Foster Care

 

EC Funding Due Process Notification

 

Background

ACLs 18-33, 18-75, 19-24, -19-84, and 22-89. WIC 11461.36.

For purposes of this topic, any reference to a child or youth will also include non-minor dependents (NMDs). This topic aims to clarify whether the Emergency Caregiver funded payment should continue or stop for a caregiver when:

  1. A county placing agency has issued a Notice of Action (NOA) or similar administrative action regarding its denial of Resource Family Approval (RFA), or 
  2. The Tribe has not approved the caregiver as a Tribally Approved Home (TAH).

 

Due Process and Notices of Action (NOAs)

Caregivers are provided due process rights through the fair hearing process outlined in NOAs. The NOA informs the individual of an action the county intends to take, the reasons for the intended action, the specific laws and/or regulations supporting such action, and an explanation of the individual’s right to request a hearing. The caregiver has 90 days from the date of notice to appeal the action being taken. When the Department of Family and Children’s Services (DFCS) denies an RFA application, the Notice of Action Regarding Resource Family Approval-Denial form (RFA 09) must be sent.

The TAH application process conducted by a Tribe may or may not include formal or informal due process under tribal law, policy, or custom. If a Tribe offers formal or informal due process, the county should consult with the Tribe to determine the final date of the TAH denial. See Scenario Six below for more information.

Foster Care Social Services Benefits Specialists (FC SSBSs) must provide an NOA-Issuance Emergency Caregiver Funding form (RFA 105) whenever EC Funding is initiated or changed (increased or decreased). The worker will send an NOA-Discontinue Emergency Caregiver Funding form (RFA 105A) when EC Funding is terminated. 

Note: For a TAH denial, the applicant receiving EC Funding would receive the EC Funding NOA but not the RFA 09. This is because tribes do not have to use the RFA process or its forms. 

The key factor in issuing the EC discontinuance RFA 105 A NOA is the receipt of the RFA 09 NOA or the denial as a TAH.

Important: The Aid Paid Pending (APP) during the appeal of an RFA or TAH denial may result in payments to the caregiver that exceed 120 days or possibly an overpayment. Good cause includes delays (in RFA approval) because of the applicant exercising due process rights. This allows for EC Funding to be continued beyond 120 days of payments and up to 365 days if necessary.               WIC  section11461.36(e)(5)(E)(i)

 

Reminder: If EC Funding is no longer available for a relative caregiver, the relative may be eligible for funding under the Approved Relative Caregiver (ARC) Program despite the denial of the RFA application and should be assessed for ARC eligibility, as appropriate (WIC section 11461.3). Refer to the Funding for Relatives subsection in the ARC Expansion topic in Foster Care Handbook Chapter 10.

Workflow

When the RFA SW determines that the RFA application must be denied or the tribal home has not been approved, the RFA SW will:

  • Email the case Social Worker, copy their supervisor, RFA supervisor, RFA SSPM II, and Foster Care (at fostercareprocessing@ssa.sccgov.org) to notify them that the RFA 09 NOA was sent. The message will contain the child/youth’s name, date of birth, and appeal time frame. 

Note: A copy of the RFA 09 will not be included with the email.

  • Foster Care Clerical will receive the message, identify the case for worker information, and send a task for the worker to review the email.
  • The assigned SSBS will review the information and document it in a CalSAWS Journal. The SSBS may also set a case alert for 90 days from the date of the email, which corresponds to the timeframe for the appeal.

 

When the 90-day appeal period has either ended without an appeal being requested or the client loses the appeal, the assigned RFA SW will:

  • Email the case Social Worker, copy their supervisor, RFA supervisor, RFA SSPM II, and Foster Care (at fostercareprocessing@ssa.sccgov.org) to notify them of the final decision, effective date of the decision, and the child/youth’s name and date of birth.

Note: A copy of the RFA 09 will be included with the email.

  • Foster Care Clerical will receive the message, identify the case for worker information, and send a task for the worker to review the email and RFA 09.
  • The assigned SSBS will receive the email and RFA NOA, and Image the RFA 09.  The worker will then follow the existing process to close a case, including mailing the EC discontinuance RFA 105A NOA. All actions taken must be documented in a CalSAWS Journal. 

RFA/Tribal Home Denial and Good Cause

  • The date of an RFA denial is either 1) the effective date of the final decision on the appeal of the RFA denial if the denial is upheld, or 2) if no appeal is submitted or is later withdrawn, the date of the RFA NOA.
  • Good cause includes delays (in RFA approval) because of the applicant exercising due process rights. This allows for EC Funding to be continued beyond 120 days of payments and up to 365 days. Therefore, EC eligibility and payments may continue until the date certain for RFA denial.

Scenarios and Responses

The following scenarios provide guidance on whether the EC Funding payment should continue or end when a caregiver’s RFA application has been denied or when the Tribe has not approved the caregiver as a TAH, to ensure that EC Funding payments are not prematurely discontinued. If the child is removed from the caregiver’s home, the EC Funding payment should be terminated effective the date of removal. Note that the following scenarios presume that the child remains in the placement following the issuance of the RFA denial NOA and that the county has issued all relevant NOAs.


