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Issue Alert - 07-04-08

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Date:

May 25, 2007

Program Area:

Family Independence Program (FIP)

Issue Summary:

The Department of Human Services (DHS) has issued policies interpreting and implementing many 2006 legislative changes beginning April 2007, including new “work-related” requirements, Work First/JET deferrals, and penalties for noncompliance

Persons Affected:

FIP applicants and recipients

For More Information:

Center for Civil Justice 320 S. Washington, 2nd Floor Saginaw, MI 48607 (989) 755-3120, (800)724-7441 Fax: (989) 755-3558 E-mail: info@ccj-mi.org


Background

In 2006, both Congress and the Michigan legislature passed changes that affect Michigan’s Family Independence Program (FIP), as well as the Work First(WF)/Jobs Education Training (JET) requirements that apply to some FIP recipients.


The Department of Human Services (“DHS”) has issued extensive new policies to comply with the statutory changes and changes made to comply with federal rules issued by the U.S. Department of Health and Human Services.  The new policies were announced by DHS in Program Policy Bulletin (PPB) 2007-007, which is available online.  New policy is contained in several Program Administrative Manual (PAM) and Program Eligibility Manual (PEM) items.  DHS bulletins and policy manuals are available online at http://www.mfia.state.mi.us/olmweb/ex/html/ or by using the quick link at the Michigan Poverty Law Program (MPLP) website, http://mplp.org/.  For the bulletin, click on “Bulletin Log” under the Financial Assistance heading. 

 

The new policies and the Jobs Education Training (JET) Pilots

Many of the new policies were previously implemented in JET Pilot counties and are now being applied statewide to all counties, including the JET counties.  JET pilot policies that are NOT being implemented statewide are: (1) Short Term Family Support (STFS) program and (2) Michigan Rehabilitation Services (MRS) consultation and evaluation of clients who have applied for Supplemental Security Income (SSI) disability benefits to determine whether they will be deferred, served through MRS, or served through the MWA.  Other differences may also exist between JET and non-JET counties.

 

This Alert is just a starting point

The changes are extensive and this Issue Alert provides an initial overview.  Additional policy changes are expected and full analysis of the changes will take some time.  Advocates should refer to the specific policies themselves and should review the state or federal laws in analyzing individual clients’ questions or problems. The Center for Civil Justice is interested in hearing from, and is willing to work with, advocates who are assisting clients with problems arising from the new penalty policy.

What's Happening?

1. New terms or definitions

The new policies contain terms or definitions that were not used in previous DHS policy.  Some key terms and definitions are:

Work Eligible Individual (WEI)

Under the new policies, some requirements and penalties apply only to WEIs or “work eligible individuals”.  For purposes of state policy, a WEI is anyone who is not listed as (a) a “non-WEI” or (b) a person who is “neither a WEI nor a non-WEI”.   

Note:  The federal TANF regulations also define Work Eligible Individuals (WEIs) for purposes of specifying who is counted in determining whether the state has met its work participation rate.  Although DHS policy states that WEIs are the persons who are counted in determining the state’s work participation rate for the federal TANF block grant, technically that is not correct.  Some of the individuals who are considered WEIs under the new state policies will NOT in fact be considered in determining whether Michigan has met its work participation rate because their FIP assistance is funded solely with state funds that are not claimed toward Michigan's TANF maintenance of effort requirement. 

Non-Work Eligible Individual (Non-WEI) (PEM 228 p. 2-3; PEM 230A p. 6-9)

The new policies contain two lists of ‘Non-Work Eligible Individuals’.  One list is in PEM 228 and the other is in PEM 230A.  Because the lists are not entirely consistent, we have cited the PEM Item where the specific groups have been listed, below.

o      Adults disqualified from receiving FIP because of their immigration status (PEM 228 p.2)

o      Ineligible grantees (including SSI recipients and non-parent caretakers who choose not to receive FIP) (PEM 228 p. 2)

o      Adult FIP recipients who are caring for a spouse disabled under SSI standards except duration, who is living in the same home, when disability and need for care are verified (PEM 228 p. 2; PEM 230A p. 7-8)

o      Adult FIP recipients who are caring for a child disabled under SSI standards except duration, who is living in the same home and not attending  school full time according the school standards, when disability, need for care (and lack of fulltime school attendance, if questionable) are verified (PEM 228 p.2; PEM 230A p. 7-8) 

Note:  the policy confuses attendance and enrollment, so be alert for problems in this area.  Also, note that an adult caring for a child who is attending school full time may be deferred from WF/JET as a “local office discretion” deferral.  Clients who are unable to participate in WF/JET because of the needs of a child with disabilities should seek legal advice (see the bottom of this alert for information on how to find legal help).  The state law that defines who is exempt or deferred from WF/JET has not changed.  Therefore, clients who were deferred in the past should continue to be deferred unless their circumstances or the needs of the child have changed.  The Center for Civil Justice is interested in hearing from, and working with, advocates who are assisting client with problems arising from the new penalty policy.

o      One parent of a child under age 3 months who is in the home OR, if the child is not in the home, the mother for 3 months after she gives birth (PEM 230A p. 6)

o      Single parents with a child under age 6 for whom adequate child care (appropriate, affordable care from a suitable provider within a reasonable distance) is unavailable (PEM 230A p. 7)

Recipients who are NEITHER “WEIs” NOR “Non-WEIs”  (PEM 228 p.3) – (honest, this is the terminology used in DHS policy) are:

o        Dependent children (non-parents) under age 16

o        Dependent children (non-parents) age 16 or 17 who are full-time elementary or high school students (including during summer break). 

