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Issue Alert - 13-01-06

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Date:

Jan 14, 2013

Program Area:

Food Assistance Program (FAP) and Cash Assistance Program (FIP). Possibly Child Development and Care Program (CDC) and State Disability Assistance Program (SDA) and Refugee Assistance Program (RAP).

Issue Summary:

Information from a new data match (apparently with the Michigan State Police) is being used by DHS to terminate assistance to households, beginning February 1, 2013. Termination notices to recipients state that a member of the group “is not eligible for assistance due to a criminal justice disqualification”.

Persons Affected:

FAP, FIP, RAP, CDC and SDA recipients whose are flagged in matches with unidentified data bases containing information about outstanding warrants, parole/probation violations, or other criminal justice disqualification criteria – even if the data is inaccurate.

For More Information:

Center for Civil Justice 320 S. Washington, 2nd Floor Saginaw, MI 48607 Phone: (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 Phone: (734) 998-6100 Fax: (734) 998-9125


Background

DHS policy BEM 203, Criminal Justice Disqualifications, contains categories of ineligibility for assistance - http://www.mfia.state.mi.us/olmweb/ex/bem/203.pdf.  The categories relevant to this Issue Alert are:  Fugitive Felons and Probation and Parole Violators.  Another major category – persons with drug-related felonies – is not a part of this discussion but is briefly addressed in an end-note[i].

Fugitive Felons are defined as a person who:

-         Is subject to arrest under an outstanding warrant arising from a felony charge against that person (this includes persons charged with felony welfare fraud who fail to appear in court).

-         Is subject to arrest under an outstanding warrant for extradition arising from a criminal charge against that person in another jurisdiction.

-         Admits to being a fugitive felon.

 

BEM 203 currently directs staff to document Bridges when a DHS match identifies an individual as a fugitive felon.  Bridges will disqualify the individual as a fugitive felon as long as he or she is subject to arrest under an outstanding warrant.

Probation and Parole Violators are defined as  “A person who is violating a condition of probation or parole imposed under a federal or state law is disqualified.  The person is disqualified as long as the violation occurs.” 

2011 PA 198, enacted in October 2011 (HB4721) and codified at MCLA 400.10a -.10c , prohibits payment of public assistance (defined as FIP, FAP, CDC, state family assistance and SDA) benefits to an individual if DHS receives information that he/she is subject to arrest under an outstanding warrant arising from a felony charge.  The statute specifically states that this will not affect the eligibility for assistance of other members of the household.  Like policy, it states that eligibility is restored when the outstanding warrant is no longer in effect.  The statute also directed that, beginning 10/1/12, a program must be implemented to compare DHS lists of public assistance recipients to the information regarding outstanding felony warrants or extradition warrants on LEIN (Law Enforcement Information Network) administered by State Police.  The Department of State Police is charged with all reasonable and necessary measures using available technology to ensure the accuracy of information regarding outstanding felony warrants before transmitting information to DHS.  The statute also requires that DHS take all reasonable and necessary measures using available technology to ensure the accuracy of this comparison before notifying a local office.

Several court cases have interpreted the fugitive (a/k/a fleeing) felon disqualifications under the Social Security Act to limit it to persons who are aware of pending criminal charges and take action showing an intent to avoid arrest or prosecution and whom law enforcement is actively seeking for purposes of holding criminal proceedings.  The 2008 Farm Bill directed USDA to develop policy defining terms such as “fleeing” and “actively seeking” and to establish consistent procedures for states to ensure that recipients who are eligible are not disqualified due to inadequate records or programs.  In mid-2011 USDA sought comment on proposed policy that addressed fleeing felons and parole and probation violators, but that policy has never been finalized or published.



[i] Significant changes to eligibility of persons with drug-related felonies occurred beginning November 2011.  At that time, people with 2 or more felony drug offenses (which occurred after 8/22/96) were permanently disqualified for FIP and FAP.  Recently, advocates were able to receive clarification from DHS that multiple charges emanating from a single offense would be counted as one for purposes of BEM 203. 

What's Happening?

