BILL ANALYSIS �
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: SB 320
S
AUTHOR: Wright
B
VERSION: March 29, 2011
HEARING DATE: April 12, 2011
3
FISCAL: Appropriations
2
0
CONSULTANT:
Park
SUBJECT
Public social services: hearings
SUMMARY
Makes changes related to the process for state hearings for
public social services.
ABSTRACT
Existing law:
1.Allows 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
Department of Social Services (DSS) (or the Department of
Health Care Services when applicable) no later than 90
days after the order or action complained of, with
specified exceptions.
2.Requires the department to set a hearing to commence
within 30 working days after the request is filed, and to
send written notice of time and place of the hearing at
least 10 days prior to the hearing. Requires the agency
to make available to the applicant for, or recipient of,
public social services a copy of the agency's position
Continued---
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statement within two working days prior to the hearing,
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. Requires the hearing to be postponed at the
request of the applicant or recipient if the position
statement is not made available as required. Provides
for specified exceptions.
3.Provides for timelines and reasons for postponements,
adoption of decisions, rehearings, award determinations,
subsequent notices, and requests for additional
information.
4.Provides that administrative law judges (ALJ) employed by
the department shall conduct a hearing, unless the
director of the department orders the hearing to be
conducted by him or herself; allows the director to
contract with the Office of Administrative Hearings to
conduct hearings.
This bill:
1.Requires the county appeals representative to review all
evidence in the county's possession prior to the hearing
and, if the representative finds certain occurrences, to
offer the claimant a conditional withdrawal. Requires
the conditional withdrawal to specify the actions that
the applicant or recipient and the county are required to
complete within 30 days of the conditional withdrawal
being signed by the claimant and received by the county
representative. Requires the county to issue a
compliance notice within 30 days of the date that the
signed conditional withdrawal is received by the county,
and deems claimants to have prevailed on all claims if
the county fails to issue the compliance notice in that
time. Allows a claimant to file for a hearing if the
claimant is dissatisfied with compliance of the county
within 90 days of receiving the county's compliance
notice.
2.Requires the county to issue aid paid pending within five
working days from the date of the filing of a hearing,
and requires the county representative, if the county has
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not issued aid paid pending by the end of the fourth
business day, to authorize the aid paid pending, as
specified.
3.Allows a claimant to request a hearing by telephone, or,
in the case of disability, allows the claimant to request
an in-person hearing in the claimant's home, and requires
the department to accept the claimant's selection of
hearing type. Requires the notice of action informing
recipients of the right to a hearing to inform the
applicant or recipient of the aforementioned rights.
Provides that if a claimant does not request that he or
she prefers to have a hearing by telephone or an
in-person hearing, the department is required to schedule
an in-person hearing.
4.Requires the notice informing the claimant of the time
and place of the hearing to also include information on
how to submit evidence and other documents if the hearing
is by telephone. Requires the county to mail any
position statements to the claimant and his or her
representative, so that it will be received at least two
working days prior to the hearing, if the hearing is by
telephone or in the claimant's home.
5.Requires the county representative to provide the ALJ
with the county position statement. Requires the ALJ to
determine, based upon the position statement, whether the
county has met its burden of proof of establishing a
prima facie case. Requires the ALJ, if he or she has
determined that the county has not met its burden of
proof, to hold a limited hearing for the purposes of
announcing a tentative finding that the county has failed
to meet its burden of proof and to hear testimony
regarding why the county believes its position statement
states a prima facie case. Requires the ALJ to issue a
fully favorable decision to the claimant if the ALJ finds
that the county has not met its burden after the limited
hearing; and, if the county has met its burden, requires
the ALJ to issue a decision which sets forth a finding of
all the facts and laws that led to that conclusion.
FISCAL IMPACT
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Unknown
BACKGROUND AND DISCUSSION
Author's statement
The author states that current law does not entitle a
claimant to a telephone hearing if the claimant desires a
telephone hearing. The author also states that current law
allows a hearing to go forward even when a county has
failed to meet its burden of proof �in justifying its order
or action against the claimant]. The author points out
that a stipulation at a hearing is not enforceable if a
county fails to comply with a stipulation, in which case a
claimant must request a new hearing. The author believes
the bill provides cost-effective solutions to the problems
described above.
Current regulations governing state hearings
Current regulations governing state hearings cover who may
request a hearing, timeframes for requests and actions,
when aid must be paid pending a hearing, when hearings must
be set, general rules and procedures as well as rules and
procedures related to the taking of evidence, postponements
and continuances for additional evidence, conditional
withdrawals, dismissals, examination of records and
issuance of subpoenas, etc. As it pertains to this bill,
current regulations state that:
The State Hearings Division shall be permitted to
schedule hearings to be conducted by telephone or
video conference in lieu of an in-person hearing.
