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Issue Alert - 04-08-06

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Date:

Sep 13, 2004

Issue Summary:

SER denials based on disqualifications from the Food Stamp program due to alleged intentional program violations (IPVs) appear to be unlawful

Persons Affected:

Low-income families and individuals who are denied SER because of a Food Stamp IPV disqualification

For More Information:

Lisa Ruby Michigan Poverty Law Program611 Church St. Suite 4AAnn Arbor, MI 48104-3000 (734) 998-6100 ext. 33Fax: (734) 998-9190Email: lruby@umich.edu


Background

State Emergency Relief (SER)

What's Happening?

Under FIA policy, households are being denied SER if an individual in the household has been disqualified from receiving Food Stamps (known in Michigan as Food Assistance Program or FAP) because of an “intentional program violation” (IPV). <P>Note that the FIA policy also imposes a SER disqualification if a household member has an IPV disqualification under other government benefits programs including Medicaid, Family Independence Program (FIP), Social Security benefits (RSDI), and Refugee Assistance (RAP). Disqualification based on IPVs under those programs –may also be unlawful, but they are not discussed in this Alert. Advocates with questions about SER disqualifications in those situations should contact MPLP or CCJ at the contact numbers and emails listed at the top of this alert. FIA’s policy of denying SER to households because a household member is disqualified from receiving benefits because of an intentional program violation in the Food Stamp program, also known as FAP or the Food Assistance Program, is not authorized by law. <P>FIA Policy: In pertinent part, FIA’s SER policy on potential resources states: <P> The following are potential resources and the SER group must take reasonable action to obtain them:<P>• Program benefits under FIP, SDA, RAP, Food Stamps, MA, SSI, RSDI, settlements of lawsuits or insurance claims; UCB and other employment-related benefits if there is the potential of benefits. <P>Exception: Local offices may choose the Project Zero option to waive the requirement to apply for FIP, SDA, RAP, Food Stamp or Medicaid programs. Groups should still be encouraged to apply for all benefits for which they qualify. <P>The “Penalties” section then states, <P>When an SER group member refuses or fails to take actions within his or her ability to obtain potential resources, the group is not eligible for SER. <P> Examples of such failure to act include:<P>• Failure to comply with a program requirement, such as … an E&T [employment and training] requirement, IPV [intentional program violation] or Support Disqualification, which results in ineligibility or program reduction.<P>• Being fired or refusing without good cause to accept an offer of employment. Use FIP policy (PEM 233A).SER ineligibility continues as long as the group member fails or refuses to take available action to obtain potential resources. Sanctioned groups are not eligible until the disqualification/penalty ends.<P>See SER 203 (Potential Resources). <P>Law:The SER administrative rules provide in pertinent part: Rule 400.7019 A client shall agree to take all feasible action to make potential resources available before emergency relief is issued.Rule 400.7005(e) "Potential resource" means an asset or income that may be available to a client if action is taken to make the asset or income available.Rule 400.7001 (g) "Asset" means a real or personal, tangible or intangible resource which a client owns or possesses, in which the client has a legal interest, and which the client has the legal ability to use or dispose of.Rule 400.7005 (a) "Income" means all earned or unearned monies that are received by a client.Rule 400.7006(e) "Resource" means income or assets which are owned by, and are under the control of, a client and which may be used to achieve a level of subsistence.<P>Rule 400.7021 A relief group shall not be eligible for relief under the state emergency relief program if a member of the relief group has been denied assistance under any of the following programs for failure to comply, when able, with a procedural requirement of those programs:<P> (a) The aid to families with dependent children program administered by the department.<P> (b) The state disability assistance program administered by the department.<P> (c) The state family assistance program administered by the department.<P> (d) The supplemental security income program administered by the social security administration.<P>Analysis: There is no legal authority for the denial of SER based on a client’s IPV disqualification from the Food Stamp program (FAP) <P>Food Stamps (FAP or Food Assistance Program) is not listed in SER Rule 400.7021, which makes an individual ineligible for SER if the individual has been denied a listed benefit for failure to comply, when able, with procedural rules. Therefore, an individual cannot be denied SER based on Rule 400.7021 because of a Food Stamp/FAP IPV disqualification. <P>Furthermore, FAP is neither income nor assets and thus need not be pursued as a potential resource under SER Rule 400.7019. In addition, Rule 400.7019 requires an agreement to “take action” prospectively (concurrent with or subsequent to the SER application) to make potential resources available, rather than imposing a penalty for past actions or inaction. Thus, the fact that an individual has committed a Food Stamp/FAP IPV or has agreed to a FAP IPV disqualification at some point in the past is not a failure or refusal to “agree to take action” to make a potential resource available that could result in SER ineligibility based on Rule 400.7019.<P>Neither Rule 400.7019 nor Rule 400.7021 make an individual ineligible for SER based on an alleged Food Stamp/FAP IPV and there does not appear to be any other legal authority for the policy contained in SER 203. Therefore, it appears that SER denials based on Food Stamp/FAP intentional program violation disqualifications are unlawful.<P>Agency review: The Family Independence Agency is reviewing their policy of denying SER benefits based on Food Stamp/FAP IPV disqualifications. It is possible that the policy will be rescinded or revised in the near future.<P>Note that this also is true of FIP, RAP, RSDI, UCB, and Medicaid. Note that this also is true of Medicaid, which is erroneously listed as a potential resource in SER 203.

What Should Advocates Do?

• Identify households that have been denied SER because the benefits under other programs have been terminated or reduced due to alleged intentional program violations. <P>• Check the FIA website for changes on FIA policy, or check the MPLP website (www.mplp.org) for updated issue alerts on this issue. <P>• Contact the Center for Civil Justice (CCJ) if you have questions about this alert or know of clients experiencing immediate problems because of the policies described in this alert.<P>• Encourage individuals who are denied SER – especially because of disqualifications from other benefit programs – to seek legal advice on whether the denial is correct and lawful. (see the information below on how to find legal advice).

What Should Clients Do?

• Seek legal advice if you are denied SER, to determine whether the denial was lawful.

Finding Help

Most legal aid and legal services offices handle these types of cases, and they do not charge a fee. You can locate the "free" legal services or legal aid office that serves your county on the Michigan LawHelp web site (http://MI.LawHelp.org) or look in the yellow pages under "attorneys" or call the toll-free lawyer referral number, (800) 968-0738.