DHR Secretary Brenda Donald, has withdrawn the planned changes to the TDAP program.  Donald, in a letter to Jeff Singer, CEO of Baltimore’s Health Care for the Homeless,  stated that the Department had informed the AELR Legislative Committee earlier this month that the Department was formally withdrawing the COMAR changes orginally announced on September 11, 2009.   The withdrawal is welcome news for roughly 3,000 TDAP recipients who were scheduled for immediate cut-off in January, 2010, when the regulations were expected to go into effect.   Another 2,000 or more would have been cut off in February, 2010, as the plan’s 24 month limitation on TDAP assistance would have progressively trimmed the program’s current TDAP caseload of 18,000, 85% of whom receive assistance because of a “long-term” disabilities.   The move suggests that DHR, which faced an $8 million FY2010 deficit in the program, has submitted the shortfall to the Governor to be included as a “deficiency appropriation” for FY2010 in the FY2011 budget.   It does not, however, remove TDAP or any other DHR program from potential cuts in an FY2011 budget that most believe will need at least $2 billion worth of trimming (almost 15% of the state budget).   Over $1 billion already has been cut in FY2010 through emergency action by the Governor, Treasurer and Comptroller (the Board of Public Works).  State spending is now at 2007 levels.   DHR and DHMH, like most state agencies, were asked to submit cost-saving proposals to the Governor, despite the fact that cuts to their full-time staff positions in  last nine years exceeded staff cuts of all other state agencies combined. 

Baltimore City Circuit Court Judge Barry Williams ordered the Maryland Department of  Human Resources to develop, within 45 days, a statewide plan to “fully comply ” with state and federal requirements to process Food Stamps, Temporary Cash Assistance, and Medical Assistance-for Families and Children within 30 days of application.   The Plan, according to the Judge, is to be effectuated to ensure “full compliance” with the law within 12 months.  “I’m mindful of efforts made by defendant to addresses this problem and I know it’s not easy, but the issue is not whether it’s easy, but what is required by law.”    [For Trial Blog, click More.]

DHR DELAY TRIAL “BLOG” by J. Peter Sabonis (psabonis@mdlab.org)

Day One:  December 7, 2009  12:51 PM

DHR delay trial began this morning.  Plaintiffs began by calling Rosemary Malone of DHR and then Vince Kilduff (DHR’s numbers person), followed by their own (Plaintiff’s) consultant economist who did summaries of CARES data.  CARES data for the last three years has been entered into evidence.  Court has recessed til 2 pm, when the Plaintiffs will call Secretary Donald, who is expected to testify 1 to 2 hours.   

Malone has admitted that hiring freeze and reduction in staff has affected DHR/DSS performance in meeting timeliness deadlines.  Kilduff was used to get in hundreds of pages of CARES reports and to explain the various figures.  Consultant has presented data summary showing how DRH performance has declined since 2007.   

All positive so far—Judge obviously has read the information provided and even asked DHR why they have no information about how long cases have been pending.  Kilduff admitted that they do have a report that indicates that info by client name, but it’s not aggregated into a regular monthly report, although it once was.  He confessed to not knowing when that was or why it was stopped. 

Other positive note is that the AG for state is pissing Judge Williams off with his style, which is suited for jury and not a bench trial.   

More to come.

Day One –December 7:  3:39 PM

Sec. Donald is still testifying on direct and will go for at least another 45 minutes.  She is being treated as an adverse witness by agreement.  She has testified that she did not know UNTIL HER DEPOSITION in this case, that DHR was under a federal Corrective Action Plan relative to Food Stamps, which was in place in March 07 when she started her job.  Said that no one in FIA told her about that and she didn’t know enough to ask.  Also just testified to reviewing a UB Schaefer Center 2002 recommendation that FIA needed 149 new positions, that an update to study showed that since then they had lost 505, and that an internal document submitted to her from local DSS directors told of significant problems with keeping pace and asked her to ask Gov for blanket freeze exemption, which she did.  It was denied.   

Also asked by the Judge as to why she didn’t respond to her own staff recommendation in 2008-9 that she get a consultant to update the UB study.  She said she had competing budget priorities.   

Was she surprised by turnover rate among IM caseworkers?  Yes.  At start of her tenure, she thought child welfare workers had higher turnover.  Why the turnover?  Said that it was explained to her that job was low paid, rote, and difficult.  Trained worker took 9 to 12 months to get up to speed.  She requested upgrade of classification, denied.

Sec. Donald completed her roughly 2.5 hour testimony by adding the following:   

1.  The Dept developed an alternative strategy to adding IM positions:  hiring TANF/TCA customers to be FIA Aides at a lower salary than current IM positions (the salary of which has been an obstacle in obtaining and maintaining IM workers).  Sec. said that these 40 aides would find the salary to be attractive given their current TCA situation.  Added they would get 6 weeks of training and would initially work in customer care center in Baltimore handling SAIL applications for benefits, but would be able eventually to move into IM slots.   

