Author: Stephen Goldberg

Changes to Social Security hearings process

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Social Security has finalized new regulations that change its hearing process.  These are important changes because they change the deadlines and time frames for Social Security hearings.  Three key changes in the process are:

  1. Social Security will now give at least 75 days notice of the hearing date.
  1. Claimants and claimant’s representatives must now submit evidence, hearing briefs and objections to issues at least five business days prior to the hearing. For evidence that the Claimant has not yet received, the Claimant or claimant’s representative must inform about that evidence.  Exceptions to the five business day rule include disability that prevents the Claimant from submitting evidence and “other unusual, unexpected or unavoidable circumstances” which expressly includes actively and diligently seeking evidence but the evidence was not received 5 business days before the hearing.
  1. When seeking Appeals Council review, any new evidence must be submitted to the Appeal Council with the Request for Review. The Appeals Council will only consider new evidence under limited circumstances, including disability that prevents the Claimant from submitting evidence and “other unusual, unexpected or unavoidable circumstances” which expressly includes actively and diligently seeking evidence but the evidence was not received 5 business days before the hearing.

Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process, 81 Fed. Reg. 90987 (December 16, 2016).

 

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Reopening of Social Security decision based on Supreme Court decision finding law unconstitutional

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Social Security has issued a ruling regarding reopening of Title II and Title XVI cases when the decision is based on a law that the United States Supreme Court finds to be unconstitutional.  This issue has recently arisen because of the Supreme Court decisions in United States v. Windsor regarding constitutionality of the Defense of Marriage Act and Obergfell v. Hodges regarding the constitutionality of state laws banning same-sex marriage.

Social Security has decided that a determination based on a law that the United States Supreme Court has found to be unconstitutional is an error on the face of the evidence.  This means that a decision can be reopened if 1) the determination or decision is based on a federal or state law that the United States Supreme Court holds is unconstitutional, 2) the application of that law was material to the determination or decision, and 3) it is within the following timeframes: A) For Title II claims, within four years of the notice of initial determination, B) For Title II claims, at any time if the determination or decision was fully or partially unfavorable, or C) For Title XVI claims, within two years of the notice of initial determination.  SSR 17-1p (March 1, 2017).

CalFresh Elderly Simplified Application Project

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The California Department of Social Services (CDSS) has issued instructions about the CalFresh Elderly Simplified Application Project (ESAP).  CDSS received a waiver to implement ESAP beginning October 1, 2017.

ESAP will do three things for elderly (age 60 or older) and/or disabled households:

  1. Waive the recertification interview requirement for elderly and/or disabled households with no earned income. Cases will not be denied at recertification without an attempt to schedule an interview. The county can require an interview if the information supplied is incomplete, questionable or contradictory. Households will be able to request a recertification interview.  An interview at initial certification will still be required.
  2. Use data matching to reduce client-provided verifications for elderly and/or disabled households with no earned income.
  3. Extend the certification period to 36 months for elderly and/or disabled households with no earned income.

ESAP households will use the SAR-7 form to report any changes at 12 months and 24 months.  If an ESAP household becomes ineligible for ESAP but remains eligible for CalFresh (for example by becoming employed) the county will convert the case to a regular CalFresh household.  (ACL 17-34, April 25, 2017.)

CAPI sponsor deeming

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The California Department of Social Services (CDSS) has issued instructions about sponsor deeming in the Cash Assistance Program for Immigrants (CAPI) program.  If the CAPI applicant or recipient’s sponsor is disabled, the sponsor’s income is deemed to the CAPI applicant or recipient until the sponsor dies, the applicant or recipient naturalizes or the applicant or recipient has worked for 40 quarters in the United States.  If the sponsor is not disabled, deeming is for 10 years from date of entry or date of execution of the affidavit of support, whichever is later.