SCENARIO ONE-A
An RFA applicant was receiving EC Funding until the denial of the RFA application. The applicant timely appealed the RFA denial, but not the termination of the EC Funding. Is the applicant eligible for EC Funding pending the decision on the appeal of the RFA denial?

Response: Yes, the applicant will continue to be eligible for EC Funding because they submitted the appeal, consistent with statutory funding timeframe limitations. Per WIC section 11461.36(g)(2), EC Funding must be terminated upon RFA denial. The date of the RFA denial is either: 1): the date of the decision on the appeal of the RFA denial if the denial is upheld, or 2) if no appeal is taken, the date of the RFA NOA.

 

SCENARIO ONE-B
Like Scenario One-A, an RFA applicant was receiving EC Funding until the application was denied. The applicant did not timely appeal the denial. Is the applicant eligible for payment?

Response: No, if the applicant did not timely appeal the RFA denial, then EC Funding eligibility would terminate at the end of the applicant’s due process right of appeal (90 days from the date of the RFA denial NOA), consistent with statutory EC Funding timeframe limits.

Good cause for EC Funding to be continued beyond 120 days of payments and up to 365 days of payments includes “delays [in RFA approval] as a result of the applicant exercising due process rights”. (WIC section 11461.36(e)(5)(E)(i)). Therefore, EC Funding eligibility may continue until the date certain for RFA denial. As in this scenario, in cases where there is no appeal of the RFA denial, EC Funding may be paid up to 90 days from the date of the RFA NOA, which is the end of the timeframe in which the applicant may exercise their due process rights by appealing the RFA denial.

 

SCENARIO TWO
An RFA applicant was receiving EC Funding until the denial of the RFA application. The applicant timely appealed the RFA denial, and the Administrative Law Judge overturned the denial and ordered the county to continue the RFA application process. The applicant did not appeal the termination of EC Funding. Is the applicant eligible for EC Funding back to the date the county issued the RFA NOA?

  1. Response: Yes, consistent with statutory EC Funding limitation timeframes. Per WIC section 11461.36(g)(2), EC Funding must be terminated upon RFA denial. The date of denial is either the date of the decision on the appeal of the RFA denial, or
  2. If no appeal is taken, then the date of the RFA NOA. In this scenario, there was no effective denial of the RFA application as the Administrative Law Judge overturned the county’s denial through the appeal process.

 

SCENARIO THREE
An RFA applicant was receiving EC Funding until the denial of the RFA application. The applicant appealed the termination of funding timely but did not appeal the RFA denial until right before the end of the 90-day appeal time limit. How do we determine the periods of eligibility for the EC payment?

Response: When the appeal of the RFA denial is timely, the applicant continues to be eligible for EC Funding until the date of the decision on the appeal if the denial is upheld, or beyond if the denial is overturned, subject to the statutory EC Funding 365-day timeframe limit.

 

SCENARIO FOUR
If an RFA applicant submits an RFA and EC Funding appeal and the county issues the EC payment (provided the EC Funding appeal is submitted prior to the EC Funding termination date) and the Administrative Law Judge upholds the county’s denial of the RFA application, do we continue the EC Funding payment pending the EC Funding appeal decision?

Response: When the Administrative Law Judge upholds the county’s denial of the application in a final decision and order or the Office of Administrative Hearings issues a proposed decision to uphold the county’s denial and it is adopted by the California Department of Social Services, eligibility for EC Funding terminates. As noted on the EC Funding NOA RFA 105A form, aid paid pending the EC Funding appeal hearing is permissible. However, as stated on the NOA form, it carries the risk that the applicant/claimant would owe back any aid received after the date of the RFA denial.
Therefore, the county should contact the applicant/caregiver to discuss their options to mitigate this risk and investigate other funding options.

 

SCENARIO FIVE
If an RFA applicant submits an appeal on the RFA denial that results in an agreement between the county and the applicant to resume the RFA application, is the caregiver eligible for continued EC Funding?

Response: The RFA applicant is eligible for EC Funding if the county decides to withdraw the denial based on a mutually agreed-upon decision to resume the application's processing. In this instance, there is no reason to discontinue EC Funding as RFA denial has not occurred.

Additionally, if the applicant agrees to a conditional withdrawal of their appeal of the RFA denial based on an understanding with the county that the RFA application is still active, then the county must rescind the RFA denial to ensure EC Funding may continue in accordance with the law.


SCENARIO SIX
If the Tribe denies the caregiver as a TAH, and the child remains in the placement, is the caregiver still eligible for continued EC Funding?

Response: If the Tribe provides for formal or informal due process, and the TAH applicant timely appeals the TAH denial, in accordance with the Tribe’s due process rules, the EC Funding may continue, consistent with statutory time frames, until the Tribe makes its final decision regarding the denial (WIC section 11461.36(l)).
If the Tribe does not provide for formal or informal due process, pursuant to WIC section 11461.36(l)(3), if the TAH approval is denied, payments made pursuant to WIC section 11461.36(l) must cease.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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