Welfare Beneficiary State Hearing Information

” STATE OF CALIFORNIA – HEALTH AND HUMAN SERVICES AGENCY ARNOLD SCHWARZENEGGER, Governor DEPARTMENT OF SOCIAL SERVICES January 19, 2004 TO: ALL COUNTY APPEALS LETTER Subject: Expedited State Hearings The purpose of this is to notify you that effective February 1, 2004, State hearing requests involving a county’s denial of Expedited Food Stamps, Immediate Need, Homeless Assistance, and any other issue of urgency that the California Department of Social Services (CDSS) State Hearings Division deems necessary will be scheduled on an expedited basis. It is our intention that by implementing this process and scheduling cases for expedited hearings, we will be able to provide a more timely and expeditious due process in those cases where emergency relief is at issue. Before announcing this decision, we developed a process that gave us the ability to evaluate the impact of an expedited process on State and County systems. The Pilot Project was initiated with the cooperation of Butte, Kern, Orange, Riverside and Solano counties. The Pilot Project was to determine what problems would occur and whether there were solutions to those problems if a faster scheduling process was used to calendar cases involving claimants whose application for emergency related benefits had been denied by the county. During the Pilot, hearing requests were received in the subject areas. All were scheduled for hearing but only two cases were actually heard. One case involving Emergency Food Stamps resulted in a granted decision and the other case, also involving Expedited Food Stamps, was denied. During the Pilot, we also conducted a survey of counties to get their views about any problems they expected if the project were to be implemented statewide and notice to claimants of the availability of the expedited process is done. Responding counties identified the following potential problem areas: Difficulty in contacting claimants; Hearing room and equipment availability at county hearing locations due to scheduling conflicts; Access to county files because of the shortened up-front time period for counties to prepare for these hearings; Identification of the subject cases at intake so expedited scheduling can occur; and, County staff problems due to the impact of the expedited hearing process. Page 2 of 3 After considerable discussion with counties, Legal Services, and CCWRO, we have decided that the problems that were identified could be resolved and that the number of cases involved in the subject areas was relatively low. For example, county staff recommended that once a determination had been made to deny an application involving an issue subject to the expedited process, the case record can be kept in a central location within the county for 30 days anticipating a hearing request. This would guarantee access to the case file if the claimant files a request for hearing. In addition, counties could designate specific staffs that are specially trained to handle these cases on an expedited basis using model formats for statements of position and representing the counties’ cases at hearings. We will work with counties to avoid scheduling conflicts and the shortened up-front scheduling time for hearing should enhance the ability of the counties and the State to contact the claimants about their hearings and provide a much quicker response to the claimant’s exigent circumstance. The procedures for expedited hearings are as follows: The issues that will be subject to this process are cases involving Expedited Food Stamps, Immediate Need, Homeless Assistance, and any other issue of urgency that the CDSS-SHD deems necessary. The hearings will be scheduled to be heard ten working days from the date the claimant’s request for expedited hearing is received and Presiding Judge has deemed it necessary to conduct an expedited hearing. Whenever possible, the hearings will be incorporated into the existing calendar for regularly scheduled cases. If incorporation of the expedited hearing case is not possible, the hearing will be scheduled by telephone. The claimant and the county appeals representative will be in the county office and the Administrative Law Judge (ALJ) will be in the state regional office. All parties will be notified in writing of the date of the expedited hearing ten working days in advance of the scheduled hearing date. Notices to counties and authorized representative agencies will be transmitted by fax or e-mail. The parties will be encouraged to negotiate a settlement in the case so that immediate action by the county can take place without the necessity of the case going to hearing, causing further delay. Page 3 of 3 The county will be required to have a Statement of Position ready on the day of the hearing for cases not settled. The ALJ will issue a decision in the case within five working days from the date of the record closure. Again, it is our intention that by implementing this process and scheduling cases for expedited hearings, we will be able to provide more effective due process in those cases where emergency relief is at issue. If you have any questions or concerns regarding the expedited hearing process, contact Rosalei Morefield at (916) 229-4155 or Lonnie M. Carlson, Presiding Judge of the Sacramento Regional Office, at (916) 229-4187. Sincerely, Original Document Signed by JOHN R. CASTELLO Chief Administrative Law Judge ”

” Expedited State hearing Request Before Department of Social Services I request an expedited State Hearing against the county of The reasons for the hearing is the county action regarding: Program Date Applied CWD Action CalWORK Immediate need Food Stamp Expedited Service Homeless Assistance Other (For other add a page that explains the problem for the hearing) CLAIMANT AND REPRESENATTIVE INFORMATION Claimant Name Last Name SSN Claimant Address Telephone I want the person below to represent me at this hearing: Name of Representative:________________________________________ Organization:_________________________________________________ Address________________________________Telephone_____________ Claimant\/AR signature: _______________________________Date:___________ (NOTE: This only needs to be completed if the claimant does not sign the hearing request.) AUTHRIZED REPRESENTATIVE CERTIFICATION: I hereby declare under penalty of perjury that I have been expressly authorized by the claimant herein to request this state hearing by signing his\/her name hereto and represent him\/her during all steps of the state hearing proceedings. Date:_______________ Place of Execution of this signature:________________. By __________________________________________ Signature of Declarent herein Text3: Text4: Text5: Text6: Text7: Text8: Text9: Text10: Text11: Text12: Text13: Text14: Text16: Text17: Text18: Text19: Text20: Text21: Text22: Check Box23: Off Check Box24: Off Check Box25: Off Check Box26: Off Check Box27: Off Text1: ”

” Supreme Court of the United States Jack R. GOLDBERG, Commissioner of Social Ser- vices of the City of New York, Appellant, v. John KELLY et al. No. 62. Argued Oct. 13, 1969. Decided March 23, 1970. New York City residents receiving financial aid un- der federally-assisted program of Aid to Families with Dependent Children or under New York State’s general Home Relief program brought suit challenging adequacy of procedures for notice and hearing in connection with termination of such aid. The three-judge United States District Court for the Southern District of New York, 294 F.Supp. 893, entered judgment in favor of plaintiffs, and defend- ant appealed. The Supreme Court, Mr. Justice Bren- nan, held that procedural due process requires that pretermination evidentiary hearing be held when public assistance payments to welfare recipient are discontinued, and further held that procedures fol- lowed by city of New York in terminating public assistance payments to welfare recipients were con- stitutionally inadequate in failing to permit recipi- ents to appear personally with or without counsel before official who finally determined continued eligibility and failing to permit recipient to present evidence to that official orally or to confront or cross-examine adverse witnesses. Affirmed. Mr. Chief Justice Burger and Mr. Justice Black dis- sented. For dissenting opinions of Mr. Chief Justice Burger and Mr. Justice Stewart see 397 U.S. 282, 285, 90 S.Ct. 1028, 1029. West Headnotes [1] Constitutional Law 92 4115 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)5 Social Security, Welfare, and Other Public Payments 92k4115 k. In General. Most Cited Cases (Formerly 92k278.7(3), 92k318(2), 92k318) Social Security and Public Welfare 356A 4.16 356A Social Security and Public Welfare 356AI In General 356Ak4.10 Eligibility and Right to Benefits; Termination 356Ak4.16 k. Other Matters. Most Cited Cases (Formerly 356Ak4.10, 356Ak2) Welfare benefits are a matter of statutory entitle- ment for persons qualified to receive them and their termination involves state action that adjudicates important rights, and procedural due process is ap- plicable to termination of welfare benefits. U.S.C.A.Const. Amend. 14. [2] Constitutional Law 92 2646 92 Constitutional Law 92XXI Vested Rights 92k2646 k. Public Funds and Assistance. Most Cited Cases (Formerly 92k103) A constitutional challenge to termination of welfare benefits cannot be answered by argument that pub- lic assistance benefits are a privilege rather than a right. U.S.C.A.Const. Amend. 14. [3] Constitutional Law 92 4115 92 Constitutional Law 92XXVII Due Process 90 S.Ct. 1011 Page 1 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (Cite as: 397 U.S. 254, 90 S.Ct. 1011) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=345&FindType=Y&SerialNum=1968115544 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1970241805&ReferencePosition=1029 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1970241805&ReferencePosition=1029 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28G%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28G%295 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92k4115 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=92k4115 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=92k4115 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AI http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak4.10 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak4.16 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak4.16 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak4.16 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXI http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92k2646 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=92k2646 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)5 Social Security, Welfare, and Other Public Payments 92k4115 k. In General. Most Cited Cases (Formerly 92k278.7(3), 92k318(2), 92k318) Relevant constitutional restraints apply to with- drawal of public assistance benefits. U.S.C.A.Const. Amend. 14. [4] Constitutional Law 92 4116 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)5 Social Security, Welfare, and Other Public Payments 92k4116 k. Proceedings in General. Most Cited Cases (Formerly 92k278.7(3), 92k318(2), 92k318) Extent to which procedural due process must be af- forded welfare recipient is influenced by extent to which he may be condemned to suffer grievous loss and depends on whether recipient’s interest in avoiding that loss outweighs governmental interest in summary adjudication. U.S.C.A.Const. Amend. 14. [5] Constitutional Law 92 4116 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)5 Social Security, Welfare, and Other Public Payments 92k4116 k. Proceedings in General. Most Cited Cases (Formerly 92k318(1), 92k318) Some governmental benefits may be administrat- ively terminated without affording recipient a pre- termination evidentiary hearing. U.S.C.A.Const. Amend. 14. [6] Constitutional Law 92 4116 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)5 Social Security, Welfare, and Other Public Payments 92k4116 k. Proceedings in General. Most Cited Cases (Formerly 92k278.7(3), 92k318(2), 92k318) Procedural due process requires that pretermination evidentiary hearing be held when public assistance payments to welfare recipient are discontinued. U.S.C.A.Const. Amend. 14. [7] Social Security and Public Welfare 356A 8.5 356A Social Security and Public Welfare 356AI In General 356Ak8 Administrative Proceedings 356Ak8.5 k. Notice and Hearing. Most Cited Cases (Formerly 356Ak8) Governmental interests in conserving fiscal and ad- ministrative resources by stopping payments promptly on discovery of reason to believe that welfare recipient is no longer eligible and by redu- cing number of evidentiary hearings actually held would not be sufficient to justify failure to provide pretermination evidentiary hearing and instead delay evidentiary hearing until after discontinuance of grants. U.S.C.A.Const. Amend. 14. [8] Constitutional Law 92 4116 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)5 Social Security, Welfare, and Other Public Payments 92k4116 k. Proceedings in General. Most Cited Cases (Formerly 92k278.7(3), 92k318(2), 92k318) 90 S.Ct. 1011 Page 2 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (Cite as: 397 U.S. 254, 90 S.Ct. 1011) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28G%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28G%295 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92k4115 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=92k4115 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=92k4115 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28G%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28G%295 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92k4116 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=92k4116 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28G%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28G%295 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92k4116 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=92k4116 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28G%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28G%295 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92k4116 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=92k4116 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AI http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak8 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28G%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28G%295 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92k4116 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=92k4116 Due process does not require two hearings in con- nection with termination of public assistance bene- fits to welfare recipients, and if a state wishes to continue benefits until after a fair hearing there will be no need for a preliminary hearing. U.S.C.A.Const. Amend. 14. [9] Social Security and Public Welfare 356A 8.5 356A Social Security and Public Welfare 356AI In General 356Ak8 Administrative Proceedings 356Ak8.5 k. Notice and Hearing. Most Cited Cases (Formerly 356Ak8) Hearing prior to termination of public assistance benefits to welfare recipients has only function of producing an initial determination of validity of welfare department’s grounds for discontinuance of payments in order to protect recipient against an er- roneous termination of his benefits. U.S.C.A.Const. Amend. 14. [10] Social Security and Public Welfare 356A 8.5 356A Social Security and Public Welfare 356AI In General 356Ak8 Administrative Proceedings 356Ak8.5 k. Notice and Hearing. Most Cited Cases (Formerly 356Ak8) Hearing prior to termination of public assistance benefits to welfare recipients need not provide com- plete record and comprehensive opinion that would serve primarily to facilitate judicial review and need not take form of judicial or quasi-judicial trial. U.S.C.A.Const. Amend. 14. [11] Constitutional Law 92 3879 92 Constitutional Law 92XXVII Due Process 92XXVII(B) Protections Provided and Deprivations Prohibited in General 92k3878 Notice and Hearing 92k3879 k. In General. Most Cited Cases (Formerly 92k251.6, 92k305(2), 92k305) Fundamental requisite of due process of law is op- portunity to be heard and hearing must be at mean- ingful time and in meaningful manner. U.S.C.A.Const. Amend. 14. [12] Constitutional Law 92 4116 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)5 Social Security, Welfare, and Other Public Payments 92k4116 k. Proceedings in General. Most Cited Cases (Formerly 92k278.7(3), 92k318(2), 92k318) Due process would require that welfare recipient on proposed termination of public assistance benefits be given timely and adequate notice detailing reas- ons for proposed termination and an effective op- portunity to defend by confronting any adverse wit- nesses and by presenting his own argument and evidence orally. U.S.C.A.Const. Amend. 14. [13] Social Security and Public Welfare 356A 194.16(2) 356A Social Security and Public Welfare 356AV Family, Parental, and Child Welfare As- sistance 356AV(A) Aid to Families with Dependent Children 356Ak194.16 Agencies and Proceedings 356Ak194.16(2) k. Notice, Hearing and Administrative Review. Most Cited Cases (Formerly 356Ak194.17, 356Ak194) Seven days’ notice provided by New York City on proposed termination of public assistance benefits to recipients of financial aid under federally-as- sisted program of Aid to Families With Dependent Children or under New York State’s general Home Relief program was not constitutionally insufficient 90 S.Ct. 1011 Page 3 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (Cite as: 397 U.S. 254, 90 S.Ct. 1011) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AI http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak8 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AI http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak8 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28B%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92k3878 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92k3879 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=92k3879 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=92k3879 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28G%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28G%295 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92k4116 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=92k4116 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AV http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AV%28A%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak194.16 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak194.16%282%29 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak194.16%282%29 per se although there might be cases where fairness would require that longer time be given. U.S.C.A.Const. Amend. 14; Social Security Act, 401-410 as amended 42 U.S.C.A. 601-610; So- cial Services Law N.Y. 157-166, 158, 343-362. [14] Social Security and Public Welfare 356A 8.5 356A Social Security and Public Welfare 356AI In General 356Ak8 Administrative Proceedings 356Ak8.5 k. Notice and Hearing. Most Cited Cases (Formerly 356Ak8) Notice given by city of New York of proposed ter- mination of public assistance payments to welfare recipients by employing both letter and personal conference with caseworker to inform recipient of precise questions raised about his continued eligib- ility satisfied constitutional requirements as to con- tent or form of notice. U.S.C.A.Const. Amend. 14; Social Security Act, 401-410 as amended 42 U.S.C.A. 601-610; Social Services Law N.Y. 157-166, 158, 343-362. [15] Social Security and Public Welfare 356A 8.5 356A Social Security and Public Welfare 356AI In General 356Ak8 Administrative Proceedings 356Ak8.5 k. Notice and Hearing. Most Cited Cases (Formerly 356Ak8) Procedures followed by city of New York in ter- minating public assistance payments to welfare re- cipients were constitutionally inadequate in failing to permit recipients to appear personally with or without counsel before official who finally determ- ined continued eligibility and failing to permit re- cipient to present evidence to that official orally or to confront or cross-examine adverse witnesses. U.S.C.A.Const Amend. 14; Social Security Act, 401-410 as amended 42 U.S.C.A. 601-610; So- cial Services Law N.Y. 157-166, 158, 343-362. [16] Constitutional Law 92 3879 92 Constitutional Law 92XXVII Due Process 92XXVII(B) Protections Provided and Deprivations Prohibited in General 92k3878 Notice and Hearing 92k3879 k. In General. Most Cited Cases (Formerly 92k251.6, 92k305(2), 92k305) Due process requirement of opportunity to be heard must be tailored to capacities and circumstances of those who are to be heard. U.S.C.A.Const. Amend. 14. [17] Constitutional Law 92 4116 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)5 Social Security, Welfare, and Other Public Payments 92k4116 k. Proceedings in General. Most Cited Cases (Formerly 92k278.7(3), 92k318(2), 92k318) It is not enough to satisfy due process that welfare recipient on proposed termination of public assist- ance payments be permitted to present his position to decisionmaker in writing or secondhand through caseworker; instead, recipient must be allowed to state his position orally and be given an opportunity to confront and cross-examine witnesses relied on by department. U.S.C.A.Const. Amend. 14. [18] Administrative Law and Procedure 15A 489.1 15A Administrative Law and Procedure 15AIV Powers and Proceedings of Administrat- ive Agencies, Officers and Agents 15AIV(D) Hearings and Adjudications 15Ak489 Decision 15Ak489.1 k. In General. Most Cited Cases (Formerly 15Ak489) 90 S.Ct. 1011 Page 4 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (Cite as: 397 U.S. 254, 90 S.Ct. 1011) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=42USCAS601&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=42USCAS610&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS157&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS157&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS166&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS158&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS343&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS362&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AI http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak8 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=42USCAS601&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=42USCAS601&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=42USCAS610&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS157&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS157&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS166&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS158&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS343&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS362&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AI http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak8 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=42USCAS601&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=42USCAS610&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS157&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS157&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS166&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS158&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS343&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS362&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28B%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92k3878 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92k3879 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=92k3879 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=92k3879 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28G%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28G%295 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92k4116 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=92k4116 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=15A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=15AIV http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=15AIV%28D%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=15Ak489 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=15Ak489.1 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=15Ak489.1 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=15Ak489.1 Particularly where credibility and veracity are at is- sue, written submissions of person’s position are wholly unsatisfactory basis for decision. [19] Constitutional Law 92 4116 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)5 Social Security, Welfare, and Other Public Payments 92k4116 k. Proceedings in General. Most Cited Cases (Formerly 92k278.7(3), 92k318(2), 92k318) Social Security and Public Welfare 356A 8.5 356A Social Security and Public Welfare 356AI In General 356Ak8 Administrative Proceedings 356Ak8.5 k. Notice and Hearing. Most Cited Cases (Formerly 356Ak8) On proposed termination of public assistance pay- ments to welfare recipient, recipient must be al- lowed to state his position orally but informal pro- cedures will suffice and due process does not re- quire a particular order of proof or mode of offering evidence. U.S.C.A.Const. Amend. 