Weston v. Hammons, Case No. 99 CV 412 (District Ct., City and Cy. of Denver, Nov. 5, 1999).
The court has ruled that notices used to impose sanctions for failure to comply with requirements of the state's TANF program are inadequate and violate federal and state due process requirements and state regulations. In reaching this conclusion, the court also found that recipients have a property interest in Colorado TANF benefits despite language in the Colorado statute providing that there is "no entitlement; this court is the first to rule on this issue. The court's decision follows its May 1999 ruling rejecting the defendant's motion to dismiss (see June 1999 Welfare News). The complaint was originally filed against the Denver County and Adams County welfare agencies and the state welfare agency. Denver County previously settled with the plaintiffs. The court has granted injunctive relief and has required the county to notify the class of reinstatement rights and reverse illegal sanctions. See the related article in the December 1999 issue of Welfare News.
Plaintiffs' attorneys: Thomas Nichols, Davis, Graham & Stubbs, LLP; Natalie Hanlon-Leh, Steven Zansberg and Christopher Beall, Faegre & Benson, LLP; Barbara Blumenthal, McKenna & Cuneo, LLP; Kimberley Ghiselli, Silver & Deboskey. For additional information contact Maureen Farrell, Colorado Center on Law & Policy, 623 Fox St #205, Denver, CO 80204-4503, tel. (303) 573-5669; e-mail: msfarrell@uswest.net.
Meacham v. Wing, 99 Civ. 4630 (AGS) (S.D.N.Y., Dec. 9, 1999).
The court has denied in large part and granted only with respect to the state statutory claim defendants' motion to dismiss this case claiming that New York state's fair hearing system for Food Stamps, Medicaid and cash assistance violates procedural due process and federal and state statutes governing fair hearings. Plaintiffs and class members requested hearings to challenge a case closing or reduction for failing to respond to an appointment notice or eligibility questionnaire. In each instance the appellant contended that the mailing at issue was not received. However, at hearings the State routinely refuses to credit plaintiffs' or class members' testimony of non-receipt of the mailing and treats as conclusive affidavits of mailing submitted by the local agency. In addition, plaintiffs complain that they are routinely denied the right to confront and cross-examine adverse witnesses, to review documents used as evidence against them, and to submit their own witnesses and documentary evidence. Indeed, many of the hearings last no longer than three to four minutes. The court has rejected the defendants' arguments that the availability of state court post-deprivation remedies requires dismissal, because plaintiffs claim that they are constitutionally entitled to pre-deprivation hearings and that these hearings violate due process. The court also rejects the arguments that the Eleventh Amendment bars the federal constitutional and statutory claims, relying on Ex Parte Young. It concludes, however, that the state statutory claims are barred by the Eleventh Amendment. The court also finds that plaintiffs have private rights of action under the fair hearing provisions of the federal Food Stamp and Medicaid Acts and that these rights are enforceable under .1983. It also rejects defendants' arguments that abstention is appropriate. The court concludes that plaintiffs' challenge to defendants' practice of relying on mailing affidavits states a claim upon which relief can be granted because plaintiffs claim 1) a systemic failure that prevents them from presenting evidence to challenge the presumption of mailing and receipt; and 2) that hearing officers routinely fail to determine whether the affidavits are consistent or out-of-date. Finally, the court finds that New York City is not an indispensable party.
Plaintiffs' attorneys: Marc Cohan and Rebecca Scharf of the Welfare Law Center; Scott R. Rosenberg and Richard E. Blum of The Legal Aid Society, Civil Appeals & Law Reform Unit, 90 Church Street, New York, NY 10007, tel. 212-577-3648; Ian F. Feldman, Steven Godeski, and Esperanza Colon of The Legal Aid Society, Bronx Neighborhood Office, 953 Southern Boulevard, Bronx, NY 10459, tel. 718-991-4745; Susan R. Sternberg of The Legal Aid Society, Brooklyn Neighborhood Office, 166 Montague Street, Brooklyn, NY 11201, tel. 718-422-2762; Patrick J. Horvath of the Urban Justice Center, 66 Broadway, New York 10012, tel. 212-533-0540; Matthew Schneider of the New York Legal Assistance Group, 130 East 59th Street, New York, NY 10022, tel. 212-750-0800.
