was made by the Office of Law Revision Counsel rather than Congress. In addition, the statute is enforced by administrative agencies, not in criminal proceedings. In determining whether the statute nonetheless is a criminal penalty, the court analyzes seven factors outlined in prior case law and concludes that plaintiffs have not shown by the "clearest proof" that the disqualification is a criminal punishment.
Plaintiffs' attorneys: Jacquelyn E. Bowie, Indiana Civil Liberties Union, 1031 East Washington Street, Indianapolis, IN 46202-3952, tel. 317 635-4059; fax 317-635-4105, email: iclu@aol.com.
N.B. v. Sybinski, No. 49A02-9904-CV-311 (Indiana Court of Appeals, Feb.28,2000).
The appellate court has affirmed the lower court decision upholding against constitutional challenge Indiana's family cap policy under which a TANF cash grant increase is not provided for a child born to a TANF recipient ten or more months following the month in which the family began receiving benefits. There are limited exceptions to the rule, and families subject to the cap are eligible for other benefits, including vouchers for food items through WIC, Food Stamps, and Medicaid. The policy was originally adopted as part of an AFDC waiver project. The court applied the rational basis test and held that the policy does not violate the Equal Protection Clause of U.S. Constitution. It rejected arguments that strict scrutiny should apply because the policy penalizes families for exercising their fundamental right of family association. Instead, it found that the policy was rationally related to the state's interest in providing TANF recipients with incentives similar to those of working people to encourage individual responsibility and to strengthen and stabilize the family. As to the state's different treatment of families subject to the experimental family cap policy and those in the control group who were not subject to the cap, the court held that the state has a legitimate interest in studying the effects of welfare reform. The court likewise rejected claims that the policy violates state and federal substantive due process which requires a finding that the policy infringes on a fundamental right or liberty or that the law is not rationally related to a legitimate government purpose. In relying on the conclusions it reached on the Equal Protection claims, the court rejects arguments that the policy unfairly punishes children for their parents' behavior. Its decision relies on, among other cases, C.K. v. Shalala, 92 F. 2d 171 (3rd Cir. 1996) in which the federal appellate court upheld New Jersey's family cap. Plaintiffs' counsel reports that they have filed a petition for transfer to the State Supreme Court.
Plaintiffs' attorneys: Jacquelyn E. Bowie, Indiana Civil Liberties Union, 1031 East Washington Street, Indianapolis, IN 46202-3952, tel. 317 635-4059; fax 317-635-4105, email: iclu@aol.com.
Gomolinsky v. Davis, No. 49A02-9905-CV-339 (Indiana Court of Appeals, Sept. 29, 1999).
This class action challenged the state's Medicaid fair hearing system insofar as it allows any party dissatisfied with an ALJ's decision to seek agency review of the hearing within 10 days. Such review is based on the record of the agency hearing and is conducted by the Secretary or her designee. Plaintiff argued that such agency review violates 42 C.F.R. 431.205 (b). The court rejected this argument, concluding that the regulation provides the minimum requirements for a hearing system and does not bar more elaborate systems. Moreover, the court found no harm in the agency review procedure, since a claimant can seek judicial review if the agency review reverses a favorable ALJ hearing decision. If agency review finds for the claimant, corrective payments are made to the date of the erroneous decision. The court rejected plaintiffs' due process arguments, finding that they did not have a right to a de novo Goldberg pre-termination hearing at the agency review stage. (Goldberg v. Kelly rights are provided at the ALJ hearing.) The court does conclude that the Medicaid requirement for final administrative action within 90 days requires that both the Agency hearing and the administrative review be completed within 90 days, rejecting the defendant's arguments to the contrary. Plaintiffs' counsel reports that petitions by both parties to transfer to the State Supreme Court were denied.
Plaintiffs' attorneys: Jacquelyn E. Bowie, Kenneth J. Falk, Indiana Civil Liberties Union, 1031 East Washington Street, Indianapolis, IN 46202-3952, tel. 317 635-4059; fax 317-635-4105, email: iclu@aol.com.
Matthews v. Barrios-Paoli, N.Y. Sup. Court, App. Div. 1st Dept., Mar. 23, 2000).
This case was filed on behalf of 18 and 19-year-old high school students who received Safety Net Assistance and were told to drop out of their high school program to engage in workfare. Whenever individual cases were brought to the City's attention, a satisfactory resolution was found, but the policy continued. Upon being notified that a class action was being filed, the City immediately relieved the two named plaintiffs of their assignments. Plaintiffs raised claims under the State Constitutional requirement for a free public education and state Social Services law barring workfare assignments that interfere with educational activities. The lower court had granted preliminary relief and class certification and had rejected arguments that plaintiffs had failed to exhaust administrative remedies. In a brief opinion the Appellate Division has unanimously reversed on the ground that plaintiffs failed to exhaust their administrative remedies, that preliminary relief was premature, and that they had not met the requisites for class action certification. Plaintiffs are seeking leave to appeal to the Court of Appeals.
