SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 1022 (Holden) - Peace officers: use of force

Bill Summary:

AB 1022 would, among other things, disqualify a person from being a peace officer for, as a peace officer, using excessive force that results in great bodily injury or death or for a peace officer’s failure to intercede in another officer’s excessive use of force. It also would make it a crime for a peace officer failing to intercede in another peace officer’s use of excessive force, as specified.

Fiscal Impact:

• Training and policy revisions: Unknown, potentially-significant one-time costs ranging from the tens of thousands to the hundreds of thousands in the aggregate for all state and local law enforcement agencies to update their policies in accordance with AB 1022. Some agencies employ a contract service to ensure their policies reflect recent changes in statutory and case law. Actual costs to each agency would vary depending on how aligned their current policies are with this bill. Local costs to comply with this measure would be subject to reimbursement by the state to the extent that the Commission on State Mandates determines that this bill imposes a state-mandated local program. Considering that there are over 500 local law enforcement agencies across the state, costs to implement this measure could reach into the hundreds of thousands of dollars. (General Fund, special funds, local funds)

Additionally, some state (and local) law enforcement agencies may have to retrain their officers on when the duty to intercede would apply, and the methods of interceding, to the extent that the changes to the standard of the duty proposed by this measure are considered different than in existing law. For context on the cost of officer training, it would cost the California Highway Patrol $4.1 million for all of its uniformed personnel—868 sergeants and 6,236 officers—to attend a four-hour training in 2019. Using those same figures, it would cost the department over $500,000 for all of its officers to attend a 30-minute training. Training costs for current correctional officers at the Department of Corrections and Rehabilitation is estimated to be in the millions of dollars.

This measure may result in law enforcement agencies incurring additional costs related to reviewing personnel files of all current training officers to ensure that they do not have a substantiated abuse of force complaint within the last three years.

• Courts: Unknown, potentially-significant workload cost pressures to the courts to adjudicate accessory charges brought against peace officers for failing to intercede during an incident of excessive use of force. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. For example, the Budget Act of 2020 appropriated $273.8 million from the General Fund to backfill continued reduction in fine and fee revenue for trial court operations. (General Fund*)

*Trial Court Trust Fund

Background:

Existing law disqualifies a person from being a peace officer if the person has been any of the following, except as provided:

• Convicted of a felony.
• Convicted of any offense in any other jurisdiction which would have been a felony if committed in this state.
• After January 1, 2004, convicted of a crime based upon a verdict or finding of guilt of a felony by the trier of fact, or upon the entry of a plea of guilty or nolo contendere to a felony. This prohibition applies regardless of whether the felony conviction is reduced to a misdemeanor by operation of law.
• Charged with a felony and adjudged by a superior court to be mentally incompetent, as specified.
• Found not guilty by reason of insanity of any felony.
• Determined to be a mentally disordered sex offender, as specified.
• Adjudged addicted or in danger of becoming addicted to narcotics, convicted, and committed to a state institution, as specified. (Gov. Code, § 1029.)

By January 1, 2021, each law enforcement agency is required to maintain a policy that provides a minimum standard on the use of force. The policy, among other things, must require officers to report potential excessive force to a superior officer when present and observing another officer using force that the officer believes to be unnecessary, and to require officers to intercede when present and observing another officer using force that is clearly beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances, taking into account the possibility that other officers may have additional information regarding the threat posed by a subject. (Gov. Code, § 7286, subd. (b)(8).)

Existing law makes all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, principals in that crime. A person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that the principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to the felony. (Pen. Code, § 32.) Being an accessory is punishable, unless a different punishment is prescribed, by a base fine of up to $5,000; incarceration pursuant to the 2011 Realignment Legislation for 16 months, two years, or three years; incarceration in county jail for up to one year; or both the fine and incarceration. (Pen. Code, § 33.)