14. [20] Constitutional Law 92 4003 92 Constitutional Law 92XXVII Due Process 92XXVII(E) Civil Actions and Proceedings 92k3999 Evidence and Witnesses 92k4003 k. Witnesses; Confrontation and Cross-Examination. Most Cited Cases (Formerly 92k314) In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. U.S.C.A.Const. Amend. 14. [21] Criminal Law 110 662.1 110 Criminal Law 110XX Trial 110XX(C) Reception of Evidence 110k662 Right of Accused to Confront Witnesses 110k662.1 k. In General. Most Cited Cases (Formerly 110k662(1)) Witnesses 410 216(1) 410 Witnesses 410II Competency 410II(D) Confidential Relations and Priv- ileged Communications 410k216 Communications to or Informa- tion Acquired by Public Officers 410k216(1) k. In General; Official or Governmental Privilege. Most Cited Cases (Formerly 410k216) It has been a relatively immutable principle that where governmental action seriously injures an in- dividual and reasonableness of that action depends on fact-findings, evidence used to prove govern- ment’s case must be disclosed to individual so that he has opportunity to show that it is untrue. [22] Administrative Law and Procedure 15A 476 15A Administrative Law and Procedure 15AIV Powers and Proceedings of Administrat- ive Agencies, Officers and Agents 15AIV(D) Hearings and Adjudications 15Ak469 Hearing 15Ak476 k. Production and Reception of Evidence in General. Most Cited Cases Rights of confrontation and cross-examination ap- ply not only in criminal cases but also in all types of cases where administrative actions are under scrutiny. [23] Social Security and Public Welfare 356A 8.5 356A Social Security and Public Welfare 90 S.Ct. 1011 Page 5 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (Cite as: 397 U.S. 254, 90 S.Ct. 1011) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28G%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28G%295 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92k4116 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=92k4116 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AI http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak8 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28E%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92k3999 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92k4003 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=92k4003 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=110 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=110XX http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=110XX%28C%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=110k662 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=110k662.1 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=110k662.1 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=110k662.1 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=410 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=410II http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=410II%28D%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=410k216 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=410k216%281%29 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=410k216%281%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=15A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=15AIV http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=15AIV%28D%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=15Ak469 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=15Ak476 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=15Ak476 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356A 356AI In General 356Ak8 Administrative Proceedings 356Ak8.5 k. Notice and Hearing. Most Cited Cases (Formerly 356Ak8) At hearing to be provided welfare recipient prior to termination of public assistance benefits, recipient must be allowed to retain an attorney if he so de- sires. U.S.C.A.Const. Amend. 14. [24] Social Security and Public Welfare 356A 8.15 356A Social Security and Public Welfare 356AI In General 356Ak8 Administrative Proceedings 356Ak8.15 k. Determination; Adminis- trative Review. Most Cited Cases (Formerly 356Ak8) Decision maker’s conclusion as to welfare recipi- ent’s eligibility to public assistance payments must rest solely on legal rules and evidence adduced at pretermination hearing and, to demonstrate compli- ance with that requirement, decision maker should state reasons for his determination and indicate evidence he relied on, though his statement need not amount to full opinion or even formal findings of fact and conclusions of law. U.S.C.A.Const. Amend. 14. [25] Social Security and Public Welfare 356A 8.5 356A Social Security and Public Welfare 356AI In General 356Ak8 Administrative Proceedings 356Ak8.5 k. Notice and Hearing. Most Cited Cases (Formerly 356Ak8) An impartial decision maker is essential in hearing provided welfare recipient prior to termination of public assistance payments and, though prior in- volvement in some aspects of case will not neces- sarily bar welfare official from acting as decision maker, decision maker should not have participated in making determination under review. U.S.C.A.Const. Amend. 14. **1013 *255 John J. Loflin, Jr., New York City, for appellant. **1014 Lee A. Albert, New York City, for ap- pellees. Mr. Justice BRENNAN delivered the opinion of the Court. The question for decision is whether a State that terminates public assistance payments to a particu- lar recipient without affording him the opportunity for an evidentiary hearing prior to termination denies the recipient procedural due process in viol- ation of the Due Process Clause of the Fourteenth Amendment. This action was brought in the District Court for the Southern District of New York by residents of New *256 York City receiving financial aid under the federally assisted program of Aid to Families with Dependent Children (AFDC) or under New York State’s general Home Relief program.FN1Their complaint alleged that the New York State and New York City officials administering these programs terminated, or were about to terminate, such aid without prior notice and hearing, thereby denying them due process of law.FN2At the time *257 the suits were filed there was no requirement of prior notice or hearing of any kind before termination of financial aid. However, the State and city adopted procedures for notice and hearing after the suits were brought, and the plaintiffs, appellees here, then challenged the constitutional adequacy of those procedures. FN1. AFDC was established by the Social Security Act of 1935, 49 Stat. 627, as amended, 42 U.S.C. ss 601-610 (1964 ed. and Supp. IV). It is a categorical assistance program supported by federal grants-in-aid but administered by the States according to regulations of the Secretary of Health, Education, and Welfare. See N.Y. Social Welfare Law ss 343-362 (1966). We con- sidered other aspects of AFDC in King v. 90 S.Ct. 1011 Page 6 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (Cite as: 397 U.S. 254, 90 S.Ct. 1011) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AI http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak8 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AI http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak8 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak8.15 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak8.15 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AI http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak8 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak8.5 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=42USCAS601&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=42USCAS610&FindType=L Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), and in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Home Relief is a general assistance pro- gram financed and administered solely by New York state and local governments. N.Y. Social Welfare Law ss 157-165 (1966), since July 1, 1967, Social Services Law ss 157-166. It assists any person un- able to support himself or to secure support from other sources. Id.,s 158. FN2. Two suits were brought and consolid- ated in the District Court. The named plaintiffs were 20 in number, including in- tervenors. Fourteen had been or were about to be cut off from AFDC, and six from Home Relief. During the course of this lit- igation most, though not all, of the plaintiffs either received a ‘fair hearing’ (see infra, at 1015-1016) or were restored to the rolls without a hearing. However, even in many of the cases where payments have been resumed, the underlying ques- tions of eligibility that resulted in the bringing of this suit have not been re- solved. For example, Mrs. Altagracia Guz- man alleged that she was in danger of los- ing AFDC payments for failure to cooper- ate with the City Department of Social Ser- vices in suing her estranged husband. She contended that the departmental policy re- quiring such cooperation was inapplicable to the facts of her case. The record shows that payments to Mrs. Guzman have not been terminated, but there is no indication that the basic dispute over her duty to co- operate has been resolved, or that the al- leged danger of termination has been re- moved. Home Relief payments to Juan DeJesus were terminated because he re- fused to accept counseling and rehabilita- tion for drug addiction. Mr. DeJesus main- tains that he does not use drugs. His pay- ments were restored the day after his com- plaint was filed. But there is nothing in the record to indicate that the underlying fac- tual dispute in his case has been settled. The State Commissioner of Social Services amended the State Department of Social Services’ Official Regulations to require that local social ser- vices officials proposing to discontinue or suspend a recipient’s financial aid do so according to a pro- cedure that conforms to either subdivision (a) or subdivision (b) of s 351.26 of the regulations as amended.FN3The City of New York *258 elected to **1015 promulgate a local procedure according to subdivision (b). That subdivision, so far as here pertinent, provides that the local procedure must in- clude the giving of notice to the recipient of the reasons for a proposed discontinuance or suspen- sion at least seven days prior to its effective date, with notice also that upon request the recipient may have the proposal reviewed by a local welfare offi- cial holding a position superior to that of the super- visor who approved the proposed discontinuance or suspension, and, further, that the recipient may sub- mit, for purposes of the review, a written statement to demonstrate why his grant should not be discon- tinued or suspended. The decision by the reviewing official whether to discontinue or suspend aid must be made expeditiously, with written notice of the decision to the recipient. The section further ex- pressly provides that ‘(a)ssistance shall not be dis- continued or suspended prior to the date such notice of decision is sent to the recipient and his represent- ative, if any, or prior to the proposed effective date of discontinuance or suspension, whichever occurs later.’ FN3. The adoption in February 1968 and the amendment in April of Regulation s 351.26 coincided with or followed several revisions by the Department of Health, Education, and Welfare of its regulations implementing 42 U.S.C. s 602(a)(4), which is the provision of the Social Security Act 90 S.Ct. 1011 Page 7 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (Cite as: 397 U.S. 254, 90 S.Ct. 1011) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1968103566 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1968103566 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1969132967 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1969132967 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1969132967 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS157&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS157&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000136&DocName=NYSVS166&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000300&DocName=NYSVS158&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=42USCAS602&FindType=L&ReferencePositionType=T&ReferencePosition=SP_d40e000072291 that requires a State to afford a ‘fair hear- ing’ to any recipient of aid under a feder- ally assisted program before termination of his aid becomes final. This requirement is satisfied by a post-termination ‘fair hear- ing’ under regulations presently in effect. See HEW Handbook of Public Assistance Administration (hereafter HEW Hand- book), pt. IV, ss 6200-6400. A new HEW regulation, 34 Fed.Reg. 1144 (1969), now scheduled to take effect in July 1970, 34 Fed.Reg. 13595 (1969), would require con- tinuation of AFDC payments until the final decision after a ‘fair hearing’ and would give recipients a right to appointed counsel at ‘fair hearings.’ 45 CFR s 205.10, 34 Fed.Reg. 1144 (1969); 45 CFR s 220.25, 34 Fed.Reg. 1356 (1969). For the safe- guards specified at such ‘fair hearings’ see HEW Handbook, pt. IV, ss 6200-6400. An- other recent regulation now in effect re- quires a local agency administering AFDC to give ‘advance notice of questions it has about an individual’s eligibility so that a recipient has an opportunity to discuss his situation before receiving formal written notice of reduction in payment or termina- tion of assistance.’Id., pt. IV, s 2300(d)(5). This case presents no issue of the validity or construction of the federal regulations. It is only subdivision (b) of s 351.26 of the New York State regulations and imple- menting procedure 68-18 of New York City that pose the constitutional question before us. Cf. Shapiro v. Thompson, 394 U.S. 618, 641, 89 S.Ct. 1322, 1335, 22 L.Ed.2d 600 (1969). Even assuming that the constitutional question might be avoided in the context of AFDC by con- struction of the Social Security Act or of the present federal regulations thereunder, or by waiting for the new regulations to become effective, the question must be faced and decided in the context of New York’s Home Relief program, to which the procedures also apply. Pursuant to subdivision (b), the New York City De- partment of Social Services promulgated Procedure No. 68-18. A caseworker who has doubts about the recipient’s continued eligibility must first discuss them with the recipient. If the caseworker con- cludes that the recipient is no longer eligible, he re- commends termination *259 of aid to a unit super- visor. If the latter concurs, he sends the recipient a letter stating the reasons for proposing to terminate aid and notifying him that within seven days he may request that a higher official review the record, and may support the request with a written state- ment prepared personally or with the aid of an at- torney or other person. If the reviewing official af- firms the determination of ineligibility, aid is stopped immediately and the recipient is informed by letter of the reasons for the action. Appellees’ challenge to this procedure emphasizes the absence of any provisions for the personal appearance of the recipient before the reviewing official,**1016 for oral presentation of evidence, and for confrontation and cross-examination of adverse witnesses.FN4However, the letter does inform the recipient that he may request a post-termination ‘fair hearing.’FN5This is a proceeding before an in- dependent*260 state hearing officer at which the re- cipient may appear personally, offer oral evidence, confront and cross-examine the witnesses against him, and have a record made of the hearing. If the recipient prevails at the ‘fair hearing’ he is paid all funds erroneously withheld.FN6HEW Handbook, pt. IV, ss 6200-6500; 18 NYCRR ss 84.2-84.23. A recipient whose aid is not restored by a ‘fair hear- ing’ decision may have judicial review. N.Y.Civil Practice Law and Rules, Art. 78 (1963). The recipi- ent is so notified, 18 NYCRR s 84.16. FN4. These omissions contrast with the provisions of subdivision (a) of s 351.26, the validity of which is not at issue in this Court. That subdivision also requires writ- ten notification to the recipient at least sev- en days prior to the proposed effective date 90 S.Ct. 1011 Page 8 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (Cite as: 397 U.S. 254, 90 S.Ct. 1011) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1037&DocName=34FR1144&FindType=Y http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1037&DocName=34FR1144&FindType=Y http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1037&DocName=34FR1144&FindType=Y http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1037&DocName=34FR1144&FindType=Y http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1037&DocName=34FR13595&FindType=Y http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1037&DocName=34FR13595&FindType=Y http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=45CFRS205.10&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1037&DocName=34FR1144&FindType=Y http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1037&DocName=34FR1144&FindType=Y http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1037&DocName=34FR1356&FindType=Y http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1969132967&ReferencePosition=1335 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1969132967&ReferencePosition=1335 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1969132967&ReferencePosition=1335 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1013028&DocName=18NYADC84.2&FindType=L of the reasons for the proposed discontinu- ance or suspension. However, the notifica- tion must further advise the recipient that if he makes a request therefor he will be afforded an opportunity to appear at a time and place indicated before the official identified in the notice, who will review his case with him and allow him to present such written and oral evidence as the recip- ient may have to demonstrate why aid should not be discontinued or suspended. The District Court assumed that subdivi- sion (a) would be construed to afford rights of confrontation and cross-examination and a decision based solely on the record. Kelly v. Wyman, 294 F.Supp. 893, 906-907 (1968). FN5. N.Y. Social Welfare Law s 353(2) (1966) provides for a post-termination ‘fair hearing’ pursuant to 42 U.S.C. s 602(a)(4). See n. 3, supra. Although the District Court noted that HEW had raised some ob- jections to the New York ‘fair hearing’ procedures, 294 F.Supp., at 898 n. 9, these objections are not at issue in this Court. Shortly before this suit was filed, New York State adopted a similar provision for a ‘fair hearing’ in terminations of Home Relief. 18 NYCRR ss 84.2-84.23. In both AFDC and Home Relief the ‘fair hearing’ must be held within 10 working days of the request, s 84.6, with decision within 12 working days thereafter, s 84.15. It was conceded in oral argument that these time limits are not in fact observed. FN6. Current HEW regulations require the States to make full retroactive payments (with federal matching funds) whenever a ‘fair heairng’ results in a reversal of a ter- mination of assistance. HEW Handbook, pt. IV, ss 6200(k), 6300(g), 6500(a); see 18 NYCRR s 358.8. Under New York State regulations retroactive payments can also be made, with certain limitations, to cor- rect an erroneous termination discovered before a ‘fair hearing’ has been held. 18 NYCRR s 351.27. HEW regulations also authorize, but do not require, the State to continue AFDC payments without loss of federal matching funds pending comple- tion of a ‘fair hearing.’ HEW Handbook, pt. IV, s 6500(b). The new HEW regula- tions presently scheduled to become effect- ive July 1, 1970, will supersede all of these provisions. See n. 3, supra. I The constitutional issue to be decided, therefore, is the narrow one whether the Due Process Clause re- quires that the recipient be afforded an evidentiary hearing before the termination of benefits.FN7The District Court held *261 that only a pretermination evidentiary hearing would satisfy the constitutional command, and rejected the argument of the state and city officials that the combination of the post- termination ‘fair hearing’ with the informal pre- termination review disposed of all due process claims. The court said: ‘While post-termination re- view is **1017 relevant, there is one overpowering fact which controls here. By hypothesis, a welfare recipient is destitute, without funds or assets. * * * Suffice it to say that to cut off a welfare recipient in the face of * * * ‘brutal need’ without a prior hear- ing of some sort is unconscionable, unless over- whelming considerations justify it.’ Kelly v. Wy- man, 294 F.Supp. 893, 899, 900 (1968). The court rejected the argument that the need to protect the public’s tax revenues supplied the requisite ‘overwhelming consideration.’ ‘Against the justi- fied desire to protect public funds must be weighed the individual’s overpowering need in this unique situation not to be wrongfully deprived of assist- ance. * * * While the problem of additional ex- pense must be kept in mind, it does not justify denying a hearing meeting the ordinary standards of due process. Under all the circumstances, we hold that due process requires an adequate hearing be- 90 S.Ct. 1011 Page 9 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (Cite as: 397 U.S. 254, 90 S.Ct. 1011) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=345&FindType=Y&ReferencePositionType=S&SerialNum=1968115544&ReferencePosition=906 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=345&FindType=Y&ReferencePositionType=S&SerialNum=1968115544&ReferencePosition=906 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=42USCAS602&FindType=L&ReferencePositionType=T&ReferencePosition=SP_d40e000072291 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=345&FindType=Y&ReferencePositionType=S&SerialNum=1968115544&ReferencePosition=898 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1013028&DocName=18NYADC84.2&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1013028&DocName=18NYADC358.8&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1013028&DocName=18NYADC358.8&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1013028&DocName=18NYADC351.27&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1013028&DocName=18NYADC351.27&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=345&FindType=Y&ReferencePositionType=S&SerialNum=1968115544&ReferencePosition=899 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=345&FindType=Y&ReferencePositionType=S&SerialNum=1968115544&ReferencePosition=899 fore termination of welfare benefits, and the fact that there is a later constitutionally fair proceeding does not alter the result.’ Id., at 901. Although state officials were party defendants in the action, only the Commissioner of Social Services of the City of New York appealed. We noted probable jurisdic- tion, 394 U.S. 971, 89 S.Ct. 1469, 22 L.Ed.2d 751 (1969), to decide important issues that have been the subject of disagreement in principle between the three-judge court in the present case and that con- vened in Wheeler v. Montgomery, 397 U.S. 280, 90 S.Ct. 1026, 25 L.Ed.2d 307.We affirm. FN7. Appellant does not question the re- cipient’s due process right to evidentiary review after termination. For a general dis- cussion of the provision of an evidentiary hearing prior to termination, see Comment, The Constitutional Minimum for the Ter- mination of Welfare Benefits: The Need for and Requirements of a Prior Hearing, 68 Mich.L.Rev. 112 (1969). [1][2][3][4] Appellant does not contend that pro- cedural due process is not applicable to the termina- tion of welfare benefits.