Plaintiffs' attorneys: Marc Cohan, Welfare Law Center, Connie Carden of the New York Legal Assistance Group, (212) 750-0800, and Courtney Scott of Milbank, Tweed, Hadley, and McCloy.
Bradshaw v. State of New Jersey, Department of Human Services, Docket No. A-006277-97T1 (Superior Ct., NJ).
This case challenged the state TANF regulation which restricted TANF eligibility to those family members within the fifth degree of kinship. According to a report from Legal Services of New Jersey, the parties have entered a settlement which reverses the termination of benefits and provides retroactive benefits to the plaintiff family, and the state has issued a policy directive which eliminates the reference to any degree of kinship according to a report from Legal Services of New Jersey. The case arose after the agency found the appellant ineligible for TANF cash assistance because the blood relationship between the adult and the dependent child in the TANF assistance unit was of the sixth degree and not of at least the fifth degree. The caretaker, the second cousin of the child, had been awarded legal custody after the state instituted legal action against the mother who had a substance abuse problem. Lawyers for the appellant argued that the regulation violated the state statute which does not permit the state to narrow the definition of blood-related to exclude second cousins or other relatives of the sixth degree from the definition of assistance unit. They also argued that the court order granting custody established the requisite legal relationship as required by the statute and that the regulation which recognizes as legal relationships only those created through marriage, adoption or legal guardianship is impermissibly narrow.
Plaintiff's attorneys: C. Regan Almonor, Leighton Holness, Maura Sanders, Legal Services of New Jersey, P.O. Box 1357, Edison, NJ 08818-1357; tel. 732-572-9100; fax 732-572-0066.
Friedl v. City of New York, et al. ___ F. 3d ___ (2nd Cir., April 4, 2000).
Plaintiff was on work-release from prison, living at home five nights a week. He applied for public assistance, food stamps, and medicaid, and was turned down because he was "incarcerated" and therefore not eligible. He requested a fair hearing, and received a determination that he was eligible for benefits. The local agency still refused to provide benefits, and reported plaintiff to his parole officer who charged plaintiff with attempted welfare fraud. He was then removed from the work release program. Prior to the decision on appeal, the City (welfare) defendants settled the case by paying plaintiff $20,000. The Second Circuit ruled that the District Court erred in dismissing the complaint, both because it relied upon material outside the pleadings, because plaintiff had pleaded due process violations in the procedure used to rescind work release status, and because plaintiff had pleaded retaliation for the exercise of constitutionally protected rights: a right to apply for public benefits and a right to appeal their denial.
Plaintiff's counsel: William J. Rold, 501 Fifth Avenue, Suite 1900, New York NY 10017, 212-949-5800. (Rold is a former member of the Welfare Law Center's staff.)
Giuliani v. Hevesi, No. 401299-00 (Supreme Court, N.Y. County, April 13, 2000).
The court denied the Mayor's request that the Comptroller be ordered to register two welfare-to-work contracts with Maximus, Inc. Although registration by the Comptroller was nondiscretionary under the City Charter, the court has discretion to deny mandamus where the Comptroller presents compelling evidence that the contracting process has been corrupted. In this case, the court found no reason for the City's use of an expedited negotiated acquisition process, rather than competitive sealed bids. The Comptroller had found that Maximus was given advance opportunities to meet with City officials and shape their proposal accordingly, and that Maximus had failed to disclose the role of a former senior policy advisor to the mayor for welfare reform issues who would be a major participant in the contract.
McCalgan v. Department of Transitional Assistance, Civil Action No. ____ (Superior Court, Suffolk Cy., Mass.) (Complaint).
This case, filed as a class action, challenges the welfare department's actions to deny, reduce, or terminate TANF benefits or to require work activities without regard to a person's physical or mental impairments that make them unable to engage in the activities. Plaintiffs are individuals with serious physical or mental impairments who were denied disability exemptions, subsequently required to comply with work activities that they could not do, and were terminated from assistance and told that benefits could not be restored until they complied with work requirements. The department's policy is to not consider such impairments (with very limited exception) if the individual has been denied a TANF disability exemption, pending a determination of a subsequent disability exemption request. Under the state's TANF program, nonexempt families are subject to time limits and a 2.75% grant reduction and required to engage in work activities. They may be eligible for an extension of the time limit at the agency's discretion unless the recipient is working full-time earning at least he minimum wage. In exercising its discretion to grant an extension the agency considers whether the recipient has complied with work requirements. The complaint alleges that the agency does not have in place a system to assure that a pending disability exemption request will continue to be processed after a family has been terminated for noncompliance with a work requirement or for any other reason or that a family will be notified if any determination is made. Plaintiffs assert claims under state statutes and regulations, including provisions requiring fair and equitable treatment and barring ineligibility for failure to comply with program requirements due to disability; the Americans with Disabilities Act and section 504 of the Rehabilitation Act; and federal and state equal protection and due process.