Marchwinski v. Howard, Civ. Act. No. 99-CV-10393 (E.D. Mich, November 10, 1999).
U.S. District Court Judge Victoria Roberts issued a temporary restraining order enjoining the Michigan Family Independence Agency from conducting suspicionless drug testing of welfare recipients and applicants. Michigan planned to test all welfare applicants as a step in the application process. A number of recipients would be tested at recertification, as well. Applicants who refused the drug test would be denied benefits. Judge Roberts found Michigan's policy to be "very likely unconstitutional" under the Fourth Amendment's prohibition of unreasonable searches and seizures due to the policy's serious invasion of participants' privacy without a counterbalancing specialized government interest. Judge Roberts also found no evidence that welfare participants and applicants were more likely to have drug problems than the general public, therefore no threat was posed for public safety. A preliminary injunction hearing was set for December 14, 1999.
Plaintiffs' attorneys: Robert A. Sedler, Wayne State University Law School, 468 W. Ferry, Detroit, MI 48202, tel. (313) 577-3968; Cameron R. Getto and David R. Getto, Sommers, Schwartz, Silver & Schwartz, P.C., 2000 Town Center, Suite 900, Southfield, MI 48075, tel. (248) 355-0300; Kary L. Moss, American Civil Liberties Union Fund of MI, 1249 Washington Boulevard, Suite 2910, Detroit, MI 48226, tel. (313) 961-7728; Graham Boyd, American Civil Liberties Union Foundation, 160 Foster Street, New Haven, CT 06511, tel. (203) 787-4188.
Wrobel v. Johannes, 99 Civ. ___ (N.D.N.Y.).
Plaintiffs' counsel reports the successful settlement of this case. Plaintiff received Safety Net Assistance (SNA) for a period in 1998 during which she worked for the defendant Fulton County Department of Social Services as a Work Experience Program participant in fulfillment of the requirement to work in exchange for benefits. The plaintiff also applied and was found eligible for SSI and was awarded retroactive SSI. The retroactive benefits were sent directly to the defendant which reimbursed itself for SNA benefits provided to the plaintiff. The defendant's action to retain the retroactive SSI benefits meant that plaintiff had worked for the defendant without payment. The plaintiff sought back pay and liquidated damages for violations of the Fair Labor Standards Act, 29 U.S.C. . 201 et seq., resulting from the defendant's failure to compensate plaintiff at the minimum wage rate for the work she performed. According to plaintiff's counsel, the defendant has agreed to restore interim assistance, pay an equal amount in liquidated damages and pay attorney's fees.
Plaintiff's attorneys: Susan Antos, Greater Upstate Law Project, 119 Washington Ave., Albany, NY 12210-2273, tel. 518-462-6831, fax 518-462-6687, email:santos@wnylc.com; Catherine Ruckelshaus, National Employment Law Project, 55 John Street, 7th Floor, New York, NY 10038-3712, tel. 212-285-3025, fax 212-285- 3044, email cruckelshaus@nelp.org.
Docket No. 02-99-3130 (HHS, Office of Civil Rights, Region II, Oct. 21, 1999).
