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Issue Alert - 07-06-01

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Date:

Jun 20, 2007

Program Area:

Family Independence Program (FIP)

Issue Summary:

DHS has issued Interim policy eliminating the “good cause period” for clients accused of noncompliance with work, Work First, or JET requirements

Persons Affected:

FIP recipients who are reported as non compliant with work, Work First, or JET requirements

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

Michigan Poverty Law Program 611 Church Street, Suite 4A Ann Arbor, MI 48104-3000 (734) 998-6100 (734) 998-9125 Fax


Background

In the past, Family Independence Program (FIP) recipients could be sanctioned (punished) for noncompliance with work, Work First (WF), or Jobs Education Training (JET) only if their Department of Human Services (DHS) caseworker first determined that the noncompliance was WITHOUT GOOD CAUSE.  The caseworker was required to provide recipients with notice explaining the nature of the alleged noncompliance and giving the recipient 10 days to assert a good cause reason for the noncompliance.  If the recipient did not claim good cause or the caseworker determined that the client’s reason for noncompliance did not constitute good cause, the caseworker would then issue a negative action notice informing the recipient that their FIP was being terminated as a sanction for work/WF/JET noncompliance.

On May 18, 2007, the Michigan legislature passed 2007 Public Act 9, which amended several sections of the Social Welfare Act, including section 57d, MCLA 400.57d, which deals with Family Independence Program (FIP) sanctions for noncompliance.  Among other changes, the Act amended subsection 12 to read as follows:

(12) For any instance of noncompliance, the recipient shall receive not less than 12 days' notice before the penalties prescribed in this section are imposed. If the recipient demonstrates good cause for the noncompliance during this period and if the family independence specialist caseworker and the work first program caseworker agree that good cause exists for the recipient's noncompliance, a penalty shall not be imposed.

The amendment was given immediate effect and the Department of Human Services issued an interim policy bulletin to implement the change effective June 1, 2007 (PPB 2007-010).  The Program Policy Bulletin (PPB) is not available online at the DHS website at this time, but will be posted there at the beginning of July and is available in the meantime at mplp.org.   The changes will not be reflected in the Program Eligibility Manual (PEM) until July. 

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.  For previous issue alerts, go to  http://mplp.org/

What's Happening?

Beginning June 1, 2007, the 10-day “good cause period” has been eliminated, as provided in 2007 PA 9.   

 
CLIENTS WILL RECEIVE TWO CONTRADICTORY NOTICES

When DHS determines that a FIP recipient has been noncompliant with work/WF/JET or any activity required as part of their Family Self-Sufficiency Plan (FSSP), the caseworker will issue a negative action notice telling the recipient that their family’s FIP will be terminated for a minimum of 3 months (or, for a third or subsequent sanction, for a minimum of 12 months) because they failed to participate in work-related or family self-sufficiency activities, or reduced or refused work, ”without good cause”.  The same negative action notice will tell them the names of any family members whose Medicaid will be terminated (non-pregnant adults) for a minimum of one month.   The negative action notice will be issued 12 days before the termination becomes effective.

At the same time that the FIP and Medicaid negative action notice is issued, the DHS caseworker will send the recipient a “Notice of Employment and/or Self-Sufficiency Related Noncompliance” (DHS 2444), telling the recipient that he or she must attend a meeting to discuss the reasons for noncompliance.  The notice tells the recipient that the worker will make a good cause determination using available information if the recipient does not contact the worker by the meeting date.  Finally, the notice tells the recipient that they MAY lose FIP, Medicaid, and Food Assistance (FAP) benefits, but that FIP will not be closed if the recipient verifies good cause before the negative action date. 

Because clients will receive two contradictory notices at about the same time, it is likely that they will be confused and will not understand the steps that they must take to protect their rights.  Clients who believe they have good cause, or who believe that they have NOT failed to comply, should, BOTH request a hearing prior to the negative action date AND attend the meeting to discuss good cause (which should be set prior to the negative action date).   Clients may attend the meeting in person or by telephone, but should let the caseworker know if they need a telephone meeting.   If the client wants an in-person meeting but cannot attend on the scheduled date, the DHS caseworker will proceed with the negative action unless the meeting can be rescheduled within the 12 day negative action period.  (If good cause is determined after the termination has gone into effect, benefits will be reinstated.  It is not clear what happened if the client expresses a desire to “cure” a first instance of noncompliance at a meeting that is rescheduled after the termination has occurred.)  The client must request a hearing before the termination date in order to ensure that benefits will continue without interruption if the meeting is rescheduled for a date after the negative action goes into effect.

 
FIRST INSTANCE OF NONCOMPLIANCE

If the noncompliance is the recipient’s first instance on noncompliance since April 1, 2007 and the recipient attends the meeting to discuss good cause, he or she may be given an opportunity to “cure” the noncompliance without losing FIP, even though he or she does not have good cause.  If the recipient agrees to comply in order to cure the first instance of noncompliance, the DHS caseworker will delete the original negative action and enter a new negative action, giving the recipient 12 days in which to cure the noncompliance.  If the recipient complies as agreed, the second negative action will be deleted by the caseworker, keeping the family’s FIP intact.

If the recipient “cures” the noncompliance, the incident nevertheless will remain on their record as a first instance of noncompliance.  Therefore, in order to preserve the ability to cure a first noncompliance in the future, the recipient should continue to pursue a hearing if he or she believes that there has not been noncompliance or that there was good cause for the noncompliance, even if he or she also chooses to cure the noncompliance.

