CSDA LEGAL PRACTICES COMMITTEE

Thursday November 20, 2014

10:00 am – 5:00 pm

Friday, November 21, 2014

9:00 am – 1:00 pm

SACRAMENTO DCSS

MINUTES

MEMBERS -- LCSA / X / X / Adele Hendrickson / X / X / Jose Santana
X / X / Ashley Mendoza / T / X / Kim Dunworth
X / X / Bill Malloy / T / T / Lisa Saporito
T / X / Colin Anderson / X / X / Melinda Self
- / - / Doug Harrison / X / X / Paul Beckhart
T / T / Ed McCue / T / T / Rebecca Durney
- / - / Gina Johnston / T / T / Robert Lafer
T / X / Jake Burns / X / X / Ron Ladage
X / - / Jennifer Obergfell / T / T / Terry Symens-Bucher
X / X / John Berglund / T / T / Tex Ritter
- / - / John Cardoza / X / T / Trinidad Madrigal
MEMBERS – IV-D Partners / X / X / Kathy Hrepich, DCSS / - / - / Jonathan Burris, DCSS
X / X / Leslie Carmona / - / - / Kristen Donadee, DCSS
- / - / Michael Wright, AOC / T / T / Anna Maves, AOC
- / - / David Oppenheim, CSDA / - / X / Lara Chandler, DCSS
x / X / Vicki Contreras
GUESTS / T / T / Suzanne Rizzo, Inyo / T / - / Rahkee Mehta, Santa Clara
  1. Welcome and housekeeping – Lunch on your own
  2. Review of Minutes
  3. 08/22/2014 minutes:motion made, seconded and carries (Melinda, Jennifer) minutes approved.
  4. 09/18-19/2014 LPC/ MAF minutes: motion made, seconded and carries (Melinda, Jose) minutes approved.
  1. Reports
  1. Judicial Council -- Anna Maves(via telephone)
  1. Budget- Judicial Council will start mid-year reallocation process to be more proactive. They want to move monies from donor courts to courts that will use the money. They don’t want any money left; want it all spent. Adele speaks to further cuts to the Amador Court in that no clerks are available to file things, but there were no cuts to 1058 funding right? Anna will check and get back to her. She thinks it's just general funds, not 1058.
  2. Court case management system update- No report. Will discuss as part of the CMS survey, below.
  3. ACA Workgroup update– Met in October. Cancelled a meeting for today. They reviewed and discussed the federal worksheets. Other issues included:
  4. Medical needy only cases- similarly situated people are being treated differently. If MNO, no case is referred so no orders for HI. If cash aided, you get a HI order.
  1. Commissioners asked, when the LCSA generates an S&C and the LIA applies, can they affirmatively plead HI isn’t available because it's not affordable? DCSS captured that and will research and report that back. Ashley says per FC §3751, if the LIA applies to guideline child support, the Court shall make that finding. In Tulare they are considering adding standard orders with reference to that section so there are no hang ups with the default re HI orders. Adele says she’s noticed a marked decrease in covered children and they don’t know why, even from MC. They aren’t moving to MC but they are dropping off private insurance. Tex reports there is a HUGE backlog of hundreds of thousands of applications and that may be part of the problem? Possibly.
  1. Private health insurance- reports that with PHI you were kicked off MC. They checked and that is not accurate. Individuals are not dropped if they get PHI. They are allowed to have dual coverage. Tex reports- when on MC, it's like a PPO with networked providers who accept MC. When you get PHI, MC is secondary so you may no longer be part of the same networks. The PHI and MC are not part of the same networks. MC will cover the copay and some out of pocket expenses and pharmacy. Adele says when you apply for Covered California and it shows you have MC or Medicare or a PHI, you are pending for 90 days to make sure you aren’t still on any other coverage.
