Modification: Rivera v. Kent

FRANCES RIVERA et al.,

Plaintiffs and Respondents,

v.

JENNIFER KENT, as Director, etc., et al.,

Defendants and Appellants.

No. A147534

(Alameda County

Super. Ct. No. RG14740911)

California Courts of Appeal

First Appellate District

Division Four

Filed July 23, 2019

ORDER MODIFYING OPINION

AND DENYING REHEARING;

NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on June 27, 2019, be modified as follows:

1. On page 11, at the end of the partial paragraph that ends with the language "(See Marquez, supra, 240 Cal.App.4th at p. 104, fn. 8 [state statute governing hearing rights in connection with actions taken by counties did not apply directly to DHCS, although in that case a different provision (a regulation) made the statute applicable to some DHCS actions].)," the following language shall be added:

As noted, DHCS raised this issue in its appellate briefs, and the only response from plaintiffs was a selective quotation of the regulatory language that omits the phrase "[t]he county department." (See Respondents' Brief at p. 30 ["[State regulation 50177] is equally specific, requiring that DHCS 'shall complete the determination of eligibility . . . as quickly as possible but not later than . . . [f]orty-five days . . .' "], italics added.)

2. At the end of footnote 11, which begins on page 17, the following new paragraph shall be added:

On rehearing, plaintiffs shifted ground, arguing DHCS (not the Legislature) suspended the performance standards in 2015-2016. We are aware of no authority under which an administrative agency can suspend a statutory obligation. Whatever DHCS suspended in the letter cited by plaintiffs on this point---presumably either the agency's own self-certification requirements for counties (the focus of the letter) or the funding-reduction sanction noted above---it had to be something that was within its scope of authority.

3. At the end of footnote 13, which begins on page 19 with the words "As noted," language shall be added so the modified footnote reads as follows:

¹³ As noted, the court also ordered that, "[a]s an alternate means of complying with" the legal duty to issue eligibility determinations within 45 days, DHCS "may" provide provisional benefits to applicants who are likely eligible for benefits and a notice of hearing rights to other applicants. Since we reverse on the ground that, on this record, state law does not impose on DHCS a duty enforceable in mandate to determine eligibility within 45 days, we need not address the parties' appellate arguments as to the propriety of the court's specification of "alternate" means of complying with that duty, including their arguments as to whether state constitutional, statutory or regulatory provisions support the portion of the alternate compliance provision pertaining to notice. On rehearing, plaintiffs contend there is a legal basis for a purported notice obligation independent of the 45-day deadline on which the writ relief they obtained is based. We know of no legal authority that imposes on an agency a clear, ministerial duty to provide notice of inaction as opposed to action. (See Cal. Code Regs., tit. 22, § 50179, subds. (a), (c) [requiring county department to notify Medi-Cal beneficiary of an eligibility determination by providing a written "Notice of Action"]; id., § 50177, subd. (c) ["The determination of eligibility shall be considered complete on the date the Notice of Action is mailed to the applicant."]; Marquez, supra, 240 Cal.App.4th at p. 110 ["A notice of action is required only to inform the beneficiary of 'Medi-Cal-only eligibility or ineligibility, and of any changes made in their eligibility status or share of cost.' "].) Plaintiffs cite to a statute and a regulation giving parties aggrieved by administrative delay an opportunity to request an administrative hearing (§ 10950, subd. (a); see Cal. Code Regs., tit. 22, § 50951), but the alternative form of relief they seek here is not enforcement of a right to a hearing. (See Marquez, supra, 240 Cal.App.4th at p. 111, fn. 11 ["Section 10950 and regulation 50951 refer to a hearing, not notice."].) To the extent an applicant is aggrieved by delay beyond 45 days, nothing precludes him or her from seeking an administrative hearing and judicial redress. (See fn. 12, ante.)

There is no change in the judgment.

Respondents' petition for rehearing is denied.

Dated:

P. J.

Trial Court: Alameda County Superior Court

Trial Judge: Hon. Evelio M. Grillo

Counsel:

Kamala D. Harris and Xavier Becerra, Attorneys General, Julie Weng-Gutierrez, Senior Assistant Attorney General, Susan M. Carson, Supervising Deputy Attorney General, Hadara R. Stanton, Deputy Attorney General for Defendants and Appellants.

Bay Area Legal Aid, Michael Keys; Western Center on Law and Poverty, Jennifer Flory, Mona Tawatao, Richard Rothschild; Multiform Advocacy Solutions, Lucy Quacinella; Central California Legal Services, Inc., Carmen Romero; Neighborhood Legal Services of Los Angeles County, David Kane, Michelle Kezirian; National Health Law Program, Kimberly Lewis, and Corilee Racela for Plaintiffs and Respondents.