BILL NUMBER: SB 320 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 6, 2012
AMENDED IN ASSEMBLY JULY 3, 2012
AMENDED IN ASSEMBLY JUNE 12, 2012
AMENDED IN SENATE APRIL 25, 2011
AMENDED IN SENATE MARCH 29, 2011
INTRODUCED BY Senator Wright
FEBRUARY 14, 2011
An act to add Sections 10968, 10969, and 10970 to the Welfare and
Institutions Code, relating to public social services.
LEGISLATIVE COUNSEL'S DIGEST
SB 320, as amended, Wright. Public social services: hearings.
Existing law authorizes an applicant for, or recipient of, public
social services who is dissatisfied with certain actions of the
county welfare department to request a hearing from the
State Department of Social Services state department
administering the social services . Existing law requires the
hearing to be conducted by an administrative law judge, with an
exception, and authorizes the administrative law judge, under certain
circumstances, to render and adopt final decisions, with
which decision the county director is required to comply
with and execute.
This bill would require the county appeals representative to
review all evidence in the county's possession prior to the hearing
and, if the representative finds prescribed occurrences, to offer the
claimant a conditional withdrawal or notice of action, as specified.
This bill would require the conditional withdrawal to
specify the actions that the applicant or recipient and the county is
required to complete within 30 days of the conditional withdrawal
being signed by the claimant and received by the county
representative, except as provided, and would require the county to
issue to the claimant a notice of action describing its compliance
with the decision list the agreed -upon
conditions that the claimant is required to meet, and
require the county to issue any benefits for which the claimant is
eligible following the claimant's meeting of those conditions .
This bill would authorize a claimant to file for and reopen a state
hearing under certain circumstances, at which the administrative law
judge may render a decision and order the county to comply
with that decision .
This bill would provide a claimant with the right to an
in-person hearing, as defined, and authorize a claimant to
request a hearing conducted by telephone, or other electronic means,
or at his or her home. This bill would require the notice
informing the claimant of that certain notices
relating to the hearing to contain
prescribed information. This bill would require the state
department administering the social services to determine
the format of the hearing if the county and the claimant disagree on
its format.
Existing law requires, if regulations require an agency to write a
position statement concerning the issues in question in a fair
hearing or if the agency chooses to develop such a statement, that
not less than 2 working days prior to the date of the hearing the
agency make available to the applicant for, or recipient of, public
social services a copy of the agency's position statement, with an
exception.
This bill would require the county representative to prepare and
transmit to a claimant who is scheduled for specified types of
hearings and his or her representative the position statement so that
it is received at least 2 working days prior to the hearing. This
bill would require the administrative law judge to determine whether
the county has met its burden of proof of establishing a prima facie
case, with exceptions. This bill would require the administrative law
judge to grant the claim if the judge finds that the county has not
met its burden.
By imposing a higher level of service on county appeals
representatives, this bill would impose a state-mandated local
program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
This bill would make its provisions operative upon the State
Department of Social Services making a specified finding on its
Internet Web site relating to the modification of court orders
regarding penalties payable to claimants, as agreed to by the
parties, in 2 specified cases.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 10968 is added to the Welfare and Institutions
Code, to read:
10968. (a) Prior to the hearing, the county appeals
representative shall review all evidence in the county's possession
relevant to the state hearing claim.
(1) If the hearing concerns a claimant's eligibility for a benefit
or service and the county representative finds that certain acts or
evidence would establish the claimant's eligibility for that benefit
or service or concludes that the county erred, the county
representative shall offer the claimant a conditional withdrawal
agreeing that the county shall issue the benefits or provide
the services for which the claimant is eligible after the claimant
meets conditions, if any, of the conditional withdrawal .
If The conditional withdrawal shall list the
agreed-upon conditions that the claimant is required to meet, which
may include, but are not l imited to, the provision of
specific information. The conditional withdrawal shall include the
requirements that the county reevaluate the case following the
claimant meeting those conditions, and if the claimant is determined
to be eligible for benefits or services, the county issue those
benefits or provide those services for which the claimant is
determined to be eligible.
(2) If the county has rescinded
the proposed adverse action, the county shall issue a notice of
action informing the claimant of the county's action and contact the
client to advise the claimant the action was rescinded and determine
whether there were any other issues for the hearing.
