BILL ANALYSIS �
AB 596
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Date of Hearing: April 26, 2011
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall Jr., Chair
AB 596 (Carter) - As Introduced: February 16, 2011
SUBJECT : Child care: due process
SUMMARY : Requires the California Department of Education (CDE)
to collaborate with welfare rights and legal services advocates
to develop and adopt regulations and other policy statements to
provide California Work Opportunity and Responsibility to Kids
(CalWORKs) program recipients of child care the same level of
due process protections and procedural protections that are
afforded to public assistance recipients pursuant to specified
sections in the Welfare and Institutions Code (WIC) and their
corresponding regulations.
EXISTING LAW :
1)Establishes an appeals process for recipients of public social
service programs administered by the Department of Social
Services (DSS). Requires that upon filing a request with the
DSS, an applicant or recipient of public social service
programs is provided with an opportunity for a state hearing
(WIC Section 10950).
2)Provides that a hearing shall be conducted by an
administrative law judge employed by the DSS, the director of
DSS, or the Office of Administrative Hearings (WIC Section
10953).
3)Specifies a process and timeline by which the hearings shall
be conducted, including the requirement that the proceedings
at the hearing shall be reported by a phonographic reporter or
otherwise perpetuated by mechanical, electronic, or other
means capable of reproduction or transcription (WIC Sections
10950 et seq.).
4)Establishes eligibility for child care services and child
development programs administered by the CDE and requires the
Superintendent of Public Instruction (SPI) to adopt rules and
regulations on eligibility, enrollment and priority of
services needed for implementation (Education Code Section
8263).
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FISCAL EFFECT : Unknown
COMMENTS :
Background . In fiscal year (FY) 2010-11, $2.669 billion was
provided for child care and development programs from state and
federal funds, enrolling an estimated 415,715 children from
birth through age 12. The proposed FY 2011-12 budget decreases
the total funding by $500.7 million. Eligibility is based on
the CalWORKs program or income (75% of state median income).
CalWORKs is a temporary cash aid program for families with
children. Recipients are required to engage in work or
education/training as a condition for aid and receive subsidized
child care services to assist them in this endeavor. According
to the DSS, the child care program is administered in three
stages to help a family transition from immediate, short-term
child care needs to stable, long-term child care as a family
becomes stable and is no longer reliant on CalWORKs aid. The
three stages of CalWORKs child care is as follows:
Stage 1: Stage 1 is provided upon receipt of CalWORKs benefits
and may last approximately six months or until a family's
situation is considered stable.
Stage 2: A family transfers to Stage 2 once the work situation
is stable. Families are eligible for subsidized child care for
up to two years after they are no longer eligible for CalWORKs
aid.
Stage 3: Once a family stops receiving CalWORKs grants and has
received the maximum two years of child care services under
Stage 2, it can maintain child care benefits if it meets income
eligibility and if there are slots available under Stage 3 child
care.
Administration of child care : Stage 1 child care is
administered by county welfare departments and overseen by the
DSS, while Stages 2 and 3 are administered by the CDE through a
voucher system that enables recipients to choose the child care
arrangements that work best for them, including licensed
centers, licensed family child care homes, or license-exempt
care (e.g., care by a relative). The voucher program is
administered by Alternative Payment Programs (APPs) selected by
the CDE.
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Appeals Processes : Because CalWORKs child care benefits are
administered by both the DSS and the CDE, there are two
different processes for appeals, depending on which stage of
benefits a recipient wishes to appeal.
The process for DSS appeals is specified in the WIC (Chapter 7,
Part 2, Division 9) and DSS regulations. WIC Section 10950
specifies that an applicant is provided an opportunity for a
state hearing upon filing a request within 90 days of an action
if any applicant is "dissatisfied with any action of the county
department relating to his or her application for or receipt of
public social services, if his or her application is not acted
upon with reasonable promptness or if any person who desires to
apply for public social services is refused the opportunity to
submit a signed application therefore, and is dissatisfied with
that refusal." Existing law requires the hearings to be
conducted by an administrative law judge employed by the DSS,
the director of DSS, or the Office of Administrative Hearings.
Existing law also specifies a timeline for the appeal and
requires the hearings to be reported by a phonograhic reporter
or other mechanical, electronic or other means capable of
reproduction or transcription.