*262 Such benefits are a matter of statutory entitlement for persons qualified to receive them.FN8Their termination involves state action that adjudicates important rights. The constitutional challenge cannot be answered by an argument that public assistance benefits are a ‘privilege’ and not a ‘right.’ Shapiro v. Thompson, 394 U.S. 618, 627 n. 6, 89 S.Ct. 1322, 1327 (1969). Relevant constitutional restraints ap- ply as much to the withdrawal of public assistance benefits as to disqualification for unemployment compensation, Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); or to denial of a tax exemption, Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); or to discharge from public employment, Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956).FN9 The extent to **1018 which procedural due process *263 must be afforded the recipient is influenced by the extent to which he may be ‘condemned to suffer grievous loss,’ Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 647, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring), and depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication. Accordingly, as we said in Cafeteria & Restaurant Workers Union, etc. v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748-1749, 6 L.Ed.2d 1230 (1961), ‘consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the govern- ment function involved as well as of the private in- terest that has been affected by governmental ac- tion.’See also Hannah v. Larche, 363 U.S. 420, 440, 442, 80 S.Ct. 1502, 1513, 1514, 4 L.Ed.2d 1307 (1960). FN8. It may be realistic today to regard welfare entitlements as more like ‘property’ than a ‘gratuity.’ Much of the existing wealth in this country takes the form of rights that do not fall within tradi- tional common-law concepts of property. It has been aptly noted that ‘(s)ociety today is built around entitlement. The automobile dealer has his franchise, the doctor and lawyer their professional li- censes, the worker his union membership, contract, and pension rights, the executive his contract and stock options; all are devices to aid security and independence. Many of the most important of these enti- tlements now flow from government: sub- sidies to farmers and businessmen, routes for airlines and channels for television sta- tions; long term contracts for defense, space, and education; social security pen- sions for individuals. Such sources of se- curity, whether private or public, are no longer regarded as luxuries or gratuities; to the recipients they are essentials, fully de- served, and in no sense a form of charity. It 90 S.Ct. 1011 Page 10 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (Cite as: 397 U.S. 254, 90 S.Ct. 1011) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&FindType=Y&SerialNum=1968115544 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1969202559 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1969202559 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1970241805 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1970134199 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1970134199 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1969132967&ReferencePosition=1327 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1969132967&ReferencePosition=1327 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1969132967&ReferencePosition=1327 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1963125396 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1963125396 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1958121488 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1958121488 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1956111192 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1956111192 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1956111192 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1951117876&ReferencePosition=647 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1951117876&ReferencePosition=647 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1951117876&ReferencePosition=647 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1951117876&ReferencePosition=647 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1961125534&ReferencePosition=1748 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1961125534&ReferencePosition=1748 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1961125534&ReferencePosition=1748 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1960101758&ReferencePosition=1513 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1960101758&ReferencePosition=1513 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1960101758&ReferencePosition=1513 is only the poor whose entitlements, al- though recognized by public policy, have not been effectively enforced.’Reich, Indi- vidual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245, 1255 (1965). See also Reich, The New Property, 73 Yale L.J. 733 (1964). FN9. See also Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494 (1926) (right of a certified public accountant to practice be- fore the Board of Tax Appeals); Hornsby v. Allen, 326 F.2d 605 (C.A.5th Cir. 1964) (right to obtain a retail liquor store li- cense); Dixon v. Alabama State Board of Education, 294 F.2d 150 (C.A.5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961) (right to attend a pub- lic college). [5][6] It is true, of course, that some governmental benefits may be administratively terminated without affording the recipient a pre-termination evidentiary hearing.FN10*264 But we agree with the District Court that when welfare is discontin- ued, only a pre-termination evidentiary hearing provides the recipient with procedural due process. Cf. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). For qualified recipients, welfare provides the means to obtain essential food, clothing, housing, and medic- al care.FN11Cf. Nash v. Florida Industrial Com- mission, 389 U.S. 235, 239, 88 S.Ct. 362, 366, 19 L.Ed.2d 438 (1967). Thus the crucial factor in this context-a factor not present in the case of the black- listed government contractor, the discharged gov- ernment employee, the taxpayer denied a tax ex- emption, or virtually anyone else whose govern- mental entitlements are ended-is that termination of aid pending resolution of a controversy over eligib- ility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate. His need to concentrate upon finding the means for daily subsistence, in turn, adversely **1019 affects his ability to seek re- dress from the welfare bureaucracy.FN12 FN10. One Court of Appeals has stated: ‘In a wide variety of situations, it has long been recognized that where harm to the public is threatened, and the private in- terest infringed is reasonably deemed to be of less importance, an official body can take summary action pending a later hear- ing.’ R. A. Holman & Co. v. SEC, 112 U.S.App.D.C. 43, 47, 299 F.2d 127, 131,cert. denied, 370 U.S. 911, 82 S.Ct. 1257, 8 L.Ed.2d 404 (1962) (suspension of exemption from stock registration require- ment). See also, for example, Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950) (seizure of mislabeled vitamin product); North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908) (seizure of food not fit for human use); Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944) (adoption of wartime price regula- tions); Gonzalez v. Freeman, 118 U.S.App.D.C. 180, 334 F.2d 570 (1964) (disqualification of a contractor to do busi- ness with the Government). In Cafeteria & Restaurant Workers Union, etc. v. McEl- roy, supra, 367 U.S. at 896, 81 S.Ct. at 1749, summary dismissal of a public em- ployee was upheld because ‘(i)n (its) pro- prietary military capacity, the Federal Government, * * * has traditionally exer- cised unfettered control,’ and because the case involved the Government’s ‘dispatch of its own internal affairs.’Cf. Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940). FN11. Administrative determination that a person is ineligible for welfare may also render him ineligible for participation in 90 S.Ct. 1011 Page 11 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (Cite as: 397 U.S. 254, 90 S.Ct. 1011) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. 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See N.Y. Social Welfare Law s 366 (1966). FN12. His impaired adversary position is particularly telling in light of the welfare bureaucracy’s difficulties in reaching cor- rect decisions on eligibility. See Comment, Due Process and the Right to a Prior Hear- ing in Welfare Cases, 37 Ford.L.Rev. 604, 610-611 (1969). Moreover, important governmental interests are promoted by affording recipients a pre-termination evidentiary hearing. From its founding the Nation’s basic *265 commitment has been to foster the dig- nity and well-being of all persons within its bor- ders. We have come to recognize that forces not within the control of the poor contribute to their poverty.FN13This perception, against the back- ground of our traditions, has significantly influ- enced the development of the contemporary public assistance system. Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community. At the same time, wel- fare guards against the societal malaise that may flow from a widespread sense of unjustified frustra- tion and insecurity. Public assistance, then, is not mere charity, but a means to ‘promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.’The same government- al interests that counsel the provision of welfare, counsel as well its uninterrupted provision to those eligible to receive it; pre-termination evidentiary hearings are indispensable to that end. FN13. See, e.g., Reich, supra, n. 8, 74 Yale L.J., at 1255. Appellant does not challenge the force of these con- siderations but argues that they are outweighed by countervailing governmental interests in conserving fiscal and administrative resources. These interests, the argument goes, justify the delay of any eviden- tiary hearing until after discontinuance of the grants. Summary adjudication protects the public fisc by stopping payments promptly upon discovery of reason to believe that a recipient is no longer eli- gible. Since most terminations are accepted without challenge, summary adjudication also conserves both the fisc and administrative time and energy by reducing the number of evidentiary hearings actu- ally held. *266 [7] We agree with the District Court, however, that these governmental interests are not overriding in the welfare context. The requirement of a prior hearing doubtless involves some greater expense, and the benefits paid to ineligible recipi- ents pending decision at the hearing probably can- not be recouped, since these recipients are likely to be judgment-proof. But the State is not without weapons to minimize these increased costs. Much of the drain on fiscal and administrative resources can be reduced by developing procedures for prompt pre-termination hearings and by skillful use of personnel and facilities. Indeed, the very provi- sion for a post-termination evidentiary hearing in New York’s Home Relief program is itself cogent evidence that the State recognizes the primacy of the public interest in correct eligibility determina- tions and therefore in the provision of procedural safeguards. Thus, the interest of the eligible recipi- ent in uninterrupted receipt of public assistance, coupled with the State’s interest that his payments not be erroneously terminated, clearly outweighs the State’s competing concern to prevent any in- crease in its fiscal and administrative burdens. As the District Court correctly concluded, ‘(t)he stakes are simply too high for the welfare recipient, and the possibility for honest error or irritable misjudg- ment too great, to allow termination of aid without giving the recipient a chance, if he so desires, to be fully informed **1020 of the case against him so that he may contest its basis and produce evidence in rebuttal.’ 294 F.Supp., at 904-905. II [8][9][10] We also agree with the District Court, 90 S.Ct. 1011 Page 12 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (Cite as: 397 U.S. 254, 90 S.Ct. 1011) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=345&FindType=Y&ReferencePositionType=S&SerialNum=1968115544&ReferencePosition=904 however, that the pre-termination hearing need not take the form of a judicial or quasi-judicial trial. We bear in mind that the statutory ‘fair hearing’ will provide the recipient *267 with a full adminis- trative review.FN14Accordingly, the pre- termination hearing has one function only: to pro- duce an initial determination of the validity of the welfare department’s grounds for discontinuance of payments in order to protect a recipient against an erroneous termination of his benefits. Cf. Sniadach v. Family Finance Corp., 395 U.S. 337, 343, 89 S.Ct. 1820, 1823, 23 L.Ed.2d 349 (1969) (Harlan, J., concurring). Thus, a complete record and a com- prehensive opinion, which would serve primarily to facilitate judicial review and to guide future de- cisions, need not be provided at the pre-termination stage. We recognize, too, that both welfare authorit- ies and recipients have an interest in relatively speedy resolution of questions of eligibility, that they are used to dealing with one another inform- ally, and that some welfare departments have very burdensome caseloads. These considerations justify the limitation of the pre-termination hearing to min- imum procedural safeguards, adapted to the particu- lar characteristics of welfare recipients, and to the limited nature of the controversies to be resolved. We wish to add that we, no less than the dissenters, recognize the importance of not imposing upon the States or the Federal Government in this developing field of law any procedural requirements beyond those demanded by rudimentary due process. FN14. Due process does not, of course, re- quire two hearings. If, for example, a State simply wishes to continue benefits until after a ‘fair’ hearing there will be no need for a preliminary hearing. [11][12]’The fundamental requisite of due process of law is the opportunity to be heard.’ Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). The hearing must be ‘at a mean- ingful time and in a meaingful manner.’ Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). In the present context these principles require that a recipient have timely and adequate notice detailing the reasons for a *268 proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence or- ally. These rights are important in cases such as those before us, where recipients have challenged proposed terminations as resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases.FN15 FN15. This case presents no question re- quiring our determination whether due pro- cess requires only an opportunity for writ- ten submission, or an opportunity both for written submission and oral argument, where there are no factual issues in dispute or where the application of the rule of law is not intertwined with factual issues. See FCC v. WJR, 337 U.S. 265, 275-277, 69 S.Ct. 1097, 1103-1104, 93 L.ed. 1353 (1949). [13][14] We are not prepared to say that the seven- day notice currently provided by New York City is constitutionally insufficient per se, although there may be cases where fairness would require that a longer time be given. Nor do we see any constitu- tional deficiency in the content or form of the no- tice. New York employs both a letter and a personal conference with a caseworker to inform a recipient of the precise questions raised about his continued eligibility. Evidently the recipient is told the legal and factual bases for the Department’s doubts. This combination is probably**1021 the most effective method of communicating with recipients. [15] The city’s procedures presently do not permit recipients to appear personally with or without counsel before the official who finally determines continued eligibility. Thus a recipient is not permit- ted to present evidence to that official orally, or to confront or cross-examine adverse witnesses. These omissions are fatal to the constitutional adequacy of the procedures. 90 S.Ct. 1011 Page 13 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (Cite as: 397 U.S. 254, 90 S.Ct. 1011) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1969133006&ReferencePosition=1823 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1969133006&ReferencePosition=1823 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1969133006&ReferencePosition=1823 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1914100411&ReferencePosition=783 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1914100411&ReferencePosition=783 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1914100411&ReferencePosition=783 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1965100212&ReferencePosition=1191 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1965100212&ReferencePosition=1191 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1965100212&ReferencePosition=1191 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1949116848&ReferencePosition=1103 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1949116848&ReferencePosition=1103 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1949116848&ReferencePosition=1103 [16][17][18][19] The opportunity to be heard must be tailored to the *269 capacities and circumstances of those who are to be heard.FN16 It is not enough that a welfare recipient may present his position to the decision maker in writing or second-hand through his caseworker. Written submissions are an unrealistic option for most recipients, who lack the educational attainment necessary to write effect- ively and who cannot obtain professional assist- ance. Moreover, written submissions do not afford the flexibility of oral presentations; they do not per- mit the recipient to mold his argument to the issues the decision maker appears to regard as important. Particularly where credibility and veracity are at is- sue, as they must be in many termination proceed- ings, written submissions are a wholly unsatisfact- ory basis for decision. The second-hand presenta- tion to the decisionmaker by the caseworker has its own deficiencies; since the caseworker usually gathers the facts upon which the charge of ineligib- ility rests, the presentation of the recipient’s side of the controversy cannot safely be left to him. There- fore a recipient must be allowed to state his posi- tion orally. Informal procedures will suffice; in this context due process does not require a particular or- der of proof or mode of offering evidence. Cf. HEW Handbook, pt. IV, s 6400(a). FN16.'(T)he prosecution of an appeal de- mands a degree of security, awareness, tenacity, and ability which few dependent people have.’Wedemeyer & Moore, The American Welfare System, 54 Calif.L.Rev. 326, 342 (1966). [20][21][22] In almost every setting where import- ant decisions turn on questions of fact, due process requires an opportunity to confront and cross- examine adverse witnesses. E.g., ICC v. Louisville & N.R. Co., 227 U.S. 88, 93-94, 33 S.Ct. 185, 187-188, 57 L.Ed. 431 (1913); Willner v. Commit- tee on Character & Fitness, 373 U.S. 96, 103-104, 83 S.Ct. 1175, 1180-1181, 10 L.Ed.2d 224 (1963). What we said in *270 Greene v. McElroy, 360 U.S. 474, 496-497, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959), is particularly pertinent here: ‘Certain principles have remained relatively immut- able in our jurisprudence. One of these is that where governmental action seriously injures an in- dividual, and the reasonableness of the action de- pends on fact findings, the evidence used to prove the Government’s case must be disclosed to the in- dividual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of in- dividuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross- examination. They have ancient roots. They find expression in the Sixth Amendment * * *. This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, * * * but also in all types of cases where ad- ministrative * * * actions were under scrutiny.’ Welfare recipients must therefore be given an op- portunity to confront and cross-examine the wit- nesses relied on by the department. **1022 [23]’The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.’ Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). We do not say that counsel must be provided at the pre-termination hearing, but only that the recipient must be allowed to retain an attor- ney if he so desires. Counsel can help delineate the issues, present the factual contentions in an orderly manner, conduct cross-examination, and generally safeguard the *271 interests of the recipient. We do not anticipate that this assistance will unduly pro- long or otherwise encumber the hearing. Evidently HEW has reached the same conclusion. See 45 CFR s 205.10, 34 Fed.Reg. 1144 (1969); 45 CFR s 220.25, 34 Fed.Reg. 13595 (1969). [24][25] Finally, the decisionmaker’s conclusion as 90 S.Ct. 1011 Page 14 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (Cite as: 397 U.S. 254, 90 S.Ct. 1011) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1913100600&ReferencePosition=187 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1913100600&ReferencePosition=187 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1913100600&ReferencePosition=187 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1963106444&ReferencePosition=1180 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1963106444&ReferencePosition=1180 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1963106444&ReferencePosition=1180 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1959123798&ReferencePosition=1413 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1932123464&ReferencePosition=64 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1932123464&ReferencePosition=64 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1932123464&ReferencePosition=64 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1037&DocName=34FR1144&FindType=Y http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1037&DocName=34FR1144&FindType=Y http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1037&DocName=34FR13595&FindType=Y to a recipient’s eligibility must rest solely on the legal rules and evidence adduced at the hearing. Ohio Bell Tel. Co. v. PUC, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093 (1937); United States v. Abi- lene & S.R. Co., 265 U.S. 274, 288-289, 44 S.Ct. 565, 569-570, 68 L.Ed. 1016 (1924). To demon- strate compliance with this elementary requirement, the decision maker should state the reasons for his determination and indicate the evidence he relied on, cf. Wichita R. & Light Co. v. PUC, 260 U.S. 48, 57-59, 43 S.Ct. 51, 54-55, 67 L.Ed. 124 (1922), though his statement need not amount to a full opinion or even formal findings of fact and conclu- sions of law. And, of course, an impartial decision maker is essential. Cf. In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955); Wong Yang Sung v. McGrath, 339 U.S. 33, 45-46, 70 S.Ct. 445, 451-452, 94 L.Ed. 616 (1950). We agree with the District Court that prior involvement in some aspects of a case will not necessarily bar a welfare official from acting as a decision maker. He should not, however, have participated in making the determination under review. Affirmed. Mr. Justice BLACK, dissenting. In the last half century the United States, along with many, perhaps most, other nations of the world, has moved far toward becoming a welfare state, that is, a nation that for one reason or another taxes its most *272 affluent people to help support, feed, clothe, and shelter its less fortunate citizens. The result is that today more than nine million men, wo- men, and children in the United States receive some kind of state or federally financed public assistance in the form of allowances or gratuities, generally paid them periodically, usually by the week, month, or quarter.FN1Since these gratuities are paid on the basis of need, the list of recipients is not static, and some people go off the lists and others are added from time to