2.  Sec. admitted to having over 100 vacancies in FIA IM workforce during entire tenure, and said that she has refused to ask the Governor for new positions when she can’t even fill vacancies.  Admitted that its easier to find workers more recently, but turnover continues to plague DSS offices. 

3.  While she did not say as much, it appears that most of the Secretary’s corrective action relative to FIA’s problem with hiring freeze and application processing occurred subsequent to the filing of this lawsuit.  While she did make a request in 2/09 to have the hiring freeze lifted, it wasn’t until Oct 09 that she was presented with an assessment and a proposed plan to handle the significant problems experienced by Baltimore County DSS offices.  The plan involves massive overtime and using caseworkers in other offices (through technological links) to pick up the slack.  Vesta Kimble is the author of this assessment and head of the corrective action team, which reports weekly to the Secretary.  Five other jurisdictions will get this treatment in the next 60-90 days, according to Donald.  

5.  Donald also indicated that Fed Food Stamp sanctions for error rates and timeliness problems (anything below 90% of applications processed on time) are now possible for Maryland, but insisted that the Fed Corrective Action Plan in effect for these problems relative to FS in existence since 2007 would not normally be on her or the Gov’s radar.  An incredulous Judge Barry Williams asked, “You’re saying that the state can be under a federal correction plan for Food Stamps and you and the Governor would not know?”  “Yes, such plans are administrative in nature and only when sanctions are threatened do we become involved.” 

 Plaintiff’s counsel also was able to establish that Donald has relied on her FIA team that includes McGuire for her guidance and direction on these matters.  McGuire is due to testify in Day 2, along with Kimble, DHR employee Waugh, “expert” or not David Super, and maybe a client (stipulations have been agreed upon relative to the two plaintiffs).    Judge wants plaintiffs’ case done by 1 pm on Day 2. 

DAY 2:  December 8, 2009

11:15 am

Day 2 of the trial never commenced, as lawyers from both parties conferred outside the courtroom (with Sec. Donald present) around 9:45 am, and then announced they were entering into “settlement negotiations” for the rest of the day.  Plan is for trial to continue tomorrow if negotiations fail.

4:00 pm

Telephone call from Antonia at HPRP—negotiations failed—Judge wants everyone back in court now and will go til 7 p.m. tonight.

4:45 pm

Trial resumed with Vesta Kimble testifying, followed by Kevin McGuire.  Kimble was head of team that went into Balt Co to alleviate their backlog.  McGuire then followed up by testifying about federal correction plans submitted to Food Nutrition Service over the past few years.

 Highlights of McGuire testimony—

 After being led through corrective plans and Maryland responses for 2006, 2007, 2008, and 2009…

 Judge:  WHEN DID YOU INFORM SECRETARY OF CORRECTIVE PLANS?   late spring or early summer this year.   

YOU INFORMED THAT FED GOVT WAS CONCERED ABOUT MD IN LATE SPRING EARLY SUMMER?  Yes.   

WHAT DATE?  Don’t remember.  

AT A MEETING WITH SEC?  don’t remember.  

HOW OFTEN DO YOU TELL SECRETARIES ABOUT THESE THINGS (McG has been in since 03)?  I never recall doing it before. 

YOU MEAN TO TELL ME THIS IS THE FIRST TIME YOU INFORMED A SECRETARY OF FED CORRECTIVE ACTION YOU DON’T REMEMBER WHEN YOU DID IT?  No I don’t.   

McG also submitted affidavit to Court in this case that included a host of actions to address timeliness that apparently were not submitted to Feds.  

Also admitted that Feds opinion was that DHR plan to alleviate problems with timeliness processing in BaltCo was not a long term solution.  This was said to state in May 09 by feds.

McG wrote letter to Donald three weeks ago indicating a watch list of counties—five in tier one that needed immediate attention—8 more in tier 2 that were next.

 Other highlights—

Vesta Kimble obtained FS projected caseload from Schaefer Center at UB for next year—which was an expected 20% increase.  Why?  Because they provide this to DHR via contract. 

She put the information into her assessment of Balt Co delivered to Sec in Oct 09, but yesterday Sec. Donald stated that this projection was just Vesta’s guess or something other than official.  Vesta than said she put the info on a flash drive but didn’t share it with anyone.  NOT YOUR SUPERVISOR (McGuire)?  Asked the Judge—No.  WHY NOT?  She went off talking about FNS estimates and circled into something else I couldn’t follow.

 Appearance today in 90 minutes is that there is disarray in DHR and lack of communication and coordination.  All actions relative to timeliness appear to be in response to this suit, despite

Fed Concerns about it for years.

 Conflict at the end of the day about expert testimony.  Judge says NO expert testimony is coming in because DHR witnesses have acknowledged that non receipt of FS and MA where eligible is harm.  