  1. Stakeholder Issues: Commissioners confused on new aid codes. K1- they clarified with DCSS how the CP can close her case; itsstate funds paying aid, not federal aid. Families are receiving funds, there should be an order for reimbursement. Kathy reports they are putting together a memo as to whether under 4065, if the attorneys are not allowed to stip to a zero order, and FC 4004 directs the Court not to make a zero order. Safety net issue. Policy direction is not changing. The only thing that changes is how the IV-D agency participates in those existing cases. They are no longer referred. On the guideline calculation page, it won’t be noted as TANF or CalWorks, it will be changed to "Public Assistance" so we can still plug that number there.
  2. Legal College/Conference held first week in October. Now compiling responses. Anecdotally, very positive evaluations. Alisha was present and that was very well received. Adele says there was some fallout by the LA Commissioner to the LCSA QDRO process and what right does the LCSA have to name the children as the alternate payee? Unsure if that generated from the 1058 conference discussions or from WICSEC? This came out of the Commissioner roundtable at the conference. Seems they don’t like the ex parte process. Melinda says this might be a county specific issue. Some counties require an ex parte notice form, some don’t. There is, however, a CCP section that allows for waiver of service to proceed ex parte if there is a possibility it will impact the ability to enforce the judgment.
    Tex says QDROs are preempted by federal law. It's an enforcement action, like a writ of execution, IWO, etc. over property. A QDRO is no different. They are all "orders" but don’t require a hearing. They are administrative processes that don’t require a hearing. He believes ERISA policy doesn't require a hearing. Adele says Commissioners and attorneys need education on this. You have to refresh your knowledge of basic civil procedure at times. LPC should put something together for both the bar and bench. LPC will put together a workgroup. Doug will head the group; Ron, John C., Tex and Selis Koker from the State are on the committee.
  1. State DCSS – Kathy Hrepich, Vicki & staff
  1. Judgment of Non-paternity- not ready to share. It's on Kristen's desk and still need to discuss with Alisha.
  2. Contempt Workgroup- No report. Pending. Kristen is working on the guide.
  3. Order Setting Practices – Friday – Lara Chandler- Recommendation for an advisory committee of directors, who can be on it, will be sent tomorrow to Alisha. Adele wants attorneys on the committee if possible because the program doesn’t control the Commissioners and there should be a robust discussion about the potential for uniformity and in what direction are we headed? Recognize parameters the bench brings to the equation and practice.
    FRIDAY Report from Lara: The powerpoint shared with the directors was handed out to those present (and previously emailed to the LPC). Lara goes thru the powerpoint. Jonathan helped and facilitated in the project, Kristen, Janet Ballou and Suzi Marin all participated. PP&R had reviewed this issue since at least 2006, recognizing counties interpreted the laws on income and calculating guideline child support differently. They began drafting the survey in 2012 and sent out 04/2013 via email, directed at establishment (S&C units). 49 surveys completed. 48 in survey monkey. 19 attorneys, 18 CSS's, 11 directors responded. Reference also the questions on the survey, also emailed or provided in the room. Big areas of discrepancy between counties (see slides) are:
  4. Visitation
  5. Presumed income vs imputed income- full time/ half time/ part time minimum wage is imputed income (county practice rules).
  6. Known income- how old is reported income

