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91. Notice the food stamp office must give when it plans to cut or stop someone’s food stamps

“Timely and adequate notice” requirement

In most cases the food stamp office must send the household a “timely and adequate notice” at least ten days before it stops or reduces your food stamps. [7 C.F.R. § 273.13(a)(1); MPP § 63-504.213.]  Food stamp benefits and special allowances can be restored because the notices to discontinue were inadequate. [Bliek v. Palmer, 102 F.3d 1472 (8th Cir. 1997).]   In all cases this notice must be in writing. [Taylor v. Department of Human Servs., 648 P.2d 353 (N.M. Ct. App. 1982).]  A conversation with the recipient is not sufficient where the food stamp office sent the written notice to the wrong address. Johnson v. Department of Pub. Aid, 441 N.E.2d 406 (Ill. App. Ct. 1982).]

The food stamp office’s procedures should be designed to keep eligible households from being erroneously terminated. The food stamp office should not send a termination notice or cut off a household when it does not have enough information to know if the household is ineligible. Henry v. Gross, 803 F.2d 757 (2d Cir. 1986). Mere suspicion is not sufficient. The food stamp office should have substantial evidence when it alleges that someone did not report someone else is living in the household. McDaniel v. Department of Soc. and Health Servs., 756 P.2d 143 (Wash. Ct. App. 1988). It also should have substantial evidence when it alleges that the recipient has unreported income. Santiago v. Brezenoff, 440 N.Y.S.2d 36 (App. Div. 1981). The same evidentiary rule applies to allegations of unreported resources. Henry v. Gross, 803 F.2d 757 (2d Cir. 1986).]

The ten days start when the notice is mailed. [7 C.F.R. § 273.13(a)(1); MPP § 63-504.213.]  The recipient should save the envelope in which the notice came so that one can show proof of the date it was actually mailed. If a household says that it received no notice, the food stamp office must show that a notice was sent, either with first-hand testimony about mailing or by showing that routine mailing procedure was followed. [McKillen v. Perales, 519 N.Y.S.2d 59 (App. Div. 1987).]  No one should assume that the date on the notice was the date it was mailed unless it is specifically identified as a mailing date. [Sheets v. Commonwealth Dep't of Pub. Welfare, 479 A.2d 80 (Pa. Commonwealth Ct. 1984).]

Absent a return receipt or competent testimony that the notice was sent, a purported notice that the household denies receiving may not suffice to start the limitations period for appeals running. [Moore v. Commonwealth Dep't of Pub. Welfare, 564 A.2d. 555 (Pa. Commonwealth Ct. 1989).]  Similarly, a notice sent to an incompetent person may not start the appeal period running under some circumstances. [Zellweger v. New York State Dep't of Soc. Servs., 547 N.E.2d 79 (N.Y. App. Div. 1989).]

Notices should also be readable and not misleading. The fact that a household appeals and is represented by counsel does not prevent it from challenging inadequate notice, especially if the notice is misleading. [Weaver v. Colorado Dep't of Soc. Servs., 791 P.2d 1230 (Colo. Ct. App. 1990).] An omitted citation to a controlling regulation may render a notice defective and toll the period for filing an appeal, but advocates should be cautious in relying on this doctrine. [Bryant v. Perales, 555 N.Y.S.2d 978 (App. Div. 1990).] The notice must also give the recipient a telephone number to call for more information and the name of the free legal services office for the area where the household lives. [Henfield v. Blum, 460 N.Y.S.2d 136 (App. Div. 1983); Breitfeller v. D'Elia, 471 N.Y.S.2d 663 (App. Div. 1984). If a welfare rights organization or anti-hunger coalition "provides free legal representation," it should also be listed on the notice. [7 C.F.R. § 273.13(a)(2); MPP §§ 63-504.211 (b) and (c).]

An adequate notice must tell the recipient what the food stamp office plans to do, why the office is doing it, and when the office will do it. [7 C.F.R. § 273.13(a)(2); MPP § 63-504.211(a).]  This notice must clearly explain the reasons for the food stamp office’s action. [Ortiz v. Eichler, 794 F.2d 889 (3d Cir. 1986); Banks v. Trainor, 525 F.2d 837 (7th Cir. 1975), cert. denied, 424 U.S. 978 (1976); see also, Henry v. Gross, 803 F.2d 757, 765-68 (2d Cir. 1986); Dilda v. Quern, 612 F.2d 1055 (7th Cir. 1980), cert. denied, 447 U.S. 935 (1980).]

The notice must tell the household about its right to a fair hearing and about the right to keep getting the same amount of food stamps while the household waits for its fair hearing. [7 C.F.R. § 273.13(a)(2); MPP § 63-504.211(a).]  The food stamp office’s procedures should not interfere with the household’s right to have a fair hearing. [Daniels v. Woodbury County, 742 F.2d 1128 (8th Cir. 1984), on remand, 625 F.Supp. 855 (N.D. Iowa Jan 7, 1986).]  (See the sections about the fair hearing process for more information.)