Proposed Law:

This bill would:

• Disqualify a person from being a peace officer if they have been found by a law enforcement agency that employees them either (i) to have used excessive force, as defined, that resulted in great bodily injury or death or (ii) to have failed to intercede in that incident as required by a law enforcement agency’s policies.
• Require the following changes to law enforcement policies on the minimum standard on the use of force:
  • Require officers immediately report potential excessive force to a superior officer when present and observing another officer using force that the officer believes to be beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances based upon the totality of information actually known to the officer.
  • Require a prohibition on retaliation against an officer that reports a suspected violation of a law or regulation of another officer to a supervisor or other person of the law enforcement agency who has the authority to investigate the violation.
  • Require an officer to intercede when present and observing an officer using excessive force (instead of when the force that is clearly beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances, taking into account the possibility that other officers may have additional information regarding the threat posed by a subject).
  • Require that an officer who fails to intercede be disciplined in the same manner as the officer who used excessive force.
  • Include procedures to prohibit an officer from training other officers for a period of at least three years from the date that an abuse of force complaint against the officer is substantiated.
• Make a peace officer who is present and observes another peace officer using excessive force, and fails to intercede as required by the policy of their employing law enforcement agency, despite having a present ability to intercede, an accessory in any crime committed by the other officer during the use of excessive force. The crime would be an alternate felony-misdemeanor.
• Define “excessive force” as a level of force that is found to have violated Penal Code section 835a, the requirements on the use of force required by Government Code section 7286, or any other law, statute, regulation, or policy of the employing law enforcement agency.
• Provide that “intercede” includes, but is not limited to, physically stopping the excessive use of force, recording the excessive force and documenting efforts to intervene, efforts to deescalate the offending officer’s excessive use of force, and confronting the offending officer about the excessive force during the use of force and, if the officer continues, reporting to dispatch or the watch commander on duty and stating the offending officer’s name, unit, location, time and situation, in order to establish a duty for that officer to intervene.

Related Legislation:

AB 392 (Weber, Ch. 170, Stats. 2019) revised the standards for use of deadly force by peace officers.

SB 230 (Caballero, Ch. 285, Stats. 2019) required law enforcement agencies to maintain a policy that provides guidelines on the use of force, using deescalation techniques and other alternatives to force when feasible, specific guidelines for the application of deadly force, and factors for evaluating and reviewing all use of force incidents, among other things.

SB 731 (Bradford, 2019-2022 Reg. Sess.) would, among other things, disqualify a person from serving as a peace officer who has been convicted or adjudicated, as specified, of one of a number of offenses or who has had a specified certificate, the requirements for which would be established by SB 731, issued by the Commission on Peace Officer Standards and Training revoked, voluntarily surrendered, or denied issuance. SB 731 is pending in the Assembly Committee on Rules.

Staff Comments:

The fiscal impact of AB 1022 to the courts cannot be known with certainty, as the actual impact will be dependent on numerous factors, including, but not limited to, judicial and prosecutorial discretion, facts of each incident underlying a charge, and the factors unique to each case. As being an accessory to a crime is punishable as an alternate felony-misdemeanor with the potential for incarceration, certain rights to the defendants are attached to the proceedings, including the right to a jury trial and the right to counsel (at public expense if the defendants are unable to afford the costs of representation) which could lead to lengthier and more complex court proceedings. While it is not known how many charges ultimately would be filed, it generally costs about $7,896 (in FY 2019-2020) to operate a courtroom for one eight-hour day. Consequently, if peace officers failing to intercede in excessive force incidents leads to the filing of criminal accessory charges that, combined, take more than 50 hours of court involvement, the cost pressures of this measure to the courts would surpass the Suspense File threshold. As indicated above, while courts are not funded on a workload basis, an increase in workload could result in delayed services and would put pressure on the General Fund to fund additional staff and resources.

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SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2019 - 2020 Regular

Bill No: AB 1022 Hearing Date: August 7, 2020

Subject: Peace Officers: Use of Force

HISTORY

Source: Author

Prior Legislation: AB 392 (Weber), Ch. 170, Stats. of 2019

SB 230 (Caballero), Ch. 285, Stats. of 2019

Support: The Arc; Asian Americans Advancing Justice – California; California Department of Justice; California Nurses Association; California Public Defenders Association; City of Alameda; Claremont Change; Consumer Attorneys of California; Planned Parenthood Affiliates of California; United Cerebral Palsy Collaboration

