Author: Stephen Goldberg

International child support enforcement

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The Office of Child Support Enforcement (OCSE) of the United States Department of Health and Human Services has released instructions that 14 forms for international child support cases have been approved for use.

The United States ratified the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance on August 30, 2016.  The Hague Child Support Convention provides a legal framework and administrative procedures for international child support cases, speeds up the enforcement of U.S. orders by limiting the circumstances under which a court can review and object to an order those similar to grounds now allowed under United States law, recognizes United States due process requirements, and provides standardized time frames and procedures for international case processing.  (See OCSE DCL 16-11.)  31 countries have signed the Hague Child Support convention.

Child support agencies must use the approved forms for case processing with convention countries unless the responding countries has different form requirements.  (OCSE AT 17-06, July 11, 2017.)

CAPI application procedures

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The California Department of Social Services has issued instructions regarding applications for the Cash Assistance Program for Immigrants (CAPI).  Any person can apply for CAPI by telephone, in writing to the county social services agency or in person at the county social services agency office.  For individuals applying by telephone, the county must complete the CAPI application form over the phone.  Counties must have a face-to-face contact with the applicant as part of the application process.  The county should begin the application process and follow up by making an in person appointment.  If the applicant cannot travel to the local social services agency office for a face-to-face contact because of a disability or other good reason, the county must make alternative arrangements.

Counties cannot refer applicants or recipients to apply for SSI before evaluating immigration status.  Counties cannot refer applicants or recipients to apply to SSI if the county determines the applicant is not a qualified immigrant or the applicant or recipient has applied for SSI in the last six months and was denied solely because of immigration status.  When the county refers an applicant or recipient to apply for CAPI, the applicant or recipient must do so within 30 days.

Counties must make all CAPI forms available in each of the threshold languages in the county.  CDSS has translated the CAPI forms into the state threshold languages.  When the client’s primary language is other than one of the state’s or county’s threshold languages, the county must provide an in person interpreter or use a telephone interpreter service to communicate in the client’s primary language.

Counties must make a decision to approve or deny CAPI as soon as possible but no later than 30 days following the date of application.  The county cannot delay making a decision to wait for a decision on a SSI application.  The date of application is the date an individual expresses the desire to apply for CAPI by telephone or in person, or the date the county receives a written request.

CDSS policy is to make an exception to the 30 day period for applicants under age 65 claiming disability and a Medi-Cal disability determination has not been made.  In those cases, counties have 30 days from the date the county obtains a disability determination from the Disability Determination Services Division (DDSD) to make a determination.

When benefits are granted, the applicant is entitled to benefits retroactive to the first day of the month following approval.  In cases delayed by waiting for a DDSD determination, benefits are granted retroactive to the first day of the month following the application date.  (ACL 17-31, May 18, 2017.)

Social Security evaluation of symptoms in disability cases

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The Social Security Administration (SSA) has issued a ruling regarding evaluation of symptoms.  This ruling rescinds SSR 96-7p and eliminates the term “credibility” from policy.

In evaluating symptoms, SSA first determines whether there is an underlying medically determinable physical or mental impairment that is reasonably expected to produce the individual’s symptoms.  Medical signs or laboratory findings must show a medically determinable impairment.  SSA does not consider whether the severity of the alleged symptoms is supported by objective medical evidence.

If there an underlying physical or medical impairment, then SSA evaluates the intensity and persistence of the symptoms to determine the extent to which the symptoms limit an individual’s ability to perform work-related activities for an adult, or to function independently in an age-appropriate manner for children.  In considering the intensity, persistence and limiting effects of an individual’s symptoms, SSA examines the entire case record, including objective medical evidence, the individual’s statements, other information provided by medical sources and individuals and any other relevant evidence in the record.

SSA first examines objective medical evidence.  However, an individual’s statements about intensity, persistence and limiting effects of symptoms cannot be disregarded because objective medical evidence does not substantiate the degree of impairment the individual alleges.

If objective medical evidence does not allow for a fully favorable decision, then SSA considers other evidence, including the individual’s statements, medical sources, and non-medical sources.  Factors SSA considers are: daily activities; location, duration, frequency, and intensity of pain or other symptoms; factors that precipitate and aggravate symptoms; dosage, effectiveness and side effects of medication; treatment other than medication and other measures used to relieve symptoms such as lying on the back or sleeping on a board.

If the individual’s statements are consistent with objective medical evidence, SSA will determine that the symptoms are more likely to reduce capacity for work related activities.  SSA also considers the consistency of the individual’s statements.  However, inconsistent statements do not necessarily mean statements are inaccurate because symptoms may vary, worsen or improve over time.

SSA considers attempts to seek and follow medical treatment once it is prescribed in evaluating symptom intensity and persistence.  However, SSA will not find an individual’s symptoms inconsistent with the evidence without considering possible reasons for not seeking or complying with treatment.  Factors SSA may consider include: the individual may have structured activities to reduce symptoms to a tolerable level, the individual may receive periodic treatment or evaluation for medication refills because symptoms have plateaued, medication side effects are less tolerable than the symptoms, inability to afford treatment, a medical source advises that there is no further effective treatment, or a mental impairment limits the ability to understand the need for treatment.