2.  What are FIP applicants required to do?

FIP applicants will not be denied FIP for failure to engage in employment- or self-sufficiency-related activities and are not referred to WF/JET.  (PEM 230A)   However, eligibility for FIP will be delayed if an applicant who is a WEI refuses employment without good cause either while the application is pending or within 30 days prior to the date of  application.  (See #8 below for a summary of policy on refusing employment and good cause).  The FIP case cannot open until the pay period following the pay period in which the refusal of employment is 30 days old. (PEM 233A p. 5) 

For example:  if the family applies for employment on January 10, 2008 and a parent who is a WEI refuses a job offer on January 31, 2008.  The employment refusal is 30 days old on March 1, 2008 and the earliest benefits that will be paid to the family are for the second half of March.

Note:  Under DHS policy, the fact that a person is deferred from WF/JET is not necessarily “good cause.”  However, list of good cause reasons includes “unplanned events or factors” and other reasons that should be broad enough to encompass the deferral reasons.  (PEM 233A p. 3-4)  Clients who are deferred from WF/JET but are accused of noncompliance or threatened with penalties for noncompliance should seek legal advice (see the bottom of this alert for information on how to find legal help).  The Center for Civil Justice is interested in hearing from, and working with, advocates who are assisting client with problems arising from the new penalty policy.

DHS policies continue to require FIP applicants to complete the application form, attend an in-person interview with DHS, verify eligibility factors, etc. 

“Orientation” is accomplished as part of the DHS client application interview process, as is an initial screening for work barriers.    At the in-person interview, the DHS caseworker must inform the applicant about the FIP Work and Self-sufficiency Rules and give the recipient a copy of the rules (DHS 1538). (PEM 229 p. 1)

Important Note: Pending state legislation, HB 4482, would require non-deferred applicants to attend WF/JET as a condition of eligibility for FIP.  Applicants who failed to comply would be subject to denial of their application but would not be subject to the 3- or 12- month disqualifications that apply to recipients (see below).   DHS apparently will be issuing policy effective May 1 that will implement this pending change.  Check policy carefully before advising clients.

 

Member adds (persons applying to be added to an existing FIP case) are treated as recipients, not as applicants, for purposes of applying penalties for noncompliance, including refusing employment.  (See #8 below)

3.  Who is required to complete a Family Automated Screening Tool (FAST) and agree to a Family Self-Sufficiency Plan (FSSP) or Personal Responsibility Plan and Family Contract (PRPFC)?

All FIP recipients and ineligible grantees, except those who are NEITHER “WEIs” NOR “Non-WEIs”  (see #1 above and PEM 228 p.3) must complete a Family Automated Screening Tool (FAST) and agree to a Family Self-Sufficiency Plan (FSSP) or Personal Responsibility Plan and Family Contract (PRPFC). Children who have quit school and refuse to return or have been prohibited by the school from returning must complete the FAST and the FSSP/PRPFC.

In addition, the following individuals are temporarily exempt (until computer systems are updated) from completing the FAST and FSSP , although the DHS caseworker is required to complete a PRPFC with them:

o        Ineligible grantees

o        Adults disqualified due to immigration status

PEM 228 contains policy regarding the FAST and the FSSP.

Note:  Many individuals who are deferred from participation in WF/JET (see #6, below) are required to complete a FSSP as well as a FAST, and may be subject to sanctions for failure to complete the FAST and FSSP or for failure to comply with the FSSP (see #8 below).  Individuals who are accused of noncompliance or threatened with penalties should immediately seek legal advice (see the bottom of this alert for information on how to find legal help).  The Center for Civil Justice is interested in hearing from, and working with, advocates who are assisting client with problems arising from the new penalty policy.

 

4.  What is the FAST and how does it work?

Under the Social Welfare Act, MCLA 400.57e(1), DHS is required to “complete a thorough assessment to facilitate development of the family self-sufficiency plan [see below] … and determination as to whether the family independence program group’s adult members are …exempt from work first participation.[.]”  Under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, DHS must train intake workers to recognize potential disabilities and require them to conduct initial screening to identify potential disabilities for persons who agree to be screened.  Based on the screening, DHS must offer further evaluation or assessment “if there is an initial indication that [the person] has a disability that may impact his/her ability to successfully complete or benefit from a current or proposed program assignment.”  HHS Office of Civil Rights, “Prohibition Against Discrimination on the Basis of Disability in the Administration of TANF (Temporary Assistance to Needy Families)”. 

 

 

 

 

The FAST is a web-based questionnaire that asks 50 screening questions, including questions about the FIP family members’

   Education

   Occupational licenses/certificates

   Health problems

   Special education

   Substance abuse

   Domestic violence

   Mental health

   Child care

   Mental health

   Disabilities

   Basic skills

   Criminal convictions

   Court-ordered activities

   ID, SSN

 

Each question may be answered “yes”, “no”, or “skip” – indicating that the individual has chosen not to answer yes or no.   

 

When a family is first approved for FIP, or when a member is added to the FIP group, the grantee on the case receives a notice (DHS 1535 or 1536) listing the family members who are required to complete a FAST within 30 days and explaining that the family’s FIP case will be closed for a minimum of 3 months if any of the listed persons fails to complete the FAST within the 30 day period.  

