DISTRICT OF COLUMBIA et al v. U.S. DEPARTMENT OF AGRICULTURE et al

Filing 3

MOTION for Preliminary Injunction by DISTRICT OF COLUMBIA (Attachments: #1 Declaration STEVEN BANKS, #2 Declaration EDWARD BOLEN, #3 Declaration TIKKI BROWN, #4 Declaration CATHERINE BUHRIG, #5 Declaration ALEXIS CARMEN FERNANDEZ, #6 Declaration STEVE H. FISHER, #7 Declaration HOLLY FREISHTAT, #8 Declaration JEFFREY GASKELL, #9 Declaration DEIDRE S. GIFFORD, #10 Declaration HEATHER HARTLINE-GRAFTON, #11 Declaration DANIEL R. HAUN, #12 Declaration KATHLEEN KONOPKA, #13 Declaration ED LAZERE, #14 Declaration BRITTANY MANGINI, #15 Declaration VICTORIA NEGUS, #16 Declaration ELISA NEIRA, #17 Declaration S. DUKE STOREN, #18 Declaration DAWN M. SWEENEY, #19 Declaration LAURA ZEILINGER, #20 Text of Proposed Order)(Konopka, Kathleen). Added MOTION to Stay on 1/24/2020 (znmw).

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XAVIER BECERRA
Attorney General of California
CHERYL L. FEINER
MICHAEL L. NEWMAN
Senior Assistant Attorneys General
KATHLEEN BOERGERS
Supervising Deputy Attorney General
DANE C. BARCA
JACQUELYN YOUNG
Deputy Attorneys General
State Bar Nos. 294278, 306094
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for the State of California
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

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DISTRICT OF COLUMBIA, STATE OF
NEW YORK, STATE OF CALIFORNIA,
STATE OF CONNECTICUT, STATE OF
MARYLAND, COMMONWEALTH OF
MASSACHUSETTS, ATTORNEY
GENERAL DANA NESSEL ON
BEHALF OF THE PEOPLE OF
MICHIGAN, STATE OF MINNESOTA,
STATE OF NEVADA, STATE OF NEW
JERSEY, STATE OF OREGON,
COMMONWEALTH OF
PENNSYLVANIA, STATE OF RHODE
ISLAND, STATE OF VERMONT,
COMMONWEALTH OF VIRGINIA,
STATE OF WASHINGTON and CITY
OF NEW YORK,
Plaintiffs,

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Case No. 1:20-cv-00119

v.
U.S. DEPARTMENT OF
AGRICULTURE; GEORGE ERVIN
PERDUE III, in his official capacity as
Secretary of the U.S. Department of
Agriculture, and UNITED STATES OF
AMERICA,
Defendants.

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DECL. OF ALEXIS CARMEN FERNÁNDEZ ISO PLAINTIFFS’ MOT. FOR PRELIMINARY INJUNCTION

DECLARATION OF ALEXIS CARMEN FERNANDEZ IN SUPPORT OF

PLAINTIFFS'MOTIONFORPRELIMINARYINJUNCTION

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Pursuant to 28 U. S. C. § 1746, 1, Alexis Carmen Femandez, declare and state as follows:

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herein, and testify based on my personal knowledge and information.
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I am over the age ofeighteen years, competent to testify to the matters contained

I am the Acting Chief of the CalFresh & Nutrition Branch within the California

Department of Social Services (CDSS). I have held this position since July 2019.
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Prior to the position I hold now, I served as Chiefofthe CalFresh Policy Bureau,

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previously known as the CalFresh Policy Section, within the CalFresh and Nutrition Branch at

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CDSS, from June 2016 to July 2019. Before joining state service, I was the Policy Director at the

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First 5 AssociationofCaliforniafor eight months andthe Director ofLegislationat California

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Food Policy Advocates for one year and nine months but worked for the organization for a total

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of six years. I have a Master of Social Welfare, with a specialization in Management and

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Planning, from the University of California, Berkeley.

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In my current position, I oversee the administration of the Supplemental Nutrition
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Assistance Program (SNAP) for the State of California. Therefore, I have reviewed and am

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familiar with the federal rules and requirements pertaining to SNAP. I supervise a staffof 125

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state employees, in various sections and units within the CalFresh and Nutrition Branch,

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including Policy, Operations, Quality Control & Improvement, Employment & Training,

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Outreach, and Nutrition Education, as well as federal food distribution programs, including the

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Emergency Food Assistance Program and the Commodity Supplemental Food Program. In my

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previous position as Chiefofthe CalFresh Policy Bureau, I oversaw all nutrition policy for CDSS

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and worked directly with counties, client advocacy organizations, and other stakeholders to

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increase CalFreshenrollment among eligible Califomians.

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I.

ADMINISTRATION OF THE SUPPLEMENTAL NUTMTION ASSISTANCE PROGRAM IN
CALIFORNIA

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In California,the federal SNAPis known as CalFresh. It is overseenby CDSSand

administered by the State's fifty-eight counties.

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DECL. OF ALEXIS CARMEN FERNANDEZ ISO PLAINTIFFS' MOT. FORPRELIMINARY INJUNCTION

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Under federal SNAPrules, administrative costs are sharedequally betweenthe

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federal government and the State. To cover California's 50% share of administrative costs, the

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State pays 35% ofadministrative costs, andthe counties pay the remaining 15%.

