Doe v. Wing, No. 98/2903 (N.Y. Sup. Ct., Monroe Cty., May 14, 1998).
After two durational residency provisions had been enjoined as unconstitutional, in 1997 the legislature again adopted a provision under which welfare benefits would be paid to persons in the state less than 12 months at the benefit level from the state they had departed from, or 50% of the New York level, whichever was higher, but not more than the New York rate. The State agency sought to have this case dismissed as unripe because they have not yet been able to determine the benefit level in other states, and have therefore not adopted implementing regulations. The court held that all would benefit from a determination of constitutionality. Since this court and the appellate court had already held a nearly identical provision unconstitutional, the court granted a statewide injunction against implementation until the case is decided on the merits.
Plaintiffs' attorneys: Bryan Hetherington and Susan Silverstein, Public Interest Law Office of Rochester, tel. 716-454-4060; Susan Antos of Greater Upstate Law Project, tel. 518-462-6831; Henry Freedman of the Welfare Law Center, tel. 212-633-6967; and Christopher Lamb of The Legal Aid Society of New York, Staten Island Office, tel. 718-273-6677.
Initial Win for NYC Disabled Workfare Workers
Santana v. Hammons, Index No. 400896/97 (N.Y. Sup. Ct., N.Y. Cy., April 23, 1998).
The court has granted a preliminary injunction and certified a class in this challenge to New York City's practice of assigning individuals who are found to be "employable with limitations" to workfare positions that they are unable to perform because of medical and psychiatric conditions. Plaintiffs assert claims under state law and the Americans with Disabilities Act as well as due process claims relating to the notices and procedures for challenging assignments. The court noted that plaintiffs do not seek an exemption from WEP but rather seek assignments consistent with their physical and mental limitations. The court noted that various notices of employability do not adequately inform people about their rights to review their case records; that recipients who dispute their employability are not correctly informed that they cannot be required to comply with work requirements until the agency has redetermined employability; that in the individual cases, administrative law judges apparently penalized recipients who were not properly notified by improperly shifting the burden of proof regarding wilful noncompliance to recipients; and that ALJs seem to violate agency rules that require assistance for pro se claimants and that the agency produce evidence of a wilful violation. Pursuant to the court's order the named plaintiffs and class representatives will change and the case will be known as Mitchell v. Turner.
Plaintiffs' attorney: Susan Sternberg, Legal Aid Society, 166 Montague St., Brooklyn, NY 11201, tel. (718) 722-3100, ext. 2602.
Maldonado v. Houstoun, No. 97-1893 (3rd Cir., 1998).
The District Court's held that the Pennsylvania policy of reducing benefits during the first year of a recipient's residency did not penalize the exercise of the constitutionally protected right to travel, so that the classification could be sustained if it had a rational basis. The court found the state's justification irrational and struck it down. The state, joined by the Washington Legal Foundation and Republican legislators as amici, argues that there is no penalty and that the classification is rational. The amici introduce new arguments, such as that new residents can "best shoulder" the cuts since they have more flexibility in lifestyle choices, overlooking the homelessness that such persons face. The Plaintiffs, joined as amici by a variety of groups including ACORN, the Childrens Defense Fund, a number of Pennsylvania low income organizations, and the Pennsylvania Service Employees International Union, argue that the grant reduction is a penalty and has no rational basis. Amici also discuss the harsh impact of the provision on women fleeing domestic violence.
Plaintiffs' attorneys: Jonathan Stein and Richard Weishaupt of Community Legal Services, tel. 215-981-3700; Susan Frietsche and Elizabeth Shapiro of the Women's Law Project, tel. 215-928-9801; Selena Fitanides of the ACLU, tel. 215-592-1513; and pro bono attorneys.
Attorneys for amici curiae in support of Plaintiffs: Paul M. Dodyk of Cravath, Swaine & Moore; Martha Davis and Sherry Leiwant of the NOW Legal Defense and Education Fund, tel. 212-925-6635; and Henry Freedman of the Welfare Law Center, tel. 212-633-6967.
Brukhman v. Giuliani, 662 N.Y.S. 2d (Sup. Ct. 1997), appeal pending.
