As CalWORKs participants begin to reach the end of their 18 or 24 month time limit for Welfare to Work (WTW), there has been an increase in state hearings involving time limit issues. In some of the hearings to date, claimants have objected to participating in unpaid community service. Instead, they wish to continue in a WTW activity other than unpaid community service.

This Notes addresses the time limits issue in the form of a hypothetical fact pattern. The first fact pattern below addresses a separate issue in the WTW process concerning whether a person may receive an exemption from WTW without attending the initial appraisal interview.

1. Does a CalWORKs Recipient Need to Attend the Welfare to Work (WTW) Orientation and Appraisal Appointment if the Recipient Alleges He/She Should be Exempt from WTW?

Assume that Mitch has applied for CalWORKs. CalWORKs was approved on July 2, 2001. The county has scheduled an orientation and appraisal interview for July 16, 2001.

Mitch does not attend that appointment, nor subsequent appointments scheduled by the county. The county sanctions Mitch for not cooperating with the WTW program.

Mitch requests a state hearing and contends that the sanction is improper. He says he should be exempt from WTW because he is disabled and should not have been required to attend the orientation and appraisal interview. Is Mitch subject to sanction for failing to attend the interview if the facts show at the hearing that he was exempt from WTW ?

MPP §42-711.51 says that after aid has been granted, recipients who are not exempt in accordance with §42-712 shall participate in WTW activities in a specific sequence. The first WTW activity in the sequence is appraisal.

MPP §42-711.522(c)(1) says that prior to or during the appraisal, the county shall inform the individual in writing of the list of exemptions pursuant to MPP §42-712.

MPP §42-721.211 says a person who is required to participate is subject to sanctions whenever he or she fails or refuses to comply with program requirements.

By definition, a person who is exempt is not required to participate. Thus if Mitch establishes that he met any exemption in §42-712 as of July 16, MPP §42-721.211 would not apply to him.

If Mitch called the county before July 16 and requested a disability exemption, the county would need to mail him the appropriate exemption form (CA-61) and ask him to return a completed form by a specific date. If Mitch returned the CA-61 by the due date and if the form indicated that Mitch should be exempt as of July 16, the county should grant the exemption without requiring Mitch to attend an orientation and appraisal interview.

If Mitch did not return the form, nor otherwise contact the county, the county could then reschedule the appraisal appointment.

If Mitch never contacted the county prior to the July 16 appointment and did not participate in subsequent WTW activities, the county would be correct to propose to sanction Mitch. However, at a hearing a judge could reverse the sanction if Mitch could establish that he was exempt as of July 16.

 

2. May an Administrative Law Judge Review How the County Administered the WTW Process After the 18 or 24-Month Process Has Been Completed?

Yes, in appropriate circumstances. Among the issues the claimant may dispute include: 1) whether he/she should have been granted an exemption despite participating in WTW and 2) whether the county properly advised the claimant in writing of the right to a third party assessment. The following hypothetical fact pattern explains how this process would work:

Mary began her WTW process in October 1999 when she attended an appraisal interview. At appraisal, Mary signed a WTW 1 (Rights and Responsibilities). There is no evidence that the county ever advised Mary of the right to a third party assessment at or prior to appraisal. After Mary completed job search in October and November, the county conducted an assessment on December 1. In assessing Mary’s skills, the county determined that Mary should attend vocational training to be a clerk/typist. Mary signed a WTW 2 (activity assignment) on December 1, 1999. Mary’s 18/24-month time limit started running at that time. That WTW 2 stated that Mary’s activity assignment was as a clerk/typist. (For purposes of this example, the 18/24-month time limit will be referred to as a 24-month time limit.)

The WTW 2 advised Mary that she had 30 days to ask for a change in activity once the activity starts. Mary did not ask for a change in activity. Instead, she participated in her WTW activities throughout the period at issue as requested by the county. As of November 30, 2001, Mary had completed her 24-month time limit, but was not able to obtain work. The county then sent Mary a notice advising her that she had completed 24 months of WTW and that she had to attend an unpaid community service activity beginning December 15, 2001 in order to continue to receive CalWORKs benefits.

Mary called the county WTW worker and told her that she did not want to participate in unpaid community service. The WTW worker told Mary she would have to participate in unpaid community service in order to continue to receive CalWORKs. After Mary failed to attend her community service assignment and failed to respond to a county request to comply with WTW requirements, the county issued a notice of action dated January 15, 2002, proposing to sanction Mary effective February 1, 2002 for failure to participate in WTW.

Mary now requests a hearing on January 30, 2002 to dispute the sanction. She specifically contends that she should have been exempt from WTW from December 2000 through February 2001 because she had a broken ankle that required treatment at that time. She also contends that the county never advised her of the right to a third party assessment. She testifies she wanted to go to school to be an auto mechanic.