(2)
(3) If the hearing concerns the validity of a CalWORKs
overpayment or , a CalFresh benefit
overissuance allegation , or both, and the county
representative does not find evidence adequate to support the
allegation of the validity of the overpayment or
, overissuance allegation
, or both, then the county representative shall offer the
claimant a conditional withdrawal agreeing both to cancel permanently
the allegation of the overpayment or
, overissuance allegation , or
both, and to refund to the claimant any money already collected
toward repayment of the alleged overpayment or
, overissuance , or both .
(b) (1) A conditional withdrawal pursuant to this section shall
specify the actions that both the
parties shall complete within 30 days from the date the county
appeals representative receives the conditional withdrawal form
signed by the claimant. The county's 30-day conditional withdrawal
compliance period may be extended by an additional 15 days from the
date the claimant completes his or her the
action required by the conditional withdrawal.
(2) The county shall comply with the terms set forth in the
conditional withdrawal, and issue a notice of action to the claimant
describing its compliance with the terms of the conditional
withdrawal. The notice of action shall be sent by the county within
the timeframe set forth in paragraph (1). Any aid paid pending
the outcome of the hearing shall continue until the notice of action
complying with the terms of the conditional withdrawal is issued.
(3) (A) Upon receiving a timely notice of action from the county,
the claimant shall have 90 days, subject to the good cause provisions
of Section 10951, to file for a state hearing if the claimant is
dissatisfied with the county's actions specified in the notice of
action. This notice shall be treated like any other notice of action.
(B) If the notice of action relates to the agreed upon terms of
the conditional withdrawal pursuant to paragraph (2), the
administrative law judge at the hearing may determine that there is
sufficient evidence in the record to render a decision resolving the
dispute on the merits and to order the county comply with the terms
of the decision.
(4) If the county does not issue a notice of action as required in
paragraph (2), the claimant may reopen the state hearing to enforce
the terms of the conditional withdrawal. A reopened hearing pursuant
to this paragraph shall address whether the county has complied with
the terms of the conditional withdrawal, and if the administrative
law judge finds noncompliance with the terms of the conditional
withdrawal, the judge may determine that there is sufficient evidence
in the record to render a decision resolving the dispute on the
merits and to order the county comply with the decision
.
(c) (1) If a written conditional withdrawal is not provided to the
claimant in person at the time the county and the claimant agree
upon the conditional withdrawal, the county shall mail the
conditional withdrawal to the claimant.
(2) (A) Notwithstanding
paragraph (1), the county shall, if it has the capacity to do
so, and upon request of the claimant and with the claimant's
written permission, electronically transmit a copy of the conditional
withdrawal to the claimant.
(B) This paragraph shall become operative only after the director
of the department certifies to the Legislature that the department
has the technology to implement this paragraph in compliance with
privacy laws. Until this certification is made to the Legislature,
the department shall report annually to the budget committees of the
Legislature on the status of the technology available to implement
this paragraph.
SEC. 2. Section 10969 is added to the Welfare and Institutions
Code, to read:
10969. (a) The Legislature finds and declares that claimants have
a right to have administrative hearings conducted in person.
However, the financial cost of attending an administrative hearing,
and the limitations on the ability to attend imposed by work,
training, education, living in areas lacking public transportation,
lack of child care coverage, illness or disability, and inclement
weather, may prevent a claimant from accessing a hearing and
exercising his or her full right to due process of law. A hearing
conducted by telephone, or other electronic means, would enable the
claimant to access the fair hearing process when he or she is unable
to attend the hearing in person.
(b) (1) For purposes of this section,
"in-person hearing" and "hearing conducted in person" means
a either of the following:
(A) A hearing conducted in person
with face-to-face interaction between the parties.
(c) The department shall schedule a claimant's initial hearing
pursuant to this chapter as the department deems appropriate and
within its resource limitations. However, a claimant shall have the
right to request and receive an in-person hearing.
(B) A hearing in which the claimant appears in person, and the
administrative law judge appears by being physically present at the
hearing or by appearing by video conference with the concurrence of
the claimant or his or her authorized representative.
(2) For purposes of paragraph (1), witnesses may appear
telephonically at an in-person hearing or a hearing conducted in
person.
(c) When requesting a hearing, the claimant may specify on the
back of the notice of action, or any other appropriate document for
requesting a hearing, a preference for either a telephone hearing or
in-person hearing. The department shall modify the notice of action
or other appropriate document to include check boxes or other similar
format for purposes of this subdivision.
