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Issue Alert - Review of Lifetime FIP Sanction prior to closing eliminated - BEM 233A

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Date:

Apr 17, 2015

Program Area:

FIP

Issue Summary:

Recipients of Family Independence Program (FIP) benefits are required to participate in the work program, PATH, unless they are deferred. If a recipient is determined to be non-compliant with the work program, sanctions are imposed. The entire case is closed for the term of the sanction. The current sanction pattern is case closure for three months the first time, six months the second time and lifetime for the third. DHS policy was to review all of the sanctions prior to permanently closing the case. That policy has been eliminated as of May 1, 2015.

Persons Affected:

Recipients of Family Independence Program (FIP) benefits who are required to participate in work activities via the PATH program.

For More Information:

Michigan Poverty Law Program Lisa Ruby 220 E. Huron #600A Ann Arbor, MI 48104 734-998-6100 ext. 117 lruby@mplp.org


Background

In 2011, the Michigan Department of Human Services (DHS) implemented a new sanction pattern for individuals who are non-compliant with required work activities through PATH (DHS's work program).  This new sanction pattern is codified in MCL 400.57g. The current sanction pattern is full family closure for:

  • three months for the first sanction;
  • six months for the second sanction; and
  • lifetime closure for the third.

Sanctions are counted retroactively to April 1, 2007, even though the amended sanction pattern was not adopted until October 1, 2011.

Current policy, as contained in BEM 233A page 11, requires caseworkers to undertake a "Lifetime Sanction Final Review" before implementing lifetime ineligibility. This review requires caseworkers to examine the Family Self-Sufficiency Plan (FSSP) to be sure that all identified barriers to participation have been addressed and none have been overlooked.

A review of hearing decisions and anecdotal information indicated that workers are not reviewing cases before closing them, in violation of DHS policy. There were reports of clients facing hardships such as domestic violence and homelessness whose cases were being closed without being reviewed accordingly. The Michigan Poverty Law Program and the Michigan Coalition to End Sexual and Domestic Violence met with the legal director of DHS, the assistance attorney general for Children and Family Services, as well as other DHS employees in an effort to work collaboratively on the issue of workers not sufficiently reviewing these cases before permanently closing them.  Unfortunately, and with no further discussion with advocates, the requirement of a final review was removed from DHS policy as of May 1, 2015.

What's Happening?

Beginning on May 1, 2015, BEM 233A has been amended to eliminate the requirement that cases undergo a final review before being permanently closed. The sanction pattern remains the same. Recipients of FIP who are notified of non-compliant behavior are still entitled to have a triage meeting with their caseworker in order to determine whether or not there was good cause for the alleged non-compliant behavior. If the recipient is still found to be non-compliant, she can request a hearing to contest the finding. 

What Should Advocates Do?

Recipients of cash assistance (FIP) who are notified that DHS has found them to be non-compliant with work activities are entitled to have both a triage meeting and, if good cause is not found, an administrative hearing. It is vitally important that participants contest every allegation of non-compliance if they feel there was good cause for the alleged infraction or if there was no non-compliance to begin with.  The triage meeting is a good opportunity for a client and advocate to gather information and present evidence. If possible, attend the triage meeting with your client. A good cause determination must be found even if the client does not participate, meaning that good cause cannot be denied simply because of failure to participate in the meeting. It must be demonstrated.

If you have a client that has no income but appears to be eligible for FIP, be sure to ask them about the status of their case and if they are serving a sanction. Even if the FIP case has been closed, it is possible that the appeal period of 90 days is still open and a hearing can be requested.

Legal research indicates that retroactive counting of sanctions under an amended law is unconstitutional. If you have clients that are facing a lifetime sanction due to one or more sanctions that occurred prior to October 1, 2011, please contact Lisa Ruby at the Michigan Poverty Law Program. She can be reached at lruby@mplp.org and/or 734-998-6100 ext. 117.

What Should Clients Do?

Before participating in the PATH program, be sure that you understand what you are agreeing to do as part of your work contract. There are deferrals available if you are not able to participate in part or at all. These include:

  • taking care of a disabled spouse or child;
  • domestic violence;
  • homelessness;
  • inability due to disabling impairments, as well as other reasons that limit an ability to participate in work activities. Notify your caseworker if you have any of these restrictions. 

If you are required to participate beyond what is possible and you receive a notice of case action alleging non-compliance, attend the triage meeting to present your side of the story. You may have a good reason for what happened or a different version of the events than DHS. If you are still found to be non-compliant after your triage meeting and your case is being closed, request a hearing and contact your local Legal Aid office.

Finding Help

Most legal aid and legal services offices handle these types of cases, and they do not charge a fee. You can locate various sources of legal and related services, including the free legal aid office that serves your county, at michiganlegalhelp.org. You can also look in the yellow pages under "attorneys" or call the toll-free lawyer referral number, (800) 968-0738.