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Issue Alert - 07-08-02

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Date:

Jul 10, 2007

Program Area:

Food Assistance Program (FAP)

Issue Summary:

Termination or reduction of FAP based on noncompliance with employment or self-sufficiency related requirements may violate federal law in some cases

Persons Affected:

Some FAP recipients who quit or reduce work, or do not comply with cash assistance (FIP) employment or self-sufficiency related 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

When the Department of Human Services (DHS) imposes a “work-related FAP disqualification” on a FAP recipient under policy in PEM 233B, DHS removes the disqualified  individual  from the Food Stamp household  for a minimum period of time. The disqualified person’s income, however, still counts against the remaining household members.  The disqualification lasts a minimum of one month for the first instance and a minimum of six months for a second or subsequent instance.  When these disqualifications are imposed, the household’s total FAP allotment is reduced or terminated, because the household’s group size is smaller but the state still counts the disqualified individual’s income when budgeting the household’s allotment.   Thus, the disqualifications have a significant, negative impact on the ability of the disqualified individual, and that person’s family, to meet their food needs. 

Substantive “without good cause” requirement

Under federal Food Stamp law, DHS must disqualify a non-exempt individual from receiving Food Stamps as a penalty for noncompliance with Food Stamp work requirements, but only if that individual failed to comply “without good cause.”  7 USC 2015(d)(1).   The Department has no legal authority to impose a work-related Food Stamp disqualification unless, and until, the Department has first determined there was no good cause for the noncompliance.  The “lack of good cause” finding is a substantive prerequisite to any disqualification.  

Procedure and timing for investigation and finding of “without good cause”

DHS must determine  good cause, as  required by 7 USC 2015(d)(1),  “[a]s soon as the State agency learns of the individual’s noncompliance”.  7 CFR 273.7(f)(1)(i).  Furthermore, the State agency must take into account the facts and circumstances, including information submitted by the employer and by the household member involved, in determining whether good cause exists.

7 CFR 273.7(i)(1).   Thereafter, “[w]ithin 10 days of determining that the noncompliance was without good cause”, the Department must issue a negative action notice that complies with 7 CFR 273.7(f) as well as 273.13.   Id. at 273.7(f)(1)(i) & (ii).    These several regulations prescribe the content of the negative action notice and require the state to mail out  the notice  at least ten days in advance of the date the disqualification will begin.  Id. at 273.7(1).  

Thus, under the federal law, the sequence of steps for imposing work-related Food Stamp disqualifications is clear: (1) DHS identifies an incident where a recipient  allegedly failed to comply  with Food Stamp  work requirements ; (2) DHS investigates whether there is good cause, with an opportunity for the recipient and others to submit information about good cause; (3) DHS determines  whether the noncompliance is “without good cause” ; (4) if no good cause,  DHS mails  negative action notice  to the recipient within 10 days of the DHS determination that the recipient did not have good cause; and (5) at least 10 days after the negative action notice is sent (unless there is a timely request for a hearing) DHS imposes the  Food Stamp disqualification.

 

Disqualification based on noncompliance with TANF work requirements

The Food Stamp Act exempts certain groups of individuals from Food Stamp work requirements.   The Act exempts individuals who are subject to work requirements under a Title IV-A (i.e. Temporary Assistance to Needy Families or “TANF”) program, as well as certain parents of young children, students,  individuals in substance abuse treatment,  and working individuals.   7 USC 2015(d)(2); 7 CFR 273.7(b)(iii).   However, if a recipient is exempt from the Food Stamp work requirements solely because she is subject to TANF work requirements, the recipient’s noncompliance with TANF work requirements must be treated the same as noncompliance with Food Stamp work requirements.  7 USC 2015(d)(2)(A).  Thus, even when a FAP recipient is subject to TANF work rules,  DHS may not disqualify that individual until DHS first determines that non-compliance   was “without good cause,” and then DHS must follow the federal Food Stamp laws on the process and timelines for both investigating and determining  “good cause”, and for imposing a negative action.   

What's Happening?

A.  DHS’s work-related FAP disqualification policy conflicts with Food Stamp laws on “good cause”

1.  State Policy Fails to Include a substantive “without good cause” requirement ias a prerequisite to disqualifying concurrent FIP and FAP recipients for alleged non-compliance with work requirements.

The DHS FAP penalty policy for concurrent Family Independence Program (FIP) and FAP recipients, who are not otherwise exempt from Food Stamp work requirements, says that work-related FAP disqualifications will be imposed if “the client did not comply with FIP employment requirements.”   PEM 233B p. 1 (emphasis in original).   The DHS policy does not require that workers determine that the noncompliance is  “without good cause” prior to imposing the disqualification.  (In contrast, the policy section on FAP penalties for refusing work explicitly states the quitting or reduction in hours must be “without good cause” to trigger disqualification.  PEM 233B p. 2.)  This violates federal Food Stamp law, which authorizes work-related FAP disqualifications only if noncompliance is without good cause.  7 USC 2015(d)(1). 

2.   DHS policy fails to include procedural requirements for investigating and finding “without good cause” prior to disqualification notice.

 

  1. FAP only (non-FIP) recipients

In apparent recognition of its obligations under the work-related disqualification provisions of federal law, DHS’s Food Stamp Employment and Training Program Plan for the fiscal year ending September 30, 2007  [“FY 2007 E&T Plan”] , which was submitted to the federal government in 2006, suggests that the Department provides notice to recipients and gives them an opportunity to provide information about good cause before  the Department makes a good cause determination and decides whether a work-related Food Stamp disqualification will be imposed.  The FY 2007 E&T Plan also indicates the Department provides 11 days advance notice of the work-related Food Stamp disqualification after it has determined the individual failed to comply with employment and training requirements without good cause.   However, the FAP policies in the Program Manuals that are now applied by DHS caseworkers are not consistent with the 2007 E&T Plan and do not meet the requirements of federal law.