Recently, some recipients have received notices of case action advising that their FAP and FIP cases are closing due to “You or a member of your group is not eligible for assistance due to a criminal justice disqualification.  Please contact your local law enforcement agency to resolve.” and relying on BEM 203 as the reason.  The notices are inadequate under due process requirements because they do not specify the factual basis for the termination, including what category of “criminal justice” disqualification DHS is relying on.  Based on the sentence that says to contact local law enforcement to resolve, it appears the notice refers to either fugitive felons or parole/probation violators, per the language of BEM 203. 

Several notices CCJ has reviewed indicate that the entire group is being disqualified from benefits even though there is no indication that more than one member has criminal justice disqualification issues.  Disqualification of group members who are not fleeing felons or probation/parole violators violates current policy, state law, and federal law and regulation.

The notices do not specify the source of the information on which the disqualification is based.  However, Bridges Policy Bulletin 2013-003, effective February 1, 2013, indicates that DHS will be doing an “automated match with the Michigan State Police to identify those clients who are fugitive felons on a monthly basis.  This match also identifies when the client is no longer a fugitive felon on a daily basis.”  The Bulletin is available online at  http://www.mfia.state.mi.us/OLMWeb/exf/BP-2013-003.pdf.  We also assume that the information came from the Michigan State Police LEIN per PA 2011 198.  Information on the LEIN in known not to be very reliable. 

Caseworkers have access to the information that should be contained in the notice such as reason for disqualification (e.g. outstanding warrant) and jurisdiction (which might not be the recipient’s local law enforcement agency).  If the caseworkers have access to it, more detail should be in the notice.

Some recipients contacting local law enforcement agencies have been informed that the agency cannot find anything in the system connecting them to pending criminal charges.  Others have learned that there are pending misdemeanor, not felony, charges. Some recipients are unaware that the charges existed. 

It appears the data match is resulting in a significant number of erroneous public assistance terminations.  Recipients should be notified about the specific data relied DHS is relying on and given an opportunity to challenge, correct or resolve the issue before benefits are terminated.  The burden should not fall upon the recipient to correct incorrect information gathered in the data match.  DHS should investigate and establish that the information they are relying upon is accurate and is sufficient to establish that the individual meets the definition of a fugitive felon.

CCJ is not aware of any applicants who have actually been denied benefits based on criminal justice disqualifications.  However, it is reasonable to expect that this is or will be occurring.  We understand the earliest date for case closure as per notices we have seen is 2/1/13.

What Should Advocates Do?

1.          Educate clients and community organizations about these issues. 

2.          Let CCJ know about families who do not receive a proper Notice:  i.e. one which explains what criminal justice disqualification category applies and what facts were relied upon to establish that the person should be disqualified.  Please call or refer clients to CCJ at our Flint office Helpline, if they receive inadequate notices.  The Helpline number is (800) 481-4989.  CCJ will want to see the Notice the client received so, if you can assist clients with faxing the notice to CCJ, that would be helpful too.

3.          Help clients communicate with caseworkers to gather more information about the basis of the disqualification.  Caseworkers can access Bridges for data which should include jurisdiction where charges are pending and what triggered the disqualification.  This will help the client resolve any matters that may be legitimate so that their benefits can resume.

4.          Help clients request hearings if their cases or benefits are wrongfully denied or terminated for criminal justice disqualifications. 

Help clients find legal advice if they request a hearing (see below).

What Should Clients Do?

1.            Seek an advocate or legal advice if you are sent a Notice that your benefits case is going to be denied or terminated due to criminal justice disqualification. 

2.            Call CCJ if you get an improper Notice.  You can call our toll-free Helpline at (800) 481-4989.

3.            Communicate with your caseworker, either directly or through an advocate, to find out exactly what the reason is for criminal justice disqualification.  The caseworker should be able to tell you the law enforcement agency, county or local prosecutor, or court where the charges or warrant are pending.  This will give you a chance to resolve the matter.  The charges do not have to be dismissed for you to receive benefits.  You just have to take steps to have an outstanding warrant or parole/probation violation resolved. 

4.            Read your Notices carefully.  If your benefits are ending, you have the right to request a hearing.  Be sure to submit your hearing request within the deadline given in your Notice (90 days from the date the notice was sent).  In some cases you will be able to keep your current level of benefits if you request a hearing before an early deadline stated in the letter (usually 10 to 12 days from the date the Notice is sent).  However, if you lose at the hearing, you might owe DHS any benefits you were not entitled to.  Seek legal help if you request a hearing.

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.