In some cases, a county will send an English language Notice of Action (NOA) to a non-English speaking person. May the county send an English language NOA to a person who does not read English? If no, what are the consequences to the county for issuing such a NOA if this issue is raised in a state hearing?

Applicable Law

Manual of Policies and Procedures (MPP) §21-115.2 states: Forms or other written material required for the provision of aid or services shall be available and offered to the applicant/recipient in the individual's primary language when such forms and other written material are provided by the CDSS. When such forms and other written material contain spaces in which the agency is to insert information, this inserted information shall be in the individual's primary language. (§21-115.2)

A list of forms which have been translated into languages other than English is sent to counties by CDSS on a regular basis. Counties are required to stock all forms that have been translated by CDSS even if there have been no requests. (All-County Letter (ACL) No. 92-90, October 15, 1992)

On January 19, 1976, the CDSS (formerly the State Department of Benefit Payments) agreed to translate necessary forms and written materials into the applicants'/recipients' primary language when those applicants/recipients constituted a substantial number (i.e., five percent or more of the applicant/recipient population) within the particular county. (Asociacion Mixta Progresista v. U.S. Department of Health, Education and Welfare, Settlement and Stipulation to Dismissal, U.S.D.C. (N.D. Cal))

When the claimant contends he/she is not adequately prepared to discuss the issues because he/she did not receive adequate notice required by §22-071.1, this issue shall be resolved by the Administrative Law Judge (Judge) at the hearing. If the Judge determines that adequate notice was provided, the claimant shall agree to discuss the substantive issue(s) or the case will be dismissed. If the Judge determines that adequate notice was not provided, the case shall be postponed unless the claimant waives the adequate notice requirement for purposes of proceeding with the hearing, and agrees to discuss the substantive issue(s) at the hearing. If the notice was not adequate and involved a discontinuance, suspension, cancellation, termination, or reduction of aid other than those referred to in §22-072.1 through .13, aid shall be reinstated retroactively and the provisions of §22-072.5 shall apply. (§22-049.52, as modified May 12, 1995, and §22-072.1)

A notice of action must be adequate before the 90-day time limit for filing a state hearing request begins to run. The fact that the recipient knows, or should have known, of the action does not start the running of the time period. (Morales v. McMahon (1990), 223 Cal. App. 3d 184, 272 Cal. Rptr. 688)

What Happens at the Hearing

MPP § 22-049.52 states that if the claimant contends he/she is not adequately prepared to discuss the issues because he/she did not receive adequate notice, this shall be resolved by the Judge at the hearing. One of the reasons a claimant may contend he/she is not adequately prepared to discuss issues at hearing is because the notice was sent in English rather than in the claimant’s primary language. If the claimant raises the issue of adequate notice, the Judge needs to determine if the claimant's primary language is other than English, and if so, whether the NOA should have been sent to the claimant in his/her primary language.

(Note: MPP § 22-049.52 only requires the Judge to resolve the issue of adequate notice if the claimant contends he/she is not prepared to proceed. If the non-English speaking claimant does not raise the issue of adequate notice and is prepared to proceed, the Judge is not likely to raise the issue of adequate notice on his/her own motion unless the issue involves dismissal of a hearing request due to an untimely filing).

If adequate notice is at issue and the claimant's primary language is not English, the Judge must determine if the NOA is printed in the claimant's primary language (see MPP § 21-115.2 above). If the Judge establishes that the CDSS does not print the NOA at issue in the claimant's primary language, he/she must determine if a substantial number of non-English speaking applicants/recipients for the program at issue in the county has the same primary language as the claimant. A substantial number is interpreted to mean either five percent of those applying for or receiving aid for the program at issue throughout the county or five percent of those applying for or receiving aid for the program at issue in the particular location (i.e., county office).

If the Judge establishes that the CDSS does not print the NOA at issue in the claimant's primary language and less than five percent of the applicable applicant/recipient population in the county or at the particular location has the same primary language as the claimant, the county is only required to issue the NOA in English. In such case, the claimant would be required to proceed on the merits at the hearing (see MPP Section 22-049.52 above). Per MPP§ 21-115.15, the county would still be required to provide effective bilingual services (i.e. an interpreter)

Note: There may be a few instances where the Judge would exercise discretion and postpone the hearing despite the fact that the NOA was adequate in English. In such case aid paid pending may not be authorized.

If the CDSS does not print the NOA in the claimant's primary language, but at least five percent of the applicant/recipient population regarding the program at issue in the county or at the particular location has the same primary language as the claimant, the county is required to issue the NOA in the claimant's primary language. For example, if the claimant's issue involves a discontinuance of CalWORKs at the Lancaster office in Los Angeles County, the Judge needs to establish the percentage of the CalWORKs applicant/recipient population in Los Angeles County and in the Lancaster office that has the same primary language as the claimant. The county must issue the CalWORKs discontinuance NOA in the claimant's primary language if at least five percent of the applicant/ recipient CalWORKs population throughout Los Angeles County has the same primary language as the claimant or if at least five percent of the applicant/recipient CalWORKs population in the Lancaster office has the same primary language as the claimant.