 Tomorrow—Plaintiff may be called if proffer cannot be worked out.  State says they will present 5 or 10 minute worth of testimony.  Tomorrow 9 30 am.  Judge expects to rule the day after, he says.  

Day 3 December 9, 2009—1:30 pm

Lead plaintiff Myracle Thompson was present, as was Sec. Donald as the parties finished presenting testimony.  Plaintiffs entered a stipulation of facts relative to Myracle (and Augustus El, the other plaintiff), then entered 18 more exhibits.  Plaintiffs rested their case, and AG Brad Neitzel called DHR Secretary Donald back to the stand.  Donald was used to introduce the document setting forth the Baltimore County “action plan.”  This plan is to be used in the four other “tier 1” jurisdictions that need “immediate attention” (McGuire’s words from yesterday). 

Those four are:  Howard, PG, Montgomery and Wicomico Counties.  Donald once again stated that DHR would conduct assessments of each county within 60 days and appropriate action plans would be developed for each, similar to the two step process used in BaltCo.  “In fact, today Ms. Kimble is in Howard County beginning a physical walk-thru and discussions with staff,”  said Donald.  Donald added that TCA/TANF “work experience (WEX) interns” also would be used in this and action plan process though this was not clearly defined.  Donald did say on cross that the WEX customers would not be used to process cases.  WEX is a TANF work activity—on par with community service, but done at a workplace. 

The case closed with the best act yet,cross of Donald.  Atty Jennifer Salendee (phonetic spelling) from the law firm assisting with the case, got Donald to admit that the assessments of the offices are “critical” to developing actions plans, and asked why these hadn’t been done before the Gov’s office began receiving complaints about BaltCo delays.  One reason, she said, was that we already were operating under corrective plans from Feds and had local DSS corrective plans, and secondly, “our primary focus at the time was staffing.  If we made sure the vacancies were filled, we believed it would address the timeliness issues.  Obviously, that was not enough, so I commissioned” the Kimble assessment.    Jennifer pressed Donald on the different business operations of each office, something that was at the heart of the 2002 UB study of DHR (which examined work functions themselves rather than looked at caseloads because many local offices have different structures and systems).  “How could you simply focus on staffing if you had no assessments of the business structure of the office” in question?  “Our focus was on existing positions,” repeated Donald. 

“In coming up with a Baltimore Co. plan, did you consider the previous corrective action plans from the last few years?  Yes, I asked the staff to look at what we’ve been doing, what the fed recommendations were, and what other states were doing, all to come up with recommendations to improve performance.” 

One of these recommendations is to “redeploy staff based on caseload distribution across the offices.  This has shown up repeatedly over the years in corrective action plans, hasn’t it?” I don’t know, some plans may have mentioned it.

“And you are going to have a ‘job fair’ to replenish the eligibility list for FIA positions—is this only for Baltimore county?  Yes.

What is the long term plan to address the problem?  We have an ongoing strategy to take care of vacancies, it would require an upgrading of these positions to reduce attrition rate.  

That was rejected?  Yes..  The long term plan is to aggressively fill the positions as they become vacant and supplement with FIA aides.  [TCA customers]

Back to Vesta Kimble assessment and recommendations—she said five offices are using WEX customers to assist with front desk work, but the turnover rate is high because most WEX are able to secure employment within 2 weeks—any reason to expect this turnover problem will be different in Balt Co with the WEX?  No

Fair to say, you have a long term plan that you can assure us will solve the problem?  I believe we have a long term plan that is comprehensive and systematic—that begins with a short-term plan…that is to address the backlog, streamline, do technological enhancements, new business processes, and employing best practices.  That’s the long term plan. … ‘Baltimore REBUILD is our track record [initiative done in Baltmore City a few yrs ago] and we’ve learned from that experience.”

Do you any analysis indicating this will work?  We will monitor on a monthly basis to see how we are doing—there’s not one strategy, it’s not the nature of the business.

What basis do you have to believe this will work?  The basis is results.  If we make improvements and we check to see what’s happening, we will make mid-course adjustments.

So you’re going to analyze it as you go along, you’re saying?  So you have no analysis?  We’re seeing what other states have done, FNS has provided technical suggestions, and we have employed similar things in Baltimore City with similar methodologies with improvement.

Do you have any goals?  No numerical goals.

Can you achieve 5% improvement in 12 months?  12 months would be a bit ambitious.

How much time do you need to get to 5% improvement?  We would need 18 months.

JUDGE WILLIAMS:  WHY THAT LONG?  Donald: Because the technological document imaging, which is a large part of this takes the longest because of the length of the procurement process.

JUDGE:  IS THAT WHAT WAS DONE IN BALTIMORE CITY?  No.

JUDGE:  YOU SAID YOUR ANALYSIS AND CONFIDENCE WAS BASED ON WHAT WAS DONE IN BALTIMORE CITY.  Well, the caseloads in the City are lower—that is the staffing in Baltimore City is higher.  The Baltimore County turnover is higher and the caseloads are higher. 