 

The electronic version of the FAST is accessed at Michigan.gov/FAST.  The recipient must provide his or her name, birth date, county, last 4 digits of SSN, and Client ID # to log on.  There is a hard copy version of the FAST (DHS-595) that caseworkers must provide to individuals who report that they cannot complete the online version but are able to complete a hard copy. The caseworker will then enter the answers from the hard copy onto the web-based version, for the client.  The DHS caseworker should assist clients who have disabilities or educational deficits that prevent them from completing a written version of the FAST.  (PEM 228 p. 3)

 

The notice provides information about access to the FAST by using a computer with internet access and suggests where the individuals may be able to get access to, and assistance with, the internet.  The notice also explains that individuals who are not able to complete the FAST online should contact their caseworker.

 

For recipients who are referred to WF/JET (see below), the MWA may provide computers and assistance for individuals to complete the FAST as a WF/JET activity.

 

Note: DHS decides whether to refer the individual to WF/JET at the time the FIP case is opened, before the FAST has been used to screen for potential barriers to participation in WF/JET!  Although the decision about whether to send the individual to WF/JET at the time of case opening is consistent with MCLA 400.57f(1), failure to conduct screening in advance of the referral violates MCLA 400.57e as well as the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.  Clients who are assigned to WF/JET without being screened and who may have disability related barriers, including undiagnosed mental, physical, emotional, cognitive, or learning disabilities should seek legal advice (see the bottom of this alert for information on how to find legal help).  The Center for Civil Justice is interested in hearing from, and working with, advocates who are assisting client with problems arising from the new penalty policy.

 

 

5.  What is the FSSP and how does it work?

The FSSP in general:

The Family Self-Sufficiency Plan (FSSP) like the FAST, is a web-based tool.  It can be accessed by either the DHS worker or the MWA (and WF/JET contractors). The FSSP includes sections on

   Client information

   (Non-) Compliance history

   Strengths & Abilities

   Barriers & Referrals

   Goals & Activities

   Personal Contract (agreed to by the client, copy printed and provided to client)

 

Based on the information entered on the FAST (see #4 above), some sections of the FSSP will be automatically filled in.  However, policy states that it is “best practice” for caseworkers to begin filling out the FSSP at their initial interview with the client (before the FIP case is opened and the client is instructed that they must complete the FAST).  (PEM 228 p. 5)

 

Under the Social Welfare Act, the FSSP must

o        “reflect the individual needs and abilities of the particular family”

o        “outlin[e] the responsibilities of members of the [FIP] group, the contractual nature of [FIP] assistance, and the focus on the goal of attaining self-sufficiency”

o        “identify …the goals and responsibilities of” the family members, DHS, and the MWA.

MCLA 400.57e(1).

 

It must be jointly developed by the adult members of the FIP group and DHS, “with the details of the work first participation to be included …being developed by [DHS], [DLEG/the MWA] and the adult members of the [FIP] group.”   MCLA 400.57e(1).  In addition, the Social Welfare Act lists certain specific requirements that must be set forth in the FSSP if they apply to the FIP group.  Id. at (a)-(g).

 

The new policy in PEM 228 does not explain how or when the client is to be contacted regarding development of the FSSP, although the DHS 1535 or 1536 notice that is sent to the client tells him/her that s/he must agree to a FSSP within 60 days of the letter or risk sanctions.

 

Barriers & Referrals under the FSSP:

DHS workers are instructed to “identify, document, and address barriers to self-sufficiency” in the “Barriers & Referrals” section of the FSSP.   However, if the FAST results “suggest a barrier that the client …does not recognize” the worker is instructed to “document this in the comments section and focus on addressing barriers which the client recognizes and is ready to work on.  Consider activities that …will address the barriers the client is willing and able to address.”  (PEM 228 p. 8)

 

Activities in the FSSP:

In the Activities section, activities are categorized as “core”, “non-core”, and “other”, depending on whether and how they may be counted for purposes of meeting the state’s work participation rate under the federal Temporary Assistance to Needy Families (TANF) laws.  The policy states that “non-core” activities may not be included in the plan unless the plan also includes at least 20 hours of “core” activities.  (PEM 228 p. 10)    Under the ADA and Section 504, this requirement should be modified as necessary to accommodate the individual’s disabilities.

 

Consistent with federal law, core and non-core activities are listed as follows:

Core:  Unsubsidized employment, Subsidized employment. Work Experience, on-the-job training, job search/job readiness, community service programs, vocational educational training (including condensed vocational training), providing child care for a community service participant

Non-core:  Job skills training directly related to employment, education directly related to employment, high school completion/GED

(PEM 228 p. 9-10)

 

Other activities listed in policy include: parenting programs or classes, counseling, life skills programs or classes, conflict resolution programs or classes, arranging child care or in-home care for a family member with disabilities, support group attendance, other activities that would assist the client in achieving self-sufficiency.  Policy states that the self-sufficiency activities “must be appropriate to the individual’s and family’s needs and circumstances, including disability-related needs or limitations.”  PEM 228 p. 10.

 

Required hours of participation for WEIs are automatically calculated and filled in on the FSSP, based on information about the family.  These are the number of hours of countable activities that the individual must complete in order to be counted toward the state’s federal work participation rate.  They are:

o        20 hours for a single parent with a child under age 6 

o        30 hours for a single parent with all children age 6 or older

o        35 hours (combined) for a two parent household not receiving Child Day Care help

o        55 hours (combined) for a two parent family receiving Child Day Care payments

(PEM 228 p. 11-12)

 

The Personal Contract:

The Personal Contract portion of the FSSP is what the client must agree to in order to avoid penalties for noncompliance (see below).  The contract includes worker tasks as well as client goals and activities.  It also includes a section where the worker enters information about the date on which the client agreed to the contract, as well as the DHS or MWA workers who agreed to the plan.    (PEM 228 p. 14)   The contract does not include the other portions of the FSSP, such as Strengths & Abilities, Barriers, and Comments.