 

DHS Central Office staff have indicated that caseworkers must contact the recipient and employer to elicit information about the reasons for quitting, reducing, or refusing work, before issuing a negative action notice of disqualification, but no such requirement is contained in PEM 233B.  The Department’s written policy contains no requirements for investigating and determining good cause before deciding whether to impose work-related FAP disqualifications – either for concurrent recipients or for FAP-only “refusing employment” situations.

 

b.  Concurrent FIP and FAP recipients

  Federal law requires the Department to treat a joint FIP/FAP recipient’s noncompliance with TANF work requirements the same as a non-exempt recipient’s failure to comply with Food Stamp work requirements.  This  means that, even if the recipient’s conduct constitutes non-compliance with the TANF work requirements,   DHS cannot impose  a Food Stamp disqualification unless the Department first determines that the non-compliance  is  “without cause”.  7 USC 2015(d)(2)(A) and 7 CFR 273.7(f)(7). 

 

Although FAP policy on the work-related disqualification of concurrent recipients alludes to a “good cause determination…before [a] negative action is pended” (i.e. before notice of disqualification is sent),  PEM 233B, p. 2,   it appears DHS simply overlooked this language when DHS revised its policies to eliminate the advance “good cause period” for FIP sanctions.   DHS has not issued any FAP-specific policies to ensure that workers investigate  and  determine  whether a joint FIP/FAP  recipient had good cause for noncompliance with FIP work requirements before imposing a FAP disqualification.   Under current policy, DHS investigates and determines good cause for FAP purposes at the same time as good cause is determined under FIP policy – i.e.  after DHS sends the negative action notice of disqualification.

 

DHS’s approach to work-related FIP disqualifications is exactly opposite of the approach required for work-related FAP disqualifications under federal law.   Under the DHS’s current, interim FIP policy and its proposed FIP policy for October 2007, the caseworker does not investigate and determine whether or not the recipient has good cause until after the caseworker sends both a notice of noncompliance (DHS 2444) scheduling a meeting to discuss good cause and a negative action notice (DHS 1605) that the disqualification is going to be imposed.  DHS postpones its evaluation of whether noncompliance is “without good cause” until after it sends notice of work-related FIP noncompliance and disqualification.   Interim PPB 2007-010 [previously issued as PPB 2007-009] effective June 1, 2007; see also  DHS 2444 (rev Apr. 2007).  This procedure causes confusion to some recipients who think it is too late to show good cause because they were told they are going to lose their benefits.

B.  DHS’s work-related FAP disqualification policy conflicts with federal law because it disqualifies individuals who are noncompliant with FIP work-related requirements but are not subject to TANF work requirements

 

Under the Food Stamp Act, the Department is only authorized to impose work-related Food Stamp disqualifications based on a concurrent recipient’s failure to comply with FIP self-sufficiency-related requirements if the recipient is subject to work requirements under Title IV of the Social Security Act (and is not otherwise exempt from Food Stamp work requirements).  7 USC 2015(d)(2).   A number of FIP recipients are not subject to TANF work requirements.  These include parents in two-parent families and parents who are deferred from Work First/JET because of a disability.  Under current policy, however, DHS imposes work-related FAP disqualifications on noncompliant FIP recipients even if those recipients are excused from TANF work requirements under Title IV-A of the Social Security Act, 42 USC 601 et seq.,  or are not subject to federal TANF work requirements under Title IV because their FIP is funded with state funds that are not counted toward the state’s TANF maintenance of effort requirement, 42 USC 607.   The state’s policy of reducing or terminating FAP based on FIP work or self-sufficiency assignments, to concurrent FIP/FAP recipients who, according to federal TANF laws,  are not subject to  TANF work requirements , conflicts with the Food Stamp statute. (Note that individuals who cannot be disqualified for noncompliance with a Work First/JET/self-sufficiency assignment because they are not subject to TANF work requirements,  still may be subject to disqualification under FAP work rules if they reduce  or refuse work.)

What Should Advocates Do?

Watch for households that have had their FAP reduced or terminated as penalty for noncompliance with work- or self-sufficiency related requirements.  All households who are subject to a FIP sanction should be screened for possible unlawful FAP terminations.

Consider legal action on behalf of individuals who were disqualified from FAP without a DHS investigation and determination of good cause. 

Consider legal action on behalf of individuals who are not subject to TANF work requirements but were disqualified from FAP based on noncompliance with FIP work-related or self-sufficiency assignments.  

Help clients claim good cause AND submit a request a DHS hearing if they are within the advance negative action period before FAP benefits end, so that their benefits will continue at current levels while they dispute the reduction or termination of FAP.  (Do the same for their

FIP, if applicable.)

Contact the Center for Civil Justice for more information or updates on these issues. The Center for Civil Justice is willing to consult and work with advocates whose clients wish to consider legal action. 

What Should Clients Do?

Do not ignore notices about penalties or sanctions.

 

Seek legal advice immediately if you receive notice your Food Stamps are being reduced or terminated because of noncompliance with work-related requirements.  (See “Finding Help” below.)

 

Contact your caseworker to claim good cause AND submit a written request for a DHS hearing if the date for your FAP benefits to end has not passed.  This will keep your FAP benefits at current levels while you fight the reduction or termination of FAP.  (Do the same for your FIP, if applicable.)

 

Tell your DHS caseworker (and Work First/Jet case manager, if you have one) about your good cause reasons right away, whenever you are unable to participate in assigned activity.

 

Attend or call in for any “good cause” meetings that are scheduled to discuss your noncompliance.   If possible, have a legal advocate attend with you.

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.