Next Steps: DCSS will establish an advisory team of Directors or their appointees to identify grey areas. Hope to kick this off in early 2015. They want PP&R to develop rules and regulations to achieve uniformity with existing laws. After developed, there will be quality assurance audits of the LCSAs to determine if they are following these uniform requirements in calculating guideline child support.
Adele points out the same comments she raised when this was provided at the Directors meeting, that a lot of the outcome is based on our very local economics and especially the local courts. Bottom line: neither DCSS nor the LCSA make the decisions, we only offer what our local bench will consider and that’s reality. Kathy responds that the survey questions were drafted for both the LCSAs and the Courts, but the Courts have not conducted their survey. We are all in this together and the Courts need to bring their information to the table as well. We will share this with the Judicial Council in hopes we can work towards uniformity in California. Rob asks will the courts have the chance to have any input to the advisory team? Can the Judicial Council have someone on the advisory team? Kathy doesn’t think this is the point they need to be on the team, there might be a conflict. Rob says on the white paper on parentage, we did get the Judicial Council input in finalizing that paper and worked well. Vicki says we can mirror that but we aren’t at that point yet.
Bill says maybe if it's a contested matter, these comments apply, but in a default situation, if the county follows the DCSS regulations imposed, will the Commissioner NOT sign or enter the default? Is that an issue? Also, there is a POC between DCSS and the Judicial Council for some leverage on the IV-D Commissioners within certain parameters to "encourage" some uniformity. Anna disagrees. Neither Judicial Council nor DCSS can dictate the judicial discretion locally on a case by case basis on when or how much to impute. You can't force uniformity. She agrees there does need to be some uniformity but you cannot dictate how the bench officer rules in certain situations that are determined case by case. But can the Court then set a default for hearing? John B recalls that OC had this issue where the Commissioner was not following civil procedure and they corrected it by writ and with the help of the Judicial Council.
Tex opines that leadership makes a big difference county by county. Some uniformity is possible as we analyze our policies and procedures. Also, if we look at case load size, LA with 30% of the cases have a bigger piece of the pie because they still only count as one response to the survey. What's the impact on the statewide caseload? Practices will come from directors and managing attorneys which does allow us to achieve some uniformity. Policy may change the legal ambiguities for uniformity. And while we can't force uniformity in the courts, if we meet with the bench locally, we should come to some collaboration which will lead to some uniformity. Ultimately the Commissioners will apply the law how they feel it applies.
Presumed income: DCSS pulled data to see who is using PI. It was enlightening. Adele states that LPC has had robust discussion on this and it's not limited to the data in CSE, just because it's not reported in CSE, there are actual outside facts that the counties consider in avoiding PI. If you find nothing in CSE, is that a statement that NCP should have a zero order vs a PI order? Is CP's statement of NCP's work history sufficient evidence to impute an income? Just because it's not in CSE doesn’t mean you don’t have facts to support zero over PI.
If regulations are created for more uniformity, they can't be so restricting that it removes discretion to provide justice or fairness in individual cases. Our goal is money to families- correct. If you have a history of cause and effect of effective orders (collectible, right size, etc), that’s what drives our policy. Performance measures are reviewed but that’s not what guides our local practices. Zero orders per se are not bad; default orders per se are not bad. We need to be more sophisticated in reviewing this data. It's quite complex.
We can't be guided purely by numbers. You have to look outside of the data provided by CSE. Look at the big picture. The courts create the right size order looking at all the facts of the household. Kathy asks, how do you track the payments on those? This is some work we need to do – sample the cases on collectability for the PI cases vs. the imputed income cases. Are we entering the orders correctly? Ron L. reports they did a study that shows defaults, stips, in Court hearings, in Court stips. Stips are the #1 paid orders, so they focus on stips. They don’t want a default unless it's required. They have a lot of early intervention and contact. John B. also reports they have a lot of resources working stipulations with above average collections, and their defaults and other cases are the worst performing cases. If you are too narrow in defining income, and you have to go with PI on the non-cooperating cases, they will never pay since they already aren’t cooperating. Adele suggests you don’t exclude any period of time if you think it might still apply to imputing income.
Customer Service: What's the goal of customer service? Stips are resource intensive, absolutely. They take negotiations, meet & confer, they take time. Default is an easier process. What's the balance? Kathy says the survey does show a disparity statewide. It's an issue. That doesn’t mean it's bad, but it is an issue that needs a closer look. Customers should be able to receive the same service all over the state, no matter where they have a case.
Kathy hopes to call a meeting of the new advisory committee in the first part of January 2015. A part of this will also include the analyzing the "other" responses given on the survey. Is there commonality in those responses, can they be restated? Directors are asked to submit themselves or their representativeto their RA to sit on the advisory committee.