 

The Personal Contract must be agreed to by the client within 60 days of the initial FIP case opening and each time the activities on the FSSP are changed.   The client is not required to sign the Contract, but DHS must send the client a copy of it, which tells the client “you are expected to engage in the activities agreed to in this contract,  If you have difficulty doing these activities as planned, let your DHS or your WF/JET worker know the same day or as soon as you can.  Otherwise, noncompliance with the agreed upon activities could result in case closure.”  (PEM 228 p. 15)

 

On the printed Personal Contract provided to the client, Activities are divided into:

o        Education and Training Activities, which may include:

   Vocational education

   Internships, clinicals, practicums

   Secondary education

   Language skills

   Math skills

   GED classes

   Other

   Employment Activities, which may include:

   Unsubsidized work

   Subsidized work

   Job search/job readiness

   Unpaid work experience

   On the job training

   Community Service program

   Providing child care for a Community Service participant

   Michigan Rehabilitation Services

   Securing adequate child care

   Other

   Family Strengthening Activities, which may include:

   Caring for disabled relative

   Substance abuse treatment

   Family or individual counseling

   Addressing domestic violence

   Complying with treatment plan

   Establishing eligibility for disability benefits

   Class or program on

    Parenting

    Self esteem building

    Life skills

    Conflict resolution

    Child nurturing

   Crisis resolution

   Early On Service Plan activities

   Other

 

Both the DHS worker and the WF/JET worker (for non-deferred clients) can enter activities onto the FSSP and print an updated contract when it is agreed to by the client.  (PEM 228 p. 9, 14-15)  Unless DHS identifies barriers  and assigns the recipient to activities for barrier removal, most activities for non-deferred WEIs are assigned by the WF/JET provider.

Note:   Although many activities are listed as possible assignments, recipients who are referred to WF/JET must engage in activities that will allow the state to count the person toward their work participation rate unless that requirement is modified to accommodate their disability-related needs under the Americans with Disabilities Act (ADA) or Section 504 of the Rehabilitation Act (Section 504) or other barriers.  MCLA 400.57e(1)(f). 

DHS must obtain verification of the individual’s actual hours of participation in activities assigned by DHS.  WF/JET caseworkers obtain verification of actual hours of participation in activities to which they have assigned the client.   (PEM 228 p. 15)  Thus, clients may be required to submit verifications to either or both agencies. (For example, clients may have to submit pay stubs to the WF/JET agency to verify work hours under the FSSP and submit the same document to DHS to verify income for Food Stamp eligibility.)

6. Who will NOT be referred to the MWA for participation in WF/JET?

The following FIP recipients are NOT referred to the MWA or any other employment service provider (PEM 230A), but may be assigned to other self-sufficiency activities if they are required to agree to a FSSP (see #3, above):

o      “Non Work Eligible Individuals” (non-WEIs) (see the list in #1 above) (PEM 228 p.2; PEM 230A p. 6-8):

o      Individuals who are NOT required to complete a  Family Automated Screening Tool (FAST) and agree to a Family Self-Sufficiency Plan (FSSP) because they are neither a WEI nor a non-WEI. (see #1 & above)

o      Deferred individuals (PEM 230A) (note:  the definitions of who is deferred have changed, read policy carefully before advising clients):

o        Recipients under age 16 (PEM 230A p. 9)

o        Recipients age 65 or older (PEM 230A p. 9)

o        Recipients receiving, or found eligible for, Social Security benefits based on disability or blindness (PEM 230A p. 9)

o        Recipients with a mental or physical illness, limitation, or incapacity (including pregnancy-related limitations) expected to last less than 3 months that prevents participation in WF/JET as verified by an MD or DO (PEM 230A p. 9)

o        Recipients with a mental or physical illness, limitation, or incapacity (including pregnancy-related limitations) expected to last more than 3 months that prevents participation in WF/JET as verified by an MD or DO, if the person ALSO

*   Is applying for SSI and has not received a final decision denying an SSI application based on the same condition (unless the denial was based on lack of duration or a non-disability related reason that does not preclude FIP eligibility – e.g., non-cash assets) (PEM 230A p. 10)

o        Recipients who are prevented from participating in WF/JET due to

§         Low intellectual capacity or learning disabilities that impede comprehension and prevent success in acquiring basic reading, writing, and math skills – including but not limited to an individual with an IQ less than 80 (PEM 230A p. 10)

§         Documented mental health problems that cannot be controlled through treatment or medication(PEM 230A p. 10)

§         Physical limitations on his or her ability to  perform routine manual labor tasks, including but not limited to, bending or lifting, combined with intellectual capacity or learning disabilities. (PEM 230A p. 10)

      Note: PEM 230A issued April 2007 requires the recipients listed in the three bullets above to also show that they are applying for SSI and have not received a final denial, as set forth in the requirement marked with an asterisk (*) above.  This requirement conflicts with the deferrals set forth in the Social Welfare Act, MCLA 400.57f(3)(i)(v), (vi), (vii)

o        Recipients granted a deferral for “local office discretion” based on

§         A temporary (less than 3 months) critical event such as homelessness

§         Pregnancy complications expected to last more than 3 months

§         A parent or other caretaker actively participating in Early On with a dependent child in the home

§         An adult caring for a disabled child who meets the criteria for being a non-WEI (see above) except that the child is attending school full time according to the school district.  (PEM 230A p. 11-12)