time. These ever-changing lists put a constant administrative burden on government and it certainly could not have reasonably anticipated that this burden would include the additional pro- cedural expense imposed by the Court today. FN1. This figure includes all recipients of Oldage Assistance, Aid to Families with Dependent Children, Aid to the Blind, Aid to the Permanently and Totally Disabled, and general assistance. In this case appel- lants are AFDC and general assistance re- cipients. In New York State alone there are 951,000 AFDC recipients and 108,000 on general assistance. In the Nation as a whole the comparable figures are 6,080,000 and 391,000. U.S. Bureau of the Census, Statistical Abstract of the United States: 1969 (90th ed.), Table 435, p. 297. The dilemma of the ever-increasing poor in the midst of constantly growing affluence presses upon us and must inevitably be met within the framework of our democratic constitutional government, if our system is to survive as such. It was largely to es- cape just such pressing economic problems and at- tendant government repression that people from **1023 Europe, Asia, and other areas settled this country and formed our Nation. Many of those set- tlers had personally suffered from persecutions of various kinds and wanted to get away from govern- ments that had unrestrained powers to make life miserable for their citizens. It was for this reason, or so I believe, that on reaching these new lands the early settlers undertook to curb their governments by confining their powers *273 within written boundaries, which eventually became written con- stitutions.FN2They wrote their basic charters as nearly as men’s collective wisdom could do so as to proclaim to their people and their officials an em- phatic command that: ‘Thus far and no farther shall you go; and where we neither delegate powers to you, nor prohibit your exercise of them, we the people are left free.’FN3 FN2. The goal of a written constitution with fixed limits on governmental power had long been desired. Prior to our colonial constitutions, the closest man had come to realizing this goal was the political move- 90 S.Ct. 1011 Page 15 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (Cite as: 397 U.S. 254, 90 S.Ct. 1011) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1937121957 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1937121957 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1924124097&ReferencePosition=569 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1924124097&ReferencePosition=569 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1924124097&ReferencePosition=569 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1922117906&ReferencePosition=54 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1922117906&ReferencePosition=54 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1955119803 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1955119803 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1950120143&ReferencePosition=451 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1950120143&ReferencePosition=451 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1950120143&ReferencePosition=451 ment of the Levellers in England in the 1640’s. J. Frank, The Levellers (1955). In 1647 the Levellers proposed the adoption of An Agreement of the People which set forth written limitations on the English Government. This proposal contained many of the ideas which later were incor- porated in the constitutions of this Nation. Id. at 135-147. FN3. This command is expressed in the Tenth Amendment: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’ Representatives of the people of the Thirteen Ori- ginal Colonies spent long, hot months in the sum- mer of 1787 in Philadelphia, Pennsylvania, creating a government of limited powers. They divided it in- to three departments-Legislative, Judicial, and Ex- ecutive. The Judicial Department was to have no part whatever in making any laws. In fact proposals looking to vesting some power in the Judiciary to take part in the legislative process and veto laws were offered, considered, and rejected by the Con- stitutional Convention.FN4 In my *274 judgment there is not one word, phrase, or sentence from the beginning to the end of the Constitution from which it can be inferred that judges were granted any such legislative power. True, Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), held, and properly, I think, that courts must be the final interpreters of the Constitution, and I recognize that the holding can provide an opportunity to slide imperceptibly into constitutional amendment and law making. But when federal judges use this judicial power for le- gislative purposes, I think they wander out of their field of vested powers and transgress into the area constitutionally assigned to the Congress and the people. That is precisely what I believe the Court is doing in this case. Hence my dissent. FN4. It was proposed that members of the judicial branch would sit on a Council of Revision which would consider legislation and have the power to veto it. This propos- al was rejected. J. Elliot, 1 Elliot’s Debates 160, 164, 214 (Journal of the Federal Con- vention); 395, 398 (Yates’ Minutes); vol. 5, pp. 151, 161-166, 344-349 (Madison’s Notes) (Lippincott ed. 1876). It was also suggested that The Chief Justice would serve as a member of the President’s exec- utive council, but this proposal was simil- arly rejected. Id., vol. 5, pp. 442, 445, 446, 462. The more than a million names on the relief rolls in New York,FN5 and the more than nine million names on the rolls of all the 50 States were not put there at random. The names are there because state welfare officials believed that those people were eligible for assistance. Probably in the officials’ haste to make out the lists many names were put there erroneously in order to alleviate immediate suffering, and undoubtedly some people are draw- ing relief who are not entitled **1024 under the law to do so. Doubtless some draw relief checks from time to time who know they are not eligible, either because they are not actually in need or for some other reason. Many of those who thus draw un- deserved gratuities are without sufficient property to enable the government to collect back from them any money they wrongfully receive. But the Court today holds that it would violate the Due Process Clause of the Fourteenth Amendment to stop pay- ing those people weekly or monthly allowances un- less the government first affords them a full ‘evidentiary hearing’ even *275 though welfare of- ficials are persuaded that the recipients are not rightfully entitled to receive a penny under the law. In other words, although some recipients might be on the lists for payment wholly because of deliber- ate fraud on their part, the Court holds that the gov- ernment is helpless and must continue, until after an evidentiary hearing, to pay money that it does not owe, never has owed, and never could owe. I do not believe there is any provision in our Constitu- 90 S.Ct. 1011 Page 16 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (Cite as: 397 U.S. 254, 90 S.Ct. 1011) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1801123932 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1801123932 tion that should thus paralyze the government’s ef- forts to protect itself against making payments to people who are not entitled to them. FN5. See n. 1, supra. Particularly do I not think that the Fourteenth Amendment should be given such an unnecessarily broad construction. That Amendment came into be- ing primarily to protect Negroes from discrimina- tion, and while some of its language can and does protect others, all know that the chief purpose be- hind it was to protect ex-slaves. Cf. Adamson v. California, 332 U.S. 46, 71-72, and n. 5, 67 S.Ct. 1672, 1686, 91 L.Ed. 1903 (1947) (dissenting opin- ion). The Court, however, relies upon the Four- teenth Amendment and in effect says that failure of the government to pay a promised charitable instal- ment to an individual deprives that individual of his own property, in violation of the Due Process Clause of the Fourteenth Amendment. It somewhat strains credulity to say that the government’s prom- ise of charity to an individual is property belonging to that individual when the government denies that the individual is honestly entitled to receive such a payment. I would have little, if any, objection to the major- ity’s decision in this case if it were written as the re- port of the House Committee on Education and Labor, but as an opinion ostensibly resting on the language of the Constitution I find it woefully defi- cient. Once the verbiage is pared away it is obvious that this Court today adopts the views of the Dis- trict Court ‘that to cut off a welfare recipient in the face of * * * ‘brutal need’ without a prior *276 hearing of some sort is unconscionable,’ and there- fore, says the Court, unconstitutional. The majority reaches this result by a process of weighing ‘the re- cipient’s interest in avoiding’ the termination of welfare benefits against ‘the governmental interest in summary adjudication.’Ante, at 1018. Today’s balancing act requires a ‘pre-termination eviden- tiary hearing,’ yet there is nothing that indicates what tomorrow’s balance will be. Although the ma- jority attempts to bolster its decision with limited quotations from prior cases, it is obvious that today’s result doesn’t depend on the language of the Constitution itself or the principles of other de- cisions, but solely on the collective judgment of the majority as to what would be a fair and humane procedure in this case. This decision is thus only another variant of the view often expressed by some members of this Court that the Due Process Clause forbids any con- duct that a majority of the Court believes ‘unfair,’ ‘indecent,’ or ‘shocking to their con- sciences.’ See, e.g., Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952). Neither these words nor any like them appear any- where in the Due Process Clause. If they did, they would leave the majority of Justices free to hold any conduct unconstitutional that they should con- clude **1025 on their own to be unfair or shocking to them.FN6Had the drafters of the Due Process Clause meant to leave judges such ambulatory power to declare *277 laws unconstitutional, the chief value of a written constitution, as the Founders saw it, would have been lost. In fact, if that view of due process is correct, the Due Process Clause could easily swallow up all other parts of the Constitution. And truly the Constitution would always be ‘what the judges say it is’ at a given mo- ment, not what the Founders wrote into the docu- ment.FN7A written constitution, designed to guar- antee protection against governmental abuses, in- cluding those of judges, must have written stand- ards that mean something definite and have an ex- plicit content. I regret very much to be compelled to say that the Court today makes a drastic and dan- gerous departure from a Constitution written to control and limit the government and the judges and moves toward a constitution designed to be no more and no less than what the judges of a particu- lar social and economic philosophy declare on the one hand to be fair or on the other hand to be shocking and unconscionable. FN6. I am aware that some feel that the process employed in reaching today’s de- 90 S.Ct. 1011 Page 17 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (Cite as: 397 U.S. 254, 90 S.Ct. 1011) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1947114039&ReferencePosition=1686 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1947114039&ReferencePosition=1686 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1947114039&ReferencePosition=1686 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1952118934&ReferencePosition=209 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1952118934&ReferencePosition=209 cision is not dependent on the individual views of the Justices involved, but is a mere objective search for the ‘collective conscience of mankind,’ but in my view that description is only a euphemism for an individual’s judgment. Judges are as human as anyone and as likely as others to see the world through their own eyes and find the ‘collective conscience’ remarkably similar to their own. Cf. Griswold v. Connecticut, 381 U.S. 479, 518-519, 85 S.Ct. 1678, 1700-1701, 14 L.Ed.2d 510 (1965) (Black, J., dissenting); Sniadach v. Family Finance Corp., 395 U.S. 337, 350-351, 89 S.Ct. 1820, 1827, 23 L.Ed.2d 349 (1969) (Black, J., dissenting). FN7. To realize how uncertain a standard of ‘fundamental fairness’ would be, one has only to reflect for a moment on the possible disagreement if the ‘fairness’ of the procedure in this case were propounded to the head of the National Welfare Rights Organization, the president of the national Chamber of Commerce, and the chairman of the John Birch Society. The procedure required today as a matter of consti- tutional law finds no precedent in our legal system. Reduced to its simplest terms, the problem in this case is similar to that frequently encountered when two parties have an ongoing legal relationship that requires one party to make periodic payments to the other. Often the situation arises where the party ‘owing’ the money stops paying it and justifies his conduct by arguing that the recipient is not legally entitled to payment. The recipient can, of course, disagree and go to court to compel payment. But I know of no situation in our legal system in which the person alleged to owe money to *278 another is required by law to continue making payments to a judgment-proof claimant without the benefit of any security or bond to insure that these payments can be recovered if he wins his legal argument. Yet today’s decision in no way obligates the welfare re- cipient to pay back any benefits wrongfully re- ceived during the pretermination evidentiary hear- ings or post any bond, and in all ‘fairness’ it could not do so. These recipients are by definition too poor to post a bond or to repay the benefits that, as the majority assumes, must be spent as received to insure survival. The Court apparently feels that this decision will benefit the poor and needy. In my judgment the eventual result will be just the opposite. While today’s decision requires only an administrative, evidentiary hearing, the inevitable logic of the ap- proach taken will lead to constitutionally imposed, time-consuming delays of a full adversary process of administrative and judicial review. In the next case the welfare recipients are bound to argue that cutting off benefits before judicial review of the agency’s decision is also a denial of due process. Since, by hypothesis,**1026 termination of aid at that point may still ‘deprive an eligible recipient of the very means by which to live while he waits,’ante, at 1018, I would be surprised if the weighing process did not compel the conclusion that termination without full judicial review would be unconscionable. After all, at each step, as the majority seems to feel, the issue is only one of weighing the government’s pocketbook against the actual survival of the recipient, and surely that bal- ance must always tip in favor of the individual. Similarly today’s decision requires only the oppor- tunity to have the benefit of counsel at the adminis- trative hearing, but it is difficult to believe that the same reasoning process would not require the ap- pointment of counsel, for otherwise the right to counsel is a meaningless one since these *279 people are too poor to hire their own advocates. Cf. Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963). Thus the end result of today’s decision may well be that the govern- ment, once it decides to give welfare benefits, can- not reverse that decision until the recipient has had the benefits of full administrative and judicial re- view, including, of course, the opportunity to present his case to this Court. Since this process 90 S.Ct. 1011 Page 18 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (Cite as: 397 U.S. 254, 90 S.Ct. 1011) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1965125098&ReferencePosition=1700 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1965125098&ReferencePosition=1700 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1965125098&ReferencePosition=1700 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1969133006&ReferencePosition=1827 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1969133006&ReferencePosition=1827 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1969133006&ReferencePosition=1827 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1963125313&ReferencePosition=796 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1963125313&ReferencePosition=796 will usually entail a delay of several years, the in- evitable result of such a constitutionally imposed burden will be that the government will not put a claimant on the rolls initially until it has made an exhaustive investigation to determine his eligibility. While this Court will perhaps have insured that no needy person will be taken off the rolls without a full ‘due process’ proceeding, it will also have in- sured that many will never get on the rolls, or at least that they will remain destitute during the lengthy proceedings followed to determine initial eligibility. For the foregoing reasons I dissent from the Court’s holding. The operation of a welfare state is a new experiment for our Nation. For this reason, among others, I feel that new experiments in carrying out a welfare program should not be frozen into our con- stitutional structure. They should be left, as are oth- er legislative determinations, to the Congress and the legislatures that the people elect to make our laws. U.S.N.Y. 1970. Goldberg v. Kelly 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 END OF DOCUMENT 90 S.Ct. 1011 Page 19 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (Cite as: 397 U.S. 254, 90 S.Ct. 1011) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. ”

“Code of Federal Regulations Title 42. Public Health Chapter IV. Centers for Medicare & Medicaid Services, Department of Health and Human Services Subchapter C. Medical Assistance Programs Part 431. State Organization and General Administration Subpart E. Fair Hearings for Applicants and Recipients 431.200 Basis and scope. This subpart– (a) Implements section 1902(a)(3) of the Act, which requires that a State plan provide an opportunity for a fair hearing to any person whose claim for assistance is denied or not acted upon promptly; (b) Prescribes procedures for an opportunity for a hearing if the State agency or PAHP takes action, as stated in this subpart, to suspend, terminate, or reduce services, or an MCO or PIHP takes action under subpart F of part 438 of this chapter; and (c) Implements sections 1919(f)(3) and 1919(e)(7)(F) of the Act by providing an appeals process for any person who– (1) Is subject to a proposed transfer or discharge from a nursing facility; or (2) Is adversely affected by the pre-admission screening or the annual resident review that are required by section 1919(e)(7) of the Act. 431.201 Definitions. For purposes of this subpart: Action means a termination, suspension, or reduction of Medicaid eligibility or covered services. It also means determinations by skilled nursing facilities and nursing facilities to transfer or discharge residents and adverse determinations made by a State with regard to the preadmission screening and annual resident review requirements of section 1919(e)(7) of the Act. Adverse determination means a determination made in accordance with sections 1919(b)(3)(F) or 1919(e)(7)(B) of the Act that the individual does not require the level of services provided by a nursing facility or that the individual does or does not require specialized services. Date of action means the intended date on which a termination, suspension, reduction, transfer or discharge becomes effective. It also means the date of the determination made by a State with regard to the preadmission screening and annual resident review requirements of section 1919(e)(7) of the Act. De novo hearing means a hearing that starts over from the beginning. Evidentiary hearing means a hearing conducted so that evidence may be presented. Notice means a written statement that meets the requirements of 431.210. Request for a hearing means a clear expression by the applicant or recipient, or his authorized representative, that he wants the opportunity to present his case to a reviewing authority. Service authorization request means a managed care enrollee’s request for the provision of a service. 431.202 State plan requirements. A State plan must provide that the requirements of 431.205 through 431.246 of this subpart are met. 431.205 Provision of hearing system. (a) The Medicaid agency must be responsible for maintaining a hearing system that meets the requirements of this subpart. (b) The State’s hearing system must provide for\u2014 (1) A hearing before the agency; or (2) An evidentiary hearing at the local level, with a right of appeal to a State agency hearing. (c) The agency may offer local hearings in some political subdivisions and not in others. (d) The hearing system must meet the due process standards set forth in Goldberg v. Kelly, 397 U.S. 254 (1970), and any additional standards specified in this subpart. 431.206 Informing applicants and recipients. (a) The agency must issue and publicize its hearing procedures. (b) The agency must, at the time specified in paragraph (c) of this section, inform every applicant or recipient in writing– (1) Of his right to a hearing; (2) Of the method by which he may obtain a hearing; and (3) That he may represent himself or use legal counsel, a relative, a friend, or other spokesman. (c) The agency must provide the information required in paragraph (b) of this section– (1) At the time that the individual applies for Medicaid; (2) At the time of any action affecting his or her claim; (3) At the time a skilled nursing facility or a nursing facility notifies a resident in accordance with 483.12 of this chapter that he or she is to be transferred or discharged; and (4) At the time an individual receives an adverse determination by the State with regard to the preadmission screening and annual resident review requirements of section 1919(e)(7) of the Act. 431.210 Content of notice. A notice required under 431.206(c)(2), (c)(3), or (c)(4) of this subpart must contain– (a) A statement of what action the State, skilled nursing facility, or nursing facility intends to take; (b) The reasons for the intended action; (c) The specific regulations that support, or the change in Federal or State law that requires, the action; (d) An explanation of– (1) The individual’s right to request an evidentiary hearing if one is available, or a State agency hearing; or (2) In cases of an action based on a change in law, the circumstances under which a hearing will be granted; and (e) An explanation of the circumstances under which Medicaid is continued if a hearing is requested. 431.211 Advance notice. The State or local agency must mail a notice at least 10 days before the date of action, except as permitted under 431.213 and 431.214 of this subpart. 431.213 Exceptions from advance notice. The agency may mail a notice not later than the date of action if– (a) The agency has factual information confirming the death of a recipient; (b) The agency receives a clear written statement signed by a recipient that– (1) He no longer wishes services; or (2) Gives information that requires termination or reduction of services and indicates that he understands that this must be the result of supplying that information; (c) The recipient has been admitted to an institution where he is ineligible under the plan for further services; (d) The recipient’s whereabouts are unknown and the post office returns agency mail directed to him indicating no forwarding address (See 431.231(d) of this subpart for procedure if the recipient’s whereabouts become known); (e) The agency establishes the fact that the recipient has been accepted for Medicaid services by another local jurisdiction, State, territory, or commonwealth; (f) A change in the level of medical care is prescribed by the recipient’s physician; (g) The notice involves an adverse determination made with regard to the preadmission screening requirements of section 1919(e)(7) of the Act; or (h) The date of action will occur in less than 10 days, in accordance with 483.12(a)(5)(ii), which provides exceptions to the 30 days notice requirements of 483.12(a)(5)(i). 