No further questions. 

Closing Arguments began at 4 pm.  Courtroom 540. East. 

4:15 pm CLOSING ARGUMENTS

Marc Cohan, Director of Litigation from the National Center for Economic Justice, lead counsel for the Plaintiffs, delivered their closing argument.  He seized on two cases, Hess v. Hughes, 500 F. Supp. 1054  [a 1980 Legal Aid (?) case—Lyko, Fournelle, & Dennis Carroll, Esqs] that involved Food Stamps delays in Maryland, and Robertson v. Jackson, 972 F. 2d 529, a 4^th Circuit case that involved the same in Virginia.  In each case, the courts indicated, Cohan claimed, that the standard for the agency is “full compliance” with the laws relative to timeliness.  He distinguished federal FS standards (below 90% warrants corrective action, above 95% warrants “bonus” money) from “full compliance” with the law by noting that the fed standards are about its relationship with the state—a relationship that is about money.  Given that the feds remedies involve the draconian measure of pulling the money from the state,  which hurts customers, he suggested that these standards were practical ones designed to keep the money flowing.  However, the law did not excuse them from “fully complying” with it.  The consent decree in Hess involved 100% compliance with a 3% margin.  While Cohan didn’t note that or specify any % amount except “full compliance,” he did note that in Hess the state was able to provide and the court to examine just the duration of the delays.  Here, the CARES monthly figures did not track this.

 “We know only the volume of the delays, not the length….When Vesta Kimble goes to the Baltimore County offices, she discovers cases backlogged from before April 2009.  Her visit occurred not in May 2009, but just weeks ago!  We don’t what backlog exists in other counties…exactly 30 yrs ago (in Hess) this was the type of data they reported…their numbers conceal the true magnitude of the harm…

The Corrective action put forth by the state doesn’t preclude the court from acting for three reasons:  1) simply putting forth a plan does not preclude the court from ordering relief; 2) past performance indicates the plan cannot be trusted; 3) even if the plan is successful, the Secretary this afternoon indicated  that it would take at least 18 months for them to improve performance by another 5%…even that would be far below the standard for compliance.  … there’s a long history of action taken that has been ineffective…this court heard Kevin McGuire admit  that corrective action plans have been submitted to Fed at least since 2005!  In several of those plans, the kinds of changes are simply repeated again and again… we understand that McGuire didn’t think this was sufficiently momentous to alert the Secretary to those plans, but at some point she has an obligation to inquire… We are concerned that yr after yr promises are made but not fulfilled….There’s the same willingness to come here before this court and make promise like Mr McG submitted to you in an affidavit including the number of proposals he believes will solve the problem.  McGuire told the court in June 2009 that eligibility simplification is one initiative that can speed up application processing…this seems like a good thing…in his July 2009 letter to the USDA, he drops simplification—it drops out completely…we can only assume they determined they couldn’t do it or they didn’t want to do it…in June 2009, USDA says to the state that they have  ‘serious concerns’ about its corrective plans, such as “simply shifting staff around” to achieve long term solution, yet shifting staff around is one of the solutions the Secretary identified in her testimony…

We’ve also heard a number of proposals that strain credibility—using public assistance recipients who are required to work to assist in processing, but in same Baltimore County report, Ms. Kimble indicates that their tenure is about 2 weeks—they can only work a certain number of hours because their grant needs to be divided by the minimum wage.

Three weeks ago, they come forth with another plan—at one point there has to be one comprehensive plan—not we’ll try this, then we’ll try this…there’s a past pattern of trying to solve problems by putting onus on counties to clean up the act and corrective action plans focus on county action… at some level, however, there has to be top down mandates and top down leadership No indication that there has been a ‘kicking of tires’ to see if these make sense… the Secretary didn’t kick tires on federal correction plans in the past because she wasn’t aware of them, she didn’t kick them on this plan either because today she couldn’t identify why they would work… she cited document  imaging, but Baltimore didn’t have document imaging in its successful past initiative … The Sec testifies that she really can’t know sufficient staffing level unless she gets a similar study to the UB study done in 2002, but she can’t tell us when they will do that study… So past performance indicates  that there is not a plan that ought to be trusted…”

We ask for these components:  1)  permanent injunction mandating compliance with the law; 2) the defendant has to provide either a) corrective action plan within 30 days demonstrating how the defendant expects to achieve compliance at a full compliance rate—excepting a handful of cases—at 5% rates at intervals of 6 months…so in 6 months, they will improve performance by 5%, in the following six months, another 5% improvement, etc. until  they are in compliance or b) they must submit a plan to show  how they can be in compliance in 12 months, without intervals.  We also would be afforded a reasonable opportunity to comment on the plans, to monitor the plans, and return to the statistical feature that measures length of delay.