§         A Child Protective Services or Foster Care case treatment plan that is so intensive that it interferes with the parent’s ability to perform WF/JET activities (PEM 230 p. 14-15)

o        Recipients experiencing domestic violence (PEM 230A p. 12-13))

o      Minor parents (age 16 or 17) or teen parents (age 18 or 19), including pregnant teens, who are attending high school full time and submitting required verifications (PEM 230A p. 6; PEM 230A p. 14-15)

o      Clients served by Refugee Contractors (PEM 230A p.5)

o      Clients served by Native Employment Works programs (PEM 230A p.5)

o      Teens served by Teen Parent Contractors (PEM 230A p.5 & 14)

o      Clients working at least 40 hours a week at state minimum wage (PEM 230A p.5)

o      Clients working their minimum required hours (see below) at  VISTA, Job Corps, or AmeriCorps (PEM 230A p.3)

 

7.     When will FIP recipients be subject to sanctions (penalties)?

DHS will impose sanctions on families receiving FIP when DHS determines that an individual in the family who is a “Work Eligible Individual (WEI)” is in “noncompliance with employment and/or self-sufficiency-related related activities” without “good cause.” 

Whose conduct cannot trigger a sanction:

o      Non WEIs and

o      Persons who are neither a WEI nor a non-WEI

Note:  “WEI” is not defined in PEM 233A and the policy specifically cross references neither PEM 228 nor PEM 233A.  DHS Central Office staff  has verbally indicated that anyone listed as a non-WEI in either PEM 228 or PEM 230A will be considered a non-WEI for purposes of the noncompliance penalty policy.   Action or inaction by anyone listed as a non-WEI (see #1 above) should not result in a sanction.

Note:   Families in which the WEIs are deferred may are subject to sanctions for non-compliance under the new policy.  Noncompliance without good cause by WEIs who are deferred from WF/JET will result in penalties.  Advocates should assist clients in demonstrating that the reason for the person’s deferral constitutes good cause. 

Note:   The Social Welfare Act clearly provides that penalties or sanctions will be imposed only when a recipient is noncompliant (MCLA 400.57g (10) & (11)), but DHS policy also imposes sanctions if a person seeking to be added to an existing FIP case is noncompliant (PEM 233A p. 1, 5)   However, the new policy also suggests that noncompliance by a “member add” will only result in penalties if the proposed new member is a “WEI WF/JET participant”.  (PEM 233A p. 5)  Individuals who experience extended penalties because of the conduct of a “member add” (rather than case closure with the ability to reapply immediately) should seek legal advice (see the bottom of this alert for information on how to find legal help).  The Center for Civil Justice is interested in hearing from, and working with, advocates who are assisting client with problems arising from the new penalty policy.

 

What constitutes “noncompliance with employment or self-sufficiency related activities”?

DHS policy lists all of the following as noncompliance (PEM 233A p. 1-3):

o      Failure or refusal to:

o         Complete the FAST

o         Comply with activities assigned on the FSSP

o         Participate in employment and/or self sufficiency-related activities     

o         Appear for a scheduled appointment or meeting

o         Accept a job referral

o         Complete a job application

o         Appear for a job interview (policy says “subject to the exception below,” which appears to refer to exceptions for persons for whom the employment would interfere with approved education or training)

o      Stating, orally or in writing, a definite intent not to comply with program requirements

o      Threatening, physically abusing, or otherwise behaving disruptively toward anyone conducting or participating in an employment- and/or self-sufficiency-related activity

o      Refusing employment support services if the refusal prevents participation in an employment or self-sufficiency related activity

o      Refusing suitable employment, which includes:

o         Voluntarily reducing hours or earnings

o         Quitting a job

o         Except: Adults who quit or reduce hours/earnings to participate in MWA-approved education or training; or teen parents/dependent children who quit a seasonal job to return to high school or GED programs

o         Being fired for misconduct or absenteeism – not for incompetence

§          DHS defines misconduct sufficient to warrant firing as any action done by an employee or other adult group member that is harmful to the interest of the employer and is done intentionally or in disregard of the employers interest, or is due to gross negligence

§          DHS also specifically includes being under the influence of drugs or alcohol at work, physical violence, theft, an willful destruction of property at work

o         Refusing an offer of work or for additional hours of work that will pay at least state minimum wage for up to 40 hours per week.  Recipients are not required to accept work over 40 hours per week and may refuse work that will interfere with an MWA-approved education or training program.   They must accept part-time, fulltime, seasonal, temporary, or permanent work.

Note:  DHS notifies recipients that they will be sanctioned for failure to agree to a FSSP.   This is not specifically and explicitly listed in policy as “noncompliance”.  Clients who are threatened with penalties for failure to agree to a FSSP should seek legal advice (see the bottom of this alert for information on how to find help).  The Center for Civil Justice is interested in hearing from, and working with, advocates who are assisting clients with problems arising from the new penalty policy.

 

Note:  Under MCLA 400.57g(11), which deals specifically with penalties, states

For purposes of this section, noncompliance means 1 or more of the following:

(a)                A recipient quits a job

(b)                A recipient is fired for misconduct or absenteeism.

(c)                 A recipient does not participate in work first activities.

(d)                A recipient is non-compliant with his or her family self-sufficiency plan.

Therefore, failure to complete the FAST (or FSSP) should not result in penalties under the Social Welfare Act.  Clients who are threatened with penalties because of their failure to complete a FAST should seek legal advice (see the bottom of this alert for information on how to find help).   The Center for Civil Justice is interested in hearing from, and working with, advocates who are assisting clients with problems arising from the new penalty policy.

 

What is “good cause” for noncompliance?