431.214 Notice in cases of probable fraud. The agency may shorten the period of advance notice to 5 days before the date of action if– (a) The agency has facts indicating that action should be taken because of probable fraud by the recipient; and (b) The facts have been verified, if possible, through secondary sources. 431.220 When a hearing is required. (a) The State agency must grant an opportunity for a hearing to the following: (1) Any applicant who requests it because his claim for services is denied or is not acted upon with reasonable promptness. (2) Any recipient who requests it because he or she believes the agency has taken an action erroneously. (3) Any resident who requests it because he or she believes a skilled nursing facility or nursing facility has erroneously determined that he or she must be transferred or discharged. (4) Any individual who requests it because he or she believes the State has made an erroneous determination with regard to the preadmission and annual resident review requirements of section 1919(e)(7) of the Act. (5) Any MCO or PIHP enrollee who is entitled to a hearing under subpart F of part 438 of this chapter. (6) Any PAHP enrollee who has an action as stated in this subpart. (7) Any enrollee who is entitled to a hearing under subpart B of part 438 of this chapter. (b) The agency need not grant a hearing if the sole issue is a Federal or State law requiring an automatic change adversely affecting some or all recipients. 431.221 Request for hearing. (a) The agency may require that a request for a hearing be in writing. (b) The agency may not limit or interfere with the applicant’s or recipient’s freedom to make a request for a hearing. (c) The agency may assist the applicant or recipient in submitting and processing his request. (d) The agency must allow the applicant or recipient a reasonable time, not to exceed 90 days from the date that notice of action is mailed, to request a hearing. 431.222 Group hearings. The agency– (a) May respond to a series of individual requests for hearing by conducting a single group hearing; (b) May consolidate hearings only in cases in which the sole issue involved is one of Federal or State law or policy; (c) Must follow the policies of this subpart and its own policies governing hearings in all group hearings; and (d) Must permit each person to present his own case or be represented by his authorized representative. 431.223 Denial or dismissal of request for a hearing. The agency may deny or dismiss a request for a hearing if– (a) The applicant or recipient withdraws the request in writing; or (b) The applicant or recipient fails to appear at a scheduled hearing without good cause. 431.230 Maintaining services. (a) If the agency mails the 10-day or 5-day notice as required under 431.211 or 431.214 of this subpart, and the recipient requests a hearing before the date of action, the agency may not terminate or reduce services until a decision is rendered after the hearing unless– (1) It is determined at the hearing that the sole issue is one of Federal or State law or policy; and (2) The agency promptly informs the recipient in writing that services are to be terminated or reduced pending the hearing decision. (b) If the agency’s action is sustained by the hearing decision, the agency may institute recovery procedures against the applicant or recipient to recoup the cost of any services furnished the recipient, to the extent they were furnished solely by reason of this section. 431.231 Reinstatement of services. (a) The agency may reinstate services if a recipient requests a hearing not more than 10 days after the date of action. (b) The reinstated services must continue until a hearing decision unless, at the hearing, it is determined that the sole issue is one of Federal or State law or policy. (c) The agency must reinstate and continue services until a decision is rendered after a hearing if– (1) Action is taken without the advance notice required under 431.211 or 431.214 of this subpart; (2) The recipient requests a hearing within 10 days of the mailing of the notice of action; and (3) The agency determines that the action resulted from other than the application of Federal or State law or policy. (d) If a recipient’s whereabouts are unknown, as indicated by the return of unforwardable agency mail directed to him, any discontinued services must be reinstated if his whereabouts become known during the time he is eligible for services. 431.232 Adverse decision of local evidentiary hearing. If the decision of a local evidentiary hearing is adverse to the applicant or recipient, the agency must- – (a) Inform the applicant or recipient of the decision; (b) Inform the applicant or recipient that he has the right to appeal the decision to the State agency, in writing, within 15 days of the mailing of the notice of the adverse decision; (c) Inform the applicant or recipient of his right to request that his appeal be a de novo hearing; and (d) Discontinue services after the adverse decision. 431.233 State agency hearing after adverse decision of local evidentiary hearing. (a) Unless the applicant or recipient specifically requests a de novo hearing, the State agency hearing may consist of a review by the agency hearing officer of the record of the local evidentiary hearing to determine whether the decision of the local hearing officer was supported by substantial evidence in the record. (b) A person who participates in the local decision being appealed may not participate in the State agency hearing decision. 431.240 Conducting the hearing. (a) All hearings must be conducted– (1) At a reasonable time, date, and place; (2) Only after adequate written notice of the hearing; and (3) By one or more impartial officials or other individuals who have not been directly involved in the initial determination of the action in question. (b) If the hearing involves medical issues such as those concerning a diagnosis, an examining physician’s report, or a medical review team’s decision, and if the hearing officer considers it necessary to have a medical assessment other than that of the individual involved in making the original decision, such a medical assessment must be obtained at agency expense and made part of the record. 431.241 Matters to be considered at the hearing. The hearing must cover– (a) Agency action or failure to act with reasonable promptness on a claim for services, including both initial and subsequent decisions regarding eligibility; (b) Agency decisions regarding changes in the type or amount of services; (c) A decision by a skilled nursing facility or nursing facility to transfer or discharge a resident; and (d) A State determination with regard to the preadmission screening and annual resident review requirements of section 1919(e)(7) of the Act. 431.242 Procedural rights of the applicant or recipient. The applicant or recipient, or his representative, must be given an opportunity to– (a) Examine at a reasonable time before the date of the hearing and during the hearing: (1) The content of the applicant’s or recipient’s case file; and (2) All documents and records to be used by the State or local agency or the skilled nursing facility or nursing facility at the hearing; (b) Bring witnesses; (c) Establish all pertinent facts and circumstances; (d) Present an argument without undue interference; and (e) Question or refute any testimony or evidence, including opportunity to confront and cross-examine adverse witnesses. 431.243 Parties in cases involving an eligibility determination. If the hearing involves an issue of eligibility and the Medicaid agency is not responsible for eligibility determinations, the agency that is responsible for determining eligibility must participate in the hearing. 431.244 Hearing decisions. (a) Hearing recommendations or decisions must be based exclusively on evidence introduced at the hearing. (b) The record must consist only of– (1) The transcript or recording of testimony and exhibits, or an official report containing the substance of what happened at the hearing; (2) All papers and requests filed in the proceeding; and (3) The recommendation or decision of the hearing officer. (c) The applicant or recipient must have access to the record at a convenient place and time. (d) In any evidentiary hearing, the decision must be a written one that– (1) Summarizes the facts; and (2) Identifies the regulations supporting the decision. (e) In a de novo hearing, the decision must– (1) Specify the reasons for the decision; and (2) Identify the supporting evidence and regulations. (f) The agency must take final administrative action as follows: (1) Ordinarily, within 90 days from the earlier of the following: (i) The date the enrollee filed an MCO or PIHP appeal, not including the number of days the enrollee took to subsequently file for a State fair hearing; or (ii) If permitted by the State, the date the enrollee filed for direct access to a State fair hearing. (2) As expeditiously as the enrollee’s health condition requires, but no later than 3 working days after the agency receives, from the MCO or PIHP, the case file and information for any appeal of a denial of a service that, as indicated by the MCO or PIHP– (i) Meets the criteria for expedited resolution as set forth in 438.410(a) of this chapter, but 42 C.F.R. 431.244 Page 1 \u00a9 2009 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. was not resolved within the timeframe for expedited resolution; or (ii) Was resolved within the timeframe for expedited resolution, but reached a decision wholly or partially adverse to the enrollee. (3) If the State agency permits direct access to a State fair hearing, as expeditiously as the enrollee’s health condition requires, but no later than 3 working days after the agency receives, directly from an MCO or PIHP enrollee, a fair hearing request on a decision to deny a service that it determines meets the criteria for expedited resolution, as set forth in 438.410(a) of this chapter. (g) The public must have access to all agency hearing decisions, subject to the requirements of Subpart F of this part for safeguarding of information. 431.245 Notifying the applicant or recipient of a State agency decision. The agency must notify the applicant or recipient in writing of– (a) The decision; and (b) His right to request a State agency hearing or seek judicial review, to the extent that either is available to him. 431.246 Corrective action. The agency must promptly make corrective payments, retroactive to the date an incorrect action was taken, and, if appropriate, provide for admission or readmission of an individual to a facility if– (a) The hearing decision is favorable to the applicant or recipient; or (b) The agency decides in the applicant’s or recipient’s favor before the hearing. 431.250 Federal financial participation. FFP is available in expenditures for– (a) Payments for services continued pending a hearing decision; (b) Payments made– (1) To carry out hearing decisions; and (2) For services provided within the scope of the Federal Medicaid program and made under a court order. (c) Payments made to take corrective action prior to a hearing; (d) Payments made to extend the benefit of a hearing decision or court order to individuals in the same situation as those directly affected by the decision or order; (e) Retroactive payments under paragraphs (b), (c), and (d) of this section in accordance with applicable Federal policies on corrective payments; and (f) Administrative costs incurred by the agency for- – (1) Transportation for the applicant or recipient, his representative, and witnesses to and from the hearing; (2) Meeting other expenses of the applicant or recipient in connection with the hearing; (3) Carrying out the hearing procedures, including expenses of obtaining the additional medical assessment specified in 431.240 of this subpart; and (4) Hearing procedures for Medicaid and non- Medicaid individuals appealing transfers, discharges and determinations of preadmission screening and annual resident reviews under part 483, subparts C and E of this chapter. [57 FR 56505, Nov. 30, 1992; 66 FR 6403, Jan. 19, 2001; 66 FR 11546, Feb. 26, 2001; 66 FR 32777, June 18, 2001; 66 FR 43090, Aug. 17, 2001; 67 FR 40988, 41094, June 14, 2002; 67 FR 42609, June 24, 2002] SOURCE: 43 FR 45188, Sept. 29, 1978; 44 FR 17932, March 29, 1979; 51 FR 41338, Nov. 14, 1986, unless otherwise noted. AUTHORITY: Sec. 1102, Social Security Act, (42 U.S.C. 1302). ”

” CLEOTILDE MORALES et al., Plaintiffs and Ap- pellants, v. LINDA McMAHON, as Director, etc., Defendant and Respondent. No. D010392. Court of Appeal, Fourth District, Division 1, Cali- fornia. Aug. 27, 1990. SUMMARY A welfare recipient’s aid was reduced based on a determination by the state Department of Social Services that she had been overpaid in prior benefit periods. The Notice of Action sent to her in- formed her of the proposed action reducing her be- nefits, but it failed to state the reason for the pro- posed action, as required by state and federal regu- lations. Two years later she first received a notice stating the reason for the reduction in benefits. She filed for a fair hearing within 90 days of the new notice. The hearing officer concluded that the ac- tion was barred, relying on a state regulation under which the date of an adverse welfare action, for limitations purposes, was the date on which the no- tice was mailed to the claimant, or the date of dis- covery, which was defined as the date the claimant knew or should have known of the action. The hear- ing officer concluded that the recipient’s action was barred because she knew or should have known two years earlier of the action reducing her benefits and of her right to appeal, thereby triggering the 90-day period of appeal. She brought an action for declar- atory and injunctive relief, and for mandamus, chal- lenging the validity of the date-of-discovery regula- tion. The trial court granted the department’s mo- tion for summary judgment, concluding that the regulation was valid. (Superior Court of San Diego County, No. 532466, Kevin W. Midlam, Judge.) The Court of Appeal reversed and remanded with instructions that the trial court grant the recipient’s motion for summary judgment declaring the chal- lenged regulation invalid as violative of federal reg- ulatory requirements. The court held that the regu- lation was incompatible with federal regulations, since it would preclude a recipient from obtaining a federally mandated fair hearing even though he or she never received the federally mandated written notice of adverse action. (Opinion by Froehlich, J., with Kremer, P. J., and Benke, J., concurring.) HEADNOTES Classified to California Digest of Official Reports (1a, 1b) Public Aid and Welfare 2–Federally Funded Welfare Programs– State Compliance. Although a state is not required to participate in a federally funded welfare program, once a state chooses to participate, it must administer the state plan in conformity with the federal laws and regula- tions governing the program. To the extent that state regulations conflict or are incompatible with federal regulations governing such programs, the state regulations are invalid and unenforceable. [See Cal.Jur.3d, Public Aid and Welfare, 4.] (2a, 2b) Public Aid and Welfare 5–Welfare Re- cipients’ Rights– Pretermination Period–Notice of Adverse Action–Validity of State Date- of- discovery Regulation. In an action for declaratory and injunctive relief, and for mandamus, challenging a regulation pro- mulgated by the state Department of Social Ser- vices under which the date of an adverse welfare action, for limitations purposes, was either the date on which the notice was mailed to the claimant or the date of discovery, which was defined as the date the claimant knew or should have known of the ac- tion, the trial court erred in ruling the regulation valid. The regulation was incompatible with federal regulations, since it would preclude a recipient from obtaining a federally mandated fair hearing, even though he or she never received the federally 223 Cal.App.3d 184 Page 1 223 Cal.App.3d 184, 272 Cal.Rptr. 688 (Cite as: 223 Cal.App.3d 184) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=0122548&FindType=Y&SerialNum=0284165206 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=0122548&FindType=Y&SerialNum=0284165206 mandated written notice of adverse action. While the challenged regulation might well survive if tested against the minimum notice constitutionally mandated, the federal regulatory scheme had elec- ted to impose an arguably higher standard of what process was due, which standard was binding on the state. [Sufficiency of notice or hearing required prior to termination of welfare benefits, note, 47 A.L.R.3d 277. See also 7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, 544.] COUNSEL Anson B. Levitan, Carol Bracy and Colleen Fahey Fearn for Plaintiffs and Appellants. John K. Van de Kamp, Attorney General, Charlton G. Holland III, Assistant Attorney General, Anne S. Pressman and Richard J. Magasin, Deputy Attor- neys General, for Defendant and Respondent. *186 FROEHLICH, J. Appellant Cleotilde Morales brought an action for declaratory and injunctive relief, and for manda- mus, challenging a certain regulation promulgated by the Department of Social Services (D.S.S.). Such regulation limits the time for a welfare recipi- ent to request a fair hearing to challenge adverse determinations on certain benefits. Appellant sued individually, and as representative of a class con- sisting of all recipients of benefits under the Aid to Families with Dependent Children program (AFDC program) (42 U.S.C. 601 et seq.), whose request for a fair hearing was denied pursuant to D.S.S.’s manual of policy and procedures (M.P.P.) section 22-009.11 (the challenged regulation). Ap- pellant contends the challenged regulation is inval- id, because it is inconsistent with controlling feder- al regulations and state statutes providing for rights to notice and hearing, and also is inconsistent with federal and state procedural due process rights. Ap- pellant appeals from the judgment finding the chal- lenged regulation valid. Because the challenged regulation appears incom- patible with controlling federal regulations which mandate written notice of certain adverse determin- ations, we are compelled to conclude the regulation is invalid and unenforceable. 1. Statutory Context The AFDC program is a cooperative federal and state program of financial assistance to needy chil- dren and their families. (See 42 U.S.C. 601 et seq.; Shea v. Vialpando (1974) 416 U.S. 251, 253 [40 L.Ed.2d 120, 94 S.Ct. 1746].) (1a) Although a state is not required to participate in the program, once a state chooses to participate it must adminis- ter the state plan in conformity with the federal laws and regulations governing the program. ( King v. Smith (1968) 392 U.S. 309, 316-317 [20 L.Ed.2d 1118, 1125, 88 S.Ct. 2128]; Camp v. Swoap (1979) 94 Cal.App.3d 733, 743 [ 156 Cal.Rptr. 600].) There is no dispute that 45 Code of Federal Regula- tions section 205.5 governs state plans administer- ing certain benefits under the Social Security Act, including the benefits appellant claims were im- properly denied based on the challenged regulation. When the state intends to take certain types of adverse action as to certain benefits (such as re- ducing or ending payments to the recipient), federal regulations under 45 Code of Federal Regulations section 205.10(a)(4) provide that: (i) The State … shall give timely and adequate notice, except as provided for in paragraphs (a)(4)(ii), (iii), or (iv) of this section. Under this requirement: *187 (A) ‘Timely’ means that the notice is mailed at least 10 days before the date of action, that is, the date upon which the action would become effect- ive; (B) ‘Adequate’ means a written notice that includes a statement of what action the agency intends to take, the reasons for the intended agency action, the specific regulations supporting such action, explan- ation of the individual’s right to request an eviden- tiary hearing (if provided) and a State agency hear- ing, the circumstances under which assistance is continued if a hearing is requested, [and an explan- 223 Cal.App.3d 184 Page 2 223 Cal.App.3d 184, 272 Cal.Rptr. 688 (Cite as: 223 Cal.App.3d 184) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=108&FindType=Y&SerialNum=1973019465 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=108&FindType=Y&SerialNum=1973019465 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=108&FindType=Y&SerialNum=1973019465 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=108&FindType=Y&SerialNum=1973019465 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=42USCAS601&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=42USCAS601&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1974127171 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1974127171 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1974127171 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1968103566 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1968103566 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1968103566 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1968103566 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=226&DocName=94CAAPP3D733&FindType=Y&ReferencePositionType=S&ReferencePosition=743 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=226&DocName=94CAAPP3D733&FindType=Y&ReferencePositionType=S&ReferencePosition=743 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=226&DocName=94CAAPP3D733&FindType=Y&ReferencePositionType=S&ReferencePosition=743 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=227&FindType=Y&SerialNum=1979111474 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=45CFRS205.5&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=45CFRS205.5&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=45CFRS205.10&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=45CFRS205.10&FindType=L ation of repayment obligations, if any]. (Italics ad- ded.) FN1 FN1 Similar regulations governing a recip- ient’s right to notice and hearing apply to the food stamp program. (See 7 C.F.R. 273.13.) Federal regulations also mandate that aggrieved re- cipients, dissatisfied with the agency action, be provided the right to a hearing to be conducted un- der the due process standards enunciated in Gold- berg v. Kelly (1970) 397 U.S. 254 [25 L.Ed.2d 287, 90 S.Ct. 1011] (see 45 C.F.R. 205.10(a)(1)). Such regulations further provide the claimant shall be given a reasonable time, not to exceed 90 days, in which to appeal the agency action. (See 45 C.F.R. 205.5(a)(5)(iii).) Appellant challenges a state regulation, promul- gated by D.S.S. as part of its M.P.P., which ostens- ibly implements the 90-day limitation period for fil- ing appeals of adverse actions. State regulations in- clude a requirement for notifying a claimant of an adverse action FN2 which parallels the federal no- tice requirements, and mandate that a dissatisfied claimant request a hearing within 90 days after the date of the action. (M.P.P., 22-009.1.) FN2 M.P.P. section 22- 001(a)(1) provides: Adequate Notice – A written no- tice informing the claimant of the action the county intends to take, the reasons for the intended action, the specific regula- tions supporting such action, an explana- tion of the claimant’s right to request a state hearing, and if appropriate, the cir- cumstances under which aid will be contin- ued if a hearing is requested. The specific regulation which appellant contends is invalid provides: If the claimant received adequate notice of the action (see Section 22- 001(a)(1)), the date of the action shall be the date on which the no- tice was mailed to the claimant. In all other cases, the date of the action or inaction shall be con- sidered to be the date the action was discovered. The date of discovery is the date the claimant knew, or should have known, of the action. (M.P.P., 22-009.11, italics added.) FN3*188 FN3 The regulation was amended in 1987 to add that the date of the action would ac- crue from the time the claimant knew, or should have known, of the action and of the right to request a hearing including the procedures necessary to obtain a hearing on such action. (See M.P.P., 22- 009.12.) It is the highlighted portion of the regulation which appellant contests, arguing it effectively dispenses with the necessity of providing written notice. She claims such language precludes a recipient from a fair hearing without ever receiving any written no- tice if the hearing officer concludes the recipient had obtained (or was charged with) knowledge of the agency’s action reducing benefits and of the re- cipient’s right to appeal. 