Conversely, if the CDSS does print the NOA in the claimant's primary language, the county is required to issue the NOA in that primary language regardless of whether five percent of the applicant/recipient population in the county or location has the same primary language as the claimant. If the county is required to issue the NOA in the claimant's primary language and issues the NOA in English instead, the NOA will be determined to be inadequate.

The Judge makes the determination as to whether the NOA is available in the claimant's primary language by asking the county. If the county does not have a list of available forms, the Judge should inform the parties that he/she will take official notice of whether such a form is produced by the CDSS. The Judge does this by reviewing a list of CDSS forms issued in languages other than English that is printed by the CDSS Language Services Bureau (a copy of the most recent list is attached to this Notes).

If it is necessary for the Judge to determine the percentage of the applicable population that has the same primary language as the claimant, the Judge may require the appeals specialist to obtain such information. The county civil rights coordinator is a good source for this information. An updated list of county civil rights coordinators is attached to this Notes.

If the Claimant Chooses to Proceed at the Hearing

When the NOA is determined to be inadequate, the Judge will ask the claimant whether he/she wants to waive adequate notice requirements and proceed with the hearing. If the claimant chooses to proceed on the merits, the Judge will conduct a full hearing but will order the county to issue aid paid pending where applicable, retroactive to the effective date of the action to at least the date of the hearing.

If the Claimant Chooses to Postpone the Hearing

If the claimant chooses not to proceed and the NOA has been determined to be inadequate, the hearing will be postponed. The claimant's hearing request will be deemed a timely request, the Judge will order the county to issue aid paid pending (including retroactive aid paid pending) where applicable, and the hearing will be rescheduled.

If an interpreter is present at the postponed hearing, the Judge should instruct the interpreter to translate the position statement and the NOA to the claimant. If the interpreter does translate the position statement and the NOA to the claimant, the translated position statement and NOA will substitute for the inadequate NOA and the claimant will be required to proceed on the merits of the case at the hearing when it is rescheduled. The county would not be required to issue a new NOA in the claimant's primary language.

If no interpreter is present at the hearing, or if an interpreter does not translate the position statement and NOA to the claimant at the postponed hearing, the county will be required to issue a new NOA in the claimant's primary language. The claimant will continue to receive aid paid pending where applicable, until at least such time as adequate notice is issued. Should the county fail to issue a new NOA prior to the day of the rescheduled hearing, the claimant will be given the option to again postpone the hearing and continue to receive aid paid pending where applicable, at least until the rescheduled hearing date.

The claimant will continue to receive aid paid pending until adequate notice (or an acceptable substitute for adequate notice) is issued. Again, if an interpreter is present at the rescheduled hearing and translates the NOA and position statement, this will substitute for adequate notice and the claimant will be required to proceed on the merits when the hearing is rescheduled.

When the Judge cannot decide whether the NOA is available in the claimant's primary language or whether five percent of the applicable population in the county has the same primary language as the claimant, the Judge has discretion to proceed, continue or postpone the hearing. (It is recommended that the Judge continue or postpone in this case). If the Judge retains jurisdiction over the case, he/she should make an aid paid pending order once sufficient evidence is received to make such an order. If the hearing is postponed, the aid paid pending order will be made by the Judge who is assigned the case when it is rescheduled.

Consequences For Failing to Issue Adequate Notice

As stated above, when the issue is raised, if the county fails to issue an adequate NOA for any reason including issuing a NOA in English when required to issue it in the claimant's primary language, the county will be required to issue aid paid pending retroactive to the effective date of the action.

In addition, if adequate notice is not issued, any hearing request will be deemed a timely hearing request (see Morales above) even if the hearing request is filed more than 90 days after the claimant received the inadequate NOA. This is true if the NOA is determined to be inadequate for any reason.

However, the county failure to issue an adequate NOA is NOT a basis for the Judge to grant the claim on the merits. Assume the county issued the Cambodian speaking claimant an English language NOA discontinuing his CalWORKs benefits effective October 1, 1999. He does not request a hearing until October 5, 1999. Assume further that the CDSS prints the applicable NOA in Cambodian. The hearing is held on November 8.

If the claimant seeks to postpone the hearing because he did not receive adequate notice, the Judge will grant the postponement and order the county to issue aid paid pending retroactive to October 1. If an interpreter was present at the hearing and translated the position statement and NOA, the claimant would be required to proceed on the merits when the hearing was rescheduled.

If at the rescheduled hearing the Judge concludes that the county correctly discontinued CalWORKs effective October 1, the Judge would deny the claim. Any aid paid pending the claimant received from October 1 forward would be a recoupable overpayment.

Consequences For Issuing Forms in English Rather than the Claimant's Primary Language

This newsletter has discussed the county duty to provide NOAs in the claimant’s primary language. The county is also required to provide forms to an applicant/recipient in his/her primary language if the CDSS issues such forms or if five percent of the applicable applicant/recipient population in the county for the program at issue has the same primary language as the claimant. If the county issues a form in English when required to issue the form in the applicant/recipient’s primary language, the Judge will evaluate this fact on a case by case basis.

For example, assume the county discontinues the claimant from Food Stamps due to a failure to provide essential information. If the county had issued the request for information form in English and the CDSS issued this form in the claimant’s primary language, the Judge would grant the claim and order the county to rescind its discontinuance action if the claimant testifies she did not understand the English language request for information.