Hearing representative responsibilities and privileges process

The California Department of Social Services (CDSS) has issued clarification about county hearing representative responsibilities before a hearing.  The county hearing representative initially impartially reviews the hearing request.  After the review, the hearings representative either orders the county to take corrective action or defends the action at hearing.  The county hearings representative also provides claimants with information about the hearing process, including preparing a position statement.

The county hearings representative ensues that aid paid pending is paid when appropriate, identifies the issues raised in the hearing request, reviewed the disputed action(s) based on available evidence and regulations, and determines whether the case can be resolved or should proceed to hearing.

The county hearings representative also must provide reasonable accommodations for claimant’s disabilities, and services for limited English proficient claimants, including using forms that have been translated and using an interpreter for communication with the claimant at no cost to the claimant.

If the hearings representative cannot identify the issues from the hearing request, the hearings representative should attempt to contact the claimant to discuss the case.  If the hearings representative cannot reach the claimant, the hearings representative should review the case file for 90 days prior to the hearing request to determine issues.  If the hearings representative still cannot determine the issues, the hearings representative should write a limited position statement for the hearing. If the issues are identified on the day of the hearing and the hearings representative and claimant cannot reach a resolution, the hearings representative can request postponement of the hearing.

If the hearings representative determines the county action is correct, the county hearings representative should contact the claimant to explain the basis for the county action.  The hearings representative cannot imply that the claimant cannot or should not proceed with the hearing.  The hearings representative can explain the claimant’s right to withdraw if the claimant states they do not want to proceed with the hearing, but the county hearings representative cannot request a withdrawal.

If the hearings representative determines the county action is incorrect, the county representative must contact the case worker to take corrective action.  The county hearings representative must also contact the claimant to resolve the case without a hearing.  If that resolution is a conditional withdrawal, the language of the conditional withdrawal must be specific regarding the duties of the county and claimant for the action to be corrected.  A conditional withdrawal that states the county will re-review its action is insufficient. Conditional withdrawals should be in writing.  The county must ensure that corrective action is completed within 30 days.  If the claimant still chooses to attend the hearing, the hearings representative must be prepared for the hearing.

The hearings representative should inform the claimant of their right to review the case file and provide that access in two business days.  If the hearings representative withholds documents from the claimant pursuant to a claim of privilege, the hearings representative must prepare and give to the claimant a form identifying the withheld documents and the basis of the claim of privilege or confidentiality.  Welfare fraud investigation information from an active investigation is confidential unless that information has been used or relied on by the county in making its decision to take administrative action.  When the claimant challenges a county claim of privilege or confidentiality, the administrative law judge will convene an in camera proceeding to adjudicate that claim.

Finally, CDSS has issued guidelines for the content and format of county position statements for hearings.  (ACL 17-102, September 29, 2017.)

Adoption Assistance Program Eligibility

CDSS has issued a clarification regarding Adoption Assistance Program (AAP) eligibility.  Starting October 1, 2016, children are eligible for federal AAP if they age 2 or older.  Federal AAP requires the placing agency to have a Title IV-E agreement with the state of California.  This means that children placed by public agencies or Indian tribes can be eligible for federal AAP if the placing agency has a Title IV-E agreement.  However, children placed through a private agency cannot be eligible for federal AAP.

Please note that children placed by private agencies can be eligible for state AAP.  (See ACL 16-38, summarized here.)  ACIN I-82-16 (November 16, 2016).

Adoption Assistance Program Notice of Action and Overpayments

CDSS has transmitted a new form notice of action for the Adoption Assistance Program and instructions regarding Adoption Assistance Program overpayments.  The instructions require that the comment section of the form be used to provide the reason for and clarification of the action taken.  The instructions also require that specific regulation supporting the county’s action be cited in the form.

CDSS also states that there are only three situations when an Adoption Assistance Program overpayment is collectable: 1) The responsible public agency has determined that the adoptive parents are no longer legally responsible for the support of the child; 2) The responsible public agency has determined that the adoptive parents are no longer supporting the child and 3) The responsible public agency determines the adoptive parents may have committed fraud.

Counties cannot demand repayment caused by county error.  ACL 16-29 (November 7, 2016).

Adoption Assistance Program eligibility for children relinquished to private adoption agencies

The California Department of Social Services has clarification about Adoption Assistance Program (AAP) eligibility when a child is relinquished to a private adoption agency.  When a private adoption agency is involved, the adopting family can be eligible for AAP if the child is eligible to receive SSI or the child was eligible to receive AAP based on a prior adoption that dissolved due to death or termination of parental rights of the previous adoptive parents.

For eligibility based on a finding that remaining in the home is contrary to the child’s welfare, CDSS states that private adoption agencies cannot seek the required juvenile court finding that staying with the natural parents is contrary to the child’s welfare.  Only the county child welfare agency can seek that finding.  This means if there is no petition to remove the child from the home or no subsequent judicial determination that remaining in the home is contrary to the child’s welfare, the child is not eligible for AAP based on a juvenile court finding.  In addition, if a court only sanctions a voluntary relinquishment, the child is not eligible for AAP.

Children adopted through private agencies can be eligible for state-only AAP if the county child welfare agency certifies that the child was at risk of dependency.  The private agency must get this certification from the county child welfare agency.  The county child welfare agency has discretion whether to make this finding.   For this certification, the county child welfare agency must find that the child was at risk of dependency without voluntary relinquishment and there was substantial risk of abuse or neglect.  ACL 16-38 (May 10, 2016).