Opposition: Assoc. of LA Deputy Sheriffs; Assoc. of Orange County Sheriffs; Assoc. Probation Supervisors LA County; CA Association of Highway Patrolmen; CA Coalition of Law Enforcement Assoc.; CA State Lodge of Fraternal Order of Police; CA State Sheriffs’ Association; Corona Police Officers Assoc.; Deputy Sheriffs Assoc. of San Diego; El Segundo Police Officers Assoc.; Fresno Police Officers Assoc.; Hawthorne Police Officers Assoc.; Long Beach Police Officers Assoc.; LA Airport Peace Officers Assoc.; LA County Deputy Probation Officers Union, Local #685; LA County Probation Professional Managers Assoc. AFSCME Local #1967; LA County Professionals Peace Officers Assoc.; LA County Sheriff’s Department; LA School Police Management Assoc.; LA School Police Officers Assoc.; Peace Officers Research Association of California (PORAC); Pomona Police Officers Assoc.; Riverside Police Officers Assoc.; Riverside Sheriffs’ Association; Sacramento County Deputy Sheriffs Assoc.; Sacramento County Probation Assoc.; Sacramento Police Officers Assoc.; San Bernardino County Sheriffs Employees’ Benefit Assoc.; San Diego County Probation Officers Assoc.; San Diego Police Officers Assoc.; San Francisco Police Officers Assoc.; Santa Ana Police Officers Assoc.; Santa Monica Police Officers Assoc.; Torrance Police Officers Assoc.

Assembly Floor Vote: Not relevant

PURPOSE

The purpose of this legislation is to; 1) clarify and strengthen policies related to law enforcement officers’ duty to intervene when force is used, 2) prohibit retaliation for reporting on a fellow officer and 3) impose additional penalties for specified uses of force and for failure to intervene when excessive force is used.

Existing law defines “deadly force” as any use of force that creates a substantial risk of causing death or serious bodily injury. Deadly force includes, but is not limited to, the discharge of a firearm. (Gov. Code, § 7286, subd. (a)(1).)

Existing law defines “feasible” means reasonably capable of being done or carried out under the circumstances to successfully achieve the arrest or lawful objective without increasing risk to the officer or another person. (Gov. Code, § 7286, subd. (a)(2).)

Existing law requires that each law enforcement agency shall, by no later than January 1, 2021, maintain a policy that provides a minimum standard on the use of force. Each agency’s policy shall include all of the following: (Gov. Code, § 7286, subd. (b).)

• A requirement that officers utilize de-escalation techniques, crisis intervention tactics, and other alternatives to force when feasible.
• A requirement that an officer may only use a level of force that they reasonably believe is proportional to the seriousness of the suspected offense or the reasonably perceived level of actual or threatened resistance.
• A requirement that officers report potential excessive force to a superior officer when present and observing another officer using force that the officer believes to be beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances based upon the totality of information actually known to the officer.
• Clear and specific guidelines regarding situations in which officers may or may not draw a firearm or point a firearm at a person.
• A requirement that officers consider their surroundings and potential risks to bystanders, to the extent reasonable under the circumstances, before discharging a firearm.
• Procedures for disclosing public records in accordance with Section 832.7.
• Procedures for the filing, investigation, and reporting of citizen complaints regarding use of force incidents.
• A requirement that an officer intercede when present and observing another officer using force that is clearly beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances, taking into account the possibility that other officers may have additional information regarding the threat posed by a subject.
• Comprehensive and specific guidelines regarding approved methods and devices available for the application of force.
• An explicitly stated requirement that officers carry out duties, including use of force, in a manner that is fair and unbiased.
• Comprehensive and specific guidelines for the application of deadly force.
• Comprehensive and detailed requirements for prompt internal reporting and notification regarding a use of force incident, including reporting use of force incidents to the Department of Justice in compliance with Section 12525.2.
• The role of supervisors in the review of use of force applications.
• A requirement that officers promptly provide, if properly trained, or otherwise promptly procure medical assistance for persons injured in a use of force incident, when reasonable and safe to do so.
• Training standards and requirements relating to demonstrated knowledge and understanding of the law enforcement agency’s use of force policy by officers, investigators, and supervisors.
• Training and guidelines regarding vulnerable populations, including, but not limited to, children, elderly persons, people who are pregnant, and people with physical, mental, and developmental disabilities.
• Comprehensive and specific guidelines under which the discharge of a firearm at or from a moving vehicle may or may not be permitted.
• Factors for evaluating and reviewing all use of force incidents.
• Minimum training and course titles required to meet the objectives in the use of force policy.
• A requirement for the regular review and updating of the policy to reflect developing practices and procedures.

Existing law requires that each law enforcement agency shall make their use of force policy adopted pursuant to this section accessible to the public. (Gov. Code, § 7286, subd. (c).)

