Hearing representative responsibilities and privileges process

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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.)

Use of Immunization Registry and new immunization forms

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CDSS has issues recommendations and instructions regarding the process for verifying immunizations for children under age 6 who receive CalWORKs.  CDSS states that clients have a responsibility to provide verification of immunization of children under age 6 and counties must first ask client to provide verification of immunization.  If a client does not have the verification, CDSS strongly recommends that counties use the California Immunization Registry 2 to search for verification before asking the client to get the needed documents.  If the client is unable to provide the requested verification after a good faith effort, the county is required to assist in getting the needed verification.

Applicants under age six or children under age six being added to the household must provide verification of immunization within 30 days of being found eligible for Medi-Cal or within 45 days if already receiving Medi-Cal.  Counties must provide clients with the CW 2209 form to claim good cause.

The immunization penalty must be removed when all children in the Assistance Unit have reached age six.  Removal of the penalty must be done manually because it is not automated in the consortia computer systems.  The penalty continues if there is a child under age six in the Assistance Unit who has not been immunized and does not meet one of the exemption or good cause criteria.

CDSS issued a new CW 101 informing notice about the immunization requirement.  The form notice is now required.  Counties or computer consortia cannot change the form without CDSS’ approval.  (ACL 17-87, September 7, 2017.)

More SB 1041 Questions and Answers

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The California Department of Social Services has issued its seventh set of questions and answers about SB 1041.  Most of the questions and answers involve data gathering.  However, a few of the questions and answers contain important policy guidance.

Question and Answer 3 addresses averaging of welfare-to-work participation hours.  Hourly welfare-to-work participation hours are determined using an average weekly requirement.  However, in some months, this average calculates to more than the minimum required 20, 30 or 35 hours. When that happens, an alternative calculation method must be used.  The alternative methods are the most days averaging method, which is based on the number of weeks in the month that contain four or more days, or the Friday Falls Averaging Method, which is based on the number of weeks in the month that contain a Friday.  The intent of these alternative methods is to prevent sanctions for recipients who are participating their minimum 20, 30 or 35 hours per week.

Several questions and answers address cross-over between California and federal work participation requirements.  California allows certain activities that are federal work participation requirements limit.  In particular, California allows vocational education while federal work participation limits vocational education to 12 months in the participants lifetime, and California requires job search at the beginning of the welfare-to-work process while federal work participation requirements limit the amount of countable job search.  CDSS states that participants are not required to have their federal time and the time on their 24 month clock run concurrently.  The participant can choose whether to first count these activities toward their 24 month clock or towards their federal limit.

CDSS also states that counties are not required to initiate a new review of 24 month extensions when there is an intercounty transfer.  Counties can review the case if the extension is not based on a formal request from the participant, but the new county cannot request verification until it has reviewed documentation from the prior county and determined it is insufficient.  The receiving county cannot deny a 24 month extension based on the county already having met its 20% extension target.

In addition, CDSS states that counties must reevaluate all 24 month extensions every six months even if the participant does not request to continue the extension.  (ACL 17-78, September 1, 2017.)

IHSS Protective Supervision clarifications

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The California Department of Social Services has issued clarification regarding several In Home Supportive Services (IHSS) Protective Supervision (PS) issues.

When two or more IHSS recipients are living together and receiving PS, the need is considered a common need and is prorated between the recipients.  CDSS issued instructions for how to prorate PS in the CMIPS II computer system.

Alternative resources are supportive services that are available to meet the recipient’s needs.  The county shall arrange for delivery of alternative services when they are available at no cost to either the IHSS program or the recipient.  Examples of alternative resources include adult or child day care centers, schools, community resource centers, Senior Centers and respite centers.  Multipurpose Senior Services Program and Regional Centers cannot be considered alternative resources.  Voluntary services cannot be considered an alternative resource, but can be used to fulfill the recipient’s 24 hour per day plan.

Environmental modification cannot be required to eliminate the need for PS.  However, existing environmental modifications can be considered if they eliminate the safety hazard that puts the recipient at risk.  Modifications or restraints such as locking the recipient in a room cannot be considered an appropriate modification.

The risk of falling can be considered for PS if the reason for the fall risk is related to the recipient’s mental impairment or illness.  For example, PS can be authorized for a recipient who has a fall risk if the recipient is unable to walk unassisted but, due to a mental impairment, forgets and frequently attempts to walk unassisted.

Eligibility for PS because of combative behavior is based upon evaluation of the willfulness of that behavior.  The recipient is considered nonself-directing if they are unable to assess the danger and risk of self harm.  An example is head banging as a manifestation of mental impairment or illness.  A recipient who displays intentional self-destructive behavior with the knowledge that the behavior may cause self harm would not be eligible for PS.  Recipients who exhibit anti-social or aggressive behavior directed to harm other people are ineligible for PS.  (ACL 17-95, September 12, 2017.)

Medi-Cal System Treatment of New Medicare Beneficiary Identifiers

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The Centers for Medicare and Medicaid Services (CMS) is planning to phase in Medicare Beneficiary Identifiers (MBIs) between April 2018 and April 2019 to replace the current Medicare Health Insurance Claim Number (HICN) based on beneficiary Social Security Numbers.  The MBI and HICN will be linked and used, with SSA generating HICNs and CMS generating MBIs.

Starting April 2018, the SAWS and MEDS systems, along with other statewide systems, are expected to be able to receive MBI information.  The transition period will run through December 2019.  During this time, when beneficiaries will only receive an MBI, Counties are not to share MBI with anyone.  County workers will continue to enter Medicare information as they receive it.  A new field for MBI has been added to MEDS.

DHCS MEDIL I 17-15 (September 18, 2017).

Blind FPL Medi-Cal Income Threshold/Disregards Update

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Effective April 1, 2017, the Blind Federal Poverty Level income limits are as follows:

  • For a blind individual, the monthly income threshold is $1235, the same as the Aged and Disabled FPL threshold.
  • For a couple where both individuals are blind, the monthly income threshold is $1751
  • For a couple where one individual is blind and the other is aged or disabled, the monthly income threshold is $1666

DHCS ACWDL 17-33 (September 14, 2017)