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CDSS is the single state oversight agency responsible for providing the State's

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fifty-eight counties with all necessary CalFresh guidance in the form ofregulations, aswell asAll

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County Letters (ACLs) and All County Information Notices (ACBSTs), pursuant to California

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Welfare and Institutions Code section 18902. CDSS is responsible for monitoring the accuracy

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and integrity ofthe counties' administration of CalFresh,

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CalFresh Employment & Training (CalFresh E&T) is California's version ofthe

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SNAP Employment & Training program. The purpose ofCalFresh E&T is to provide CalFresh

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recipients with access to employment and training opportunities, supportive services, and skills

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and credentialing, to increase the employment and earning capacity ofparticipants. CalFresh

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E&Tcomponents include, but arenot limited to, supervisedjob search,work experience,

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education, andretention services. Individuals must bereceiving SNAPbenefits in orderto

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participate. In Federal Fiscal Year (FFY) 2020, CalFresh E&T will be offered in thirty-seven of

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the fifty-eight California counties and is estimated to provide services to approximately 85, 000

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SNAP recipients.

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CalFresh Outreach is California's version ofthe SNAP Outreach program. The

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purpose ofCalFresh Outreach is to increase the number ofeligible households participating in

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SNAPandto educate individuals andfamilies withlow income andother stakeholders about

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CalFresh. The CalFresh Outreachunit at CDSSdevelops outreachmaterials andtools. Theunit

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also works with a statewide network ofcontractors whoprovide outreach services suchas SNAP

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application assistance, engagement with potentially eligible individuals, and education about

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changes to SNAP. CalFresh Outreach activities are conducted statewide and, in FFY 2020, the

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statewidenetwork ofCalFreshOutreachcontractors estimatethattheywill supportthe

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submission ofmore than 100, 000 SNAP applications.

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TheCaliforniaFoodAssistanceProgram(CFAP)provides state-fundednutrition

benefitsto certainimmigrants whoarenoteligible forfederally-funded SNAPbenefitsdueto
DECL.OF ALEXISCARMENFERNANDEZISOPLAINTIFFS'MOT. FORPRELIMINARYINJUNCTION

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their immigration status. CFAP recipients are provided with CalFresh benefits that are paid for

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with state funds. Currently, there are about 40, 000 individuals served by CFAP per month in

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California. As required by statute, CFAP follows all SNAP eligibility requirements, with the

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exception of eligibility rules regarding immigration status. Therefore, any change to federal

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SNAP requirements applies to both CalFresh and CFAP.

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II.

ABLE-BODIED
ADULTSWITHOUTDEPENDENTS
TIMELIMITRULE,WAIVERS,AND
DISCRETIONARY EXEMPTIONS IN CALIFORNIA

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Under SNAP eligibility rules, individuals who are age eighteen through forty-nine

are limited to three months ofbenefits within a thirty-six-month period, unless they are working

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or participating in a qualifying work activity for at least twenty hours per week. This rule is

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known asthe Able-Bodied Adults WithoutDependents (ABAWD) time limit. Some individuals

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are exempt from this rule, such as those who live with children in the household, those

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determined to bephysically or mentally unfit for work, pregnant women, andothers determined

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to beexempt from the general SNAPworkrequirements. Individuals who live in anareathat is

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under a waiver ofthe ABAWD time limit (waived areas) are also not subject to the time limit.

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ABAWDs subject to thetime limit arerequired to work orparticipate in a

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qualifying work activity for anaverage oftwenty hours per week within a calendar month. Ifan

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ABAWD is not living in a waived area, does not meet the criteria for anexemption, and does not

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satisfy the work requirement in a given month, thenthatmonth will bedeemed a "countable

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month" for thepurposes ofdetermining whetherthe ABAWD received'SNAPbenefits for three

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months withinthe thirty-six-month period. ABAWDs whoexhausttheirthree countable months

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are ineligible for SNAPforthe remainder ofthethirty-six-month period unless they regain

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eligibility by meeting the work requirement, becoming exempt, or moving to a waived area.

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In 2016, California established a fixed statewide "clock" to trackthethirty-six-

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month period in which anABAWD receives SNAP benefits. In California, all ABAWDs are

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tracked within the same fixed thirty-six-month period. The first statewide clock was put in place

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between January 1, 2017, and December 31, 2019. A new thirty-six-month period began January

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DECL.OFALEXISCARMENFERNANDEZISOPLAINTIFFS'MOT. FORPRELIMINARYINJUNCTION

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1, 2020, and will end December 31 , 2022. The statewide clock will reset eachthirty-six-month

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period thereafter.

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For FFY 2019, California had approximately 505, 300 non-exempt ABAWDs

statewide. Around 90% ofthese non-exempt ABAWDs lived in waived areas.
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Because the purpose ofthe ABAWD time limit is to engage ABAWDs in the work

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force, it wasnot intended to apply to individuals who areunable to obtainemployment. The

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governing statute allows states to seek a waiver to suspend the time limit "to any group of

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individuals in the State" if the areawhere those individuals live "has animemployment rate of

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over 10percent" or "does not have a sufficient number ofjobs to provide employment for the

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individuals. " 7 U. S. C. § 2015(o)(4)(A). From 2008 to 2018, California was under a statewide

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waiver ofthe time limit, approved by the USDA based onhigh statewide unemployment rates

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resulting from the Great Recession.

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Beginning September 1, 2018,dueto improvements inthe State'soverall and

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regionaleconomies, USDAapproveda partial waiverofthetime limit in California. Asa result,

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thetime limit wasimplemented betweenSeptember 1, 2018,andAugust 31,2019inthree

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California counties: SanFrancisco, SanMateo, and SantaClara. Beginning September 1,2019,

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USDA approved another partial waiver ofthetime limit that required implementation ofthetime

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limit betweenSeptember 1,2019,andAugust31,2020inthree additionalcounties: Marin,

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Alameda, and Contra Costa. As a result, six counties currently implement the time limit in

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California: Alameda, Contra Costa, SanFrancisco, SanMateo, Santa Clara, andMarin.

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In September 2019, California submitted to USDA a newrequest for a partial

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waiver ofthetime limit to begin September 1,2020, basedonthe federal rules effective atthe

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time. Thispartial waiverwouldhaverequiredimplementation ofthetimelimit inonenew

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county, NapaCounty, in addition to the sixcurrently implementing counties. Accordingly, fifty-

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one ofCalifornia's fifty-eight counties would haveremained under a partial waiver ofthetime

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limit from September 1 ,2020, through August 31, 2021.