Plaintiffs' attorneys: Brian Flynn, Melanie Malherbe, Greater Boston Legal Services, 197 Friend St., Boston, MA 02114, tel. 617 603-1627, email: bflynn@gbls.org.
Discrimination Complaint by Florida Immigration Coalition and Florida Legal Services (HHS, Office Of Civil Rights, Region IV, May 2000).
The Florida Immigration Coalition and Florida Legal Services have filed a Title VI discrimination complaint with the Office of Civil Rights of HHS alleging that Florida's program which delivers cash assistance, Medicaid, and employment-related services, known as WAGES, discriminates through the State WAGES Board and regional WAGES coalitions against limited-English proficient (LEP) WAGES applicants and participants. The complaint alleges that the WAGES program has no published policies concerning the duty to provide services and information to LEP individuals, that Public Record Act requests failed to reveal any documentary evidence of standardized practices in this area, and that anecdotal evidence indicates that communication in languages other than English is ad hoc or not at all. The lack of standards means that there is unequal access to WAGES for LEP individuals. Among the failures alleged are: unavailability of interpreters or bilingual workers, failure to provide translated informational materials, notices, forms, letters, etc.; failure to provide language appropriate signs in offices, failure to provide equal access to electronic and telephonic information and services; failure to identify languages spoken by applicants and participants and to inform individuals of their rights to language appropriate services.
Complainants' Representatives: Thomas Zamorano, Florida Immigrant Coalition, c/o 3000 Biscayne Blvd., Suite 400, Miami, FL 33137, tel. 305 573-1106, ext. 1430; Valory Greenfield (tel. 305-573-0092) and Cindy Huddleston (tel. 850-385-5876), Florida Legal Services, 3000 Biscayne Blvd., Suite 450, Miami, FL 33137.
Gatien v. Wingate, No. _____ (E.D.N.Y. Complaint).
This case, filed as a class action, challenges the administration of the Food Stamp Program by the Suffolk County Dept. of Social Services. Plaintiff claims that DSS fails to assist applicants and recipients in verifying Food Stamp eligibility, does not use information it has or has reasonable access to verify an applicant's or recipient's eligibility, does not affirmatively determine whether non-compliance with Food Stamp verification requirements by an individual is a "refusal to cooperate" sufficient to support denial or termination of benefits, does not accommodate the special needs of applicants or recipients in verifying eligibility, and does not make reasonable modification to its verification requirements to accommodate those with disabilities. Plaintiff's claims are based on the federal Food Stamp statute and regulations, implementing New York regulations, Americans with Disabilities Act, Rehabilitation Act of 1973 and implementing regulations. Plaintiff seeks declaratory and injunctive relief.
Plaintiff's attorneys: Peter Vollmer, Esq., Nassau West Corporate Center, 50 Charles Lindbergh Boulevard,Suite 600A,Uniondale, New York 11553, (516) 228-3381; John F. Castellano, Mercy Advocacy Program, 859 Connetquot Avenue - Suite 1, Islip Terrace, New York 11752, (631) 581-7100.
In re T.C. (Delaware Dept. of Health and Social Servs., Div. Of Social Servs., Nov. 4, 1999).
\This hearing decision found in favor of the claimant whose Food Stamps and TANF benefits were terminated for failure to comply with work requirements, namely her failure to appear at a scheduled meeting in July and her subsequent failure to participate in workfare. She asserted that she had good cause for non-attendance at the meeting because she had a job interview which subsequently led to employment. The agency conceded good cause and the sanction for this alleged non-compliance was reversed. As to the failure to participate in workfare, the hearing officer concluded that the recipient should have been excused from workfare because of her employment. It reversed the benefit termination and directed that the claimant receive benefits and that the sanction be removed from the agency's record. The decision also noted that the recipient had been sent multiple conflicting notices with "erroneous information, dysfunctional dates, and missing information and announce conclusions not supported by the facts."
Plaintiff's attorney: Deborah Gottschalk, Community Legal Aid Society, 913 Washington St., Wilmington, DE 19801, yel. 302-575-0660, ext. 239.