(d) (1) Following receipt of the notice
of action in which the claimant requests a hearing, the department
shall send the claimant a notice acknowledging receipt of the hearing
request. The notice acknowledging the receipt of the hearing
request shall provide information include all
of th e following:
(A) A statement that the
claimant has a right to an in-person hearing.
(B) Information regarding the
different formats of how a hearing may be conducted, including
in-person, by telephone, or other electronic means, or at the
claimant's home , the right to an in-person hearing, and how
to request a specific type of hearing before the hearing is
scheduled. under specified circumstances, pursuant to
subdivision (h) .
(1) If the notice informing the claimant of the scheduled hearing
indicates the hearing shall be conducted by telephone, or other
electronic means, the notice shall also inform the claimant of his or
her right to have the hearing conducted in person or at the claimant'
s home pursuant to subdivision (g), and how to request a change in
the format of the hearing, including information on the timeframe
within which to make the request without extending the time in which
to issue the decision.
(C) The telephone number that the claimant may call to notify the
department as to his or her hearing type preference.
(2) The notice shall be structured to provide an easy manner for
the claimant to select his or her hearing type preference, such as
check boxes, or other similar format.
(3) The claimant may notify the department as to his or her
hearing type preference by telephone, mail, or other electronic
means, if applicable, and shall make this notification within 10 days
of receipt of the notice acknowledging receipt of the hearing
request.
(4) If the claimant notifies the department as to his or her
hearing type preference in a timely manner, the department shall
schedule the hearing in accordance with subdivision (e).
(A) If the claimant fails to notify the department in a timely
manner, or if the claimant modifies his or her preference following
his or her original request, as stated in the response to the notice
acknowledging receipt of the hearing request, any attempt to state a
preference of hearing type, other than a preference for an in-person
hearing, shall only be considered by the department for good cause.
For purposes of this subparagraph, good cause includes reasonably
unforeseeable circumstances beyond the claimant's control.
(B) If good cause has been established pursuant to subparagraph
(A), the department may reschedule the matter to meet the claimant's
preference if within its resource limits, and may adjust the filing
date accordingly. If the department is unable to reschedule the
preferred type of hearing within existing resources, the department
may postpone the hearing and adjust the filing date accordingly.
(e) The department shall schedule a claimant's initial hearing
pursuant to this chapter as the department deems appropriate within
its resource limitations and shall consider the claimant's hearing
preference, as communicated to the department pursuant to subdivision
(d). However, a claimant shall have the right to request and receive
an in-person hearing.
(2) If the
( f) Following the
department's scheduling of the hearing, the department
shall send the claimant a notice informing the claimant of the
scheduled hearing. The notice informing the claimant of the
scheduled hearing indicates the hearing shall be conducted
in person, the notice shall also inform the claimant of the
opportunity to have the hearing conducted by telephone, or other
electronic means, or at the claimant's home pursuant to subdivision
(g), and how to request a change in the format of the hearing,
including shall include information on the
timeframe within which to make the request without extending the time
in which to issue the decision is issued
. The notice shall specify good cause reasons
to change the method of the hearing, which shall include,
but not be limited to, lack of transportation or child care,
inclement weather conditions, conflicts with work or education
schedules, or other good cause reasons as determined by the
department. If good cause is established , the
department may reschedule the hearing to meet the claimant's
preference if within its resource limits and adjust the filing date
accordingly. If the department has scheduled the matter
for a hearing date but is unable to reset the preferred type of
hearing within an existing calendar or within existing resources, the
department reserves the right to postpone the hearing and adjust the
filing date accordingly.
(3) The department shall implement this subdivision in a manner
that provides sufficient notice to a claimant regarding his or her
ability to request a change in the format of the hearing, and shall
provide on the hearing acknowledgment notice and scheduling notice a
"yes" or "no" box that the claimant may check to request a change in
the format of the hearing.
(e) The claimant shall inform the department of his or her request
to change the format of the hearing within five days of receipt of
the notice of scheduled hearing. The claimant's failure to meet the
five-day requirement may result in a postponement of the scheduled
hearing. If the request to change the format of the hearing occurs
after this five-day period and the claimant's request for a hearing
conducted by telephone, or other electronic means, is granted by the
department, the claimant's original filing date shall be adjusted to
the date the request was granted.
(f)
(g) (1) If the county seeks to request an in-person
hearing, the hearing may be rescheduled to an in-person hearing with
the concurrence of the claimant. If the claimant disagrees, the
department shall decide the format of the hearing. The department may
deny a county's request for an in-person hearing for good cause, as
defined in paragraph (2) of subdivision (b) of Section 10951.