*******

Brad Neitzel, Maryland Assistant Attorney General, focused on the fact that no class has been certified and that the Plaintiffs failed to make a definite causal connection between the policy, practice or custom of the state and the violation of the plaintiffs’ rights.  Judge Williams challenged.  “They haven’t shown a policy, but a practice!”  But, your honor, delays can be for various reasons, like client delay.  Judge:  “BUT THEPROBLEM IS THAT YOU HAVE ALL THE DATA.  YOU HAVE ALL THE CARDS.  CAN WE FIND OUT HOW MANY DAYS THE DELAY IS?  NO.  DOES THIS INFORMATION EXIST ANYWHERE?  “As to these plaintiffs, it exists in the CARES data.”  AND AS FAR THE PLAINTIFFS GO, YOUR RESPONSE WASN’T WITHIN THE TIME LIMITS, RIGHT?  “Yes, but not with respect to all their benefits.”  GO ON WITH YOUR ARGUMENT!  Neitzel also challenged whether they were in fact harmed, noting that the Plaintiffs indicated they did not receive FS or MA, but did not allege how this harmed them.  “You may not have Medical Assistance, but if you are not in need of medical care, how are you harmed?”  As to their contention that 100% compliance is necessary, FNS uses 90% and the states receive a bonus if they hit 95%.  The state is willing to accept an order requiring 90% compliance in all programs and do it within 18 months, and to undertake all the initiatives it has planned.

********

Cohan rebutted, but refused to give in to the Judge’s request that he provide a % standard for compliance, insisting repeatedly that nothing less than “full compliance” was a slippery slope that would allow the State to argue that they “substantially complied” with whatever standard that was set.  If we say 95%, then 5% are not processed timely.  If we say 90%, they come in at 87% and say they have substantially complied.  Judge Williams challenged Cohan on this, “We keep dancing around this—you haven’t told me what full compliance is and I don’t think you can.”  “If you read Hess and Jackson, your honor,” “I HAVE!”  Cohan—the best way to describe it is that in the process of evaluating…a reasonable jurist would say the defendant has “fully complied” with the law.  I know this is a term of legal art, but that’s the term that is used in these cases.”

JUDGE ASKED BOTH PARTIES TO SUBMIT IN WRITING WHAT THEY WANT HIM TO DO BY 6:30 pm (via email), and WERE TO RETURN TO COURT TOMORROW AT 9:30 AM TO HEAR HIS “WRITTEN RULING.” 

DAY 4:  December 10, 2009 Judge’s Ruling:

10:12 am—Judge Barry Williams from the bench:

After summarizing evidence and harm…

“I’m mindful of efforts made by defendant to addresses this problem and I know it’s not easy…issue is not whether it’s easy, but what is required by law

Sec. Donald has engaged in a pattern and practice of violating federal and state law relative to timely processing of FS, MA-FAC, and TCA

This has caused harm as it applies to plaintiffs

I will permanently enjoin them from failing to comply fully with these time limits

They are to submit at statewide corrective action plan within 45 days that will demonstrate how they will be in full compliance within 12 months of the Order.   

The plaintiffs will be given 15 days to comment on this corrective action plan.

On Jan 1 monthly reports in form of CARES data shall be given to plaintiff

And these shall be modified to reflect the average length of delay for cases delayed due to agency delay.  

I will supply a Written order –  Thank you.”

[Judge did indicate to counsel after ruling that he has not decided exactly what % “full compliance” is.  That will come, he says.]

Propose Constitutional Amendment That Protects Human Rights 

Over 50 people, most of whom receive or had received TDAP, attended a “town hall” style Human Rights Budget Hearing on December 3rd, and warned of the human cost of budget cutting.   “I just want to know what am I supposed to do?”  asked a tearful Heather Smith, who will lose the means to pay rent in housing she just recently secured.  “Tell me, I just want to know.   What am I supposed to do?”  Smith was one of 14 persons who testified at the hearing, hosted by SaveTDAP advocates at the Enoch Pratt Library in Baltimore.  Branden MacLeod of the Maryland Budget and Tax Policy Institute began the hearing by presenting Maryland’s current fiscal and budget challenge.   An estimated $2 billion (roughly 15% of the budget) might be slashed from the upcoming FY 2011 budget, simply to make ends meet.  Already over $1 billion has been cut from the current FY2010 budget through emergency actions by the Governor and the Board of Public Works.   MacLeod indicated that a mix of temporary funds infusion from the state’s rainy day fund combined with revenue enhancements was necessary to meet the human needs and rights of Marylanders.   The Governor has indicated privately that he fears any tax increases will cost him his re-election.   The town hall gathering adopted a proposed constitutional amendment that requires the Governor to establish a thorough and efficient system to meet the human rights of health care, housing, food, social services and income security for all Marylanders in the event of unemployment, sickness, disability, old age or other lack of livelihood in circumstances beyond their control.  The proposed amendment was later delivered to the Attorney General’s office at St. Paul Place by a group who attended the hearing.

