Advocacy Issues with the Family Violence Option

New York State Coalition Against Domestic Violence Family Violence Option Training

December 6, 2001

Jennifer DeCarli

POTENTIAL CHALLENGES CONFRONTING CLIENTS WHEN ACCESSING THE FAMILY VIOLENCE OPTION

A. SCREENING CHALLENGES:

SCENARIO 1- Your client went to her re-certification appointment.  After the appointment, you ask her if she was screened for domestic violence and she tells you no.  What do you advise her to do?

• The screening form must be provided to every adult at the application and re-certification interview. However, the screening form can be completed at any time.  In the above scenario, you should advise the client to immediately request a domestic violence screening from her case worker.  (See DV Q & A's, 8/26/98, Q.1)

SCENARIO 2 - Your client tells you that her and the abuser applied for public assistance together a few months ago and she did not complete the screening form due to the abuser's presence. She is now trying to escape the relationship but is having difficulty complying with some of the TANF program requirements.  What do you advise her to do?

• This issue is addressed in the ADM's.  SSD's are advised to be sensitive to the fact that a batterer could be present at an initial interview.  SSD's are encouraged to be creative in finding a way to mention the form in a private setting and to mention the requirement in general orientation sessions.   In the above scenario, if the client is planning on leaving the household, her TANF household composition will be changing.  You should advise the client to ask her case worker to provide her with a domestic violence screening form as the guidelines state that if the client chooses to complete the form at a later date, they can call their worker at any time.  (See DV Q&A's 8/26/98, Q.1, Q.4, 98 ADM 3, pg. 7)

SCENARIO 3 - Your client tells you she is having trouble complying with TANF work requirements because the father of her child never shows up to watch their children when she is supposed to be at work and he is continuing to harass and abuse her.  Your client tells you she remembers being screened for domestic violence but she checked no because she wasn't sure why the SSD was asking for the information.  What can she do now?

• The SSD must provide the form to any individual who at any time identifies as a victim of domestic violence or requests a screening.  The guidelines specifically state, "this issue may not arise until the individual is discussing work requirements with an employment worker."  Thus, the client should immediately request a screening and be referred to the dv liaison who can provide waivers from employment if appropriate. (See 98 ADM 3, Pg. 7)

SCENARIO 4- Your client tells you that she checked yes on the domestic violence screening form during her application interview but you find out that the worker has already scheduled her drug and alcohol assessment before she has met with the domestic violence liaison. 

• Once an applicant has checked yes on the domestic violence screening form, all other assessments must be put on hold until the DV assessment is completed.  In the above scenario, the client must see the dv liaison before the drug and alcohol assessment can be scheduled.  You should call the caseworker with the client and provide her with a copy of the ADM and guidelines stating this policy.  (See DV Q & A's, 8/26/98, Q.7, 98 ADM 3, pg. 7)

SCENARIO 5- In your county, applicants for TANF are first sent to the child support collection unit.  Your client first went to the child support collection unit and did not mention domestic violence to the worker.  The client then went to the eligibility interview and checked yes on the domestic violence screening form.  Does it matter that the client did not indicate domestic violence to the child support worker?

• Child support workers cannot screen for dv.  If a client indicates the presence of domestic violence during a child support interview, the child support worker must refer the applicant to the DVL for screening and assessment.  In the above scenario, the client should be fine as she checked yes in the eligibility interview - thus, she should now be referred to the DVL who could assess the need for any waivers including child support waivers.  (See DV Q & A, 8/26/65, pg9, Q.3)

SCENARIO 6 - Your client tells you that she checked yes on the domestic violence screening form because she is currently being stalked and harassed by her ex-partner's best friend, however the caseworker told her this did not constitute domestic violence.  Is there anything you can do?

B. DOMESTIC VIOLENCE LIAISON ISSUES

SCENARIO 7 - The client tells you that she checked yes on the domestic violence screening form and was referred to the DVL.  She made the appointment but missed it. What should she do now?

• The client should immediately call the DVL and ask to reschedule the appointment if she is still interested in speaking with the DVL.  If the client does not call the DVL to reschedule, the DVL will notify the PA worker and the other assessments will continue.  The DVL will not call the client if she misses the initial appointment due to safety concerns.  (See DV Q & A, 8/26/98, pg. 4, Q.4)

SCENARIO 8 - The client checked yes on the form and was referred to the DVL.  When the client called the DVL, she asked the DVL if she could do the assessment over the phone as the client is fearful about leaving her home due to the abuser's threats.  The DVL refuses and tells her that she must meet with the client face to face in order to do the credibility assessment. Is there anything the client can do?