2. Factual and Procedural Background In appellant’s case, her aid was reduced in 1981 based on the D.S.S.’s determination she had been overpaid in prior benefit periods, because she failed to report that an absent parent was in fact living in her home during these prior periods. The Notice of Action (NOA) sent in 1981 informed her of the proposed action reducing her benefits, but failed to state the reason for the proposed action, as required by state and federal regulations. The 1981 NOA in- vited the claimant to call her eligibility worker if she had any questions, and informed her of her right to appeal within 90 days of the NOA. In 1983 Morales first received a NOA stating absent parent at home as the reason for reducing her benefits. Morales filed for a fair hearing within 90 days of the 1983 NOA. The hearing officer, re- lying on the knew or should have known lan- guage of the challenged regulation, concluded the action was barred as untimely because Morales 223 Cal.App.3d 184 Page 3 223 Cal.App.3d 184, 272 Cal.Rptr. 688 (Cite as: 223 Cal.App.3d 184) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=7CFRS273.13&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=7CFRS273.13&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1970134198 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1970134198 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1970134198 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1970134198 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=45CFRS205.10&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=45CFRS205.5&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=45CFRS205.5&FindType=L knew or should have known in 1981 of the action reducing her benefits and of her right to appeal, thereby triggering the 90-day period of appeal. The instant lawsuit was then filed to challenge the validity of the state regulation, contending it was incompatible with federal law and violative of fed- eral and state procedural due process guarantees. The trial court granted D.S.S.’s motion for summary judgment, concluding the challenged regulation did not violate federal or state regulatory or constitu- tional requirements. 3. The State Regulation Is Invalid Insofar as It Op- erates to Deny Claimants a Fair Hearing Without Providing Claimants With the Federally Mandated Written Notice of Action (2a) The narrow issue before us is whether the state regulation may validly deny a fair hearing to a re- cipient of AFDC funds, even though the written no- tice of the adverse action required by 45 Code of Federal Regulations section 205.10(a)(4)(i)(B) was never provided, merely because the recipient knew or should have known of the adverse action and his right to appeal. *189 (1b) As discussed above, state participation in the federally funded welfare programs is elective, but once the state opts to participate it must administer its programs in compliance with federal laws and regulations. ( County of Alameda v. Carleson (1971) 5 Cal.3d 730, 739 [ 97 Cal.Rptr. 385, 488 P.2d 953].) To the extent state regulations conflict or are incompatible with federal regulations gov- erning such programs, the state regulations are in- valid and unenforceable. (See, e.g., Camp v. Swoap, supra, 94 Cal.App.3d at pp. 741-746.) (2b) We conclude the state regulation is incompat- ible with the federal regulations because the former would preclude a recipient from obtaining a feder- ally mandated fair hearing even though he never re- ceived the federally mandated written notice of ad- verse action. The federal regulation governing hear- ings is unequivocal: In cases of adverse action, the state shall give timely and adequate notice, such adequate notice being defined as written notice containing certain mandatory information. The fed- eral regulation provides no exceptions for oral no- tice or constructive notice. FN4 FN4 Indeed, the fact that the same federal regulation specifies the limited circum- stances under which a less timely or com- prehensive notice will be deemed suffi- cient See 45 C.F.R. 205.10(a)(4)(ii)-(iv)) further convinces us the federal scheme brooks no exceptions for oral or construct- ive notice in lieu of the more comprehens- ive written notice. The parties have not cited, nor have we located, any authorities directly addressing the issue of whether a state may enforce a regulation which effectively eliminates the necessity of providing the federally prescribed written notice, as does the challenged regulation. However, the courts have uniformly in- validated state promulgated policies which provided some form of written notice where the specified notice failed adequately to convey the substantive information federal regulations man- dated for inclusion. (See, e.g., Schroeder v. Heg- strom (D.Ore. 1984) 590 F.Supp. 121, 125-130 [notice which failed to explain reasons for action and basis for determination held invalid for non- compliance with federal regulations, and defective notice cannot be excused by inviting claimant to in- quire orally as to reasons or basis]; Ortiz v. Eichler (D.Del. 1985) 616 F.Supp. 1046, 1061-1063 [notices which failed to fully explain reasons for action or cite supporting regulations held invalid for failure to comply with federal regulations, and ability to inquire for more detail does not cure defi- ciency in notice]; Turner v. Walsh (W.D.Mo. 1977) 435 F.Supp. 707, 713-714, affd. per curiam (8th Cir. 1978) 574 F.2d 456 [written notice failing to describe circumstances under which assistance may be continued and inadequately describing circumstances under which a hearing may be ob- 223 Cal.App.3d 184 Page 4 223 Cal.App.3d 184, 272 Cal.Rptr. 688 (Cite as: 223 Cal.App.3d 184) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. 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We perceive that since incomplete written notices are invalid for failure to convey the substantive in- formation mandated by federal law, a fortiori*190 the failure to give any written notice of that same substantive information is also inadequate. Yet the state regulation purports to permit that if the claimant gets no written notice (or defective no- tice), he is nevertheless precluded from appeal if he learned, or is charged with constructive knowledge, of the reduction in his benefits and his right to ap- peal more than 90 days before his appeal is filed, despite his nonreceipt of the substantive informa- tion federal law requires the state provide in written form. The D.S.S. argues that the regulation is valid be- cause procedural due process is a flexible concept ( Morrissey v. Brewer (1972) 408 U.S. 471, 481 [33 L.Ed.2d 484, 92 S.Ct. 2593]), and that whether a particular regulation is constitutionally sufficient requires a balancing of interests ( Mathews v. Eldridge (1976) 424 U.S. 319 [47 L.Ed.2d 18, 96 S.Ct. 893]), which D.S.S. argues should be struck in favor of upholding a regulation precluding stale appeals by recipients who received actual notice. While the challenged regulation might well survive if tested against the minimum notice constitution- ally mandated, FN5 the federal regulatory scheme has elected to impose an arguably higher standard of what process is due (id. at p. 333), which standard is binding on California. FN5 We note that in the seminal case of Goldberg v. Kelly, supra, 397 U.S. 254, the court did not find any constitutional in- firmity in a system which conveyed notice by a combination of a written letter coupled with an oral conference to explain the reasons for the action. (Id. at p. 268.)We also recognize that actual or constructive notice, in the context of a state scheme unencumbered by federal proscriptions, may well be validly substi- tuted for written notice as the trigger for statutes limiting the time for challenging actions. (See Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 938-940 [ 231 Cal.Rptr. 748, 727 P.2d 1029].) The D.S.S. argues, at bottom, that notwithstanding the federal regulation, the notice aspect of due process is satisfied because the recipient is deemed to have obtained notice through oral or other in- formal inquiries. The court in Ortiz v. Eichler, supra, 616 F.Supp. 1046, rejected a similar argu- ment, succinctly stating: Defendants’ second con- tention-that notice inadequacies are unimportant be- cause claimants can call the agency for more de- tailed information-has been repeatedly rejected by other federal courts. [Citations.] The plain language of the regulatory definition of ‘adequate’ … requires written notice. Moreover, the burden of providing adequate notice rests with the state, and it cannot shift that burden to the individual by providing in- adequate notice and inviting the claimant to call to receive complete notice. [citations.] As the Seventh Circuit Court of Appeals observed in Vargas v. Trainor [(7th Cir. 1974) 508 F.2d 485, 489], public assistance recipients are often less capable than oth- er people of taking affirmative actions to protect their interests [citation]. The result of requiring claimants to make phone calls to obtain adequate notice would be that only the aggressive would re- ceive due process, whereas the applicable *191 reg- ulations require the state to provide due process for all claimants. ( Ortiz v. Eichler, supra, 616 F.Supp. at p. 1062.) We agree that federal law mandates written notice containing specified information, and the chal- lenged regulation is invalid to the extent it bars an appeal in the absence of compliance with federal mandates. 4. Disposition The judgment is reversed and remanded with in- 223 Cal.App.3d 184 Page 5 223 Cal.App.3d 184, 272 Cal.Rptr. 688 (Cite as: 223 Cal.App.3d 184) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. 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Woods (1984) 35 Cal.3d 871, 895 [ 201 Cal.Rptr. 807, 679 P.2d 458]), declaring that respondent’s M.P.P. sec- tion 22.009.1 ( knew or should have known stand- ard ) is invalid as violative of federal regulatory re- quirements, and that the court thereafter undertake such additional or ancillary proceedings as may be consistent with the views expressed herein. Kremer, P. J., and Benke, J., concurred. *192 Cal.App.4.Dist. Morales v. McMahon 223 Cal.App.3d 184, 272 Cal.Rptr. 688 END OF DOCUMENT 223 Cal.App.3d 184 Page 6 223 Cal.App.3d 184, 272 Cal.Rptr. 688 (Cite as: 223 Cal.App.3d 184) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=233&DocName=35CALIF3D871&FindType=Y&ReferencePositionType=S&ReferencePosition=895 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=233&DocName=35CALIF3D871&FindType=Y&ReferencePositionType=S&ReferencePosition=895 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=233&DocName=35CALIF3D871&FindType=Y&ReferencePositionType=S&ReferencePosition=895 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=661&FindType=Y&SerialNum=1984119906 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=661&FindType=Y&SerialNum=1984119906 ”

” Court of Appeal, Fourth District, Division 2, Cali- fornia. Helen WESTFALL, Petitioner and Appellant, v. David SWOAP, Director of State Department of Benefit Payments, Respondent. Civ. 15357. May 7, 1976. Recipient of AFDC benefits sought mandate to compel director of Department of Benefit Payments to dismiss scheduled rehearing after decision in fa- vor of the recipient had been rendered on claim for alleged overpayment of AFDC benefits. The Super- ior Court, Riverside County, Howard E. Crandall, J., denied relief and AFDC recipient appealed. The Court of Appeal, Tamura, Acting P.J., held that term ‘final administrative action’ as used in federal regulation requiring that such final action be taken within 90 days from date of request for hearing did not include completion of rehearing authorized un- der state law; that, since benefits were to be paid after rendition of decision following initial hearing even though request for rehearing might be granted, California rehearing procedure did not run counter to the federal regulation, even though decision on rehearing might be granted more than 90 days after original request for hearing; that the 90-day period was not jurisdictional; and that remedy for failure to comply with the rule was not to terminate the ad- ministrative process altogether but rather to petition for mandate to compel director to take timely ac- tion. Affirmed. West Headnotes [1] Social Security and Public Welfare 356A 4.5 356A Social Security and Public Welfare 356AI In General 356Ak4.5 k. Federally Assisted Programs and Conformity to Federal Standards. Most Cited Cases (Formerly 356Ak6) As condition of continued receipt of federal funds, states participating in federally assisted programs under the Social Security Act must conform to fed- eral regulations. Social Security Act, 1 et seq., 42 U.S.C.A. 301 et seq. [2] Social Security and Public Welfare 356A 194.16(1) 356A Social Security and Public Welfare 356AV Family, Parental, and Child Welfare As- sistance 356AV(A) Aid to Families with Dependent Children 356Ak194.16 Agencies and Proceedings 356Ak194.16(1) k. In General. Most Cited Cases (Formerly 356Ak194.16, 356Ak194) Term final administrative action as used in feder- al AFDC regulation requiring that such action be taken within 90 days from date of request for hear- ing on question of benefits does not include com- pletion of rehearings authorized under state law. West’s Ann.Welfare & Inst.Code, 10960. [3] Social Security and Public Welfare 356A 194.16(1) 356A Social Security and Public Welfare 356AV Family, Parental, and Child Welfare As- sistance 356AV(A) Aid to Families with Dependent Children 356Ak194.16 Agencies and Proceedings 356Ak194.16(1) k. In General. Most Cited Cases (Formerly 356Ak194.16, 356Ak194) Requirement in AFDC regulation that prompt, definitive and final administrative action be taken 58 Cal.App.3d 109 Page 1 58 Cal.App.3d 109, 129 Cal.Rptr. 750 (Cite as: 58 Cal.App.3d 109, 129 Cal.Rptr. 750) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AI http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak4.5 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak4.5 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak4.5 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=42USCAS301&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=42USCAS301&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AV http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AV%28A%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak194.16 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak194.16%281%29 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak194.16%281%29 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak194.16%281%29 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000298&DocName=CAWIS10960&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AV http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AV%28A%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak194.16 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak194.16%281%29 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak194.16%281%29 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak194.16%281%29 within 90 days from date of request for hearing is not jurisdictional. [4] Statutes 361 181(1) 361 Statutes 361VI Construction and Operation 361VI(A) General Rules of Construction 361k180 Intention of Legislature 361k181 In General 361k181(1) k. In General. Most Cited Cases Statutes 361 184 361 Statutes 361VI Construction and Operation 361VI(A) General Rules of Construction 361k180 Intention of Legislature 361k184 k. Policy and Purpose of Act. Most Cited Cases Prime objective in interpreting a statute is to ascer- tain the intention of the enacting body so as to ef- fectuate the purpose of the law. [5] Administrative Law and Procedure 15A 412.1 15A Administrative Law and Procedure 15AIV Powers and Proceedings of Administrat- ive Agencies, Officers and Agents 15AIV(C) Rules and Regulations 15Ak412 Construction 15Ak412.1 k. In General. Most Cited Cases (Formerly 15Ak412) Generally, the same rules of construction applicable to statutes govern interpretation of rules and regula- tions of administrative bodies. [6] Administrative Law and Procedure 15A 413 15A Administrative Law and Procedure 15AIV Powers and Proceedings of Administrat- ive Agencies, Officers and Agents 15AIV(C) Rules and Regulations 15Ak412 Construction 15Ak413 k. Administrative Construc- tion. Most Cited Cases Statutes 361 219(1) 361 Statutes 361VI Construction and Operation 361VI(A) General Rules of Construction 361k213 Extrinsic Aids to Construction 361k219 Executive Construction 361k219(1) k. In General. Most Cited Cases Courts will respect the interpretation given a statute by the agency charged with its administration and, when the construction of an administrative regula- tion is in issue, administrative construction is ac- corded even greater deference. [7] Social Security and Public Welfare 356A 194.16(1) 356A Social Security and Public Welfare 356AV Family, Parental, and Child Welfare As- sistance 356AV(A) Aid to Families with Dependent Children 356Ak194.16 Agencies and Proceedings 356Ak194.16(1) k. In General. Most Cited Cases (Formerly 356Ak194.16, 356Ak194) Requirement that prompt, definitive and final ad- ministrative action be taken within 90 days from date of request for hearing concerning AFDC bene- fits is to assure that person who qualifies for assist- ance or for an increase in the amount of benefits re- ceives his entitlement promptly; 90-day rule is de- signed to make the administrative hearing meaning- ful to needy persons for whom delay will mean great hardship. [8] Social Security and Public Welfare 356A 194.16(2) 356A Social Security and Public Welfare 356AV Family, Parental, and Child Welfare As- 58 Cal.App.3d 109 Page 2 58 Cal.App.3d 109, 129 Cal.Rptr. 750 (Cite as: 58 Cal.App.3d 109, 129 Cal.Rptr. 750) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=361 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=361VI http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=361VI%28A%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=361k180 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=361k181 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=361k181%281%29 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=361k181%281%29 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=361k181%281%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=361 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=361VI http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=361VI%28A%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=361k180 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=361k184 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=361k184 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=15A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=15AIV http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=15AIV%28C%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=15Ak412 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=15Ak412.1 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=15Ak412.1 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=15Ak412.1 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=15A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=15AIV http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=15AIV%28C%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=15Ak412 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=15Ak413 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=15Ak413 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=361 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=361VI http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=361VI%28A%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=361k213 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=361k219 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=361k219%281%29 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=361k219%281%29 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=361k219%281%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AV http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AV%28A%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak194.16 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak194.16%281%29 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak194.16%281%29 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak194.16%281%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AV sistance 356AV(A) Aid to Families with Dependent Children 356Ak194.16 Agencies and Proceedings 356Ak194.16(2) k. Notice, Hearing and Administrative Review. Most Cited Cases (Formerly 356Ak194.17, 356Ak194) California’s statutory AFDC hearing procedure, as implemented by regulations, makes it mandatory that decision be rendered within 90 days of request for fair hearing and requires immediate implement- ation of the decision notwithstanding the fact that a local welfare agency may be granted a rehearing; granting of local welfare agency’s request for re- hearing will not postpone payment of benefits to a qualified recipient so that California rehearing pro- cedure permitting decision of rehearing to be made more than 90 days after original request for fair hearing does not conflict with federal regulation. West’s Ann.Welfare & Inst.Code, 10553(d), 10950 et seq., 10960. [9] Mandamus 250 81 250 Mandamus 250II Subjects and Purposes of Relief 250II(B) Acts and Proceedings of Public Of- ficers and Boards and Municipalities 250k81 k. Meetings and Proceedings of Boards or Other Bodies. Most Cited Cases Social Security and Public Welfare 356A 194.16(1) 356A Social Security and Public Welfare 356AV Family, Parental, and Child Welfare As- sistance 356AV(A) Aid to Families with Dependent Children 356Ak194.16 Agencies and Proceedings 356Ak194.16(1) k. In General. Most Cited Cases (Formerly 356Ak194.16, 356Ak194) Federal regulation requiring that final decision be rendered within 90 days of request for hearing con- cerning AFDC benefits mandates prompt adminis- trative action but does not foreclose late adminis- trative action; remedy for violation is a petition for writ of mandate to compel timely action and not to terminate the administrative process altogether. *112 **751 Community Legal Services of River- side County, Robert K. Miller and William D. Schuetz, Riverside, for petitioner and appellant. Evelle J. Younger, Atty. Gen., Edward M. Belasco and John H. Sanders, Deputy Attys. Gen., for re- spondent. OPINION TAMURA, Acting Presiding Justice. Petitioner appeals from a judgment denying her pe- tition for writ of mandate to compel respondent (director) to dismiss a scheduled rehearing after the director rendered a decision in favor of petitioner on a claim for alleged overpayment of Aid to Fam- ilies with Dependent Children (AFDC) benefits. The pertinent facts are as follows: Sometime before August 14, 1973, the Riverside County Department of Public Social Services (county) notified petitioner of its intention to dis- continue payment of AFDC benefits to her and to seek recovery of alleged overpayments for the peri- od March 1971 through October 1972. Pursuant to petitioner’s written request filed August 14, 1973, a hearing *113 was held on February 7, 1974. Since petitioner had theretofore resigned from the pro- gram, the only matter considered at the hearing was the claim for overpayments. The referee rendered a proposed decision in favor of petitioner and the proposed decision was adopted by the director on May 14, 1974. On May 30, 1974, the county requested a rehearing. The request was granted and a rehearing was sched- uled for August 12, 1974, but upon petitioner’s re- quest it was continued to September 17, 1974. In the interim petitioner filed the instant mandate pro- ceeding. Following a hearing on the petition and answer, the court made findings and conclusions 58 Cal.App.3d 109 Page 3 58 Cal.App.3d 109, 129 Cal.Rptr. 750 (Cite as: 58 Cal.App.3d 109, 129 Cal.Rptr. 750) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AV%28A%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak194.16 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak194.16%282%29 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak194.16%282%29 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000298&DocName=CAWIS10553&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000298&DocName=CAWIS10950&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000298&DocName=CAWIS10960&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=250 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=250II http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=250II%28B%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=250k81 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=250k81 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AV http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AV%28A%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak194.16 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak194.16%281%29 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak194.16%281%29 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=356Ak194.16%281%29 and entered judgment denying the petition. For reasons to be stated, we have concluded that the judgment should be affirmed. [1] The United States Department of Health, Educa- tion and Welfare (HEW) has promulgated regula- tions prescribing standards for hearing procedures to be observed by state welfare agencies in the ad- ministration of the various federally assisted pro- grams under the Social Security Act. (45 C.F.R. 205.10. FN1) The specific regulation upon which petitioner relies in this appeal**752 provides: ‘Prompt, definitive, and final administrative action shall be taken within 90 days from the date of the request for a hearing.'