December 3, 2009–Enoch Pratt Library–Noon to 3 pm

On Thursday, December 3, from 1:00PM to 3:00PM at the Enoch Pratt Central Library in Baltimore (400 Cathedral Street), a “Maryland Human Rights Budget Hearing” will be held to examine the impact of Maryland’s fiscal woes on the social safety net.  The event, hosted by SaveTDAP advocates,  will include a briefing on Maryland’s fiscal situation from the Maryland Budget and Tax Policy Institute, testimony from individuals directly affected by state budget cuts and from those who are concerned about the current status of safety net programs.  The public hearing will be followed by a march to the Governor’s Baltimore office at 6 St. Paul St. , where a proposed constitutional amendment requiring a “Human Rights Budget” will be presented to the Governor or his staff.    All Are Invited!

Warning of increased homelessness, hospital visits, incarceration, and even death, current and former TDAP recipients asked the General Assembly’s AELR Committee to reject the TDAP changes proposed by the Department of Human Resources (DHR), and force the Governor to explore other cost savings.   While Committee members and DHR Secretary Donald expressed concern and sympathy, they appeared resigned to the change. 

Taking the stage in legislature’s largest hearing venue, the joint committee hearing room with stadium seating, TDAP recipients, past and present,  recounted their own work or military service histories, personal struggles, and the role TDAP has in providing hope and transformation.  “A few years ago, I was homeless and got the $185 a month,” Willie McClain told the legislators, “I developed a substance abuse problem and then finally took the money and the Food Stamps I was getting and enrolled in a program at the Helping Up MIssion for a whole year. ”  McClain now works as a counselor at Vincent DePaul and Beans in Bread in Baltimore and warned the committee that if TDAP is limited, the recipients will “go to Health Care for the Homeless , they will come to me, they will go to the ERs, but they will be hurting.”

Current TDAP recipient Paula Palmer said, “I’ve worked all my life, but recently came into some injuries.”  Choking back tears, she recounted how she used the money first to pay her brother to simply sleep on his couch, and then pooled the money with her fiance’s SSI benefit to secure housing.  “We were blessed to find an apartment that cost less than the room we were renting.  I pay the gas and electric.  I give them the whole $185.  It’s  hard, but I need this money to be as independent as I can.” 

The recipients testified after DHR Secretary Brenda Donald explained to the Committee that the program was originally budgeted for 11,000 recipients, but now had almost 19,000.  “We are not funded to continue to pay the benefits,” said Donald, who is proposing to limit payment duration to 24 months for persons with long-term disabilities and six months for those with more temporary impairments.   Donald indicated that 12% of the current recipients have received more than 24 months of benefits, admitting that the change would immediately cut off roughly 2,000 persons from any assistance when it is implemented in January. 

“My stomach churns when I think of my clients coming to me,” said Carolyn Johnson, an attorney with the Homeless Persons Representation Project, “They have no idea this is going on.  This will be a complete surprise!”  Johnson told the Committee, charged with examining the legality of the regulations, that the program changes were not  supported by law and were “bad” public policy.

Donald hinted that a cut in benefits would follow the benefit duration limitation.  “If these changes go into effect in January, we would experience a $5.7 million reduction in our expected deficiency.  A 10% reduction in benefit amounts would reduce it by another million.”  In response to Del. Dan Morhaim, a physician who also volunteers at HCH in Baltimore, who asked what would happen to those whose benefits were terminated, Donald said, “They will be one step away from disaster.  We will pay for it as a society…it may be hard to quantify and it may be in somebody else’s budget, but we will pay for it.”  Donald also expressed concerns for the future.  “I am really very very nervous about what’s going to happen in the next two years.  We saw the recession coming before it was announced because of our caseload increases.  And we know our folks benefit the least even when there is a recovery.”

When questioned by Sen. Mandaleno about the incongruity between a depressed economy and a caseload increase in a program for people who are too disabled to work,  FIA Director Kevin McGuire replied, “Individuals with some disabilities work in spite of their disability.  When the economy goes down, more people are forced to deal with their disability and find their way to  us.”   

Despite the adversarial context of the hearing, those opposing DHR refused to attack it.  “We know the Secretary is just trying to meet her budget ‘mark,’ said Barbara DiPietro of HCH, “we want the Governor to step in and take care of the problem.”  DiPietro later held aloft a large foam board bar graph showing the disproportionate cuts in state human service personnel over the last nine years.  “DHR shouldn’t take any more cuts,” she added. 