Determinations or decisions must contain specific reasons for the weight given to symptoms consistent with and supported by the evidence, and be clearly articulated to allow the individual and any subsequent reviewer to assess how the adjudicator evaluated the symptoms.  Adjudicators cannot assess overall character or truthfulness.  Adjudicators can only focus on the evidence presented.  SSR 16-3p (March 28, 2016).

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HUD guidance on smoke-free Public Housing policies

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The United States Department of Housing and Urban Development (HUD) has issued guidance regarding smoke-free policies in public housing.  Public housing authorities (PHAs) must implement smoke-free policies within 18 months of issuance of the guidance.  Policies must ban the use of prohibited tobacco products in all public housing living units, interior common areas, and outdoor areas within 25 feet of public housing and administrative office buildings.  Prohibited tobacco products are items that involve ignition and burning of tobacco including cigarettes, cigars, pipes and water pipes.  PHAs have flexibility regarding e-cigarettes, limiting smoking to designated areas, requiring a smoke-free perimeter greater than 25 feet, and requiring an entire campus to be smoke-free.

PHA’s must obtain board approval for their smoke-free policies.  PHA must also determine whether adoption of their smoke-free policy is a significant amendment to their PHA plan which requires public meetings.

PHAs must also amend leases.  Residents must sign amended leases as a condition of continuing occupancy.  The lease amendment must incorporate the requirement that residents, members of the resident’s household, resident’s guests and anyone else under the resident’s control cannot smoke in restricted areas or in other outdoor areas that the PHA designates as smoke-free.  PHAs must give residents 60 days notice of the lease amendment and a reasonable amount of time for the resident to accept the amendment.

PHAs are encouraged to adopt graduated enforcement of their smoke-free policy, with termination of tenancy and eviction as a last resort.

PHAs must provide reasonable accommodations to persons with disabilities who smoke.  For example, a PHA could move a disabled smoking tenant to a unit near a door to give the tenant easier access to a smoking area.  However, HUD policy is addiction to nicotine is not a disability.  (PIH Notice 2017-03, February 15, 2017.)

VAWA Guidance for HUD Multifamily owners and management agents

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The United States Department of Housing and Urban Development (HUD) has released guidance regarding implementation of the Violence Against Women Reauthorization Act of 2013 (VAWA) for HUD Multifamily owners and management agents.  The guidance is very similar to the HUD’s guidance for the Public Housing and Housing Choice Voucher programs, summarized here.

In addition, this guidance specifies that VAWA protections apply to all owners and managers in the following HUD Multifamily programs: Project Based Section 8, Section 202, Section 811, Section 236 and Section 221(d)(3) and (d)(5).

In addition to the requirements in the the Public Housing and Housing Choice Voucher programs the guidance states that VAWA protections apply to all applicants and tenants in these programs, which means that all applicants and tenants must receive notice of their rights under VAWA.  The guidance also allows owners and managers in Multifamily programs to establish a waiting list preference for victims of dating violence, sexual assault, or stalking, in addition to domestic violence.  (HUD Notice H 2017-05, June 30, 2017.)

IHSS time for Medical Accompaniment

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The California Department of Social Services has issued instructions regarding IHSS time for Medical Accompaniment.  Accompaniment to health care appointments and alternative resource sites is an allowable IHSS service.  CDSS states its policy is Medical Accompaniment can only be authorized when the recipient needs assistance with another IHSS authorized task during transportation or at the medical appointment or alternative resource site.  CDSS policy is Medical Accompaniment is not authorized only to fill the recipient’s need for transportation. Wait time is available for appointments when the provider provides authorized Medical Accompaniment and the provider is not performing work duties but is unable to use the time for their own purposes.

CDSS policy is that Medical Accompaniment is generally unavailable for minor recipients because it is a parental responsibility to accompany children to medical appointments.  Medical Accompaniment for a minor can be authorized only if the minor has an assessed extraordinary need, the appointment is for specialty care, and the minor has a need for another IHSS authorized task during transportation or at the medical appointment.  Although Medical Accompaniment is not available for routine medical appointments, if the minor recipient needs other authorized services based on assessed extraordinary need, the provider may be paid for assistance with another IHSS authorized task during transportation or at the medical appointment.  Wait time is also generally unavailable for minor recipients, with limited exceptions such as a medical professional taking physical charge of the minor recipient for a set period of time and there is enough time for the parent provider to conduct their own personal business.

Medical Accompaniment is available for appointments only when the county verifies that the recipient is not receiving Medi-Cal non-emergency medical transportation for that appointment.  When a recipient receives non-emergency medical transportation for an appointment, but the recipient needs assistance with another IHSS authorized task during transportation or at the medical appointment, Medical Accompaniment can be authorized, but only for the amount of time for travel to and from the recipient’s home to the appointment.  This is because the time for the other IHSS authorized tasks should already have been accounted for in the total authorization for those service categories.  (ACL 17-42, June 23, 2017.)