• The DVL can do a phone assessment of a client if it is necessary to protect the client's safety.  Thus, in the above scenario, you and your client should speak with the DVL and refer her to the appropriate guidelines that permit such a phone assessment.  (See DV Q & A, 8/26/98, pg. 5, Q.5)

SCENARIO 9 - The client checked yes on the screening form and was referred to the DVL.  During the credibility assessment, the DVL tells the client that she must provide her with documentation or obtain "collateral information" regarding the domestic violence.  When the client tells her she does not have any collateral information, the DVL finds the victim not credible and refuses to assess whether any waivers are appropriate.  What can the client do?

• At a minimum, the DVL must accept a sworn statement by the client declaring that she is a victim of domestic violence.  In the above scenario, you and the client should speak with the DVL and provide her with the guidelines documenting the above rule.  The DVL cannot require the client to provide "collateral information" in order to be deemed credible.  (See 98 ADM 3, pg. 10)

SCENARIO 10 - At the client's first appointment with the DVL, the client tells the DVL that she has no documentation of the abuse.  The DVL tells the client that no documentation is necessary.  She tells the client she only has to sign a sworn statement describing the domestic violence and why she needs a waiver from certain program requirements. Has the DVL complied with the guidelines outlined above?

• The DVL can not ask a victim to provide a written description of the abuse.  The DVL can only require a victim to sign a sworn statement that she is a victim of domestic violence.  There is no required form for such statement.  (See DV Q & A, 8/26/98, pg. 6, Q. 5)

SCENARIO 11 - After the client meets with the DVL, she tells you that the DVL granted her an employment waiver for three months.  Did the DVL comply with the guidelines?

• Waivers must be granted for an initial period of not less than four months.  Thus, in the above scenario, the DVL must grant the initial employment waiver for four months.  The waivers can be granted for a longer time if the DVL feels it is necessary.  Further, there is no maximum time limit on the length of waivers and they can be granted for as long as necessary as long as they are reviewed at the end of each waiver period.  (See 99 ADM 8, pg. 3)

SCENARIO 12 - After the initial assessment, the DVL grants the client an employment waiver for four months.  Right before the end of the four months, the client meets with the DVL for a re-assessment in order to determine if the waiver should be extended.  The DVL terminates the waiver because the client did not engage in the counseling services or obtain an order of protection as recommended by the initial service plan.  What can the client do?

• The DVL must prepare a services plan with the client when any type of waiver is granted.  This service plan should be a written summary of the recommendations and referrals discussed by the client and the DVL and should be designed to lead the client to safety and self sufficiency.  Most importantly, the service plan should not be viewed as a list of requirements that must be complied with by the client.  The services plan is to be used only as a resource and the client has the option of whether or not to engage in any of the recommended services.  (See 99 ADM-8 pg. 4 and DV Q & A, 8/26/98, pg. 7, Q.2 - [in contrast to 98 ADM 3, pg. 14 and DV Q & A, 8/26/98, pg. 7, Q.3 and Q.5])

Thus, in the above scenario, the DVL cannot require a victim to engage in counseling and/or seek an order of protection in order to extend an initial waiver. The client should receive from the DVL the form entitled, "Notification of decision on a continuation of wavier(s) to allow a temporary delay in public assistance requirement(s)"  As an advocate, you should call the DVL and discuss the guidelines and if unsuccessful, a fair hearing should be requested. The client has 60 days from the date she received the above notice to request a fair hearing. 

C. INTERACTION WITH CHILD SUPPORT COOPERATION REQUIREMENTS AND GOOD CAUSE WAIVERS:

SCENARIO 13- The client is initially granted a partial child support enforcement waiver by the DVL whereby she is waived only from appearing at the court hearing regarding child support but not from providing information to identify and locate the absent parent.  Child support enforcement follows through with enforcement and the abuser begins to harass the client further.   The IV-D worker refuses to stop the support order.  What can the client do?

• The DVL can waive child support cooperation requirements.  These waivers can be partial or full waivers.  The above is a partial waiver as the client was only waived from appearing at subsequent enforcement hearings but not from providing the initial information regarding the absent parent.  In the above scenario, the enforcement of the child support has escalated the abuse.  According to the policy directives, "the child support order can be stopped if the DVL in consultation with the client and IV-D worker determines that the collection of the support order, even without the client's involvement, poses a risk to the family."  (See DV Q & A, 8/26/98, pg. 10, Q.4)

SCENARIO 14 - The DVL granted a full child support waiver to the client.  Subsequently, the client leaves public assistance and the case is closed.  The client now learns that the child support enforcement unit is going back and trying to collect the arrears for this time period. Is there anything the client can do?