Good cause is defined in the Social Welfare Act, MCLA 400.57g(12) as

(a)             Temporary debilitating illness or injury of the recipient or of a family member who needs the recipients in-home care

(b)             Lack of child care that is appropriate, affordable, with a suitable provider within a reasonable distance (total commute for work and child care is less than 3 hours a day)

(c)             Commuting time (for employment or training) is more than 2 hours per day, not including time for transporting children to child care (or not more than 3 hours per day when there are unique and compelling circumstances, such as no other jobs available or job pays at least twice minimum wage)

(d)             Transportation is unavailable at reasonable cost

(e)             Employment or participation involves illegal activity

(f)               Recipient is mentally or physically unfit to perform the job

(g)             Recipient is illegally discriminated against on the basis of age, race, disability, gender, color, national origin, or religious beliefs

(h)             Other unplanned or unexpected events or factors that reasonably could be expected to prevent or significantly interfere with compliance

(i)                Quitting employment to take a comparable job

The DHS policy also lists as good cause (PEM 233A p. 3-4):

§         Recipient is employed at least 40 hours at state minimum wage

§         Failure to make reasonable accommodations for disability-related needs, by DHS, the employer, employment services provider, contractor, etc.

Note:  The DHS policy specifies that lack of child care and transportation is not good cause unless the recipient requested child care or transportation services prior to the case closure.  This limitation is not included in the Social Welfare Act and this should not prevent a recipient from claiming good cause.  Recipients who experience problems because of this limitation should seek legal advice.  (See the bottom of this alert for information on how to find help).  The Center for Civil Justice is interested in hearing from, and working with, advocates who are assisting clients with problems arising from the new penalty policy.

 

8.    What are the penalties (sanctions) for noncompliance without good cause, and how are they applied?

Under the new DHS policy, the family’s FIP case will be closed for a minimum number of months, which varies depending on how many times the family has been noncompliant after March 31, 2007.   The penalties are:

    • Minimum 3 months for a first noncompliance
    • Minimum 3 months for second noncompliance
    • Minimum 12 months for 3rd or subsequent noncompliance

Note:   The Social Welfare Act does not impose full family sanctions.  It applies penalties to the noncompliant recipient. MCLA 400.57g.   However, pending legislation (HB 4482) would provide legal authority for full family sanctions.   Clients who are notified that they are subject to full family sanctions should seek legal advice.  (See the bottom of this alert for information on how to find help).  The Center for Civil Justice is interested in hearing from, and working with, advocates who are assisting client with problems arising from the new penalty policy.

 

Penalties must begin at the beginning of a month (not the second pay period of the month) (PEM 233A p. 5) 

DHS must provide notice of the noncompliance and an opportunity to report and meet regarding good cause reasons, followed by a timely negative action notice of FIP termination at least 12 days in advance of the termination date, before FIP penalties are applied.   (PEM 233A)

See subsequent issue alerts for information on Food Assistance Program (FAP) (also known as food stamps) and Medicaid penalties.

The DHS policy has detailed policy on how sanctions are counted toward families when an individual who has been noncompliant leaves or joins a different family.  See PEM 233A 7-11.

The Good Cause “Triage” process

Before DHS can determine that FIP will be terminated for noncompliance without good cause, DHS must set up a “triage” meeting with the client and the MWA case manager for non-deferred clients, or with just the client if he or she has not been referred to WF/JET.    (PEM 233A p.6)

DHS must send a DHS 2444 notice of non-compliance within 3 days after learning of the non-compliance.  DHS is required to run a report of individuals terminated from WF/JET every week.  The notice of non-compliance must include:

§         Date(s) of noncompliance

§         Facts on which determination of non-compliance was based

§         Length of time the penalty will be imposed

§         Date, time and place of the scheduled triage meeting

(PEM 233A p. 6; MCLA 400.57g(14))

The date and time of the triage meeting must be within 10 business days of the determination of non-compliance.  The client is offered an opportunity to participate by telephone if he or she cannot appear in person.  No home visit is required.

Note: Under the new policy, if the client fails to contact DHS or to attend the triage meeting, penalties are automatically applied, regardless of whether DHS has information on hand that indicates the client had good cause.  (PEM 233A p. 6-7)  This is inconsistent with the notice of noncompliance, which says that a good determination will be made based on available information of the client doe not attend the triage meeting.   Any client who is threatened with penalties and believes they have good cause should tell DHS and the WF/JET agency about the good cause and seek legal advice (see the bottom of this alert for information on how to find legal help).  The Center for Civil Justice is interested in hearing from, and working with, advocates who are assisting clients with problems arising from the new penalty policy.

 

If Good Cause is established

DHS will not send a negative action notice or impose a penalty if they determine there was good cause for the noncompliance as a result of the triage process.  However, the good cause must be verified. (PEM 233A p.6) 

If the client establishes and verifies good cause before the negative action effective date (the first day of the month that FIP will be terminated as a penalty), the negative action must be deleted so that the penalty will not be imposed, even if the individual did not attend the triage meeting or respond to the notice of noncompliance within 10 days.  (PEM 233A p.9)

Avoiding penalties for the first instance of noncompliance

For the family’s first instance of noncompliance after March 31, 2007, if the noncompliant individual participates in the triage meeting but DHS determined that there is no good cause, DHS policy requires that they

1.     Send the client a negative action notice that their FIP case will be closed and they can continue to receive benefits pending the outcome of a hearing if they request a hearing within 12 days of the date of the notice (PEM 233A p.9)

2.     Update the FSSP if necessary (PEM 233A p. 6)

3.     Offer the individual an opportunity to comply with the FSSP within 10 days in order to avoid penalties (PEM 233A p. 7)

4.     Give the individual a notice (DHS 754) stating (a) the penalties that will be applied if noncompliance continues, (b) the activities that the individual can participate in, with a deadline date, to avoid a penalty, (c) the fact that their FIP case will close and their FAP benefits and Medicaid coverage may be reduced if they do not comply as directed, and (d) they should report good cause reasons for not complying within the 10 days period. (PEM 233A p. 7, DHS 754)

5.     Tell the individual that they must submit verification of compliance within the 12 day negative action period (PEM 233A p. 7, DHS 754).