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Under California's current partial waiver ofthetime limit, several ofCalifornia' s

28 mostpopulatedcounties,withthelargestSNAPcaseloads,arenotimplementingthetimelimit.
DECL.OFALEXISCARMENFERNANDEZ PLAINTIFFS'MOT.FORPRELIMINARY
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One example is Los Angeles County, which had 1, 176, 73 1 SNAP recipients as of October 2019

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and is estimated to have provided SNAP benefits to 98, 730 non-exempt ABAWDs in FFY 2019.

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In addition to the current partial waiver ofthe time limit, California hasa large

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number of discretionary exemptions available for use as a result of past carryover. Discretionary

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exemptions are annually provided to each state based on a percentage ofthat state's count of

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ABAWDs subject to the time limit, i. e., non-exempt and not living in an area under a waiver of

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the time limit. Each discretionary exemption is equal to one month of SNAP benefits for one

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non-exempt ABAWD. A discretionary exemption can be used to provide one month of SNAP

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benefits to an otherwise SNAP eligible, non-exempt ABAWD, who has exceeded the time limit

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andwould be denied benefits solely for that reason.

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Stateshave great flexibility in applying discretionary exemptions atthe individual

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level andmust track and report their use to USDA each quarter. In California, county eligibility

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workers have the discretion to apply these exemptions. CDSS works with all counties to submit

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required reports to USDA each quarter.

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Under prior federal rules, if a state didnot use their annual allocation of

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discretionary exemptions, the unused discretionary exemptions carried over, whichallowed the

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unused discretionary exemptions to beusedatanytime inthe future. Dueto California's

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restraineduseofdiscretionary exemptionspriortobeingapproved fora statewidewaiverofthe

19 time limit in2008,asofthedateofthisdeclaration, Californiahasa carryover total ofover
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850, 000 discretionary exemptions.

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California's reserve ofcarryover discretionary exemptions allowscounty

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eligibility workers to apply discretionary exemptions in order to continue providing necessary

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foodbenefitstonon-exempt ABAWDs. Suchapplication ofthesediscretionary exemptions has

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beeninstrumental inproviding foodbenefitsinthesixcounties currently implementing thetime

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limit, asmanyfoodinsecureresidents ofthesecountieshavebeenunableto securetherequisite

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number ofhours ofwork perweek, despite aneconomy that is improving overall. Forexample,

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inthemetropolitan areasthatfall largelywithinthecounties currently underwaiver,theU. S.

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Bureau ofLaborStatistics reports thatthere areapproximately 60, 000people completely
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DECL. OF ALEXIS CARMEN FERNANDEZ ISOPLAINTIFFS' MOT. FORPRELIMINARY INJUNCTION

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unemployed and searching for employment in San Francisco, Oakland, and Hayward, and

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approximately 25, 000 in San Jose, Sunnyvale, and Santa Clara.

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III. U. S. DEPARTMENTOFAGRICULTURE'SABAWDTIMELIMITRULE

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I have reviewedand am familiarwiththe rule, "SupplementalNutritionAssistance

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Program: Requirements for Able-Bodied Adults Without Dependents, " 84 Fed. Reg. 66782

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(hereinafter "Final Rule") issued on December 5, 2019, by the U. S. Department ofAgriculture

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(USDA).

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The Final Rule voids ,all currently approved waivers ofthe time limit as ofApril 1,

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2020, and establishes two core waiver standards that limit waiver eligibility to (1) areas

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experiencing a recent twelve-month average unemployment rate above 10%; or (2) areas

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experiencing a recent twenty-four-month average unemployment rate no lower than 6% and at

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least 20% above the national average. In addition, the Final Rule restricts the definition of an

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"area" to a Department ofLabor "Labor Market Area" (LMA) when requesting a waiver ofthe

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time limit. Together, the new waiver criteria increase the number ofABAWDs subject to the

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time limit across California andultimately reduce California's ability to respond to economic

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downturns that impact access to employment opportunities.

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Previously, states hadthe flexibility to define an "area" when seeking a waiver of

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thetime limit. Restricting an"area"to anLMAdramatically limits California's abilityto waive

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the time limit in zip codes, counties, and regional groupings ofcounties. These flexibilities are

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essential to California's ability to submit waivers thatreflect local economic conditions andthe

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county administration ofCalFresh. Inpastrequests to USDA, California couldcombine adjacent

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counties asa single area. Under the Final Rule, Californiamay askfor a waiver ofthetime limit

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basedonunemployment dataonly for LMAs-the smallest geographic areafor whichtheU. S.

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Bureau ofLabor Statistics provides unemployment data. These LMAs do not always reflect

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regional economic trends, such asthose in multi-county areas. As a result, larger geographic

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areaswherethetwenty-four-month averageunemployment rate ishigherthan6%will notqualify

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for a waiver.

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DECL.OFALEXISCARMENFERNANDEZISOPLAWTIFFS'MOT FORPRELIMINARY
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26.

For the last two decades, states could show that there were insufficient jobs. for

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ABAWDs by establishing that areas had a twenty-four-month average unemployment rate that

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was 20% higherthanthe national rate. The Final Rule alters that by requiring that LMAs also

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have a twenty-four-month average unemployment rate at or above 6% to qualify for a waiver

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USDA fails to adequately explain orjustify why, absentthis floor, LMAs that meet the 20%

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standard actually have sufficientjobs for the ABAWDs residing there. The six percent floor

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relies on general unemployment conditions that do not capture the realities facedby ABAWDs.

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Even where the area's unemployment rate is below six percent, there may nonetheless be

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insufficientjobs for ABAWDs because ABAWDs face barriers to employment that the general

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population does not.