Hearings can be conducted by telephone or video
conference only if the claimant agrees. The ALJ may
terminate the telephone hearing or video conference at
the request of either party or on his/her own motion
and order an in-person hearing when he/she determines
that a party's right to due process is being
prejudiced by the telephone hearing or video
conference procedure.
The position statement shall summarize the facts of
the case and set forth the regulatory justification
for the county's action. If the issue concerns the
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amount of aid, grant adjustment, or a demand for
repayment, the county representative must include a
complete final monthly budget computation for the
period in issue. Finally, the county is required to
include as attachments to the position statement
copies of documentary evidence and a list of witnesses
which the county intends to use during the hearing.
At the hearing, the county representative shall
assume full responsibility for presentation of the
county's case. Such presentation shall include:
summarizing the written position statement; examining
county witnesses; cross-examining the claimant and the
claimant's witnesses; responding to any questions from
the claimant or ALJ concerning the case; and having
the county case record available at the hearing;
having the burden of going forward in the hearing to
support its determination; having authority at the
hearing to make binding agreements and stipulations on
behalf of the county welfare department.
Arguments in support
The Coalition of California Welfare Rights Organizations
(CCWRO), the sponsor of the measure, believes that
telephone hearings are more cost effective and this bill
will make it easier for claimants to attend hearings.
CCWRO points out that, while telephone and videoconference
hearings are currently being conducted, the claimant has no
right to a telephone or videoconference hearing. CCWRO
also believes that regulations require less information to
be presented at the hearing than what is required to be
included in a position statement, and that the position
statement should contain all of the elements needed to meet
the required burden of proof. CCWRO also believes that if
a county fails to meet the conditions of the conditional
withdrawal, the claimant should prevail in his or her
claims in lieu of having another costly hearing.
Concerns/request for amendments
The County Welfare Directors Association of California
(CWDA) writes that the bill would require county appeals
staff to authorize aid paid pending if the client's
eligibility worker has not done so by the fourth business
day after the hearing request is filed. CWDA states that,
from a technical perspective, this would require counties
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to give appeals staff extensive access to client data
files, which is not consistent with county policies to
generally limit access for staff to the narrower set of
client data files that are necessary to complete their
work. CWDA states that it understands the need to provide
timely aid paid pending during the appeals process, and
would like to work to find a method for doing so that does
not raise data integrity and confidentiality concerns.
CWDA also writes that the bill sets forth a process whereby
the hearing officer could decide, based on the county's
provision prior to the hearing of a required position
statement, whether the county has met its burden of proof
in the case, and only hold a full hearing if the county had
met its burden based on the position statement. CWDA
states that counties indicate that position statements are
not currently intended to provide the full array of
evidence a county will present at the hearing, and they
typically are prepared by appeals unit staff who do not
have legal training. CWDA believes that if position
statements were to be used as the basis for a hearing
officer's decision whether to hold a full hearing, counties
would likely need to hire additional legal staff to prepare
these documents, at a potentially significant cost. CWDA
requests this provision to be removed to maintain the
current practice of holding hearings, at which evidence may
be presented on both sides with the position statement as
one part of the information submitted by counties.
COMMENTS
1.Author intends to remove references to in-person hearings
at home. The author and sponsor indicate that this
language will be removed at a future time.
2.Due process in telephone/videoconference hearings. With
regard to current telephone or videoconference hearings,
current regulations specify that the administrative law
judge may terminate the telephone hearing or video
conference at the request of either party or on his/her
own motion and order an in-person hearing when he/she
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determines that a party's right to due process is being
prejudiced by the telephone hearing or videoconference
procedure. The bill's current language would appear to
overturn this authority and due process protection. The
author and sponsor should consider additional
notifications and warnings so that claimants do not
unknowingly give up protections of due process for
convenience.
3.The role of position statements and limited hearings.
a. The current language is unclear as to the
timing of ALJ's review of the position statement,
and when a limited hearing is to go forward.
b. While the documentation the county must provide
in the position statement appears to be extensive,
current regulations also provide for additional
information to be presented at the hearing, i.e.,
the county representative's presentation of the case
shall include: responding to any questions from the
claimant or ALJ concerning the case; having the
county case record available at the hearing; having
the burden of going forward in the hearing to
support its determination; and examining or
cross-examining witnesses. A limited hearing, as
provided for in the bill, would not be about the
claimant's case but the adequacy of the county's
position statement in meeting burden of proof, and
would potentially limit or eliminate the ability of
the county to present its case to the full extent
provided for through current regulation.
4.Aid paid pending issue. The author and sponsor may wish
to work with CWDA and other interested stakeholders on
ways to provide timely aid paid pending while ensuring
data integrity and confidentiality.
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POSITIONS
Support: Coalition of California Welfare Rights
Organizations (sponsor)
Concerns: County Welfare Directors Association of
California
Oppose: None received
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