After its investigation of two complaints filed against the New York City welfare agency and the state welfare and Medicaid agencies and a civil rights review of Nassau and Suffolk counties, the Office of Civil Rights (OCR) has determined that New York City and state welfare and Medicaid agencies and the Nassau and Suffolk County social services agencies discriminate against Limited English Proficiency (LEP) persons in violation of Title VI of the Civil Rights Act of 1964, and hearing-impaired persons in violation of Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans With Disabilities Act. The determination comes after an investigation of two complaints(one filed in late April by Make the Road By Walking and other advocacy organizations and the other by a public assistance participant with a hearing impairment) against the City and state agencies. OCR's civil rights review of Nassau and Suffolk Counties was done jointly with the Health Care Financing Administration (HCFA) which undertook a review of the Medicaid programs in New York City, Nassau, and Suffolk following the court's ruling in Reynolds v. Giuliani (see February and June 1999 issues of Welfare Bulletin) and numerous complaints that City Job Centers imposed barriers on those seeking to apply for Medicaid. The investigation included a review of agency policies, individual case files, unannounced visits to public assistance offices by testers posing as LEP applicants, and interviews with agency staff and individual applicants and recipients. The OCR determination contains a detailed discussion of the OCR findings as to the lack of services for LEP individuals, including lack of interpreters, staff training, and basic informational and instructional materials in other languages. In addition, staff lacked awareness of relevant agency policies. Staff were found incapable of communicating with hearing-impaired individuals and were unaware of agency policies regarding assisting those with impairments. Offices lacked TTD/TYY and other devices to facilitate communication. OCR now requires that the agencies submit a compliance plan within 30 days that addresses a range of issues, including assessment of the situation, development of a comprehensive plan to serve LEP and sensory-impaired individuals, and monitoring. If the agencies do not comply, OCR can begin legal or administrative enforcement proceedings.
Complainants' representative on the language discrimination matter: Randal Jeffrey, NYLAG, 130 E.59th St., New York, NY 10022-1392; tel. 212-750-0800.
Olea v. Blessing, No. _____ (U.S. D. Ct. Arizona) (undated complaint).
This case, filed as a class action on behalf of minors in Arizona households who are receiving, will receive, or would receive TANF cash assistance but for the challenged policies, seeks declaratory and injunctive relief against elements of Arizona's TANF sanction policies which effectively reduce or terminate aid to the children when the adults fails to comply with child support cooperation or work activity requirements. In general, under the state's sanction system, the first non-compliance results in a 25% grant cut (approximately the adult's share); the second results in a 50% cut of the remaining grant (heavily cutting into the children's share of the grant); and the third terminates the remaining grant until the adult complies, but for at least one month. When the initial sanction is imposed the adult receives a notice describing the action and informing her that further automatic sanctions will be imposed unless she complies within a specific time. The welfare agency does not provide advance notice of any subsequent sanction when its determines that the adult has not cured the initial non-compliance. Further, if a family subject to a termination sanction reapplies and reestablishes eligibility, any subsequent non-compliance results in termination (second-round sanctions). Definitions of good cause for non-compliance are extremely narrow and do not include, for example, agency errors that prevent adults from not complying. Plaintiffs cite a high rate of sanctions reversals by administrative law judges as confirmation of a pattern and practice of arbitrary penalty enforcement. They also allege failures in the state's work program which include failure to include minimal services to TANF adults to enable them to participate and the failure to take into account the lack of transportation and satisfactory reasonably accessible child care. They further allege that the state administers its sanction system as a way of avoiding fiscal penalties for not meeting federal work participation rates. They allege that the system of escalating second and third-round sanctions and arbitrary administration causes irreparable harm to innocent children and deprives them of their property interests in cash assistance in violation of Fourteen Amendment substantive due process. The Arizona Justice Institute reports that it has had preliminary discussions with the welfare agency on some elements of the case.
Plaintiffs' attorney: William E. Morris, Arizona Justice Institute, 23 North Stone Ave., Suite 1601, Tucson, AZ 85701, tel. 520 740-1207.
In the Matter of Andre O. New York State Dept. of Labor (Nov. 29, 1999).
Appellant, a Safety Net cash assistance recipient, was sanctioned for failure to comply with a work assignment after he stated at WEP intake that he could not work for medical reasons. The agency did not give the appellant a work assignment. The agency imposed the sanction after conciliation. The hearing officer found that there was insufficient evidence to sustain the agency's determination and order reinstatement and payment of retroactive benefits. The hearing officer noted that willing to comply means that a person reports to an assigned activity on time and prepared to engage in the activity and that unwilling to comply means that the person does not report to the assigned site on time and prepared to engage in the activity. This decision is part of the Greater Upstate Law Project's (GULP) Fair Hearing Bank and copies are available from Nancy Krupski or Connie Lewis at 1-800-635-0355. GULP welcomes submissions from New York advocates.