(45 C.F.R. 205.10(a)(16).) FN1. As a condition of continued receipt of federal funds, states participating in fed- erally assisted programs under the Social Security Act must, of course, conform to federal regulations. ( Rosado v. Wyman, 397 U.S. 397, 407, fn. 9, 408, 90 S.Ct. 1207, 25 L.Ed.2d 442; King v. Smith, 392 U.S. 309, 316-317, 88 S.Ct. 2128, 20 L.Ed.2d 1118.) [2][3] Petitioner does not contend that the federal regulations proscribe any rehearing after an initial fair hearing decision has been made; her sole con- tention is that no rehearing may be held after 90 days have elapsed from the date of her request for a hearing. The contention rests on two assumptions: (1) The term ‘final administrative action’ as used in the federal regulation includes the completion of any rehearing authorized under state law and (2) the 90 day period is jurisdictional. Neither assumption is correct. [4][5][6] The prime objective in interpreting a stat- ute is to ascertain the intention of the enacting body so as to effectuate the purpose of the law. ( *114Philbrook v. Glodgett, 241 U.S. 707, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525; Bravo v. Cabell, 11 Cal.3d 834, 838, 114 Cal.Rptr. 618, 523 P.2d 658; Moyer v. Workmen’s Comp. Appeals Bd., 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)Generally the same rules of construction ap- plicable to statutes govern the interpretation of rules and regulations of administrative bodies. ( Cal. Drive-In Restaurant Assn. v. Clark, 22 Cal.2d 287, 292, 140 P.2d 657; Intoximeters, Inc. v. Younger,53 Cal.App.3d 262, 270, 125 Cal.Rptr. 864. See Miller v. United States,294 U.S. 435, 438-439, 55 S.Ct. 440, 442, 79 L.Ed. 977.)It is also a familiar principle that courts respect the interpret- ation given a statute by the agency charged with its administration and when the construction of an ad- ministrative regulation is in issue, the administrat- ive construction is accorded even greater defer- ence. ( Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616; Brubaker v. Morton, 9 Cir., 500 F.2d 200, 202.) [7] With the foregoing principles in mind, we turn to the federal regulation in question. The purpose of the 90 day regulation is to assure that a person who qualifies for assistance or for an increase in the amount of benefits receives his entitlement promptly. The 90 day rule is designed to make the administrative hearing meaningful to needy persons for whom delay will mean great hardship. ( King v. Martin, 21 Cal.App.3d 791, 795, 98 Cal.Rptr. 711; Nelson v. Sugarman, D.C., 361 F.Supp. 1132, 1137.) The California Legislature has established a fair hearing procedure which includes a provision au- thorizing the director to grant a rehearing to a party dissatisfied with a fair hearing decision. (Welf. & Inst.Code, ss 10950, et seq.FN2) In addition, pursu- ant to his authority to adopt regulations governing the administration of federally assisted programs under the Social Security Act (Welf. & Inst.Code, s 10553, subd. (d)), the director has adopted and pub- lished a Manual of Policies and Procedures (MPP) *115 which includes regulations pertaining to fair hearings. The regulations require all ‘fair hearing matters’ to be disposed of by ‘fair hearing decision’ within 90 days from the request for a ‘fair hearing’ (MPP s 22-056FN3), command immediate imple- 58 Cal.App.3d 109 Page 4 58 Cal.App.3d 109, 129 Cal.Rptr. 750 (Cite as: 58 Cal.App.3d 109, 129 Cal.Rptr. 750) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=45CFRS205.10&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=45CFRS205.10&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=45CFRS205.10&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1970134209&ReferencePosition=407 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1970134209&ReferencePosition=407 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1970134209 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1970134209 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1968103566 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1968103566 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1968103566 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1975129801&ReferencePosition=1898 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1975129801&ReferencePosition=1898 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=661&FindType=Y&SerialNum=1974124657 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=661&FindType=Y&SerialNum=1974124657 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=661&FindType=Y&SerialNum=1973125229 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=661&FindType=Y&SerialNum=1973125229 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=661&FindType=Y&SerialNum=1943114475 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=661&FindType=Y&SerialNum=1943114475 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=227&FindType=Y&SerialNum=1975104723 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=227&FindType=Y&SerialNum=1975104723 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=227&FindType=Y&SerialNum=1975104723 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1935124058&ReferencePosition=442 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1935124058&ReferencePosition=442 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1965125032 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1965125032 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1974111356&ReferencePosition=202 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1974111356&ReferencePosition=202 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=227&FindType=Y&SerialNum=1971103767 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=227&FindType=Y&SerialNum=1971103767 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=345&FindType=Y&ReferencePositionType=S&SerialNum=1972107705&ReferencePosition=1137 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=345&FindType=Y&ReferencePositionType=S&SerialNum=1972107705&ReferencePosition=1137 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000298&DocName=CAWIS10950&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000298&DocName=CAWIS10950&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000298&DocName=CAWIS10553&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000298&DocName=CAWIS10553&FindType=L mentation of fair hearing decisions**753 (MPP 22-027 FN4), and provide a procedure for rehear- ings (MPP 22-065).FN5 FN2.Welfare and Institutions Code section 10960 authorizing rehearings provides: ‘Within 30 days after receiving the pro- posed decision of a referee adopted by the director or a decision issued by the director himself, the affected county or applicant or recipient may file a request with the direct- or for a rehearing. The director shall im- mediately serve a copy of the request on the other party to the hearing and such oth- er party may within five days of the ser- vice file with the director a written state- ment supporting or objecting to the re- quest. The director shall grant or deny the request no earlier than the fifth nor later than the 15th working day after the receipt of the request. If the director grants the re- quest, the rehearing shall be conducted in the same manner and subject to the same time limits as the original hearing. If action is not taken by the director within the time allowed, the request shall be deemed denied.’ FN3. MPP section 22-056 provides: ‘All fair hearing matters will be set for hearing, heard, and disposed of by fair hearing decision within 90 days from the date of the request for fair hearing or, if the claimant has been provided a preliminary hearing, 90 days from the date of the pre- liminary hearing decision on the matter, except in those cases where the claimant withdraws or abandons his request for hearing, or the matter is continued for good cause. The overall time limits shall be extended only for the period of the con- tinuance.’ FN4. MPP section 22-027 provides: ‘1. Immediately upon receipt of notice of the decision (excepting decisions rendered in appeals by an adult child liable for con- tributions-see Section 22-027.3), the county shall comply with the decision and shall notify the Office of the Chief Referee by completing a compliance form issued by the State Department of Social Welfare or shall request a rehearing. If the decision is in favor of the claimant on the issue in- volved, but aid has not been paid by the county, the notice to the State shall include a complete statement of the new issues which resulted in further denial of aid. Such statement shall be prepared in the same form and fashion as the Basis of Ac- tion letter. ‘2. The office of the Chief Referee shall re- view the compliance statement to assure that the county has correctly complied with the decision. ‘3. Within 30 days after the mailing to the county welfare department and the adult child, of the decision in cases involving an adult child liable for contributions to a par- ent, and in the event the adult child has not complied with the decision, the county welfare department shall initiate, through the appropriate county officer or agency, the legal action that is necessary in order that the adult child shall comply with the decision within a reasonable period of time.’ FN5. MPP section 22-065 provides: ‘1. A request for rehearing must be filed in writing with the Office of the Chief Refer- ee within 30 days after the affected county or the recipient receives the proposed de- cision of the referee adopted by the Direct- or or a decision issued by the Director himself and must contain a statement or reasons therefor. 58 Cal.App.3d 109 Page 5 58 Cal.App.3d 109, 129 Cal.Rptr. 750 (Cite as: 58 Cal.App.3d 109, 129 Cal.Rptr. 750) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000298&DocName=CAWIS10960&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000298&DocName=CAWIS10960&FindType=L ‘2. If the request for rehearing is to permit presentation of additional evidence, the re- quest shall: ‘.21 Describe the additional evidence; ‘.22 Show why it was not previously intro- duced; ‘.23 Explain its materiality. ‘3. The Director shall grant or deny the re- quest within 15 working days after it is filed with the Chief Referee. ‘4. If a request for a rehearing is granted, the Director may: ‘.41 Order reconsideration of the decision on the basis of the evidence in the record; ‘.42 Order the taking of additional evid- ence; ‘.43 Order an entire new hearing. ‘5. A decision issued upon a rehearing shall not be subject to further hearing. ‘6. When a request for rehearing is denied, the notice of denial shall contain a state- ment concerning the right to judicial re- view, and shall advise the client that, if the court decides the case in his favor, he will be entitled to reasonable attorney’s fees and the cost of suit.’ *116 [8] California’s statutory hearing procedure as implemented by the director’s regulations makes it mandatory that the director’s decision be rendered within 90 days of the request for the fair hearing ( King v. Martin, supra, 21 Cal.App.3d 791, 795, 98 Cal.Rptr. 711), and requires immediate implement- ation of the decision notwithstanding the fact that a local welfare agency may have been granted a re- hearing. ( Taylor v. McKay, 53 Cal.App.3d 644, 650-652, 126 Cal.Rptr. 204.)Thus, the granting of a local welfare agency’s request for a rehearing will not postpone the payment of benefits to a qualified recipient. California’s rehearing procedure thus does not conflict with the purpose of the 90 day rule. Petitioner nevertheless urges that the phrase ‘final administrative action’ as used in the federal regula- tion must be construed to include any rehearing au- thorized by state law. We are satisfied that it was not intended to be given that meaning. Applicable here is the familiar rule of statutory interpretation that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers. ( Phil- brook v. Glodgett, supra, 95 S.Ct. 1893, 1898, quot- ing from Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226.)Although an administrative rehearing is **754 literally a part of the administrative process, to interpret the phrase ‘final administrative action’ as including the completion of a state authorized re- hearing procedure would neither further the pur- pose of the regulation nor comport with the inten- tion of its promulgator. HEW has stated that it has always been the De- partment’s position that the words (‘final adminis- trative action’ utilized in 45 C.F.R. s 205.10(a)(11)FN6 ) refer to the mailing of the check or increased check, or to the notification of denial of assistance or increased assistance, as the case may be. ( Nelson v. Sugarman, supra, 361 F.Supp. 1132, 1137, quoting from HEW’s amicus brief in that case.) An administrative construction of an agency’s own regulation is ‘of controlling weight unless it is plainly erroneous or inconsistent with the regulation.'( Udall v. Tallman, supra, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616.)The California fair hearing procedure as implemented by the director’s regulations and as interpreted by our courts is in conformity with HEW’s interpreta- tion of its 90 day regulation. Under California hear- ing procedures, the director has a mandatory duty to render his decision within 90 days. If the decision is in favor of a claimant, the decision must be imple- 58 Cal.App.3d 109 Page 6 58 Cal.App.3d 109, 129 Cal.Rptr. 750 (Cite as: 58 Cal.App.3d 109, 129 Cal.Rptr. 750) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=227&FindType=Y&SerialNum=1971103767 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=227&FindType=Y&SerialNum=1971103767 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=227&FindType=Y&SerialNum=1975104758 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=227&FindType=Y&SerialNum=1975104758 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1975129801&ReferencePosition=1898 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1975129801&ReferencePosition=1898 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1892180072&ReferencePosition=512 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1892180072&ReferencePosition=512 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1892180072&ReferencePosition=512 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=45CFRS205.10&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=345&FindType=Y&ReferencePositionType=S&SerialNum=1972107705&ReferencePosition=1137 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=345&FindType=Y&ReferencePositionType=S&SerialNum=1972107705&ReferencePosition=1137 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1965125032&ReferencePosition=801 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1965125032&ReferencePosition=801 mented *117 forthwith by the payment of benefits and if the decision is adverse, the claimant is promptly notified through a copy of the decision of the denial of benefits. These steps constitute ‘final administrative action’ according to the construction given that phrase by HEW. FN6. Since renumbered section 205.10(a)(16). Furthermore, the policy sought to be furthered by the 90 day rule would be thwarted rather than pro- moted if the federal regulation were interpreted to foreclose a rehearing after the expiration of 90 days from the initial request for a hearing. Such an inter- pretation would preclude the director from granting a rehearing to a claimant who may have been erro- neously denied benefits by a fair hearing decision. The claimant’s only legal recourse after the expira- tion of the 90 days would be to seek judicial review of the director’s decision. (Welf. & Inst.Code, s 10962.)The necessity of seeking judicial relief would undoubtedly deter many applicants from pur- suing their claims. Even when such relief is sought, the time required to obtain a judicial determination would in all likelihood involve far greater delay and hardship to the claimant than the pursuit of an ad- ministrative rehearing. FN7 FN7. Petitioner’s assertion that if rehear- ings are permitted after 90 days ‘there would be nothing to stop the welfare de- partment from again and again requesting rehearings as they continue to lose’ is in- correct. The director’s regulations specific- ally provide: ‘A decision issued upon a re- hearing shall not be subject to further hear- ing.'(MPP s 22-065.5.) Finally, as a practical matter, it would be unreason- able to construe the federal regulation as contem- plating completion of a rehearing within 90 days. The regulation originally allowed only 60 days within which to take ‘final administrative action.’ However, because states were unable to complete the fair hearing process within that period, it was extended to the present 90 days. Allowing reason- able time for the fair hearing process, a request for a rehearing, notice of the rehearing, the rehearing, and the rendition of a decision thereon, it would be unreasonable to require the rehearing process to be completed within 90 days from the date of the ini- tial request for a hearing. We are satisfied that HEW did not so intend. For the foregoing reasons we conclude that the scheduled rehearing in the case at bench is not viol- ative of the federal 90 day regulation. [9] While the foregoing is dispositive of this ap- peal, we add one final comment. Petitioner is not seeking an expeditious disposition of the *118 re- hearing; she is seeking a dismissal of the proceed- ing on the assumption that the 90 day period is jur- isdictional.**755 Even if the 90 day period were applicable, it would not follow that the director lacked jurisdiction to conduct the rehear- ing. Expiration of the 90 day period does not de- prive the director of jurisdiction to take otherwise proper action. (Cf. Henderling v. Carleson, 36 Cal.App.3d 561, 566, 111 Cal.Rptr. 612.)The 90 day rule mandates prompt administrative action but does not foreclose late administrative action. The remedy for a violation of the regulation is a petition for writ of mandate to compel the director to take timely action (see King v. Martin, supra, 21 Cal.App.3d 791, 98 Cal.Rptr. 711), not to terminate the administrative process altogether. The judgment is affirmed. KAUFMAN and McDANIEL, JJ., concur. Cal.App. 1976. Westfall v. Swoap 58 Cal.App.3d 109, 129 Cal.Rptr. 750 END OF DOCUMENT 58 Cal.App.3d 109 Page 7 58 Cal.App.3d 109, 129 Cal.Rptr. 750 (Cite as: 58 Cal.App.3d 109, 129 Cal.Rptr. 750) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=45CFRS205.10&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000547&DocName=45CFRS205.10&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000298&DocName=CAWIS10962&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000298&DocName=CAWIS10962&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=227&FindType=Y&SerialNum=1974103627 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=227&FindType=Y&SerialNum=1974103627 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=227&FindType=Y&SerialNum=1971103767 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=227&FindType=Y&SerialNum=1971103767 ”