Provided with copies of a recent City Paper whose cover story chronicles lengthy delays and large crowds in Baltimore County Department of Social Service offices, power point summaries of TDAP, and expert testimony from Legal Aid attorney, Bill Leahy about the complexity and length of the Social Security disability process, the legislators were attentive and interested.   In addition to Morhaim and Mandaleno, AELR members present included Sen. Pinsky, Del. Healey,  Sen. Kittleman, Del. Stull, Del. Haynes, Del. Bromwell, and (briefly) Del. Bronrott. 

Patricia Welch, a TDAP recipient from Hyattsville, the legislative district of both AELR chairs, told them “TDAP goes to my rent, transportation, clothing, and personal hygiene–women have more personal hygiene items than men.  If you cut it, I will end up on the street.  It’s like he (lawyer Leahy) said, I’m waiting and waiting for my hearing.” 

James Crawford, a former TDAP recipient, explained how TDAP was a bridge  for him to the eventual receipt of  Veterans Benefits.   He noted the disproportionate presence of Vets among the homeless.  “Vets make up 10% of the population, but 20% of the homeless.  And in Anne Arundel County, vets make up 40% of the homeless population.  So if we cut TDAP, we are going to put more Vets on the streets.”

Thomas Queen indicated that without TDAP he might have turned to a “life of crime,” while Mark Shieldman, a diabetic, revealed that TDAP is necessary to keep his condition under control because the “starchy” food at soup kitchens increases his blood sugar.  “The $46 a week TDAP provides me keeps me healthy.  This is not about comfort, but about survival.” 

Jose Rodriquez complained of the welfare bureaucracy that asked him repeatedly to prove his citizenship and delayed paying TDAP to him for five months.  “It wasn’t until I went to Legal Aid and Sandy Brushart made them give me help.”  

Gus Kitcherseid,  lead plaintiff in the 2004 class action challenge to Gov. Ehrlich’s TEMHA’s suspension (TDAP’s predecessor), likened the current situation to then.  “That year we could have used a $5 million emergency appropriation to keep TEMHA running instead of using it to bury us.  It would have been more cost-effective.”   Kitchersaid, who now receives SSI,  also corrected the impression that TDAP recipients weren’t contributing to society, “We pay taxes.  Each disabled person, out of that $185, pays taxes when they buy clothes and non-food items. ”

Adam Schneider of HCH  eloquently summarized the testimony.  “Nobody, nobody wants to be on TDAP.  They would rather be working or on federal disability.”  Schneider noted the complexity of the SSA disability process,  but spoke of the success the SOARS initiative, which trains social workers and advocates to assemble federal disability medical files that expedite decision-making.  “In Baltimore, this is showing results–people are getting approved in three weeks!” 

After hearing  from DHR and the 19 persons who testified against the proposal, AELR Chair Sen. Paul Pinsky was  sympathetic but somber.  “We all realize how difficult it was  for you to come down here and speak before the panel.  We appreciate the quality of the words, and more importantly, how you presented your lives, because that’s what you did, you presented your lives.  We are in a somewhat difficult situation.  We are not the tax committee looking at the DHR budget.  Many people on this committee have been trying to raise revenues over the years to expand the safety net.  And on top of it, the recession continues.  When we come back in a few months, we may have to cut $2 billion in funds.   We can hold (the regulatory change), we can review it, we can try to slow it down, but the Governor can do it anyway, and he has to have a balanced budget.” 

Co-Chair Del. Healey echoed Pinsky, “Most of us didn’t get into public service because we want to cut things–we want to provide the services.  It’s a difficult time for everyone and for you more than most.  The Secretary stayed here the whole time and listened to all of you.  We hear you.  The recession is continuing, we will move on and do the best we can.”

A review of DHR’s own monthly statistics on TDAP (found at http://www.dhr.state.md.us/fia/statistics.php) show that imparied persons unable to work in Montgomery, Anne Arundel or Washington Counties will have a more difficult time getting assistance than elsewhere in the state.  While the statewide average approval rate for TDAP applications is 48%, Montgomery  approves only 21% of its applicants, while Anne Arundel and Washington Counties average approvals at a 26% rate.    The counties most likely to grant TDAP are Garrett (approval rate of 71%), Calvert (66%) and Caroline (64%).  Baltmore City approves 58% of its applicants on average.  TDAP Numbers & Trends FY 09-10

on Tuesday, November 10, 2009 at 4:00pm in the Joint Hearing Room in the Legislative Services
Building in Annapolis. 

The committee will consider the following regulations:
* Proposed Regulation
Department of Health and Mental Hygiene:
Board of Pharmacy: Fees:
COMAR 10.34.09.02
* Proposed Regulations
Department of Human Resources:
Family Investment Administration:
Temporary Disability Assistance Program:
COMAR 07.03.05.04, .05, .10, .16, and .17

In reviewing a proposed regulation, this Committee is required to consider whether the regulation is “in conformity with the statutory authority” of the Department, and “reasonably complies” with the
legislative intent of the statute. TDAP’s statutory authority is not specific–that is, its authority appears to come from the general grant of legislative power to the Secretary of DHR. This means that
any testimony to the Committee suggesting that these TDAP
changes are NOT CONSISTENT with the mission of DHR should be acceptable and considered.