In re V. P. (Delaware Dept. of Health and Social Servs., Div. Of Social Servs. Nov. 15, 1999).
The hearing officer ruled against the claimant, a homeless mother of two children, on her claims for a welfare payment based on her attempts to cure a sanction by completing workfare activity after her grant termination, and on minimum wage claims under 45 C.F.R. 260.35 and the Fair Labor Standards Act. According to the agency, the claimant's grant was terminated following her failure to engage in workfare for the required number of hours. The claimant asserted that after termination she worked over 100 hours at the workfare site over the course of three months to cure the failure, but the agency's position was that work to cure a sanction had to be performed over four consecutive weeks. The hearing officer declined to provide payment for the post-termination hours worked on the ground that the claimant had not shown by reliable, non-hearsay evidence that she had worked the required hours and that she was an employee. He rejected the FLSA claim as she had not established that she was an employee and observed that it was not clear that the TANF regulation, 45 C.F.R. 260.35 applied. The hearing officer indicated in his opinion that he found no regulatory authority for the payments sought by claimant, that the rules provided for a cure upon two weeks of cooperation, and that he was unable to identify a requirement for a cure based on hours worked. He suggested that the parties should revisit this issue to assure that the result is based on the program rules. He also refused to accept documentation of post-termination hours, finding them unreliable for various reasons and inadmissible hearsay without the appearance of the maker of the records. Without the documentation he was unable to determine whether the claimant had cured her failure. He also found that there was no testimony from the workfare site as to whether the claimant was an employee or what her activities were. He noted that the claimant had not received adequate notice as required by due process and relevant caselaw, but had not asked for relief on these grounds. As to the notice, he said that the agency "should be mindful that its action is unlawful and take action to correct it." Plaintiff's attorney reports that an appeal has been filed in state court and a minimum wage violation claim has been filed with the Department of Labor.
Plaintiff's attorney: Deborah Gottschalk, Community Legal Aid Society, 913 Washington St., Wilmington, DE 19801, tel. 302-575-0660, ext. 239.
In re ____ (Washington State Office of Adm. Hearings, DSHS (April 13 ,2000).
An ALJ has reversed a sanction and concluded that the TANF participant and the welfare agency must negotiate a new Individual Responsibility Plan (IRP). After the initial IRP was negotiated and following his removal from a WorkFirst workshop meeting, the participant met briefly (3 - 10 minutes) with agency staff to discuss next steps. Agency staff told him he would be referred to the Community Jobs program but did not inquire into his job skills, education, etc. A second IRP reflecting the Community Jobs program was sent to the participant who did not sign it and who informed an agency representative that the program was not appropriate for him because it was for job referral after identifying job skills with referrals for a minimum wage job. The Participant subsequently missed an appointment to discuss the assignment because he was out of the area seeking employment. The participant challenged the subsequent sanction and requested the opportunity to negotiate an IRP that considers his education, job skills, and goal of becoming self-sufficient. The ALJ concluded that "due to time restraints of the department, [the participant] was not given the full opportunity to negotiate his goals and to create an IRP that addresses the appropriate component that meets the goals of each party." Participant's counsel reports that the department did not seek review of the decision.
Plaintiff's attorney: Yvette War Bonnet, Columbia Legal Services, 101 Yesler Way Ste 300, Seattle WA 98104-2528, tel. 206-464-5933, fax: 206-626-5366, email: yvettewarbonnet@columbialegal.org
In re M.T. (Ohio Department of Human Services, April 7, 2000).
The hearing officer held that the appellant had good cause for noncompliance with her work assignment because the county failed to provide adequate child care services for her so that she could participate in her work activity. The hearing officer reasoned that the county had promised to provide the appellant with transitional child care, but the contract failed to indicated who would provide the child care and for what period of time. The appellant relied on her 17-year-old boyfriend and father of her child, but at her assessment interview, the appellant expressed concerns about the informal child care arrangement that she had. The hearing officer found these to be good cause for noncompliance. Appellant's representative: Brian Courtney, Southeastern Ohio Legal Services-Chillicothe. .In re J.O. (Ohio Department of Human Services, April 12, 2000). The hearing officer in this case held that the sanction imposed on the appellant for failure to cooperate with child support enforcement was incorrect because the agency failed to provide the appellant with a pre-sanction notice and opportunity to meet with the caseworker prior to the imposition of the sanction, as was required by R.C. .5701.161.
Appellant's representative: Leslie Varnado, Jr., Legal Aid Society of Columbus.
The above notes of Ohio hearing decisions were reprinted from Ohio State Legal Services Association's OSLSA Reports, Vol. 22, No. 4, May 2000.