When sponsor deeming applies, the sponsor must provide the county with their income and resources when the sponsored immigrant applies for CAPI and at least annually after CAPI is granted.  The county will send a form to the sponsor and the CAPI applicant or recipient requesting information from the sponsor.  The SOC 860 form is recommended but not required.  The sponsor will be given 15 days to provide the information.  If the sponsor does not respond, the county will send a second copy of the form to the sponsor.  If the sponsor does not respond, the county will deny or discontinue CAPI.  If the sponsor does not submit requested verification, the county will deny or discontinue CAPI.

If an immigrant is no longer being provided with support by their sponsor, and as a result the immigrant is no longer able to provide themselves with food and shelter, the immigrant may be eligible for the indigence exception to sponsor deeming.  The applicant or recipient can apply for the indigence exception by completing the SOC 809 form.  The county will compare the information provided by the applicant or recipient and the information from the sponsor in deciding whether to grant the indigence exception.  Note that when the sponsor has no income, there is no need for the indigence exception because the sponsor has no income to deem.

If the whereabouts of the sponsor are unknown, the county investigates the sponsor’s location by submitting a Form G-845 to USCIS.  If the county is satisfied based on the response to the G-845 and any other investigation the county does that the sponsor’s whereabouts are unknown, the county should accept the CAPI applicant or recipient’s statement regarding the sponsor’s lack of support unless those statements conflict with other information in the case file.  (ACL 17-33, April 17, 2017.)

Transfer of families to Stage 2 child care

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The California Department of Education (CDE) has issued instructions about the process for transferring families from Stage 1 to Stage 2 child care.  Both Stage 1 and Stage 2 child care are for families receiving CalWORKs.  Stage 1 child care is administered by a county welfare department (CWD) or a child care alternative payment program (APP) under contract with a CWD.  Families are transitioned to Stage 2 when the county determined they are “stable.”  Stage 2 is administered by APPs.

The process to transfer from Stage 1 to Stage 2 is to be seemless with no break in services.  Stage 2 programs must develop efficient and coordinated systems with Stage 1 programs to ensure that child care services seamlessly continue for families moving between Stage 1 and Stage 2 with no break in aid.

CalWORKs families are categorically eligible for Stage 2 and pay no family fees.  A family receiving CalWORKs does not need to report changes in income or family size to the APP and cannot be terminated for failure to do so.  If a family receiving CalWORKs would otherwise have their child care terminated for violation of an APP’s policies, the APP must notify the CWD to determine what steps to take including referral back to Stage 1.

When transferring from either Stage 1 or another Stage 2 program, the APP can only require nine listed data elements and cannot require any other information from the family.  The APP must request the nine data elements from Stage 1 or other Stage 2 program.  The family is not responsible for providing the information.  APPs cannot require the family or child care provider to furnish documentation provided to the Stage 1 or other Stage 2 program within one year of the application date unless documentation is missing and that documentation affects eligibility for services.

When the Stage 2 program receives the nine data elements, it must assume full responsibility for reimbursing the provider, provide the parent with a notice that the transfer is complete, and notify the family about returning the transfer of enrollment form to certify that the nine data elements are correct.  The APP should allow at least 30 days to return the transfer of enrollment form and should not terminate services for failure to return the transfer of enrollment for six months.

The APP cannot require the family to complete a new application and cannot require the family to furnish information previously provided to the transferring Stage 1 or other Stage 2 program unless there is a reported change that requires an update.  (Management Bulletin 17-06, May, 2017.)

CalFresh Standard Medical Expense Deduction project

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The California Department of Social Services (CDSS) has issued instructions about implementation of CalFresh Standard Medical Expense deduction.  CDSS received a waiver to implement a Standard Medical Expense deduction beginning October 1, 2017.

Elderly and/or disabled households with medical expenses over $35 per month are entitled to a CalFresh income deduction for their medical expenses.  Currently, the deduction is dollar for dollar verified medical expenses over $35 per month.  Effective October 1, 2017, the medical expense deduction will be a standard $120 per month when the elderly and/or disabled household has over $35 per month of medical expenses.  If verified medical expenses are over $155 per month, the household will be able to deduct actual medical expenses.

Households can voluntarily report medical expense increases mid-period and the new deduction amount will be used for the remainder of the reporting period.  (ACL 17-35, April 25, 2017.)