Author: Stephen Goldberg

Separation of SIU and eligibility determination functions

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The California Department of Social Services (CDSS) has issued a reminder to counties that management of eligibility determination and program integrity investigation must be separate.

County Special Investigative Unit (SIU) staff is responsible for preventing and discovering fraud by applicants and recipients.  SIU staff must investigate fraud allegations.  County eligibility workers are responsible for referring cases to the SIU.

The SIU must be a separate organization, independent of organizations performing eligibility and benefit determination functions.  Counties must ensure separate and independent operation of eligibility and investigation activities.  SIU staff cannot dictate CalWORKs or CalFresh eligibility determinations but can make recommendations.  (All County Welfare Directors Letter May 1, 2019.)

CalWORKs options for education activities

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The California Department of Social Services (CDSS) has issued clarification about education as a CalWORKs welfare-to-work activity.

During the 24 month time clock, activities are flexible and clients and engage in education and training without restriction.  This includes job skills training directly related to employment, satisfactory attendance at a secondary school on a course leading to a general education certificate, education directly related to employment, adult basic education and vocational education.  Clients must have a Welfare-to-Work plan to meet CalWORKs minimum participation standards.

The 24 month clock can be extended in up to six month increments if the recipient has made satisfactory progress in an education program that has a known graduation, transfer or completion date that would meaningful increase the likelihood of employment.  The 24 month can also be extended for a recipient who earned their high school diploma or equivalent while participating in Welfare-to-Work and needs additional time to complete their current education program.

CalWORKs federal standards provide for 12 months of vocational education in addition to education during the 24 month time on aid clock and any extensions of the 24 month clock.  The 24 month clock does not tick when participants are meeting federal participation requirements, which are 30 hours per week for a one parent household (20 hours of which must be in a federally approved activity), 35 per week hours for a two-parent household, and 20 hours per week for a one parent household with a child under age 6.  After the 24 month clock has expired, the recipient must meet the minimum federal participation requirements.

Education and other activities can be combined to meet Welfare-to-Work participation requirements.

Supportive services, including child care, diapers for young children, transportation, books, tools or supplies, must be available to everyone participating in assigned Welfare-to-Work activities including volunteer participants.  This includes persons participating in education either in-person or by distance learning.  Supportive services must also be available during time the participant is doing homework, whether this is supervised or unsupervised, for both in-person and distance education activities.

Counties must make advance payments of supportive services as necessary.  CDSS strongly encourages counties to make advance payments prior to the beginning of each academic term.  (ACL 19-48, July 2, 2019.)

Treatment of ABLE accounts in HUD-assisted programs

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The United States Department of Housing and Urban Development (HUD) has issued guidance regarding treatment of ABLE accounts for HUD-assisted programs.  ABLE accounts are savings accounts to provide for qualified disability expenses for the beneficiary.  For determining eligibility and continued occupancy, HUD will disregard the amount in an ABLE account.  The entire value of an ABLE account is excluded from the household’s assets.  Actual or imputed interest on ABLE accounts is not counted as income.  Distributions from ABLE accounts are not counted as income.  Wage income directly deposited into an ABLE account does not count as income.  Contributions from a third party directly to an ABLE account do not count as income.

The guidance applies to Housing Choice Voucher program, public housing, Project-based Section 8, Section 202, Section 811, Section 236 and Section 221(d)(3)(4)(5) properties.

Housing Authorities and owners should verify the name of the designated beneficiary of an ABLE account and state program administering the account to verify that the account qualifies as an ABLE account.  (PIH Notice 2019-09 and H Notice 2019-06, April 26 2019.)

CalFresh denials for missing verification

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The California Department of Social Services (CDSS) has issued instructions regarding denials of CalFresh applications for failure to provide requested verification.  California has been granted an extension of a waiver by the federal government that allows counties to choose to deny CalFresh applications for failure to submit requested verification within 10 days of the written request even if 30 days have not passed since the application date.  The new waiver is in effect until April 30, 2024.  42 counties have chosen to implement this waiver.

Counties must meet several conditions to deny an application for failure to submit requested verification within 10 days of the written request even if 30 days have not passed since the application date including the county completed an interview with the applicant, inform applicants of the 10 day standard both verbally and in writing, the county must assist the applicant in obtaining verification, counties must act on verification submitted within 60 days of the application date without a new application and grant benefits from the date verification is submitted, and if verification is submitted within 30 days of the application date, the county must reopen the application and grant benefits from the original application date.

In addition, the notice of denial must state the reason for the denial and inform of the right to submit verification within 30 days of the date of application, and if eligible receive benefits from the application date.  (ACL 19-57, June 11, 2019.)

CAPI text messages

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The California Department of Social Services (CDSS) has issued instructions regarding text messages and enotices for the CAPI program.  This guidance implements AB 1957 for the CAPI program.

Counties are not required to communicate with clients using text messages but are encouraged to do so if they have the capacity to do so.  Counties or CAPI consortia that want to communicate with clients by text messages must get permission from the client in advance.  Questions have been added to the CAPI Statement of Facts and redetermination forms to facilitate getting permission for text messaging.  The client can withdraw permission for text messaging at any time.

Text messages sent to clients can only use the client’s first or last name and cannot include identifying information such as Social Security Number or case number.

If the county cannot accept return texts, the county’s text message must include do not reply language.

Notices of Action cannot be sent via text message.  The county can send a link to a secure online portal via text message for the client to obtain a Notice of Action.

Any automated text messages from county with a substantial number of non-English speakers must be sent in the client’s primary language.  When a translation is not feasible or when the language character set is not available on the client’s phone, the county must use an alternative form of communication.  (ACL 19-54, June 3, 2019.)

Effect of Lucia v. SEC on cases pending at Social Security Appeals Council

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The Social Security Administration (SSA) has issued a ruling explaining how cases pending at the Appeals Council will be adjudicated when the claimant has raised a timely challenge to the appointment of an administrative law judge under the Appointments Clause of the United States Constitution.

In Lucia v. Securities and Exchange Commission, 138 S.Ct. 2044 (2018), the United States Supreme Court held that the Appointments Clause of the United States Constitution requires that administrative law judges be appointed to their positions by either the President, a court of law of the department head.  On July 16, 2018, the Acting Commissioner of Social Security ratified the appointment of Social Security administrative law judges and administrative appeal judges and approved those appointments on her own.

The Appeals Council will grant a claimant’s request for review in cases where the claimant timely requests Appeals Council review of an administrative law judge decision or dismissal issued before July 16, 2018 and raises, either at the Appeals Counsel level or previously at the administrative law judge level, a challenge under the Appointments Clause to the authority of the Administrative Law Judge who issued the decision or dismissal in the case.

When the Appeals Counsel grants review in this situation, the Appeals Council will conduct a new and independent review of the claims file and either remand the case to an administrative law judge other than the judge who issued the decision under review, or issue its own new decision about the claim covering the period before the date of the administrative law judge’s decision.  In its review, the Appeals Counsel will not presume that the prior decision was correct.

In cases where the administrative law judge dismissed a request for hearing, the Appeals Council will vacate the dismissal order.  It will then either decide whether the hearing request should be dismissed or remand the case to another administrative law judge to determine that issue.

In these cases, the claimant may ask to file briefs with the Appeals Council.

When the Appeals Council grants review, it will mail a notice to all parties stating the reasons for the review and the issues to be addressed.  The Appeals Council will either remand the case to a different administrative law judge, issue a new, independent decision, or issue an order dismissing the hearing request.  (SSR 19-01p, March 15, 2019.)

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