• Yes.  The child support enforcement unit can not collect on arrears for the period that the waiver was granted, as this could clearly be a safety issue for the client and is the reason the requirements were waived in the first place.  (See DV Q & A, 8/26/98, pg. 10, Q.8)

SCENARIO 15 - The client did not check yes on the domestic violence screening form.  At the interview with the child support enforcement worker, the client tells the worker that she does not want to cooperate with child support enforcement because the child was conceived as a result of a stranger rape.  Can the child support cooperation requirements be waived by the child support worker?

• Yes.  The good cause waivers from child support cooperation still exist even though the DVL can also provide waivers for child support cooperation.  Claims for a good cause waivers must be investigated even if the client has not received a waiver from the DVL for child support cooperation. In most situations, it will be much easier for your client to obtain a domestic violence waiver from the DVL for child support cooperation as the good cause waivers are defined more narrowly. [See 18 NYCRR 369.2(4)(iv)

The above scenario is a perfect example of when it may not be appropriate for the client to receive a waiver from the DVL but necessary for the client to receive a good cause child support cooperation waiver.  The child support worker must grant the client a good cause waiver from child support requirements as rape is a reason explicitly stated in the regulations.  (See 18 NYCRR 369.2(4)(iv)(b))

SCENARIO 16 - Client initially received Family Assistance (FA) and was granted a DV waiver for child support but after two months, her FA case was closed.  Client is now only receiving medical assistance but she still needs a child support waiver.  The client has found out that the dv waiver was also terminated.  Is there anything the client can do?

• Once the public assistance case is closed, the client can not receive a domestic violence waiver as the family violence option requirements are only mandated for PA applicants. Medical assistance applicants/recipients only are not screened for domestic violence. However,  in the above situation, the client should apply for a good cause waiver for the medical assistance child support cooperation requirements.  (See 98 ADM 3 pg. 18). 

D. SANCTIONS

SCENARIO 17 - Client initially checked no on the domestic violence screening form.  She has now been sanctioned b/c she hasn't been showing up for work due to domestic violence.  Her sanction is for 60 days.  The client now tells the worker that the reason she couldn't work was because of the domestic violence.  Is there anything you can do to get the sanction lifted?

• In the guidelines on the family violence option, the directive states that the sanction should not be lifted as prior to the sanction being imposed, the client had the opportunity to explain why she couldn't comply.  Despite this, some counties do report success in getting such a sanction lifted.  Advocates should work with their domestic violence liaison to try to get this sanction lifted or attempt to bring a fair hearing.  (See DV Q & A, 8/26/98, pg. 11, Q.1)

E. TIME LIMITS:

SCENARIO 18 - Client and her family have been on family assistance since December 2, 1996, and she has received a notice in the mail that her family assistance benefits are ending due to the sixty month time limit on December 1, 2001.  Client currently has a waiver from employment due to the abuser's harassment and b/c of the PTSD she is suffering as a result of being a victim of domestic violence.  Client wants to know if there is anything she can do to remain on family assistance.

• The PRWORA of 1996 specified that families were ineligible for TANF funded assistance if it included a head of household (adult or minor) or a spouse of a head of household (adult or minor) who has received more than sixty months of TANF funded assistance whether or not consecutive in his or her lifetime. Luckily in NY, once individuals leave TANF, they can still qualify for non cash safety net assistance.  Although it is not clear, advocates believe the family violence option will also apply to safety net assistance. 

There are exceptions to the above restrictions if the family has suffered certain hardships.  Most importantly for dv advocates, domestic violence victims can qualify for an exception to the time limit if the victim is experiencing one of the following:

• a physical or mental impairment that is the result of domestic violence that
  is expected to last three or more months.
  
• a physical or mental impairment of a child that is the result of domestic violence that requires the adult family member to remain in the home to care for the child.

In the above scenario, the client should notify her DVL that she is suffering from a mental impairment as a result of domestic violence.  All this requires is that the client make a verbal attestation to the DVL regarding her disability and that it is a result of domestic violence.  The DVL will ask for medical verification of this disability but the medical verification does not need to state that the disability is the result of domestic violence.  The client can initially receive the time limit exception for a period of at least four months but this can be extended, modified or terminated based on review by the DVL.  (See 01-ADM-3, pg. 9 - 12 and the attached NOW LDEF Alert)