Exemption Issue

Since Mary had not requested an exemption from WTW in December 2000 or any time thereafter, the county would not have issued any notice of action regarding the exemption. As to the exemption issue, there is jurisdiction to review whether Mary should have been exempt from WTW SOLELY for the purpose of determining if the months of December 2000 through February 2001 should be counted toward the 24-month time limit. If the judge finds Mary should have been exempt in any month from December 2000 through February 2001, each month of exemption would not count toward the 24-month or 60-month time limit.

(If Mary had requested an exemption in December 2000 and received an adequate Notice of Action denying the exemption request, Mary’s January 30, 2002 hearing request would be dismissed as untimely as to that issue.)

Once jurisdiction to review the exemption issue is established, the burden of proof is on Mary to establish that she should have been exempt from December 2000 through February 2001. Mary would have to present evidence that retroactively establishes that she met the exemption requirement set out in MPP §42-712.44. If she could establish she met the exemption, the months she actually participated would not count toward the 24-month (or 60-month) time limit. Her actual participation in WTW for the months in which an exemption was established would be treated as volunteer participation.

Thus assume that Mary has documentation that she broke her ankle on November 23, 2000, and her doctor now submits verification that she was unable to work or participate in WTW from December 2000 through January 2001. The county should be allowed to submit evidence of Mary’s actual participation to rebut the credibility of the doctor’s statement. If the Administrative Law Judge finds the doctor’s statement determinative, Mary would be exempt from December 2000 through January 2001.

Based on the evidence presented, she would not be exempt in February 2001 because the doctor’s statement only found Mary to be unable to work in December 2000 and January 2001. December 2000 through January 2001 would be exempt months and would not be months of participation in WTW for purposes of the 24-month (or 60-month) time limit. February 2001 would be treated as a month of participation in WTW pending the results of the third party assessment issue.

(For a discussion of learning disabilities, including a retroactive adjustment of the 18- or 24–month time clock, refer to All County Letter 01-70, October 17, 2001.)

 

Third Party Assessment Issue

MPP §42-711.522(c)(5), effective September 13, 1999, requires the county to inform the individual in writing prior to, or at the appraisal of the right to a third party assessment. Since there is no evidence the county ever advised Mary in writing of the right to a third party assessment, the judge would ask the county if it ever informed Mary in writing of this right. If the judge establishes at the hearing that the county never informed Mary in writing of the right to a third party assessment, the judge would have jurisdiction to review whether Mary is entitled to have any months reinstated on the 24-month time clock.

There would be jurisdiction to review this issue even though the January 30, 2002 hearing request was filed more than two years after the December 1999 assessment. Since Mary filed her hearing request within 90 days of the January 15, 2002 notice of action proposing to sanction her, all relevant facts necessary to determine the correctness of the sanction are reviewable. This includes whether the 24-month time period has expired, so that Mary is required to participate in unpaid community service.

Since Mary began the Welfare to Work process after September 13, 1999, if the evidence established that Mary was not notified in writing of the right to a third party assessment, she would be entitled to a third party assessment. If the evidence established that Mary was notified in writing of the right to a third party assessment, and Mary did not communicate disagreement with the assessment at the time of the assessment, she would not now be entitled to a third party assessment.

 

Judge’s Order

If the county had not notified Mary of the right to a third party assessment prior to or at the December 1, 1999 appraisal, the judge would now order the county to offer Mary a third party assessment. If a judge orders the county to schedule a third party assessment, this does not mean that Mary is automatically entitled to have months reinstated on the 24-month time clock. The county in complying with the order would refer Mary to an independent assessment by an impartial third party (§42-711.556). The third party assessor would have to do a retroactive assessment. That is, the third party assessor would be evaluating whether the county assessment made on December 1, 1999 was correct based upon then existing circumstances.

If the third party assessor concluded that the county correctly assessed Mary on December 1, 1999, the results of that assessment would be binding upon the county and Mary. Mary does not have the right to a hearing on the correctness of the third party assessment. No month would be reinstated on the 24-month time clock. Mary could request a hearing to dispute county actions taken based on the third party assessment.

If the third party assessor concluded that the December 1, 1999 assessment was incorrect, any month Mary spent in WTW activities that was not consistent with the third party assessment would not count against the 24-month time clock. (Note: December 2000 and January 2001 would already not count against the 24-month time limit if the Administrative Law Judge determined Mary was exempt in those months).

Mary would not be required to participate in WTW pending the third party assessment. She would be entitled to receive CalWORKs benefits during this period. While Mary could have time reinstated on the 24-month time clock if the third party assessor determines that the December 1999 assessment was incorrect, all months when Mary was aided and not exempt would count toward the 60-month CalWORKs time limit. December 2000 and January 2001 would not count toward the 60-month time limit if the Administrative Law Judge determines she was exempt from WTW activities in those months.