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The Final Rule eliminates current carryover of accrued discretionary exemptions

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beginning October 1 , 2020, disallowing their future use, and drastically limits future carryover of

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any new discretionary exemptions accmed. Under the Final Rule, states will only be allowed to

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apply newly accrued discretionary exemptions to ABAWDs for two years. Any discretionary

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exemptions not usedwithin two years oftheir original allocation will be eliminated.

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IV. IMPACTTO ABAWDs

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28.

CDSS estimates that in the first full State Fiscal Year following implementation

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(July 2020 - June 2021), the Final Rule will impact approximately 402, 800 ABAWDs who are

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currently tracked as non-exempt and are residing in the forty counties, thirty-four newly impacted

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and six currently implementing, that will be ineligible for a waiver under the Final Rule. As

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California's economy continues to improve, the new core waiver standards will increase the

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number ofimplementing counties andtherefore, thenumber ofimpacted ABAWDswill also

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increase over time.

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Based on the experience of three of the currently implementing counties between

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September 1, 2018, and August 31, 2019, CDSS anticipates that up to 85% ofABAWDs

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currently trackedasnon-exempt will eithersatisfytheworkrequirement orcouldbedetermined

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exempt aftera methodical andtime intensive screeningprocessforexemptions, suchasa physical

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ormental unfitness forwork, orpregnancy, thatmaynothavepreviously beenknowntothe
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county. That said, educating ABAWDs about the time limit mles, engaging ABAWDs in

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qualifying work activities, and completion of a robust screening process, requires significant

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advance planning, staff training and development, and months of time to complete, especially

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given California's significant SNAP caseload. Effective client education, improved access to

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local employment and training programs, and a methodical screening process at a scale that will

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reach all SNAP recipients currently tracked as non-exempt ABAWDs, will not be possible given

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the limited timeline for implementation of the Final Rule.

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30.

California approximates that a minimum of 60, 400 non-exempt ABAWDs

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currently receiving SNAP benefits in the forty impacted counties will lose eligibility during

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California's State Fiscal Year 2020-21 as a result of the Final Rule. At the maximum benefit

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allotment for anindividual, this could mean an aggregate loss of approximately $ 105 million in

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SNAP benefits during this time period.

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31.

In my current and previous roles, I have worked directly with county welfare

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departments, food banks, client advocates, and state lawmakers. Based on information these

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stakeholders haveprovided to me overthe years, I am awarethat confusion regarding SNAP

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eligibility rules among eligible individuals contributes to eligible households not applying for the

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public benefits to which they are entitled. For example, food bank staffreport that many oftheir

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immigrant clients do not understand the recently enjoined change to the Public Charge Rule and

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are afraid to apply for SNAP.

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32.

I anticipate thatthe number ofimpacted individuals andlost benefits describedin

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Paragraph 30 will grow over time. Not only will California be required to implement the time

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limit in more counties over the coming years, but also, because ofthe scale ofthe rule change and

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the abbreviated implementation timeline, many ABAWDs who are willing to engage in

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qualifying work activities may not knowwhether and/orwhenthey areeligible for SNAPdueto

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confusion about how the mle works.

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Similarly, based on the experiences ofother states, it is anticipated that many non-

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exempt ABAWDswhobecome ineligible for SNAPbecause ofthetime limit areunlikely to

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return to the program even whenthey regain eligibility. Many ABAWDs who lose eligibility will
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be confused about how they could have remained eligible and may be unaware when they become

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eligible againin the future. For example, many ABAWDsno longer receiving SNAPwill be
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unaware that a new thirty-six-month period has begun when the statewide clock resets or that, if

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their circumstances change (for example they become disabled), they may meet the criteria for an

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exemption from the time limit. Therefore, the harm to ABAWDs who lose eligibility as a result

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ofthe time limit will likely extend well beyond their period of ineligibility.

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34.

Hunger is a barrier to employment. Although the USDA states in its Final Rule

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that the time limit is intended to encourage SNAP recipients to work and become self-sufficient,

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in fact, losing access to food will make it more difficult for ABAWDs to obtain and maintain

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gainful employment and achieve personal stability. Most of these individuals are ineligible for

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any other form of public assistance because they are not elderly, severely disabled; or raising

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minor children. Formany ofthem, SNAP is the only public assistance they canreceive to help

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make ends meet and achieve the stability required to obtain andmaintain employment. Research

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into the time limit, and similar work rules, shows that cutting offbasicpublic assistance doesnot

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help .individuals getjobs.

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35.

Significantly, CalFresh E&T does not have the capacity to provide services to all

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ofthe ABAWDs who will need to engage in qualifying work activities as a result ofthe Final

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Rule, much less within the timeline required by the Final Rule. As an example, in preparation for

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implementation ofthe time limit in 2018, SantaClara County launched a significant effort to add

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six new CalFresh E&T providers to serve non-exempt ABAWDs. This effort, supported by

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CDSS, took over a year and required the commitment of significant county and community

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resources, and resulted in the availability ofE&T services for only 2, 638 more people. In this

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best-case scenario, Santa Clara County had the benefit of an existing CalFresh E&T program

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infrastructure. Only thirty-seven counties in California currently offer CalFresh E&T due to

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limited county and community resources, financial and otherwise, and because there may be

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limited employment and training service providers available. The Final Rule neither offers nor

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contemplates supplementing employment and training resources. Based on my many experiences

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overseeing implementation of SNAP rules by the counties, the implementation timeline ofthe

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Final Rule gives counties nowhere near sufficient time to issue guidance and train county staff,

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update client materials, provide official notice to ABAWDs, and expand employment and training

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services.

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36.

Without adequate access to CalFresh E&T, many ABAWDs will lose eligibility

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for SNAP due to an inability to become employed or participate in a qualifying work activity for

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the requisite twenty hours per week. Once an ABAWD is no longer receiving SNAP, they will

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also lose their eligibility for CalFresh E&T services. Therefore, even if more CalFresh E&T

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services become available over time, ABAWDs may not be eligible for them, having already lost

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SNAP eligibility, and will, as a result, not gain enough qualifying work hours to regain SNAP

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eligibility.