The noncompliance without good cause will count as a first instance of noncompliance even if the individual cures it and is not penalized. 

Note:  Individuals who receive notices about noncompliance or penalties should seek legal advice immediately and do what is required by the letter, if possible (see the bottom of this alert for information on how to find legal help).    Clients may be confused about their rights and responsibilities because the negative action notice explaining their hearing rights and the First Noncompliance Letter (DHS 754) explaining the right to avoid penalties contain conflicting information and are sent separately at about the same time.   Clients who disagree with the determination that they were noncompliant or the determination that they did not have good cause may want to pursue a hearing in an effort to remove the first noncompliance from their record, even if they also are willing to come into compliance in order to avoid the penalty.   Advocates should assist clients in pursuing both avenues, if appropriate.    The Center for Civil Justice is interested in hearing from, and working with, advocates who are assisting clients with problems arising from the new penalty policy.

 

Penalties when FIP is closing for other reasons

The new DHS policy requires that FIP penalties be applied even if the individual’s FIP case is closed for another reason prior to the beginning of the FIP penalty, regardless of the (other) reason for FIP case closure.  (PEM 233A p.9)   Thus, for example, if the FIP case is closed June 1 because the individual has cash assets in excess of $3,000, but the penalty period does not begin until July 1, the client cannot qualify to begin receiving FIP again until October 1 at the earliest, when her 3 month penalty has ended.  

 

Note: Clients who expect that their FIP will be terminated for a reason other than noncompliance (such as income or assets) should either continue complying with their FSSP until they receive notice of the case closure for the reason other than noncompliance, or they should request in writing that their FIP case be closed before they stop complying with their FSSP.

 

Note:  When the client requests case closure after the notice of noncompliance (DHS 2444) has been sent, DHS policy requires an expedited effort to impose the noncompliance penalty before the voluntary case closure goes into effect.  The policy suggests that DHS is able to determine whether good cause exists and begin the termination within 10 days of the request for closure.  The Center for Civil Justice hopes to obtain clarification of this policy.

NOTE:  PER PPB 2007-008, effective May 1, 2007: DHS HAS CLARIFIED ITS POLICY REGARDING PENALTIES WHEN THE CLIENT REQUESTS CASE CLOSURE BEFORE A NOTICE OF NONCOMPLIANCE IS SENT.

 

DHS’ initial policy distributed in April 2007 stated that if the client’s FIP case was closing for a reason other than non-compliance, including client request for case closure  after a notice of non-compliance was sent to the client, DHS would proceed with the good cause determination and would apply the work-related penalty if good cause did not exist. 

 

DHS has issued a clarification of policy stating that if PRIOR TO DHS SENDING A NOTICE OF NONCOMPLIANCE, (a) case closure has been initiated by DHS for a reason other than non-compliance or (b) case closure has been requested by the client, the caseworker should proceed to close the case for that reason and NOT pursue case closure with the noncompliance penalty. 

Penalties when the non-compliant individual leaves the home

The new DHS policy states that

1.     If the noncompliant person leaves the home before the notice of noncompliance (DHS 2444) is sent, then no penalty may be imposed on the group he or she is leaving.

If the noncompliant becomes a member of another FIP family as a member add, DHS must pursue the noncompliance/good cause triage/penalty process with the new group.

2.     If the noncompliant person leaves the home after the notice of noncompliance (DHS 2444) is issued OR the FIP case has already been closed as a penalty, DHS must continue to impose the penalty.  (PEM 233A p. 10)However, the “instance of noncompliance” will be subtracted from the number of instances for the family the person left.  The instance of noncompliance will be counted toward any other FIP group that the noncompliant individual joins.  (PEM 233A p. 9-10)

Note:  Clients who are notified that they will be sanctioned after the noncompliant person leaves the home should seek legal advice (see the bottom of this alert for information on how to find help).  The Center for Civil Justice is interested in hearing from, and working with, advocates who are assisting client with problems arising from the new penalty policy.

NOTE:  PER PPB 2007-008, effective May 1, 2007: DHS HAS CLARIFIED POLICY ON HOW PENALTIES APPLY WHEN THE NON-COMPLIANT PERSON LEAVES THE HOME.

 

In DHS’ initial policy distributed in April 2007, it stated that DHS would continue to impose sanctions on a family even if the non-compliant member left the home.  DHS has clarified this policy to say that if the non-compliant person leaves the home AND a new caretaker applies for FIP for the children in the sanctioned family, DHS will determine FIP eligibility for the new group with the different caretaker.

Regaining FIP eligibility

FIP benefits can only be reinstated without a re-application if the individual

1.     Wins reinstatement at an administrative hearing challenging the case closure (PAM 600)

2.     Complies with an opportunity to cure a first instance of noncompliance and the case was closed in error (PEM 233A p.11)

 

Families may reapply for FIP and their case may be re-opened if they meet eligibility requirements and the case has been closed for the minimum penalty period (3 months or 12 months, depending on the number of instances of noncompliance).  Clients should re-apply well before their penalty period ends, because DHS policy prevents benefits from being paid prior to the pay period in which the application becomes 30 days old (see Issue Alert 07-04-03).