Last year the trial court found that New York City's policy of determining Work Experience Program (WEP) workers' hours without determining the appropriate wage rate to be used in calculating the number of hours to be worked violated Art. 1 § 17 of the New York State Constitution and then applicable state statute. The court granted preliminary relief and class certification. The defendants have appealed and the parties have submitted their briefs. District Council 37, a council of 56 unions associated with AFSCME which is the largest labor organization representing New York City public employees, along with The New York State AFL-CIO, AFSCME, and the Service Employees International Union, have filed a brief supporting the plaintiffs-respondents.
Plaintiffs' attorneys: Marc Cohan of the Welfare Law Center; Richard Blum, The Legal Aid Society, tel. (212) 577-3648; Catherine Ruckelshaus and Jim Williams, National Employment Law Project, tel. (212) 285-3025; and Davis Polk & Wardwell, New York City.
Attorney for Amici: Richard J. Ferreri, 125 Barclay St., New York, NY 10007.
Bowling v. Davis, Civil Action No. ----- (S.D. Indiana, Apr. 13, 1998).
This class action complaint asserts that the state agency violates the federal procedural due process rights of Indiana TANF recipients who are required to engage in work/education and training activities by failing to notify them of the available statutory exemptions from such requirements. Indiana is operating a welfare program under federal waivers which provide specific exemptions from participation in work and/or education requirements. An exemption also tolls Indiana's 24-month time limit on cash assistance for the duration of the individual's exemption period. An eligible TANF recipient must, however, apply for an exemption. The complaint alleges that it is the practice and policy of the agency and its caseworkers not to notify TANF recipients of the availability of the statutory exemptions. The complaint claims that this practice affects dual harm on the plaintiff class in that it deprives an eligible individual of the exemption right to which s/he is entitled and, consequently, counts for purposes of the time limit months that would not have counted had an individual had notice of and applied for an exemption. Plaintiffs move for declaratory judgment and a preliminary injunction requiring the agency to provide adequate notice of all potential exemptions to all TANF recipients, to inform those individuals of the manner in which they may obtain an exemption, and to notify them that they can have their 24-month TANF eligibility recalculated to exclude any month for which an exemption would have been applied for and appropriately granted had notice previously been given.
Plaintiffs' attorneys: Jacquelyn E. Bowie and Kenneth J. Falk, Indiana Civil Liberties Union, 1031 E. Washington St., Indianapolis, IN 46202, tel. (317) 635-4059, e-mail: indclu@aol.com.
Martin v. Davis, Civil Action No. IP98-0333 C (S.D. Indiana, Mar. 9, 1998)
This class action complaint claims that the Marion County Office of Family and Children in Indiana fails to supply and/or accept applications for Food Stamps, Medicaid, or TANF from individuals who have previously applied for such assistance. The class of individuals affected includes those who have previously applied and been denied and those who have an application already pending for a different welfare program. State regulations incorporate various federal requirements regarding the rights to apply for assistance. Plaintiffs claim violations of federal statutory and regulatory provisions which require state agencies to allow individuals wishing to apply for the programs to do so, as well as federal due process. Plaintiffs seek injunctive relief against the agency.
Plaintiffs' attorneys: Jacquelyn E. Bowie and Kenneth J. Falk, Indiana Civil Liberties Union, 1031 E. Washington St., Indianapolis, IN 46202, tel. (317) 635-4059; e-mail: indclu@aol.com.
Cox v. Davis, Civil Action No. IP98-0342, (S.D. Indiana, Mar. 10, 1998).
This class action challenges the failure of the Indiana welfare agency to provide adequate notice to TANF recipients when the agency reduces their cash grants to $0 because they received outside earnings or to inform such individuals of other TANF options available to them. Indiana's welfare program, which operates under previously obtained federal waivers, provides that when a TANF recipient has countable income over 90% of the need standard but under 100% of the federal poverty level, the family remains eligible for TANF but receives a $0 grant. Months of $0 grant count as months of TANF for purposes of the time limit for those subject to work-related requirements. In addition, such families can elect to receive in lieu of the TANF $0 grant 1) guaranteed child care benefits or 2) a monthly TANF benefit equal to the amount paid to a family with no countable earnings. The complaint alleges that where TANF grant recipients become eligible for a $0 grant due to earnings, they are not informed that months in which they receive a $0 grant count towards the time limit, nor are they informed of their various options, including the option to temporarily withdraw from the TANF program and thereby avoid countable TANF months for time limit purposes. Plaintiffs allege these practices violate of their due process rights under the 14th Amendment and seek injunctive relief.