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Although ABAWDs, by definition, do not have dependent children living with

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them, many are non-custodial parents. A lack offood causes people to trade offbetween food

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and other basic needs. Therefore, for example, a loss offood benefits canmake it more difficult

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for non-custodial parents to provide safe visitations and/or financial support to their children, two

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responsibilities that are already challenging for unemployed or underemployed parents.

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38.

The ABAWD time limit will also increase the occurrence ofhomelessness' in

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California. ABAWDs who lose food benefits as a result ofthe time limit will be forced to spend

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what little money they have on food instead of other basic needs, such as rent.

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39.

The experience ofhomelessness will in turn make it much more difficult for an

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ABAWD to regain SNAP eligibility. Based on information stakeholders have provided to me

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over the years while I have served in my present andprevious roles overseeing the CalFresh

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Program, and based on my previous work in client advocacy, I am aware that the experience of

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homelessness can create significant barriers to employment. The Final Rule does nothing to cure

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thesebarriers to employment for individuals experiencing homelessness. Currently, in the six

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coimties implementing thetime limit, county eligibility workers apply discretionary exemptions

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from California's carryover bankto these individuals sothatthey may continue to receive SNAP

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benefits. The Final Rule will eliminate California's carryover ofdiscretionary exemptions in

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October 2020, resulting in a loss ofbenefits for this population.
DECL. OF ALEXIS CARMEN FERNANDEZ ISO PLADSTTIFFS' MOT FOR PRELIMINARY INJUNCTION

40.

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The ABAWD time limit will present an additional barrier for foster youth aging

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out ofcare and former foster youthwho alreadyexperiencehigherrates ofhomelessness and

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unemployment. A loss offood benefits will only make it more difficult for young adults to

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achieve personal stability, engage in education or work, and set themselves on a pathway for

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success. Additional barriers early in life, particularly for current and former foster youth, could

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leadto years of struggle andincreasedependency on otherpublic assistancebenefits.
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Implementation ofthe time limit as a result ofthe updated waiver criteria in the

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Final Rule will also disparately impact women, people of color, and individuals with disabilities.

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The Final Rule will hit hardestthose individualswho have the greatestdifficulties in the labor

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market. The unemployment rates relied on for waiver approvals are an average ofthe entire

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population in a given region. Those rates do not accurately reflect the much higher rates of

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women and minorities who are unemployed and searching for employment, as reported by the

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U. S. BureauofLaborand Statistics. They also do not take into accountthe additionalbarriers to

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employment, and institutional prejudice experienced by women, people of color, and people with

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disabilities during the hiring process and in the workplace.
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The severe reduction in the canyover ofdiscretionary exemptions will limit

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California's ability to mitigate the harm of the Final Rule among non-custodial parents,

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individuals experiencing homelessness, current and former foster youth, women, people of color,

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individualswith disabilities, andothers. While county eligibility workers havethe flexibilityto

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provide a discretionary exemption to an individual struggling to find work or engage in a

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qualifying work activity, this flexibility will beseverely limited by the elimination ofthe State's

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current carryover of more than 850, 000 discretionary exemptions, each equivalent to one month

23

of benefits for one ABAWD.

24

V.

25
26

IMPLEMENTATION THEABAWDTIMELIMITRULEINPREVIOUSLY
OF
WAIVED
COUNTIES

43.

In my current and former roles, I have reviewed and am familiar with the SNAP

27

rules, codified in Title 7 ofthe Code of Federal Regulations. From my experience, the ABAWD

28

time limit is immensely complicated and difficult to grasp for CalFresh beneficiaries. As a result,
12
DECL.OFALEXISCARMENFERNANDEZISOPLAINTIFFS'MOT. FORPRELIMINARY
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I

it will take significant planning, training and staff development, outreach, and operational process

2

development to acciu-ately implement the time limit.

3

44.

Under the Final Rule, California's current partial waiver ofthe time limit will

4

expire on March 3 1, 2020. USDA has requested that states submit new waiver requests under the

5

Final Rule by Febmary 1 , 2020.

6

45.

The Center for Budget and Policy Priorities (CBPP) analyzedthe impact ofthe

7

FinalRule's new core standardsfor obtaininga waiver ofthe time limit on Californiacounties.

g

The CBPP estimates that beginning April 1, 2020, only eighteen of California's fifty-eight

9

counties will be eligible for a waiver ofthe time limit. Thirty-foiir counties that were expected to

10

provide SNAP benefits to an estimated 352, 077 non-exempt ABAWDs in FFY 2019, will be

11

required to implement the time limit. These counties, which do not include the six currently

12

implementing counties, will berequiredto implement this highly complex rule forthe first time

13

since 2008, with less than four months' notice.

^4

46.

By providing states withfewerthanfour months to prepare forthis complex

15

eligibility policy to take effect ata massive scale, USDAhascreated a considerable obstacle to

16

compliant and accurate implementation aswell asprudent fiscal planning by the State, where all

17

additional costs will be shared by the federal government. The expedited implementation timeline

1g

will inhibit and limit the effectiveness ofcounty planning activities, training for county eligibility

19

workers, CDSS technical assistance, and client communications. The shortened timeline also will

20

require CDSS andthe counties to re-direct staffandfinancial resources anddeprioritize other key

21

projects andinitiatives. This abbreviated timeline is untenable andwill require a large-scale

22

redirection and increase in fiscal and program expenditures.

^3

47.

Pursuant to the Final Rule, California must submit a newwaiver request for the

24

eighteen eligible counties as soon aspossible sothat it canbe approved before the April 1, 2020

25

effective date. USDA has asked that these waiver requests be submitted by February 1 , 2020.