  1. Legislative Advisory Committee update- Over to next meeting.
  2. State adoption of use of federal administrative subpoenas– Needs legislative action, DCSS still exploring that. Over to next meeting.
  3. Cases of Interest update- having a hard time hiring student interns. Ron Ladage suggested resources. Over to next meeting.
  4. Auto-dialer & FCC rules – OCSE response to DCSS- OCSE will not issue any formal response or direction. However, Melinda forwarded information from a vendor at WICSEC. DCSS is not sure they can share the OCSE response with the LCSA's but they will ask.
    The reality is we have counties that have stopped doing what was a favorable program of mass texting or calling and would like some discussion and direction. Vicki reports vendors believe this doesn’t apply to us. John B reports all the sources they reviewed and there was nothing on point that the regulations DO NOT apply to the government agencies, so his sub-committee reported on the side of caution. Terry takes a step back- ok- we sent our white paper that it doesn’t apply to us, then we got our first response from OCSE that they agreed, and we asked for clarification, and they’ve since responded a second time to refer to the first letter. John goes over our suggestions, the status of the applicable laws, and the white paper.
    If OCSE will not offer an answer, then DCSS will turn to the FCC next. If they issue a paper or respond the laws don’t apply then we are golden. Rob asks if it's ok then for individual CSS to manually text or call customers? Melinda says that’s apples and oranges, not part of the FCC rules which are autodialing laws and bulk spam. John B. refers them to the FCC website which has Q&A that might be useful. Kathy will "explore" their next step. She will also check with the DOJ. It's also suggested by Rebecca that in CSE, we add a "Text ok" type box on the phone number detail page that also shows on the Participant Overview page so we know at a glance that we can text. Many counties already text manually.
  5. Forms- Vicki handed out a list of forms that are in the hopper. Vicki reports there is no standing forms workgroup, only as-needed on forms.
  1. There are 32 forms to be implemented by 07/01/2015, such as the bankruptcy Proof of Claim form, the revised medical information verification form, etc.
  1. OCSE form updates will be uploaded by 04/2015.
  1. On the Notice of Motion set- FL 684- implementation is 07/2015. Bill reports changes are 2.c. on the RFO- attaching the guideline calculation. Due to space limitations and quantity of boilerplate language, the font was smaller than the Judicial Council rules of Court. They removed ¶5 regarding property restraint that no one EVER uses. If you use the form set with the boilerplate language, you will have 10 lines available. On page 2, they reduced space on ¶6 to 11 lines, and increased Facts in Support to 40 lines.
  1. Stakeholder issues- No report.
  1. CSDA –Tex Ritter reported in absence of Dave Oppenheim
  1. PMP- Performance Management Plans- Alisha doesn’t want continued activities on the new plans. She wants new "aggressive" plans. Look at your local procedures; don’t chase the numbers. Her philosophy is if you provide better customer service, you will see numbers go up. Don’t do the same old thing as before and expect different results. Counties need to review their procedures and compare and contact other counties that have better performance and see how they do it. Tactics will be different County by County. The strategic plan is very different and not related to performance numbers, but instead in providing service, outreach and succession planning. The template was released yesterday for the new and improved PMP.
  1. State DCSS presentation- Alisha really wants to work with us.
  1. Yurok IV-D program- they just started their own IV-D program last week.
  1. Contact with Alisha: Yes, it is Ok for Directors to call her directly. She is here to help us get our work done.
  1. Performance Data:DCSS will give us new performance data for 13/14. LCSAs already have 12/13 data. When received, the LCSA has 30 days to get their local PMP done and submitted. Chase procedures not numbers. Adele reports there was data that was incorrect, so will the release of the new data have the corrections requested? Vicki says not all counties enter things the same in CSE so the data is not reporting correctly. Vicki says the 30 days starts tomorrow. Adele speaks to how some of the data can be skewed by one or two cases while all the others meet the timeframes, for instance for Locate or Service issues. What do we have in terms of quality assurance? We should be able to get data sets every month close to real time.
  1. Money gram kickoff- will happen in waves to all counties. Seems it's happening by caseload size.
  1. DCSS rename: State is now called "Central office" not State DCSS.
  1. Zero Orders: As we increase our order growth we are not increasing our collections. Orders without numbers (ZERO dollar orders) don’t help us at all in collections. If a paternity only case, close the case once order is obtained. Don’t get zero orders any more. If you get a $5 or $7 order, that helps our statistics.
  1. Face of the Day – branding focuses etc.
  1. DMV/EDD Info: She's met with DMV and EDD about timely information
  1. Tech Plan: 5 year plan for technology in the works. Independent assessment as to what's happened, what's happening and to update CSE. Can we integrate the state's 6 websites into one? (Sharepoint.,CSE, Cal Central, state website, etc).
  1. Financial Construct – too much done manually which allows for missteps to occur- payment processing, audits, etc. We'd like this automated.
  1. Data Repository- we need real time data to manage that data.
  1. Reduce number of financial buckets we collect on. Can we get down to 2 buckets instead of the tons we have. We should have Welfare or Non-welfare, period. She is actively researching that.
  1. UIFSA- forms policy and legislation needed this legislative system. Also CSE changes to be in place by end of calendar year 2015. Once legislation is passed by state, it goes to The Hague and we will start getting more international cases.
  1. E-Signatures: Alisha wants all electronic signatures and to do away with wet signatures. What legislation is needed to get rid of wet signatures? Treaty for international doesn’t allow wet signatures. There are also some County courts that do not allow facsimile signatures and require wet signatures on all filed pleadings. That also needs to be addressed.
  1. Federal compliance: being reviewed.
  1. Department of Insurance wants to make insurance intercepts, including work comp, mandatory.
  1. Notice of proposed rulemaking- may change after period for comment, so DCSS is unsure if we need to act on those now. Policy is something she appreciates but doesn’t particularly like it. We do however need to modernize our regulations and policy.
  1. Autodialer- still with DCSS Legal.
  1. Federal Performance Measures emphasis. Alisha wants a new structure since not a fan of federal performance measures.
  1. Budget process- In NJ, the counties didn't function independently, and their budgets were approved at various levels- HHSA, DSS, DCS and county office. The State had a bigger hand in the budget process there. A wholly different model than California. There were also staffing ratio issues dealt with thru the budget and caseload:FTEs. Adele says those figures on the 1257 right now don’t tell the whole story. Too late for our 16/17 budget, but we need to be at the table.