1. Is an AR form valid if it designates only an organization, and not a person employed by that organization as the AR?

A. Yes. A claimant may authorize an individual or an organization to represent him/her during all aspects of the hearing process. If an organization is designated on the AR form, any person from that organization who appears on behalf of the claimant at the hearing, or who contacts the county prior to the hearing on behalf of the claimant, shall be recognized as the AR.

While MPP §22-085.1 states that a claimant may authorize a "person" to represent him/her during all aspects of the hearing process, it was not the intent of this regulation to preclude an organization from being named as the AR. The term "person" as used in MPP §22-085.1 is interpreted to include organizations as well as individuals. This interpretation is consistent with MPP §§22-001a.(5) which defines an AR as a person or organization authorized by the claimant. Further, MPP §22-085.4 states "after a person or organization has been authorized to represent the claimant," the county shall send copies of correspondence to the claimant and AR simultaneously.

The CDSS plans to revise MPP §22-085.1 to say "person or organization" when the Division 22 regulations are next modified.

2. Must an AR form specifically state that the AR is authorized to represent the claimant during all aspects of the state hearing process?

A. Ideally, the AR form should contain language which specifically states that the AR is authorized to represent the claimant during all aspects of the state hearing process. However, if such specific language is not contained in the AR form, any language which reasonably indicates the claimant’s desire to be represented by this AR at a hearing will be accepted.

3. When the claimant signs an AR form authorizing an organization to act as AR for more than one year, must the county recognize that organization as AR for the period of time specified in the AR form?

A. An applicant or recipient of aid may sign an AR form authorizing a representative to act for any length of time, if such authorization does not conflict with a statute or regulation.

Only one statute, Welfare & Institutions Code (W&IC) §10850.2, imposes a time limit for authorizations. Only one regulation, MPP §19-005, imposes a time limit for authorizations. Both W&IC §10850.2 and MPP §19-005 refer to inspection and release of records and limit the authorization to one year, unless revoked or expressly limited. These provisions regarding inspection and release of records are controlling and cannot be modified.

For state hearings, however, any valid authorization extends to the final disposition of the issue at hearing, regardless of the length of time it takes for a final disposition. An authorization for state hearings is valid only if it is signed and dated on or after the date of the disputed action or inaction. (See Questions and Answers #6, #7 and #9.)

4. If a county receives a copy of an AR form, instead of the original, may the county recognize the person or organization designated as the AR?

A. A copy of the AR form is as effective as the original for prehearing purposes. The original AR form should be given to the Administrative Law Judge (ALJ) at the hearing if possible. The ALJ may accept a copy if the original is not available, however, the ALJ has discretion to require the original if he/she questions the authenticity of the copy.

5. A particular legal aid organization has asked that counties make all prehearing contact with them once a claimant has designated that legal aid organization as AR. Is the county prohibited from making prehearing contact with the claimant rather than with the AR? What if the county is unable to reach the AR and needs to contact the claimant to prepare for the hearing?

A. No state regulation prohibits the county from making prehearing contact with a claimant who has an AR. MPP §§22-085.3 and 22-085.4, which provide that the county shall send copies of notices, decisions, and correspondence to the AR at the same time such correspondence is sent to the claimant, do not address other prehearing contacts.

While state regulations do not prohibit the county from contacting a claimant who has retained an AR, it is common practice for attorneys to communicate solely with the other party’s attorney; not with the party. A county may properly limit all verbal communication with an AR, especially an AR who made such a request. If a county’s attempts to contact an AR are unsuccessful, the county may consider leaving a message that it will contact the claimant directly by a specific date (e.g., within three (3) days) if the county does not receive a response from the AR by that date.

6. Is an AR form signed by the claimant before the disputed county action a valid AR form for state hearing purposes?

A. No. Per MPP §22-085.1, effective May 12, 1995 for hearing purposes, an AR form must have been signed and dated on or after the date of the action or inaction with which the claimant is dissatisfied. Therefore, an AR form signed before the date of the disputed action or inaction is invalid.

7. May an attorney represent a claimant with an invalid AR form or no AR form?

A. In some cases, yes.

Some attorneys argue that an attorney does not need an AR form because California Department of Health Services (CDHS) All County Welfare Directors Letter (ACWDL) 95-43 states that an attorney does not need an AR form to be recognized as the AR in a state hearing.

MPP §22-085.2 provides that a person who appears at a hearing without the claimant or a signed AR form, may be recognized as the AR if he/she is an attorney. Subsection .22 requires all persons, including attorneys, to submit a written authorization after the hearing.

The Administrative Adjudications Division (AAD) has determined that, notwithstanding MPP §22-085.22, an attorney without an AR form shall be recognized as the AR in certain situations.

MPP §22-085.2 adds that if an attorney (or other person) appears at a hearing without a valid form, the ALJ shall determine if the attorney or other person is a valid AR.

Where an attorney appears at a hearing without the claimant, but with an AR form signed before the date of the disputed action or inaction, or where an attorney appears without the claimant or an AR form, ALJs shall ask the attorney if he/she has had any contact with the claimant since the disputed action or inaction. If the attorney asserts the claimant authorized the attorney as the AR on or after the date of the disputed action or inaction, the ALJ may recognize the attorney as the AR and proceed with the hearing. If the attorney declines to state when the claimant authorized him/her as AR, or acknowledges the claimant authorized him/her as AR before the disputed action or inaction, and the AR has had no contact with the claimant since the disputed action or inaction, the ALJ shall dismiss the claim.

8. Are there any other circumstances when an AR form is not required?

A. Only two.

9. Is the information in CDHS ACWDL 95-43 valid for purposes of determining who may be an AR in a state hearing?

A. The term AR as used by the CDHS for purposes of Medi-Cal applications differs from use of the term by both agencies for state hearings. CDHS ACWDLs 93-84, 94-62, 94-70, 94-99, 95-30, 95-60, and 96-20, all address AR issues for purposes of Medi-Cal applications, not for state hearings.

CDHS ACWDL 95-43 addresses CDSS policies concerning ARs and state hearings. While this ACWDL is a valid statement of CDSS policies and regulations, it must be read in concert with Notes Items 95-6-2 and 96-6-2, and MPP §22-085.

For example, it is true that ALJs in state hearings may recognize an attorney as the AR in a state hearing without a valid AR form. However, it is also true that ALJs shall determine if the attorney is a proper AR and shall prepare a decision on the merits only if the attorney was properly authorized as the AR on or after the date of the disputed action or inaction. (See Question and Answer #7 above).