26

This task-significant in and ofitself-will require minimal stafftime andresources when

27

comparedtothemassive demandsofimplementing theABAWDtime limit inthemajority of

28

California counties.
DECL.OF.ALEXISCARMENFEKNANDEZ PLAINTIFFS'MOT. FORPRELIMINARY^JUNCTION
ISO

1

48.

Compliant and accurate implementation of the ABAWD time limit requires that

2

CDSS provide policy guidance and trainings for county staff. The Final Rule will require CDSS

3

to revise previously issued policy guidance.

4

49.

As the majority of the forty impacted counties have been under a waiver of the

5

time limit for over a decade, there is limited institutional knowledge ofthe ABAWD time limit

5

rules at the county level. This means that the majority ofeligibility staffmust be trained onhow

7

to: (1) properly explain the rule to recipients; (2) determine exemptions; (3) engage ABAWDs in

g

qualifying work activities; (4) apply the rule; and (5) track recipients' countable months, work

9

and other qualifying activities, and use ofdiscretionary exemptions. The Final Rule will require

10

CDSS to provide extensive training to our forty counties on a very tight timeline. This is not

1\

tenable.

^

50.

For the six counties ciirrently implementing the time limit, county staffreceived

13

policy guidanceandparticipated in CDSStrainings overthe course ofmore thana yearleading

14

up to implementation. CDSS staff, made up of a team ofthree individuals, visited each county on

15

several occasions and held a series of ongoing monthly meetings with counties to provide

15

technical assistance andensure accurate implementation. In anattempt to comply withthese

17

staggering changesandimplement the Final Rule in the.thirty-four newly impacted counties,

1g

CDSSintends to hostwebinar-style trainings on a minimum offour related policy topics, provide

19

updatedtalkingpoints andclient materials for county staffto usewhenspeakingto recipients,

20

and update all written policy guidance on the ABAWD time limit and necessary tracking. In-

21

person training opportunities andtechnical assistance visits will require substantial stafftime at

22

boththe state andcounty level, whichwill likely require significant diversion ofstafffrom other

23

important projects and program areas.

^4

51.

In order to implement at the scale and on the timeline required by the Final Rule,

25

elements ofABAWD time limit automation in the State's three eligibility Information

26

Technology (IT) systems, particularly noticing and client reporting mechanisms, will have to be

27

newly implemented or updated andprioritized over existing highpriority projects. This changein

28

automation priorities will lead to previously unanticipated costs and delays in other priority
14

DECL.OFALEXISCARMENFERNANDEZISOPLAINTIFFS'MQT. FORPRELIMINARY
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projects for SNAP and other CDSS programs, including the federally required consolidation of

2

our Statewide Automated Welfare systems (SAWS) from three to one.

3

52.

Prior to implementation, ABAWDs must be provided with written notice ofthe

4

ABAWD time limit. The notice must explain how the ABAWD time limit works, what the

5

requirements are, and what exemptions exist. While notices ofthis kind have been used in the six

6

currently implementing counties, significant amendments will be required to address issues

7

specific to the expedited timeframe for implementation and the anticipated elimination of the

g

State's carryover of discretionary exemptions. These notices should be sent at least thirty days

9

prior to the April 1, 2020, effective date ofthe Final Rule, though ideally, they would be sent

10

^

earlier.

53.

Along with the informational notice ofthe ABAWD time limit rule, CDSS must

12

include a screening tool that will assist in screening ABAWDs for an exemption from the time

13

limit outside ofnormal touchpoints suchasperiodic reporting or recertification, ashadbeendone

14

in thepast; Certain ABAWDs are exempt from thetime limit dueto factors suchasmental or

15

physical unfitness to work or pregnancy, andthis information may not bereadily knownto the

16

county. The criteria for exemptions are incredibly detailed, but it is beneficial to identifythe

17

individual ABAWDs exempt onthese grounds prior to implementation, ifpossible, in orderto

1g

reduce how many ABAWDs the counties will have to apply the time limit to and to limit the

19

number ofdiscretionary exemptions usedunnecessarily. By including a screening tool withthe

20

notice, ABAWDs will havethe opportunity to provide information to the county eitherbymail,

21

phone, or electronically and, if eligible, establish anexemption from the time limit prior to

22

implementation. Processingthe results ofthe screening outside ofnormal touchpoints will create

23

an unanticipated workload for counties.

^4

54.

CDSSwill actively encourage counties andCalFresh Outreachcontractors

25

statewide to assist asmany ABAWDs aspossible with completion ofexemption screening prior

26

to April 1,2020.Thesixcurrently implementing countiesbeganthisprocess approximately sixto

27

ninemonths inadvanceoftheirimplementation, andtheabbreviatedtimeline forimplementation
in the new counties under the Final Rule will limit the effectiveness of exemption screening.
15
DECL. OF ALEXIS CARMEN FERNANDEZ ISOPLAINTIFFS' MOT. FORPRELIMINARY INJUNCTION

1

55.

The notice and screening tool, once finalized, must be translated into SNAP'S

2

seventeen threshold languages to ensure compliance with SNAP language access requirements.

3

These translations take time andwill lead to additional previously unanticipated costs.

4

56.

A mass issuance of notices on this scale normally requires significant advance

5

planning. I do not believe that the State's eligibility IT systems will be able to program a mailing

6

ofthis nature in this timeframe. Ifthe State and counties are unable to complete this mailing via

7

the eligibility IT systems, there will be significant costs that were not previously accounted for in

8

budgeting.

9

57.

Forexample, ifthe eligibility IT systems cannot complete themailing, then CDS S

1o

may have to pay for the California Office of State Publishing (OSP) to print and mail the notices.

11

Contracting withOSPoftentakes time andis expensive. IfOSPcannotcomplete a statewide

12

mailing on time, individual counties may have to print and mail notices to certain ABAWDs

13

outside ofthe mass noticing process. This will likely leadto further delays andwill heighten the

14

risk of benefit payment errors.