(2) Upon its decision to change the format of a hearing that was
already set, the department shall reset the hearing and give both the
claimant and the county 10 days advance notice of the time, place,
and format of the new hearing.
(g)
(h) The notice informing the claimant of the scheduled
hearing shall also inform the claimant of the right to request a
hearing in the claimant's home pursuant to this subdivision
. The department may require from the claimant seeking a
home hearing at his or her home medical
verification in advance of the hearing demonstrating that
the claimant's condition prevents the claimant from traveling to the
hearing location. If the claimant is unable to travel to a
state hearing office and would prefer to attend the hearing by
telephone, or other electronic means, the claimant may request that
the hearing be conducted by telephone, or other electronic means.
In determining whether to grant the request for a home
hearing, the department also may consider whether the home hearing
can be conducted without verified undue risk to the health and safety
of the administrative law judge and all parties and witnesses, and
whether a telephone hearing is a reasonable alternative. Nothing in
this subdivision shall affect or impede the stipulation for judgment
of Tesluck v. Swoap (1974, No. 000114).
(h)
(i) The notice informing the claimant of the
time and place of the scheduled hearing shall
also inform the claimant how to submit evidence and other documents
if the claimant or administrative law judge will be appearing by
telephone , or other electronic means. The
department shall implement this subdivision in a manner that provides
sufficient notice to a claimant regarding his or her ability to
request a change in the format of the hearing and shall provide on
the notice informing the claimant of the scheduled hearing check
boxes, or on their functional equivalent, that the claimant may
utilize to request a change in the format of the hearing.
(i)
(j) Notwithstanding Section 10952.5, for applicants or
recipients who are scheduled for hearings to be conducted by
telephone, or other electronic means, or at the claimant's home, the
county responsible for the hearing shall prepare and transmit the
position statement to the claimant and his or her designated
representative so that the position statement will be received at
least two working days prior to the hearing. The position
statement may be transmitted to the claimant electronically, if the
claimant has an email address and is able to receive email
communications. In order to comply with this
subdivision, the county shall make the position statement available
at the closest human services offices to the claimant's residence,
without respect to county, or, with the claimant's written
permission, electronically transmit a copy of the position statement
to the claimant. If the claimant does not provide written permission
to receive the position statement electronically, and is unable to
obtain the statement of position from the human services office due
to inclement weather, disability, or lack of reasonably available
public transportation, the county shall mail the position statement
in sufficient time that the statement is received no later than two
working days prior to the hearing, or with permission of the
claimant, may transmit the position statement by facsimile.
SEC. 3. Section 10970 is added to the Welfare and Institutions
Code, to read:
10970. (a) The county representative shall present the case with
appropriate evidence necessary to meet the county's burden of proof
of establishing a prima facie case. At the end of the county
presentation, the administrative law judge may determine on the
record whether or not the county has met its burden of proof. If the
administrative law judge determines that the county has failed to
meet its burden of proof, the claim shall be granted without any
further hearing , except as provided in Section 10960 .
(b) When determining whether the county has met its burden of
proof, the administrative law judge may take the matter under
submission and continue the hearing if he or she determines that the
issue is too complex to make a burden of proof determination
immediately following presentation of the county's case.
(c)
(b) Issues and claims not subject to a burden of proof
determination by the administrative law judge, include, but are not
limited to, jurisdiction, abandonment claims, and claims where the
claimant has failed to specify an issue and the county has been
unable to independently determine an issue in dispute.
SEC. 4. (a) This act shall become operative
following the State Department of Social Services making a finding on
its Internet Web site that the Superior Court of Alameda County has
modified the court orders regarding penalties payable to the
claimants, as agreed to by the parties, and that will be sufficient
to cover the costs to implement the provisions of this bill, in both
King v. McMahon (1987, No. 398769) and Ball v. Swoap (1987, No.
H105716-0).
(b) Notwithstanding subdivision (a), if the department makes the
finding described in subdivision (a) prior to January 1, 2013, this
act shall become operative on January 1, 2013.
(c) The department shall make the finding described in subdivision
(a) within 30 days following the modification of the court orders
described in subdivision (a).
SEC. 4. SEC. 5. If the Commission on
State Mandates determines that this act contains costs mandated by
the state, reimbursement to local agencies and school districts for
those costs shall be made pursuant to Part 7 (commencing with Section
17500) of Division 4 of Title 2 of the Government Code.
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Text--Pages 2 and 9.
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