New Orleans Gumbo: Claimant Due Process Suzanne Simonetta US Department of Labor

Congressional Hearing Human Resources Subcommittee of House Committee on Ways & Means “Unemployment Insurance: An Overview of the Challenges and Strengths of Today’s System” (9/7/16) Addressed integrity, solvency, & reemployment Full Committee Chair Kevin Brady (R-TX) participated.

Witnesses Cissy Proctor Walter Carpenter Judith M. Conti Executive Director, FL Dept. of Economic Opportunity Walter Carpenter MAI, CRE, President, Pinel & Carpenter, Inc. Judith M. Conti Federal Advocacy Coordinator, NELP Michelle Beebe Director, UI, Utah Dept. of Workforce Services

Chairman Vern Buchanan (R-FL) “Helping the unemployment return to work as quickly as possible and preventing improper payments within the system will better serve employers who fund the system to keep taxes low, as well as workers who claim benefits by getting them back to work sooner”. Transforming UI into a reemployment system.

Chairman Vern Buchanan (R-FL) “ Too many state UI agencies rely on discovering and then trying to recover improper payments after they occur. This ‘pay and chase’ approach is costly, time consuming, and wasteful. It also means that only a fraction of improper payments are ever recovered. Since state UI benefits are supported by payroll taxes on jobs, this misspending leads to higher taxes on jobs, reducing the very job creation the unemployed need most.”

Protecting Claimant Rights UIPL 01-16 Establishing overpayments (OPs) Written notice of OP determinations Recovery of OPs Opportunity for fair hearing Independent Verification under CMPPA Continued claims Reporting requirements Fraud determinations #

Establishing Overpayments Must gather all relevant information Individual must have opportunity to be heard and, if conflicting information, opportunity for rebuttal For all issues, including “hits” from crossmatches with databases #

Written Notice of OP Determination Must provide sufficient info to understand, including legal basis/reasoning, info about waiver of recovery/how to request (if applicable), and info about appeal rights/how to appeal Should also include potential associated penalties/consequences (required if fraud determination) Should be in plain language/easy to understand #

Overpayment Recovery No recovery until official determination of OP made If state provides for waiver of recovery, no recovery until period to request waiver ended or, if requested, determination made May wait until OP final before initiating recovery #

Opportunity for Fair Hearing Required for all “denials” – any adverse determination that puts individual in less advantageous position Includes determinations that: Individual received UC to which not entitled UC payments must stop because individual no longer eligible UC payments will be reduced Overpayment was due to fraud #

CMPPA Before suspending, terminating, or reducing payments: State agency staff must “independently verify” info automated systems insufficient to meet this requirement; Must notify individual/provide opportunity to contest; and Must provide 30 days or other period of time (if provided in statute or regulation) for individual to respond to issue. #

CMPPA Statute applies to cross-matches with federal databases for federal benefit programs and, as condition of agreement, to any program accessing the National Directory of New Hires. “Federal” UI benefit programs for CMPPA purposes include UCX, UCFE, DUA, TRA, and federal extension programs like EUC. It does not include regular state UC or EB. Applies for: All Federal UC programs, all issues detected via cross-match with Federal databases All state UC programs, all issues detected via cross-match with NDNH #

Automated Adjudication Only permissible if state agency has all information needed to make a proper determination and no determinations are required about credibility or intent Prohibited when issue is detected via cross-match with any database (not just when CMPPA applies) or when making a fraud determination #

Continued Claims Primarily focuses on overpayment prevention Builds on existing guidance Fact-finding, rebuttal opportunity, written notice, fair hearing, and other requirements about overpayment establishment apply CMPPA requirements and automated adjudication guidance apply Strong relationship with non-monetary timeliness & quality #

UIPLs 1145 & 04-01 If cannot make eligibility determination before date of timely payment, state agency presumes claimant’s continued eligibility until it makes determination otherwise Timely payment: no later than end of week following week in which issue arises/is detected #

What Does This Mean? In practice, less than 14 days (7-10 on average) to pay continued claim if an eligibility issue If adjudication cannot be scheduled sufficiently early so that determination issued by end of week following week issue detected, state must issue payment on presumption of continued eligibility #

Nonmonetary Determinations Determination that individual is not eligible for UC is a nonmon, whether issued by BPC staff or adjudicators. All nonmon quality requirements apply. Sufficient fact finding, reasonable attempt Rebuttal opportunity For hits on cross-matches, must independently verify information. #

Nonmonetary Determinations Although nonmon timeliness standard for seps & nonseps is 21 days, states must far exceed timeliness standard to stop issuing payments when issue arises on continued claims. Timely continued claim payment is end of week following week issue is detected. #

What’s the Bottom Line? Requirements apply to continued claims whether issue results in UC reduction or total denial. Given these procedural requirements & administrative realities, under typical operations may be exceedingly unlikely that everything can be done by end of week following week issue is detected. #

What’s the Bottom Line? While we don’t think states generally do so, they may not stop making payments indefinitely or reduce payments until adjudication complete & determination issued. States must issue payments by end of week following week issue is detected unless determination issued that individual is ineligible for UC. #

What Can Be Done? Creative solutions, e.g. use of newer technology, have potential to balance requirements to prevent overpayments & protect claimant rights Prompt follow-up on “hits” of potential issues Adequate fact finding Timely adjudication & appeals Quality determinations & decisions If done properly, both sets of requirements can be met. #

Requirement to Report to Agency If bona fide need for information and individual fails to report as required, state may adjudicate this issue and determine individual ineligible due to such failure until individual complies. Must give individual a reasonable amount of time to report. #

Fraud Determinations Fact-finding, rebuttal opportunity, written notice, fair hearing, and other requirements about overpayment establishment apply. Automated determinations are prohibited. State agency staff must determine credibility and intent. #

Fraud Determinations Written determination must: Include info about potential penalties or other consequences Provide expanded info about appeal rights (right to representation, right to present testimony/evidence, right to subpoena witnesses/records, consequences of failing to attend appeal) Be written in plain language/easy to understand #

Questions? Handouts URL will be provided in the Webinar Room #