^

58.

Ahead ofimplementation, each county is required to develop anABAWD

16

Time Limit County Readiness Plan and submit it to CDSS for review. These plans include

17

detailed proposals on a variety ofrelevant topics including: stafftraining, ABAWD engagement,

1g

useofdiscretionary exemptions, andinternalprocesses forapplyingthetime limit mle. Normally

19

counties are aware oftheir implementation date at least a year in advance and CDSS receives

20

theseplans sixmonthsbeforeimplementation. Thistimeframe provides CDSStimetoreviewthe

21

plans andprovide anynecessarytechnical assistance. Unfortunately, thethirty-four newly

22

implementing countieswill needto develop theirplans andCDSSwill needto conductits review

23

onanunreasonably expeditedfour-month timeline forimplementation. Thisexpeditedtimeline

24

andthe sheervolume ofcounties involved will meanthatinorderto complete thesereviewsand

25

providethenecessarytechnical assistance, CDSSwill needto divert stafffrom otherpriorities

26

suchascontinued efforts to increase CalFresh access andparticipation among Supplemental

27

Security Income (SSI)recipients andothertargetpopulations, issuanceofnewpolicy guidance

28

andcorresponding regulation development, development oftraining curriculum, andtechnical
16

DECL. OF ALEXIS CARMEN FERNANDEZ ISOPLAINTIFFS' MOT. FORPRELIMINARY INJUNCTION

1

assistance to improve accuracy and the consistency of operations across counties. Even with

2

additional staff diverted to this task, the timeframe simply does not provide CDSS or the counties

3

with the time needed to develop and consult on effective plans for implementation.

4

59.

CDSS has scheduled a two-day, in person. All County Readiness Summit in

5

January 2020. This summit will provide counties with content and trainings meant to assist with

6

the finalization oftheir ABAWD readiness plans. This summit will also require significant staff

7

time dedicated to planning and content development and lead to travel costs for both the State and

g

counties.

9

60.

CDSS regularly hosts a bi-annual operations roundtable with county

10

representatives. The roundtable is an opportunity for CDSS andthe counties to discuss a wide

11

range oftopics impacting the administration of SNAP throughout the State. The next roundtable

12

is scheduled for March 2020. Giventhe magnitude ofthis policy changeandnearly impossible

13

deadline for implementation, I anticipate most ofthe roundtable will focus on implementation of

14

the ABAWD time limit. This means that many other important topics will not be discussed and

15

resolved.

^

61.

Currently, the six implementing counties are instmcted to use California's

17

carryover ofdiscretionary exemptions asneeded. However, theFinalRule's changesinthe

1g

accrual ofdiscretionary exemptions andrequired implementation inthethirty-four newly

19

implementing counties will limit the availability ofdiscretionary exemptions to eachofthe

20

counties. CDSSwill needto identify the likely usagerate ofeachcounty andformally allocate

21

specific amounts of discretionary exemptions to each ofthe forty counties, six currently

22

implementing andthirty-four newly implementing, that will be implemented asofApril 1, 2020.

23

This analysis and policy guidance will require substantial stafftime for both CDSS CalFresh

24

Policy and CDSS fiscal staff.

^5

62.

An important aspect ofcompliant and accurate implementation ofthe ABAWD

26

time limit rule is the work done to educate community stakeholders and CalFresh Outreach

27

contractors statewide. Therearenumerous non-govemmental entities andindividualswho

28

providekey assistanceto ABAWDs, manyofwhomarepartoftheformal CalFreshOutreach
DECL. OF ALEXIS CARMEN FERNANDEZ ISO PLAINTIFFS' MOT. FORPRELIMINARY INJUNCTION

1

network. They help individuals apply for SNAP and they help ABAWDs to understand the time

2

limit, the work requirements, and when they can re-apply to receive benefits. Certain stakeholders

3

also provide opportunities for ABAWDs to engage in qualifying work activities. Community

4

stakeholders include food banks that can provide emergency food for ABAWDs who lose

5

benefits as a result ofthe time limit rule, or volunteer opportunities so that ABAWDs can fulfill

5

their work requirements. As such, the six counties currently implementing the time limit have

7

found that community stakeholder and outreach contractor trainings are key to effective

g

implementation of the ABAWD time limit mle. CDSS intends to provide written outreach

9

materials andtraining opportunities to help community stakeholders and outreach contractors

10

understand the ABAWD time limit rule andhelp ABAWDs directly. These efforts will also

11

require substantial staff time and, as with other components of implementation, the timeframe

12

will simply not allow for comprehensive stakeholder engagement.

13

VI. QUALITY CONTROLANDFEASIBILITY

^4 -

63.

USDA has made payment acciiracy and reducing quality control error rates a key

15

priority for all statesthisyear. The SNAPquality control system measures the accuracy ofstate

16

eligibility andbenefit determinations. While quality control outcomes areusedfor program

17

improvement, a high rate of quality control errors can lead to financial penalties for both the

18

counties and the State.

.

^9

64.

As mentioned, compliant and accurate implementation ofthe time limit rule at this

20

unanticipated scale is not feasible in the time allowed under the Final Rule. The expedited

21

implementation timeline drastically limits CDSS' ability to train county staffand for county staff

22

to familiarize themselves with the ABAWD time limit. As a result, I anticipate an increase in

23

quality control errors. Although CDSS doesplanto provide several training opportunities and

24

detailed written guidance, California's counties have thousands ofeligibility workers, and so it is

25

unrealistic to assume that all eligibility workers will bepreparedto accurately apply the ABAWD

26

time limit in the time provided by the Final Rule.

^-7
28

65.