After meeting with advocates on October 22nd, DHR Secretary Brenda Donald has scheduled a public hearing to allow further comments and testimony on the propsal to limit TDAP assistance.   Those who cannot attend the hearing but would like to submit comments can provide them in the comment section below and they will be submitted at the hearing.  

The Public Notice is as follows:

Date and Time:  December 3, 2009, 5:00 p.m. – 7:30 p.m.

Place:  Maryland Department of Human Resources, 311 West Saratoga Street, Baltimore, MD 21201         First Floor

Additional Information:

The Department of Human Resources/Family Investment Administration is proposing regulatory changes to the Temporary Disability Assistance Program (TDAP).  Regulatory changes were submitted to the Administrative Executive Legislative Review Committee and were published in the Maryland Register on September 11, 2009 for public comment.  The public is invited to provide comments on the regulatory changes at the public hearing.  All persons who wish to make public comments must submit written testimony at least 48 hours in advance of the hearing to Tammy Bresnahan (410) 767-7193or by email to regulations@dhr.state.md.us.

Contact: Tammy Bresnahan (410) 767-7193

Maryland Department of Human Resource Secretary Brenda Donald has proposed limits to the state’s Temporary Disability Assistance Program (TDAP) effective 10/26/09 that will place at least approximately 18,000 disabled Marylanders at risk of homelessness.  TDAP provides $185 per month to destitute Marylanders who cannot work, and who are awaiting federal disability assistance from the backlogged Social Security Administration.  While federal initiatives have reduced the waiting time for disability claimants at SSA, the average processing times for such claims are two years.  Despite reports from SSA indicating the recession is prompting additional SSA disability claims, DHR will limit state assistance to a period of 24 months.

DHR faces an $11 million deficit in its FY 2010 budget and indicates its TDAP proposal, issued September 11, 2009, will save $3.5 million annually.  TDAP recipients have increased by 70% over the last 18 months, according to DHR statistics.

TDAP Power Pt

In August, 2009, Health Care for the Homeless surveyed 777 current and past TDAP beneficiaries and found that 64% use the modicum of assistance for housing.  According to the report, many TDAP recipients report “staying in a shelter that charged a nightly fee, in a program that charged some or all of their monthly TDAP benefits, or with family or friends who charged all of some portion of their monthly benefit.”  An additional 48% used TDAP funds for food, suggesting that monthly assistance levels under the Statewide Nutritional Assistance Program (formerly Food Stamps) are insufficient.  

Formal written opposition to the plan was submitted to DHR by Maryland Legal Aid, the Homeless Persons Representation Project (www.hprplaw.org), Health Care for the Homeless, and Maryland’s Alliance for the Poor (a statewide network of advocacy organizations, service providers, and faith communities that advocates on behalf of person in poverty) (http://marylandallianceforthepoor.blogspot.com/).  

“DHR published the proposed regulations on September 11^, 2009,” said Sabonis.  “Unless they change their minds or a legislative committee intervenes, the TDAP changes will take place 45 days from publication—on October 26, 2009.”  In addition to providing DHR with technical comments, Sabonis sent a letter to DHR and the Governor containing comments from 29 TDAP recipients that Legal Aid has served.  The Legal Aid clients indicated a willingness to speak publicly against the proposal.  “Their disabilities and situations differ, but they all live on the edge,” said Sabonis.  “If TDAP is removed, they will fall.” 

 The state disability assistance program, which has existed under various forms and acronyms over the last 15 years, has been historically a favorite cost cutting target for the state during time of fiscal stress, but not without political risk.  In 2004, then-Mayor Martin O’Malley lambasted then-Governor Robert Ehrlich for Ehrlich’s planned elimination of the program. 

In 1992, then Governor Schaefer reluctantly proposed cutting the program—then known as General Public Assistance—admitting that the result would be increased homelessness, begging, and institutionalization.  The cut was delayed briefly by a class action lawsuit, but scaled-down aid was recast as the Disability Assistance Loan Program (DALP), recognizing by program name the fact that state disability assistance was recouped from beneficiaries when their federal disability assistance eligibility was established.  

In 1995, Governor Glendenning sought to eliminate DALP, and was confronted with a “sit-in” at his office, demonstrations, a host of anti-cut editorials and legislative opposition.   He reversed policy, but not before changing DALP into the Temporary Emergency Housing Assistance (TEMHA), with the intent that assistance would be delivered in voucher form directly to those who housed the disabled.  The voucher program was never realized—cash assistance continued until 2004, when Governor Ehrlich also proposed its elimination.  Another unsuccessful class action lawsuit was filed, but it galvanized TEMHA support in the General Assembly, which directed DHR to re-institute the assistance, which it now calls TDAP.

TDAP Caseloads