When “timely and adequate notice” is not required

The food stamp office can give a household less than ten days advance notice that it is stopping or cutting the household’s food stamps when it tells the food stamp office something in writing that makes it clear that the food stamps must go down. [7 C.F.R. §§ 273.13(a)(3)(i), (ii) and (iii) and 273.21(j)(2)(ii); MPP § 22-072.2(b).]  In that situation, the food stamp office must give the recipient a notice no later than the day one’s food stamps normally come. [7 C.F.R. § 273.13(a)(3); MPP § 22-072.2(b).]  The recipient still has the right to a fair hearing. [7 C.F.R. § 273.13(a)(3)(iv); MPP § 63-504.211(a)(3).]  The household also has the right to keep getting the same amount of food stamps it had been getting while it waits for the hearing officer to decide if it wins the hearing. [7 C.F.R. § 273.13(a)(3)(v); MPP § 63-504.211(a)(4).] If the recipient household asks for a hearing right away and its certification period has not ended, the food stamp office must make sure the household receives the same amount of food stamps it usually gets within five days of when the food stamp office gets the request for a hearing. [7 C.F.R. § 273.13(a)(3)(vi); MPP § 22-073.11.]

The U.S. Supreme Court has interpreted and upheld the mass change regulations in Atkins v. Parker, 472 U.S. 115 (1985). Other rights recipients have in a mass change are discussed in Buckhanon v. Percy, 708 F.2d 1209 (7th Cir. 1983), cert. denied, 465 U.S. 1025 (1984). The mass change rules may not apply if the food stamp office must exercise judgment or discretion in applying the mass change to individual households. See Randall v. Lukhard, 729 F.2d 966 (4th Cir. 1984).

The food stamp office does not have to send the household the normal kind of notice when it is stopping or cutting its food stamp benefits because of a “mass change,” which is a program change that affects many households at once. [7 C.F.R. § 273.13(b)(1); MPP §§ 63-504.266(k) and .267(a).]  There are two kinds of mass changes. One kind involves changes in the Food Stamp Program itself. This could be a change in benefit levels, a change in deductions, a change in the standard utility allowance or a change in maximum income limits. [7 C.F.R. § 273.12(e)(1); MPP § 63-504.391.]  The other kind of mass change happens when benefits go up or down in another program, such as CalWORKs [TANF], general assistance or social security. [7 C.F.R. § 273.12(e)(2) and (3); MPP § 63-504.392.]

The food stamp office can send the household a notice to tell it about a change in its food stamps because of a mass change in the way food stamps are figured. If the food stamp office does not send you a notice about a mass change, it must put something in newspapers or on radio or TV about the mass change. [7 C.F.R. § 273.12(e)(1)(ii); MPP § 63-504.391.]

When the food stamp office stops or cuts food stamp benefits as part of a mass change because CalWORKs [TANF], general assistance or social security checks went up, the food stamp office can send the recipient a regular food stamp notice. If the food stamp office does not send the household a regular food stamp notice, it must send it a special mass change notice. [7 C.F.R. § 273.12(e)(4); MPP § 63-504.392(b)(handbook).]  The mass change notice should explain separately the effect on the household’s benefits under each program affected. [See Jones v. Blinziner, 536 F.Supp. 1181 (N.D. Ind. 1982).]

The food stamp office must send the recipient household notice of a mass change that happens because of a change in another program at least ten days before the household’s food stamps are supposed to come. 7 C.F.R. § 273.12(e)(4)(iii), 273.13(a)(1); MPP § 63-504.392(a). A mass change notice does not have to say as much as a regular notice. [7 C.F.R. § 273.12(e)(4)(i); MPP § 63-504.392(b)(handbook).]

The food stamp household has the right to ask for a hearing if it does not agree with the way the food stamp office changed its food stamp benefits as part of a mass change. [7 C.F.R. § 273.12(e)(5); 63-504.392(b)(handbook).]  (See the sections of this guide about the fair hearing process for more information.) The household can keep getting the same amount of food stamps it got before the mass change while it waits for a hearing officer to make a decision, provided the household asks for a hearing within ten days of the date of any notice the food stamp office sends it or — if the food stamp office does not send a notice — within ten days of when it cuts the household’s food stamp benefits. [7 C.F.R. §§ 273.12(e)(6), 273.15(k)(1); MPP § 63-504.392(b)(handbook).]   (For more details, see the section about continuing benefits while waiting for fair hearing.)

To keep getting the same amount of food stamps, the household must tell the food stamp office that it thinks the food stamp office figured the food stamps the wrong way or that it is not following the Food Stamp Act or food stamp regulations. [7 C.F.R. § 273.12(e)(6)(iii); MPP § 22-072.5.]  The mass change notice should explain this right to the recipient household. [See Hurley v. Secretary of Health and Human Services, 676 F.2d 1095 (6th Cir. 1982).]