Previously, states have used discretionary exemptions to cure administrative errors

related to the application ofthe ABAWD time limit. Within a fewmonths ofimplementation in
DECL.OFALEXISCARMENFERNANDEZISOPLAINTIFFS'MOT. FORPRELIMINARY
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1

the thirty-four newly implementing counties, this will no longer be feasible in most cases given

2

the restrictions on the carryover ofdiscretionary exemptions underthe FinalRule.

3

66.

If county eligibility workers make administrative errors that lead to ABAWDs

4

receiving benefits that they were not entitled to, those individuals may be liable for paying back

5

those benefits. This means that individuals who are not gainfully employed and are already living

6

in poverty will lose their food benefits and owe money, even though they did nothing wrong. The

7

Final Rule provides no relief for those individuals, and the timeline of implementation makes it

g

inevitable that significant numbers ofpeople will be adversely affected.

9

VII. BUDGETARY IMPACTS OFUSDA'S ABAWD TIME LIMITRULE

[Q

.

11
12

67.

As described above, the implementation ofthe Final Rule has associated costs that

could not have been considered in the development ofthe current year's administrative budget.
68.

When overall administrative costs for SNAP go up, the state and county shares go

13

up as well. State and county budgets were nearly universally adopted in July 2019 and did not

14

include funding for the tasks that are required by the recent issuance ofthe Final Rule. As a result

15

ofthe Final Rule, the State and counties will need to consider whether they are able to cover their

16

share of increased administrative costs or if other budgetary adjustments need to be made, which

\7

will impact the administration of SNAP overall. The reduction in these resources will adversely

1g

affect existing recipients of SNAP.

19

VIII. CALFRESH AND CDSS' IMPACTED INITIATWES ANDDIVISIONS

30

69.

CalFresh E&T anticipates a drastic increase in the demand for E&T services as

21

more ABAWDs are subject to the time limit. However, SNAP E&T annual plans are submitted

22

each August, so CalFresh E&T could not have and did not account for this impact in its annual

23

plan. Similarly, the Final Rule provides no additional funding or support for the states' E&T

24

programs. USDAhasinformed states that expandingE&T services in response to the increased

25

implementation ofthe time limit is a priority, but it has not provided the State with resources

26

necessary to meet this increased demand.

^-7
28

70.

As CFAP abidesby SNAPrules, thethirty-four newly implementing counties will

also berequired to implement thetime limit for CFAP casesby April 1 ,2020. This will require
DECL. OF ALEXIS CARMEN FERNANDEZ ISO PLAWTIFFS' MOT. FOR PRELIMINARY D>JJUNCTION

1

CDSS to provide the counties with specialized training and guidance on how to track CFAP

2

ABAWDs and apply and track state-funded discretionary exemptions for CFAP cases. The

3

discretionary exemptions for CFAP ABAWDs are allotted and tracked separately from the

4

traditional SNAP-funded CalFresh discretionary exemptions since they are not part ofthe

5

federally provided bank of discretionary exemptions for SNAP-funded CalFresh ABAWDs.

5

71.

CalFresh Outreach and its contractors will need to shift priorities to respond to the

7

mass implementation ofthe time limit. In FFY 2019, California hasprioritized outreach to SSI

g

recipients as they first became eligible for SNAP in California on June 1, 2019. However, the

9

staff and financial resources meant to provide outreach to this community will instead need to be

10

redirected to ABAWD outreach andeducation. As a result, there will bea large andpreviously

11

unanticipated adverse impact on this population.

^

72.

CDSS'StateHearings Division (SHD) conducts administrative hearingsfor

13

individuals whobelieve the county mishandled their casein some way. Whenrecipients lose

14

eligibility or experience a decrease in benefits, they are entitled to an administrative evidentiary

15

hearing. As a result ofthe implementation ofthe Final Rule, we anticipate a significant increase

16

in requests for administrative hearings. This will create a substantial burden on SHD andwill lead

17

to delays in hearings, which violate the rules ofSNAP and the many other programs for which

\g

SHD provides administrative review.

19

IX. BROADERIMPACTS

^0

73.

CalFresh provides approximately four million Califomians, including two million

21

children, with essential nutrition assistance eachmonth. These benefits are used to purchase food

22

atgrocery stores, grocery outlets, andfarmers' markets acrossthe State,generatingmore than$11

23

billion ineconomic,activity annually. Eachyear, SNAPbenefits leadtotensofthousands ofjobs

24

in California alone. From farmers' market vendors to large-scale agricultural producers,

25

businessesintheagricultural industrybenefitfromtheuseofSNAPbenefits. BasedonUSDA's

26

ownanalysis, eachdollar "saved"asa result ofthisFinalRule andtheimplementation ofthe

27

ABAWDtime limit rule, is $1. 54keptfromourNation'sfoodandfarmindustries. TheFinal

28

Rule will have a massive negative economic impact if implemented.
DECL. OF ALEXIS CARMEN FERNANDEZ ISOPLAINTIFFS' .MOT. FORPRELIMINARY INJUNCTION

1

74.

California's food banks distribute federal Emergency Food Assistance Program

2

commodities to over 1. 5 million people each month, in addition to purchased and donated food,

3

via networks ofhundreds of community charities and congregations. Individuals who are no

4

longer eligible for SNAP will still need food andwill turn to food banks' supply offederal,

5

purchased, and donated food. However, food banks do not have the capacity to address a new

6

significant need ofthis kind.

7
8

9

10

I declare under penalty ofperjury that the foregoing is true and correct and ofmy own
personal knowledge.

Executedonthe_f_day ofJanuary2020,inSacramento,California.

11

12

/

13
Alexis Carmen Femandez

14
15

Acting Chief, CalFresh & Nutrition Branch
CaliforniaDepartment of Social Services

16
17
18
19
20
21
22
23
24

25
26
27
28

21
DECL. OF ALEXIS CARMEN FERNANDEZ ISQPLAINTIFFS' MOT. FORPRELIMINARY WJUNCTION