The CDE appeals process is specified through Title 5
regulations, established through authority in the Education Code
section authorizing the SPI to adopt regulations to implement
the child care and development program. Title 5 Section 18120
specifies that a parent may file a request for a hearing with
the contractor within 14 calendar days of when s/he receives
notification of an action from the contractor, called the
Notification of Action (NOA). The hearing is conducted by an
administrative staff person called the "hearing officer", who is
a staff of the contractor in a higher level of authority than
the staff person who made the contested decision. The
regulations do not require the hearing to be transcribed or
recorded. If the recipient disagrees with the written decision
from the hearing officer (contractor), s/he has 14 calendar days
to file an appeal with the CDE's Child Development Division
(CDD) to conduct a second level of review. The regulations
authorize the CDD to get copies of the basic data file from the
contractor and conduct any investigations, interviews or
mediation necessary to resolve the appeal. According to the
CDE, the appeal coordinator contacts the recipients to provide
CDD contact information and to answer any questions about the
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process. The CDD coordinator then reviews parent statements and
information in the file provided by the contractor and makes a
determination based on the regulations and statutes related to
the NOA. In 2009-10, 838 CDD appeals were filed. Of the
appeals that received a ruling, the CDD upheld a local decision
to deny a claim in 86% of the cases and granted the appeal in
14% of the cases. There is no data on the number of hearings
conducted by the local contractors, although the CDE estimates
the number to be 10 times the number of appeals received by the
CDD.
Need for the bill . The author states, "Current law does not
address due process or procedural protections for Stage 2 and 3
child care recipients and they must use an appeal process that
fails to include basic due process protections afforded to Stage
1 recipients. This un-equitable policy has resulted with
numerous complaints from legal services providers throughout the
state about the lack of due process afforded to Stage 2 and 3
child care recipients."
This bill requires the CDE to collaborate with welfare rights
and legal services advocates to develop and adopt regulations
and other policy statements to provide CalWORKs recipients of
child care the same level of due process protections and
procedural protections that are afforded to public assistance
recipients as specified in the WIC. This would require the CDE
to utilize administrative law judges similar to that used by the
DSS for all Stage 2 and 3 appeals, including first level appeals
currently handled by contractors. Legal advocates familiar with
both processes have expressed concerns that the CDE process is
too casual in nature and lacks protections afforded by the DSS
process, particularly with the review being conducted by the
same agency that issued the NOA and not by an impartial entity
with legal background. Legal advocates also say that not having
transcripts of the hearing conducted by the contractor is
another problem. There is less accountability and no
documentation that the hearing was conducted fairly. Advocates
state that the burden of proof in the DSS process is with the
decision maker whereas the burden of proof in the CDE process is
with the recipient. The DSS process allows the recipients to
bring support witnesses to the hearings whereas the CDE process
allows only the person affected by the hearing to attend.
Another area of concern is in the number of days a recipient is
given to file an appeal once s/he receives the NOA. The DSS
process allows appeals to be submitted within 90 days whereas
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the CDE process allows only 14 calendar days.
Arguments in Support . The Western Center on Law and Poverty
states, "CalWORKs is one of the most effective programs operated
by the State of California. In the past 13 years, the program
has helped tens of thousands of families move from poverty to
self-sufficiency while reducing the caseload by nearly fifty
percent. CalWORKs not only encourages families to go to work by
helping adults improve their employment skills and seek
employment, it allows them to do this by providing child care.
The due process and procedural protections offered a CalWORKs
recipient placed in Stage 2 are not as rigorous as those placed
in Stage 1, even though the result of losing one's child care
would be the same, their inability to meet CalWORKs requirements
and likely loss of basic needs cash assistance."
Arguments in opposition
The Child Development Policy Institute (CDPI) and Professional
Association for Childhood Education (PACE) oppose expanding the
DSS due process and procedures to Stages 2 and 3 based on cost
and policy.
CDPI agrees that strengthening the appeals process may be in
order but argues that a "full-blown, quasi-legal process?is both
costly and unwarranted?because CDE, LEAs, and non-profit
contractors are not so staffed and funded."
PACE believes that this bill will affect the availability of
child care. For example, current CalWORKs regulations provide
90 days for an appeal. This could result in continuing child
care subsidies for ineligible parents for up to 90 days, a
significant expense to the state, and loss of child care for
eligible parents on the waiting lists.
Suggested Amendments
In order to ensure that the DSS and the CDE appeals processes
are equal, the CDE would have to hire ALJs or contract with the
Office of Administrative Hearings, which may not be possible
during difficult budget times. Instead, the Committee suggests
that the author may wish to consider amending the bill to
require the CDE to work with welfare rights and legal services
advocates to identify and implement features of the DSS process
that can be done with no or low costs.
SECOND COMMITTEE OF REFERENCE . This bill was previously heard
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in the Assembly Education Committee on March 30, 2011, and was
approved on a 7-3 vote.
REGISTERED SUPPORT / OPPOSITION :
Support
California Communities United Institute (CalComUI)
Child Care Law Center
Western Center on Law and Poverty
Opposition
Child Development Policy Institute
Professional Association for Childhood Education (PACE)
Analysis Prepared by : Frances Chacon / HUM. S. / (916)
319-2089