Appellant's representative: Glenn Harris, Bedford-Stuyvesant Legal Services.
In the Matter of Adrienne O. (New York State Dept. of Labor) (Oct. 21, 1999).
Appellant, a Safety Net Assistance recipient, challenged a 90 day sanction for failing to appear for the employment assessment process. Appellant had previously been found exempt by reason of disability for a period that had not expired by the date of the scheduled assessment. At the hearing the appellant argued that her medical condition made early morning appointments inappropriate and that she should not have been called in during her exemption period. The hearing officer rejected the arguments, concluding that it was appropriate for the agency to call her in for an assessment, and that medical documentation supported a conclusion that she was able to do limited work, and that her reason for not appearing was not good cause. However, the appellant should not have had a 90 day sanction imposed. Instead she should have been terminated for failure to comply with an eligibility condition (which means she could reapply and demonstrate compliance). This decision is from GULP's Fair Hearing Bank. See the note above.
Appellant's representative: Beth Boyea, North Country Legal Services.
In re T.L. (Ohio Department of Human Services, October 7, 1999)
Because the appellant had secured employment, and indicated to the agency that she would no longer participate in her work assignment, the hearing officer held that the agency's proposed sanction for refusal to comply contradicted the stated goals of the agency's self-sufficiency contract, which was to help the appellant become self-employed. The primary issue in the case was whether the appellant had contacted the agency within one hour of her absence from her work assignment and should be sanctioned, and whether she should be sanctioned for refusing to participate in any future work assignments because she had obtained employment. The hearing officer found that the testimony relating to whether the appellant had called within one hour of her absence was inconclusive and insufficient as the basis for a sanction. Further, the hearing officer found that the actions proposed by the agency in sanctioning the appellant were contrary to the stated goals of the self-sufficiency contract, particularly when the appellant complied with the contract and achieved its goals of obtaining employment.
Appellant's representative: Patrina Adkins, Southeastern Ohio Legal Services-Portsmouth.
In re J.J. (Ohio Department of Human Services, September 24, 1999).
The county agency proposed a sanction against the appellant for failing to comply with a work assignment. The hearing officer held that the sanction was improper because the appellant had physical and psychological barriers to employment. The appellant had been assigned to developmental activities based on a medical exemption which ended in June. At a reassessment at the end of the month, the agency acknowledged that the appellant had a medical barrier to employment and was scheduled for surgery the next month. Nevertheless, the agency assigned the appellant to engage in a work activity the very next day. The work site supervisor called the agency to question the assignment because of the appellant's physical and mental challenges. In sustaining the appeal, the hearing officer reasoned that the agency inappropriately assigned the appellant to a work activity without regard to her physical or psychological barriers to employment. Further, the hearing officer noted that the appellant was not provided sufficient time to prepare for the work activity that was to occur the very next day, the self-sufficiency plan did not indicate the name or location of the assignment, and the agency did not mail the work schedule to the appellant or the work site.
Appellant's representative: Brian Courtney, Southeastern Ohio Legal Services-Chillicothe.
In re H.H. (Ohio Department of Human Services, July 23, 1999)
The hearing officer held that the county department of human services did not take all steps necessary to ensure a correct eligibility determination, and therefore, the appellant's Medicaid and food stamps should not be terminated. The county agency was proposing termination because the recipient's wife could not obtain verification from her employ-er that she was a volunteer, not a paid employee. The recipient's wife sub-mitted her own written statement, and a statement for the employer's attorney, but the county agency insisted that the recipient needed a written statement from the employer. The hearing officer found that the county agency was aware of the difficulty that the appellant and his wife were having in getting documentary evidence, that the county agency did not assist the appellant, and that this information was inconsistent with the allegation that the appellant was not cooperating.
Appellant's representative: Kris-Ann Stanley, Southeastern Ohio Legal Services, Lancaster.
The above notes of Ohio hearing decisions were reprinted from Ohio State Legal Services Association's OSLSA Reports, Vol 21, No. 9, October 1999.