” United States District Court, N. D. California. Joyce YEE-LITT et al., Plaintiffs, v. Elliot L. RICHARDSON et al., Defendants. No. C-71-2286 OJC. Jan. 17, 1973. Class action by welfare recipients against the Sec- retary of Health, Education and Welfare and the Director of the California Department of Social Welfare to declare unconstitutional and to enjoin federal and state regulations which permit the sum- mary termination of welfare benefits prior to a hearing. The Three-Judge District Court, Oliver J. Carter, J., held that where California regulations which permit summary termination of welfare be- nefits prior to hearing whenever the chief referee determines that the recipient’s appeal only raises is- sues of policy and no issue of fact or judgment worked to erroneously deny pretermination hear- ings to welfare recipients who have raised factual issues on appeal because of inherent difficulty in using the fact-policy distinction, the regulations denied welfare recipients due process. Order in accordance with opinion. Hamlin, Circuit Judge, concurred in part and dis- sented in part and filed opinion. West Headnotes [1] Federal Civil Procedure 170A 181 170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)3 Particular Classes Represen- ted 170Ak181 k. In General. Most Cited Cases Where all members of class of welfare recipients were governed by the same state regulations and statutes and were treated in similar manner by state welfare department, the representative parties would fairly and adequately protect the interest of the class and the class was so numerous that joinder of all members was impractical, action to declare unconstitutional and to enjoin federal and state reg- ulations which permit the summary termination of welfare benefits prior to a hearing was properly maintainable as class action for purpose of securing injunctive relief. Fed.Rules Civ.Proc. rule 23(a), (b)(2), 28 U.S.C.A.; West’s Ann.Cal.Welfare & Inst.Code, 10553. [2] Constitutional Law 92 4116 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)5 Social Security, Welfare, and Other Public Payments 92k4116 k. Proceedings in General. Most Cited Cases (Formerly 92k278.7(3), 92k318(2)) Where California regulations, which permit sum- mary termination of welfare benefits prior to hear- ing whenever the chief referee determines that the recipient’s appeal only raises issues of policy and raises no issue of fact or judgment, worked to erro- neously deny pretermination hearings to welfare re- cipients who have raised factual issues on appeal because of inherent difficulty in using the fact- policy distinction, the regulations denied due pro- cess to welfare recipients. U.S.C.A.Const. Amends. 5, 14; 42 U.S.C.A. 1983; West’s Ann.Cal.Welfare & Inst.Code, 10553. [3] Social Security and Public Welfare 356A 9.1 356A Social Security and Public Welfare 356AI In General 356Ak9 Awards and Payments 353 F.Supp. 996 Page 1 353 F.Supp. 996 (Cite as: 353 F.Supp. 996) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=170A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=170AII http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=170AII%28D%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=170AII%28D%293 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=170Ak181 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=170Ak181 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=170Ak181 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1004365&DocName=USFRCPR23&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1004365&DocName=USFRCPR23&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000228&DocName=CAWIS10553&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000228&DocName=CAWIS10553&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28G%29 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92XXVII%28G%295 http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=92k4116 http:\/\/www.westlaw.com\/Digest\/Default.wl?rs=dfa1.0&vr=2.0&CMD=MCC&DocName=92k4116 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDV&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDV&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=USCOAMENDXIV&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=42USCAS1983&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000228&DocName=CAWIS10553&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000228&DocName=CAWIS10553&FindType=L http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356A http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356AI http:\/\/www.westlaw.com\/KeyNumber\/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=356Ak9 356Ak9.1 k. In General. Most Cited Cases (Formerly 356Ak9, 356Ak8) The distinction between raising issues of fact and raising issues of policy in welfare recipient’s appeal in welfare termination case may not be used by the state to make the critical determination of whether welfare aid will be paid pending a hearing. West’s Ann.Cal.Welfare & Inst.Code, 10553. [4] Constitutional Law 92 4116 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)5 Social Security, Welfare, and Other Public Payments 92k4116 k. Proceedings in General. Most Cited Cases (Formerly 92k278.7(3), 92k318(2)) Evidence established that California regulations which permit the summary termination of welfare benefits prior to hearing operated to deny minimum due process to a significant number of California welfare recipients who timely appeal from notices of termination or reduction from benefits. U.S.C.A.Const. Amends. 5, 14; 42 U.S.C.A. 1983; West’s Ann.Cal.Welfare & Inst.Code, 10553. [5] Federal Courts 170B 228 170B Federal Courts 170BIII Federal Question Jurisdiction 170BIII(C) Cases Arising Under Laws of the United States 170Bk219 Civil Rights and Elective Fran- chise, Laws Relating to 170Bk228 k. Welfare Rights. Most Cited Cases (Formerly 106k262.4(2)) Where California regulations which permit the summary termination of welfare benefits prior to a hearing operated so as to deny minimum due pro- cess to significant number of welfare recipients who timely appealed from notices of termination or reduction of benefits, further use of the regulations would immediately and irreparably harm each eli- gible recipient who was denied aid pending his timely appeal and there was strong possibility that welfare recipients would prevail at trial on the mer- its to have the regulations declared unconstitution- al, preliminary injunction would issue to enjoin the director of the California Department of Social Welfare from withholding, or continuing to with- hold, welfare assistance benefits from persons who have made or might make timely request for fair hearing. U.S.C.A.Const. Amends. 5, 14; 42 U.S.C.A. 1983; West’s Ann.Cal.Welfare & Inst.Code, 10553. [6] Federal Civil Procedure 170A 388 170A Federal Civil Procedure 170AII Parties 170AII(J) Defects, Objections and Amend- ments 170Ak387 Misjoinder 170Ak388 k. Striking Out or Dropping Parties. Most Cited Cases Where federal statute under which California en- acted regulations which permit summary termina- tion of welfare benefits prior to a hearing was not challenged in welfare recipients’ class action for de- claratory and injunctive relief with respect to the state regulations, Secretary of Health, Education and Welfare would be dismissed as party defendant. 28 U.S.C.A. 2282. *997 Armando M. Menocal III, Christopher N. May, San Francisco Neighborhood Legal Assist- ance Foundation, San Francisco, Cal., for plaintiffs. James L. Browning, Jr., U. S. Atty., Richard F. Locke, Asst. U. S. Atty., Evelle Younger, Atty. Gen. of Cal., David J. Bowie, Deputy Atty. Gen., San Francisco, Cal., for defendants. Before HAMLIN, Circuit Judge, and EAST and CARTER, District Judges. 353 F.Supp. 996 Page 2 353 F.Supp. 996 (Cite as: 353 F.Supp. 996) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. 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CARTER, District Judge. Plaintiffs filed this action to declare unconstitution- al and to enjoin federal and state regulations which permit the summary termination of welfare benefits prior to a hearing. The Federal Defendant is Elliot L. Richardson, the then Secretary of the United States Department of Health, Education and Wel- fare, responsible for the administration of the Social Security Act’s categorical assistance programs. The State Defendant is Robert B. Carleson, Director of the California State Department of Social Welfare, the agency which administers California’s categor- ical assistance programs. Jurisdiction for this Court is based on 28 U.S.C. 2281, 2284. This action is also brought under 28 U.S.C. 1343(3) and (4), 28 U.S.C. 2201 and 2202, 42 U.S.C. 1983, and the Fifth and Fourteenth Amendments to the United States Constitution. [1] Plaintiffs have brought this action on behalf of themselves and all other California recipients under the categorical assistance programs of the Social Security Act, and all persons whose assistance un- der these programs has been *998 reduced or ter- minated pending appeal since September 3, 1971, notwithstanding their timely request for a fair hear- ing. The Court finds that this class is so numerous that joinder of all members is impracticable. All members of the class are governed by the same California regulations and statutes and therefore are treated in a similar manner by the State defendants. The Court further finds on the basis of the hearings heretofore held, that the representative parties herein will fairly and adequately protect the interest of the class. Accordingly, the Court concludes that this action is properly maintainable as a class action for the purpose of securing injunctive relief.F.R.Civ.P. 23(a) and 23(b)(2). The California regulations being challenged, Title 22 Cal.Admin.Code 22022.3 issued pursuant to California’s Welfare and Institutions Code Section 10553, permit the reduction or termination of wel- fare benefits prior to a hearing. Whenever the Chief RefereeFN1 determines that the recipient’s appeal only raises issues of policy and no issue of fact or judgment in the individual’s case, aid is not paid pending the fair hearing. Plaintiffs also challenge the federal regulation, 45 C.F.R. 210.10(a)5, which allows the State to implement this fact-policy system of distinguishing among timely appeals. Plaintiffs’ contention is that whenever a timely ap- peal is made, minimum standards of due process re- quire a hearing prior to reduction or termination of benefits. The hearing must meet the minimum due process standard as explained in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). FN1. The Chief Reference to the State offi- cial who makes the final determination as to whether aid will be paid pending appeal. The plaintiffs have set forth three theories as basis for the relief they seek. The first theory is that due process requires an opportunity for a hearing in all cases prior to termination or reduction of welfare benefits. Plaintiffs next contend that requiring a welfare recipient to plead facts on appeal places an unfair burden on a class of people unable to sustain that burden thereby depriving them of their right to a hearing. And finally, plaintiffs argue that the fact- policy distinction is so vague and lacking in stand- ards that arbitrary decisions by the Chief Referee are commonplace thereby depriving recipients of a hearing in violation of their due process rights. In reply, the State contends that there is no constitu- tional right to a prior hearing in all cases and that the alleged pleading burden and alleged arbitrary decisions have been remedied by recently imple- mented state regulations. Without doubt the landmark decision in the area of welfare hearings is Goldberg v. Kelly, supra. The opinion set out the minimum due process require- ments for welfare recipients prior to termination of benefits. The Court said that due process requires a hearing prior to termination when the recipient makes a timely request to be heard. However, the present action raises a point not decided in Gold- 353 F.Supp. 996 Page 3 353 F.Supp. 996 (Cite as: 353 F.Supp. 996) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. 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The welfare recipients in Goldberg chal- lenged the State’s determination of factual issues. Accordingly, the Supreme Court made no comment on the rights of welfare recipients whose appeals raised only policy issues. Following the decision in Goldberg, the regulations involved here were im- plemented inferentially on the assumption that the Supreme Court had approved of pre-hearing termin- ations where only policy issues were raised. The defendants have cited several opinions which state in part that evidentiary hearings are needed only where factual contentions are raised. See e. g. Provost v. Betit, 326 F.Supp. 920 (D.Vt.1971); Russo v. Kirby, 453 F.2d 548 (2 Cir., 1971); Con- necticut State Dept. of Public Welfare v. H. E. W. et al., 448 F.2d 209 (2 Cir. 1971). These decisions, although not on point with the facts of this action, support defendants’ position that no prior hearing is required by due process where no facts are in dis- pute. Prior to convening this three judge Court, a tempor- ary restraining order *999 (T.R.O.) was made by Chief United States District Judge Oliver J. Carter, which prevented any pre-hearing terminations or reductions of welfare recipients who had filed timely appeals. At the first hearing before this Court, the State moved to modify the T.R.O. The State argued that by implementing new regulations- the ones now in issue-they would relieve recipients from the alleged pleading burden. Defendants also contended that the new regulations would give the Chief Referee more information with which to de- cide whether questions of fact or judgment were raised by the recipient’s appeal. Since the Supreme Court had instructed lower courts to allow agencies to solve their problems if possible, this Court agreed to allow implementation of the new regula- tions. See Richardson v. Wright, 405 U.S. 208, 92 S.Ct. 788, 31 L.Ed.2d 151 (1972). The Court acted because of the close legal question presented con- cerning the validity of the fact-policy distinction; because the regulations might lift what appeared to be a pleading burden on the welfare recipients and because the regulations might prevent erroneous decisions thereby demonstrating the viability of the fact-policy distinction. The concept underlying the new regulations is that additional contact by the county worker with the re- cipient produces more information with which the Chief Referee makes a more informed decision. These regulations have now been in effect since March 16, 1972, pursuant to this Court’s order. At the latest hearing, September 28, 1972, argument was heard concerning how the regulations had worked and the effect if any upon plaintiffs’ three claims. At the close of the hearing, plaintiffs re- newed their motion for a preliminary injunction, the State defendant renewed his motion for summary judgment, and the Federal defendant renewed his motion to dismiss. [2] Plaintiffs’ challenge to the State regulations is that they are per se unconstitutional or alternatively that they are unconstitutional in effect. After re- viewing all the briefs, including regular statistical reports on the effect of the new regulations, the Court concludes that the regulations deny welfare recipients due process according to Goldberg v. Kelly, supra.The Court finds that the regulations work to erroneously deny pre-termination hearings to welfare recipients who have raised factual issues on appeal. For the reasons given below, the Court concludes that new regulations would probably not remedy the errors because of the inherent diffi- culties in using this fact-policy distinction. Before modifying the T.R.O. the Court was satis- fied that the proposed regulations would be as ef- fective as possible. In part the Court was satisfied by the State’s assurances that there was no lack of standards in using the fact-policy system, but that there was merely a lack of information for the de- cision maker. The State also strongly claimed that the regulations would relieve the burden on a recip- ient to plead facts in his request for a hearing. Be- cause this Court was satisfied that the regulations would work as described, the T.R.O. was modified. Several months after the T.R.O. was modified the 353 F.Supp. 996 Page 4 353 F.Supp. 996 (Cite as: 353 F.Supp. 996) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=345&FindType=Y&SerialNum=1971105319 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&SerialNum=1971113992 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&SerialNum=1971112296 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&SerialNum=1971112296 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&SerialNum=1971112296 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1972127073 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1972127073 effectiveness of these regulations was challenged. On the basis of the information presented at the hearing of September 28, 1972, the Court concludes that the regulations did not work as planned. In at least two areas recipients were erroneously denied hearings prior to termination or reduction. The first type of erroneous denial can best be clas- sified as mistakes. The Court realizes that no regu- latory system can be foolproof; however, any court is constrained to try to minimize mistakes in the welfare area. As the Supreme Court said in Gold- berg at page 264 of 397 U.S., at page 1018 of 90 S.Ct., For qualified recipients, welfare provides the means to obtain essential food, clothing, housing, and medical care…. Thus the crucial factor in this context- … -is that termination of aid pending resol- ution of a controversy over eligibility may deprive an eligible recipient of the very means *1000 by which to live while he waits. (Footnote and citation omitted) Although the Court does not know the number of these admitted mistakes, there were sev- eral presented by the plaintiffs as examples.FN2 The only way the Court can be sure that similar mistakes will not recur is to pay aid pending in all cases where timely appeals are filed. FN2. Plaintiffs’ Supplemental Memor- andum, filed September 21, 1972, Exhibit B. The second area of erroneous pre-hearing termina- tions arises from what appears to be the State’s mis- use of these regulations. During the period these new regulations have been in effect, thousands of California welfare recipients had their aid reduced as the result of a newly effective welfare code sec- tion (not here in issue). See Villa v. Hall, 7 Cal.3d 926, 103 Cal.Rptr. 863, 500 P.2d 887 (1972). Al- though many of these recipients filed timely notice of appeal from the reductions, they were still re- duced or terminated from benefits prior to any hear- ing. In the examples presented to this Court, it ap- pears that many of these recipients raised what ap- peared to be factual issues yet still did not receive aid pending a hearing. [See Plaintiffs’ Supplemental Memorandum filed September 21, 1972, Exhibit B]. The State explains this apparent inconsistency with the new regulations by saying that these recip- ients only raised policy issues. The State argues that because the Chief Referee had sufficient factu- al information in each case, he was sure that the de- cision to terminate or reduce was correct. Therefore since the decision to terminate or reduce was factu- ally correct, the recipient could only be raising a policy challenge concerning the implementation of the new code section. When the Court modified the T.R.O., it did not foresee that the regulations could be used in this way. This is not to say that the State has purpose- fully misused the regulations or misled the Court. However, the Court does find that this episode vividly demonstrates the danger of making critical decisions concerning the eligibility of welfare re- cipients on the basis of the fact-policy distinction. Again quoting from Goldberg v. Kelly, 397 U.S. at page 266, 90 S.Ct. at page 1019, where the court was quoting from the lower court decision in that case, ‘[t]he stakes are simply too high for the wel- fare recipient, and the possibility of honest error or irritable misjudgment too great, to allow termina- tion of aid without giving the recipient a chance, if he so desires, to be fully informed of the case against him so that he may contest its basis and pro- duce evidence in rebuttal. ‘ [3] On the basis of the evidence to date, this Court concludes that the fact-policy distinction is not vi- able in the welfare context for making the critical determination of whether aid will be paid pending a hearing. The United States Court of Appeals for the Seventh Circuit recently reached a similar conclu- sion, Mother’s and Children’s Rights Organization et al. v. Sterrett et al., 467 F.2d 797 (7 Cir., 1972). Also see Woodson v. Houston, 27 Mich.App. 239, 183 N.W.2d 465 (1970). Conclusion [4] When the Supreme Court fashioned the minim- 353 F.Supp. 996 Page 5 353 F.Supp. 996 (Cite as: 353 F.Supp. 996) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1970134198&ReferencePosition=1018 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1970134198&ReferencePosition=1018 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1970134198&ReferencePosition=1018 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1970134198&ReferencePosition=1018 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=661&FindType=Y&SerialNum=1972125458 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=661&FindType=Y&SerialNum=1972125458 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1970134198&ReferencePosition=1019 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&ReferencePositionType=S&SerialNum=1970134198&ReferencePosition=1019 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&SerialNum=1972112219 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&SerialNum=1972112219 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=595&FindType=Y&SerialNum=1970126560 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=595&FindType=Y&SerialNum=1970126560 um due process standards for terminating welfare recipients, it was doing so in the context of a factu- al appeal. The defendants have interpreted Gold- berg to allow separate treatment for recipients whose appeals do not raise issues of fact or judg- ment. However, implementation of this policy of distinguishing factual from policy appeals has res- ulted in the improper denial of aid pending for sig- nificant numbers of welfare recipients. These im- properly terminated recipients raised factual issues on their timely appeals yet did not receive aid pending in violation of Goldberg v. Kelly.The Court concludes that the State even when using its best effort with seemingly innovative regulations, cannot operate the fact-policy system without many erroneous decisions. *1001 The Court further con- cludes that the fault does not lie with the State, but rather with the unclear and unmanageable fact- policy distinction which the regulations have cre- ated. Accordingly, the Court concludes that the state regulations in issue deny minimum due pro- cess to a significant number of California welfare recipients who timely appeal from notices of ter- mination or reduction from benefits. [5] Having found that the state regulations work a denial of due process on plaintiffs, the Court con- cludes that a preliminary injunction should issue. Further use of these regulations would immediately and irreparably harm each eligible recipient who is denied aid pending his timely appeal. The Goldberg decision militates against any further delay in en- joining the regulation, as there is a strong possibil- ity that plaintiffs will prevail at a trial on the merits. Accordingly, it is ordered that defendant Robert B. Carleson is preliminarily enjoined, pending the fur- ther order of this Court, from withholding, or con- tinuing to withhold, welfare assistance benefits pur- suant to Title 22, Cal.Admin.Code 22-022.3 from persons who have made or may make a timely re- quest for a fair hearing. It is further ordered that the State defendant’s mo- tion for summary judgment, be, and the same is, hereby denied. [6] It is further ordered that the Federal defendant’s motion to dismiss be, and the same is, hereby gran- ted without prejudice,FN3 and said defendant is hereby dismissed. FN3. The Federal defendant’s motion to dismiss is made on the basis that this Court lacks personal jurisdiction and venue. The Court concludes that this argument is in- correct for the reasons given in Macias v. Finch, 324 F.Supp. 1252 (N.D.Cal.1971). However, because the federal statute al- lowing the state regulation here in issue has not been challenged under 28 U.S.C. 2282, the Court concludes that it would be inappropriate to examine into or make an order respecting that statute. Therefore, no purpose is currently served by the retaining of the Federal defendant in this action. HAMLIN, Circuit Judge (concurring and dissent- ing): I respectfully dissent from that portion of the ma- jority order which grants broad injunctive relief against defendant Carleson. The majority objects to the challenged regulations because of errors com- mitted by welfare administrators in determining whether a fair hearing request raises issues of fact or policy. While it might be that the regulations in question do not guarantee that no mistakes will be made, they are designed to, and reasonably do, provide aid pending fair hearings where factual matters are in dispute. This seems to be all that is required by Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). Defendant’s affidavits controvert the implication that the present system produces an excessive num- ber of inequities and indicate that errors have been kept to a very small percentage.FN1 Certainly er- rors are inherent in any very large scale adminis- trative undertaking and I would expect that the de- fendant would use every effort to reduce even the small percentage now existing. FN1. From the thousands of fair hearing requests filed monthly (4,090 requests 353 F.Supp. 996 Page 6 353 F.Supp. 996 (Cite as: 353 F.Supp. 996) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=345&FindType=Y&SerialNum=1970115960 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=345&FindType=Y&SerialNum=1970115960 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=28USCAS2282&FindType=L http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=28USCAS2282&FindType=L were filed in October, 1972, alone) plaintiffs have submitted a list of 49 cases where welfare recipients have allegedly been erroneously denied aid pending a hearing. Plaintiffs’ Supplemental Memor- andum, September 21, 1972. But only five such cases involve errors in administering the fact-policy distinction. Defendant’s Supplemental Memorandum, September 28, 1972. As Judge Learned Hand has stated, … due process of law does not mean infallible process of law. Schechtman v. Foster, 172 F.2d 339, 341 (2nd Cir. 1949). The record is devoid of any evidence of lack of good faith in the administration of the regulations. As indicated above, I would not grant the sought- for injunction. D.C.Cal., 1973. Yee-Litt v. Richardson 353 F.Supp. 996 END OF DOCUMENT 353 F.Supp. 996 Page 7 353 F.Supp. 996 (Cite as: 353 F.Supp. 996) \u00a9 2008 Thomson Reuters\/West. No Claim to Orig. US Gov. Works. http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1949122322&ReferencePosition=341 http:\/\/www.westlaw.com\/Find\/Default.wl?rs=dfa1.0&vr=2.0&DB=350&FindType=Y&ReferencePositionType=S&SerialNum=1949122322&ReferencePosition=341 ”