Plaintiffs' attorneys: Jacquelyn E. Bowie and Kenneth J. Falk, Indiana Civil Liberties Union, 1031 E. Washington St., Indianapolis, IN 46202, tel. (317) 635-4059; e-mail: indclu@aol.com.
Appeal No. 256045 (Mass. Dept. Of Transitional Assistance, Mar. 18, 1998).
A hearing officer found that a recipient should not be sanctioned for failing to attend her work program because she had good cause: the threat of domestic violence. At the hearing, an agency representative testified that the recipient had been sanctioned for her absences from her work program and her non-responsiveness to the Department's attempts to contact her. The hearing officer concluded that under the regulations this was the appropriate action at the time it was taken, subject to the recipient's appeal rights. The hearing officer found, however, that a verified threat of domestic violence is good cause for failing to comply with work requirements. The appellant submitted documentation of her former residence in a battered women's shelter and of her current divorce proceedings with her abuser as evidence that she is a victim of domestic violence; these satisfied the verification requirement, provided appellant would also submit a signed statement documenting the domestic violence threat, as provided in regulations.
Plaintiffs' attorney: Sara Levy, Greater Boston Legal Services, 197 Friend St., Boston, MA 02114.
In re T.O., DCIS No. 166360 (Delaware Dept. of Health & Soc. Servs., Div. of Soc. Servs., Feb. 13, 1998).
A hearing officer found that the agency could not sanction a recipient for not attending an appointment related to work program requirements under the state's welfare reform program since adequate notice had not been provided. Citing the U.S. District Court's decision in Ortiz v. Eichler, 616 F. Supp. 106, aff'd 794 F. 2d 899 (3rd Cir. 1985), the hearing decision stated that notice must contain at a minimum a detailed, individualized explanation of the reasons for the agency's action which is comprehensible to the claimant and which contains sufficient information that the claimant can determine the accuracy of the reasons stated. The notice must explain what the claimant was required to do to receive his benefits and why his actions failed to meet the required standards. The hearing officer noted that while employment and training caseworkers have a wide range of duties under Delaware's new program, they still must know the rules for issuing adverse action notices to recipients. The hearing officer also noted that the Ortiz standards are reflected in state regulations. Moreover, the Delaware agency conceded that the notice sent was in error as to the date of an interview which the claimant was alleged to have missed without prior approval, which was the impetus for the sanction. No corrected re-notice was issued by the agency even when its error was discovered. Since the agency's notice to the claimant was inadequate and inaccurate, the decision to reduce the claimant's benefits was reversed.
Plaintiff's representative: Olga Ramirez, Community Legal Aid Society, Inc., 913 Washington St., Wilmington, DE 19801, tel. (302)575-0660; fax (302)575-0840.
In re T.O., DCIS No. 166360 (Delaware Dept. of Health & Soc. Servs., Div. of Soc. Servs., Feb. 13, 1998).
An appellant successfully challenged an agency decision to terminate his cash assistance for allegedly failing to cooperate in good faith in locating his daughter's absent parent. Appellant contended that he had cooperated to the best of his ability. The hearing decision noted that the former federal AFDC provision allowing parents who lacked information about absent parents to so attest under penalty of perjury has been replaced with a requirement that the state make an independent determination that the parent is cooperating with child support enforcement in good faith by providing information required by the state. The agency had required the recipient to submit a picture of the absent parent and her street address. There was no information about whether the recipient provided the picture. He gave a street name but not the number which he said he did not have. He also gave an incorrect birth date and said he did not recall the exact birth date. The hearing officer found that the recipient did not give "false or misleading" information as claimed by the agency and that the agency's claim of refusal to cooperate was not supported by evidence of "mental determination not to comply." The hearing officer also found that the agency had failed to provide an adequate notice because it did not correctly cite applicable regulations.
Plaintiff's representative: Olga Ramirez, Community Legal Aid Society, Inc., 913 Washington St., Wilmington, DE 19801, tel. (302)575-0660; fax (302)575-0840.