The Role of the Courts in Securing Welfare Rights and ...

Welfare Law Centervalidity, the good news is that with very limited exceptions, the states appear not to have actedon their initial sentiments.A review of the statutes and regulations that remain post-TANF indicates that virtuallyall the states have retained a fair hearing mechanism that is similar to the one in place underAFDC. For example, while sweeping changes were rendered in New York’s public assistanceprograms, not a word was changed in the statutory provision establishing the right to anadministrative hearing to challenge adverse actions or failures to act. Similarly, despite a massiveconversion of the welfare program to a work program, Ohio retains the requirement that “anappellant who appeals under federal or state law a decision or order of an agency administering ahuman services program shall, at the appellant's request, be granted a state hearing by thedepartment of human services.” Even in Wisconsin, where the W-2 program appears, on paper,to eliminate or severely curtail fair hearing rights, reports from advocates indicate that fairhearings are still being conducted and that appellants are winning.On the other hand, limitations on procedural due process in the fair hearing process arearising. Michigan plans to limit the extent to which it will automatically provide assistanceunchanged pending an administrative hearing and the issuance of a hearing decision. The Michiganscheme would terminate aid without advance notice and then, supposedly, reinstate aid if thehearing is requested within 10 days.In another example, New York’s newly enacted Welfare Reform Act now requiresrecipients determined to be able bodied enough to engage in a workfare assignment or otherwelfare-to-work activity to request a fair hearing challenging the determination within 10 daysfrom the date the determination was made.Although fair hearings continue, there are deficiencies in those proceedings. For example,Illinois and New York advocates report delays in scheduling hearings and issuing decisions,scheduling prehearing conferences and providing aid pending appeal. There is a rich history oflitigation to insure compliance with hearing mandates. Much of that litigation in the AFDC erawas intended to enforce federal regulatory guidelines governing the operation of the fair hearingMay 1999⋅ 36 ⋅