 
ENDING A FIP DISQUALIFICATION

The family will have to re-apply for FIP in order to end the disqualification.  No compliance test is required, but assistance will not begin until the minimum disqualification period has ended.  Because FIP cannot be paid until the pay period in which the application becomes 30 days old, clients seeking to re-qualify for FIP should re-apply for FIP 30 days before their disqualification period ends.  See Issue Alerts 07-04-03 and 07-04-08.

 
FOOD ASSISTANCE

If a recipient is not deferred (exempt) from Food Assistance Program (FAP) work requirements, the DHS caseworker will disqualify the noncompliant individual from receiving FAP as well as FIP, although the FAP disqualification is for a different minimum period of time and the individual must show compliance before their FAP disqualification will end.  In addition, the FAP disqualification may be ended early under certain circumstances (see the section below on reinstatement of Medicaid and FAP).  The minimum length of the disqualifications are as follows:

 

             FAP (noncompliant individual)                    FIP (whole family)

First instance:                          1 month                                                  3 months

Second instance:                      6 months                                                 3 months

Third or subsequent instance:    6 months                                                12 months

 

Note:  Under federal food stamp law, DHS is required to make a good cause determination BEFORE deciding whether or not to impose a sanction and issuing a negative action notice.  See 7 USC 2015d(1) & (2) and 7 CFR 273.7(f)(1)(i).   It does not appear that DHS’ state  policy requires a good cause determination prior to the decision to impose a FAP sanction.

 
REINSTATEMENT OF MEDICAID AND FAP ELIGIBILITY    

In order to have Medicaid reinstated at the end of the one month minimum penalty period, clients must re-apply for Medicaid AND either be pregnant or register for work at the Michigan Works Agency (MWA).  Pregnant women can reapply using either the single Assistance Application form (DHS 1171), which must be submitted to DHS, or the short form MIChild/Healthy Kids application (DCH 0373D), which may be submitted through the local

health department or online and by mail to the MIChild contractor.  Non-pregnant adults must use the DHS 1171 Assistance Application to reapply for Medicaid.  Some adults will be able to update and re-sign the current application on file at DHS instead of completing a new 1171, but depending on caseworker availability, it may be faster to fill out a new application. See generally PAM 110 p. 5-6.  Note: pregnant women should receive a decision their Medicaid applications within 10 days.  Individuals who register for work at the MWA should submit verification of that fact (from the MWA) when they re-apply for Medicaid.

FAP will be reinstated BEFORE the minimum FAP disqualification has been served if the individual reports and verifies that he or she (1) meets the criteria for deferral from FAP work requirements, except the deferral based on application for Unemployment compensation, (2) gets a job for the comparable hours and pay as the job he or she quit or refused, or (3) meets FIP work requirements.  If the individual reports that he or she meets one of the criteria for reinstatement, FAP eligibility must be restored the following month.  If the individual reports the circumstances before the disqualification goes into effect, he or she may avoid disqualification altogether.   See PEM 233B p. 6. 

If the noncompliant individual does not meet one of the three criteria for ending a FAP work disqualification early, he or she must meet one of the following three criteria to have the disqualification ended after the minimum period has been served:  (1) report and verify that he or she is working 20 hours or more per week, (2)  report and verify that he or she meets the criteria for a deferral from FAP work requirements, or (3) indicate a willingness to comply with work requirements and complete a 5-day, 20 hour compliance test.  See PEM 233B p. 6-7.  If the FAP case for the entire household has been closed, the noncompliant individual will have to re-apply. 

If the noncompliant individual agrees to comply with FAP work requirements (and, if necessary, re-applies for FAP), the DHS caseworker must arrange the compliance test within 10 business days after the agreement to comply.  PEM 233B p. 7 lists the types of activities that may be required as a compliance test.  

The FAP disqualification will end the later of:  the date the individual agrees to comply (if the compliance test is completed thereafter), the end of the minimum disqualification period, or—if a new application is required – the application date.  PEM 233B p. 6-7.

What Should Advocates Do?

Educate clients and community organizations about good cause reasons. Explain why it is important to always report good cause and ask for a good cause finding whenever they have good cause for failing to comply with work/WF/JET or FSSP activities.  When in doubt, clients should ask for a good cause determination and seek help from an advocate.

Educate clients about the need to BOTH request a hearing AND attend a good cause meeting before the date that their FIP is being terminated whenever (a) they disagree with a DHS decision that they have failed to comply with work/WF/JET or FSSP requirements or (b) they believe they have good cause for the noncompliance. 

Help find legal representation for clients who have received a notice that their benefits will be terminated because of noncompliance.

What Should Clients Do?

Seek legal help if you are assigned to activities with which you are unable to comply.

Tell your WF/JET caseworker and your DHS case worker if you are unable to comply with work or FSSP activities or requirements.   Explain why you can’t comply and verify your reasons.  Keep a record of phone calls you make or voice mail messages you leave regarding good cause.  It may also be a good idea to have third-party witnesses to your calls.

If you receive a negative action notice from DHS for non-compliance with your work/WF/JET assignment or Family Self-Sufficiency Plan, you should seek legal help immediately, request a hearing immediately, and comply with the DHS request that you meet to discuss good cause. 

Get legal advice if you are unsure how to end a disqualification.  

Report in writing (and keep a copy) or keep a record of phone calls and voice mail messages, when you are reporting information (such as pregnancy, willingness to comply with work requirements, reasons for deferral, etc.) in order to end a disqualifications.    

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 MichiganLegalAid.org. You can also look in the yellow pages under "attorneys" or call the toll-free lawyer referral number, (800) 968-0738.