 

Recipients do not have to fulfill a work- or self-sufficiency-related compliance test to re-qualify for FIP, but they must meet all eligibility requirements.

 

Hearings

DHS policy states that the State Office of Administrative Hearings and Rules has agreed to expedite hearings when benefits are continued pending the outcome of a hearing request related to employment or self-sufficiency related sanctions.  (PEM 233A p. 11)  Because the SOAHR has had difficulty hearing and deciding cases within the standards of promptness mandated by state and federal law, and a federal court order, the Center for Civil Justice is interested in hearing from, and working with, advocates who are experiencing unlawful delays in obtaining hearing decisions in FAP, Medicaid, or FIP cases in which the individual is not receiving aid pending the outcome of the hearing.

 

9.    Noncompliance and penalty issues related to verification

 

Verification of unpaid activities

Under the new DHS policy, clients who are assigned to unpaid activities must submit weekly verification forms (DHS 630 Weekly Activity Log) reporting the hours that they actually spent in the activity.  According to PEM 230A, failure to return the weekly log on time is “noncompliance” and thus will trigger the noncompliance notice and good cause triage process outlined above.  (PEM 230A p. 9 & 16-17) 

Note:  Failure to return verification forms is not specifically included in the lists in PEM 233A and the Social Welfare Act, MCLA 400.57g(11)of actions or inactions that are “noncompliance” (see #8 above).  Clients should seek legal advice if they receive notice of a verification-related noncompliance, but also should attempt to cure the noncompliance (see below).  (See the bottom of this alert for information on how to find legal help).  The Center for Civil Justice is interested in hearing from, and working with, advocates who are assisting clients with problems arising from the new penalty policy.

  

Curing verification-related “noncompliance” for unpaid activities

Under PEM 230A, an individual assigned to unpaid activities who has failed to turn in a verification log on time may cure the noncompliance by submitting the log form before DHS send the notice of noncompliance (DHS 2444) or “by the time the triage appointment occurs” PEM 230A p. 17.  

 

Note:  The non-compliance notice form does not tell clients about this opportunity to “cure” the noncompliance.  Advocates should educate clients about the importance of submitting the verification log and documenting submission, as well as about the opportunity to cure.  The Center for Civil Justice is interested in hearing from, and working with, advocates who are assisting clients with problems arising from the new penalty policy.

 

Verification of paid employment

Clients who are assigned to, or engaged in paid employment must submit verification at the time of application or when they first become employed (whichever is later) and then every 6 months thereafter.  PEM 230A p.18.   Failure to submit the requested verification will result in FIP case closure but will NOT be treated as noncompliance resulting in penalties.  PEM 230A p.18.  

What Should Advocates Do?

Make sure clients are aware

  1. There are new policies regarding Work First or employment and training activities, deferrals, and penalties
  2. It is important to respond to notices from DHS and WF/JET.  Ignoring notices related to employment- or self-sufficiency requirements or barriers, could result in loss of FIP for up to 12 months. 
  3. It is important to disclose and verify barriers that may interfere with compliance with employment or self-sufficiency related requirements.
  4. DHS and the WF/JET providers must change the rules or provide special help if the client has disability-related limitations that prevent them from obtaining equal benefit from the FIP or WF/JET program without the modification or help.
  5. They should seek legal help if they receive notices they do not understand, notice that accuse them of noncompliance, or notices that they are subject to penalties for noncompliance.
  6. They will receive benefits pending the outcome of the hearing if they request a hearing within 12 days of the notice that their FIP case is being closed or FIP benefits are stopping.  DHS must receive an original, signed request for a hearing within that time period.
  7. They should re-apply for FIP at least 30 days before their penalty period will end if they want to begin receiving FIP again.
  8. They should BOTH request a hearing AND take steps to cure the non-compliance if they are being sanctioned for a first noncompliance and they are able to come into compliance but they disagree with the DHS determination that they were in noncompliance without good cause.
  9. Educate clients about the importance of submitting requested verification of paid and unpaid activities and the possible consequence of not submitting it.
  10. Educate clients about the right to cure noncompliance with verification requirements for unpaid activities.
  11. Contact the Center for Civil Justice if you are working with clients who are having problems with employment or self-sufficiency related requirements.  CCJ is interested in monitoring problems and assisting advocates with these cases.

What Should Clients Do?

  1. Respond to notices from DHS and WF/JET.  Ignoring notices related to employment- or self-sufficiency requirements or barriers, could result in loss of FIP for up to 12 months. 
  2. Disclose and verify barriers that may interfere with compliance with employment or self-sufficiency related requirements.  Barriers may include medical, learning, thinking, emotional, or other problems; domestic violence; transportation problems; children’s problems at school; legal problems; problems finding child care, etc.
  3. Ask DHS and the WF/JET providers to change the rules or provide special help if you or a family member have disability-related limitations that prevent them from obtaining equal benefit from the FIP or WF/JET program without the modification or help.
  4. Seek legal help if you receive notices you do not understand, notice that accuse them of noncompliance, or notices that they are subject to penalties for noncompliance.
  5. Request a hearing within 12 days of the notice that your FIP case is being closed or FIP benefits are stopping in order to receive benefits pending the outcome of the hearing.  DHS must receive an original, signed request for a hearing within that time period.
  6. Re-apply for FIP at least 30 days before their penalty period will end if they want to begin receiving FIP again.
BOTH request a hearing AND take steps to cure the non-compliance if you are being sanctioned for a first noncompliance and you are able to come into compliance but you disagree with the DHS determination that you were in noncompliance without good cause.