Existing law mandates that the Commission on Peace Officers Standards and Training (POST) shall implement a course or courses of instruction for the regular and periodic training of law enforcement officers in the use of force and shall also develop uniform, minimum guidelines for adoption and promulgation by California law enforcement agencies for use of force. The guidelines and course of instruction shall stress that the use of force by law enforcement personnel is of important concern to the community and law enforcement and that law enforcement should safeguard life, dignity, and liberty of all persons, without prejudice to anyone. These guidelines shall be a resource for each agency executive to use in the creation of the use of force policy that the agency is required to adopt and promulgate pursuant to Section 7286 of the Government Code, and that reflects the needs of the agency, the jurisdiction it serves, and the law. The course or courses of the regular basic course for law enforcement officers and the guidelines shall include all of the following: (Penal Code, § 13519.10)

• Legal standards for use of force.
• Duty to intercede.
• The use of objectively reasonable force.
• Supervisory responsibilities.
• Use of force review and analysis.
• Guidelines for the use of deadly force.
• State required reporting.
• De-escalation and interpersonal communication training, including tactical methods that use time, distance, cover, and concealment, to avoid escalating situations that lead to violence.
• Implicit and explicit bias and cultural competency.
• Skills including de-escalation techniques to effectively, safely, and respectfully interact with people with disabilities or behavioral health issues.
• Use of force scenario training including simulations of low-frequency, high-risk situations and calls for service, shoot-or-don’t-shoot situations, and real-time force option decision making.
• Alternatives to the use of deadly force and physical force, so that de-escalation tactics and less lethal alternatives are, where reasonably feasible, part of the decision making process leading up to the consideration of deadly force.
• Mental health and policing, including bias and stigma.
• Using public service, including the rendering of first aid, to provide a positive point of contact between law enforcement officers and community members to increase trust and reduce conflicts.

This bill requires that any peace officer who has been found by a law enforcement agency that employs them to have either used excessive force that resulted in great bodily injury or death of a member of the public or to have failed to intercede in that incident are disqualified from holding office as a peace officer or being employed as a peace officer.

This bill defines “excessive force” as a level of force that is found to have violated Section 835a of the Penal Code, the requirements on the use of force required by this section, or any other law, statute, regulation, or policy of the employing law enforcement agency.

This bill defines “intercede” as, including but not being limited to, physically stopping the excessive use of force, recording the excessive force and documenting efforts to intervene, efforts to deescalate the offending officer’s excessive use of force, and confronting the offending officer about the excessive force during the use of force and, if the officer continues, reporting to dispatch or the watch commander on duty and stating the offending officer’s name, unit, location, time and situation, in order to establish a duty for that officer to intervene.

This bill defines “retaliation” as a demotion, failure to promote to a higher position when warranted by merit, denial of access to training and professional development opportunities, denial of access to resourced necessary for an officer to properly perform their duties, or intimidation, harassment, or the threat of injury while on duty or off duty.

This bill clarifies that the existing reporting requirement that agencies must adopt for potential uses of force must be done immediately.

This bill specifies that law enforcement agency policies must make clear that there is a prohibition on retaliation against an officer that reports a suspected violation of a law or regulation of another officer to a supervisor or other person of the law enforcement agency who has the authority to investigate the violation.

This bill requires that law enforcement agencies adopt a policy to prohibit an officer from training another officer for a period of at least three years from the date that an abuse of force complaint against the officer is substantiated.

This bill requires that law enforcement agencies adopt a policy to mandate that an officer that has received all required training on the requirement to intercede and fails to intercede shall be disciplined in the same manner as the officer that committed the excessive force.

This bill specified that any peace officer who is present and observes another peace officer using excessive force and fails to intercede is an accessory in any crime committed by the other officer during the use of excessive force. Punishment for an accessory under Penal Code, § 33 is an alternate felony/misdemeanor.

COMMENTS

1. Need for This Bill

According to the author:

In 2019, Governor Newsom signed SB 230 (Caballero) and AB 392 (Weber) requiring each law enforcement agency to provide a minimum standard on the use of force and redefine circumstances under which the use of deadly force is deemed justifiable.

On May 25, 2020, George Floyd was arrested for allegedly using a counterfeit bill. During the arrest, the supervising officer knelt on Floyd’s neck for over eight minutes while he was handcuffed with two additional officers further restraining him. A fourth officer stood watch to ensure that the gathering crowd did not become involved.

During his restraint, Floyd continued to plead that he could not breathe. After nearly six minutes, Floyd became motionless. One of the officers checked his pulse and informed the supervising officer (still kneeling on Floyd’s neck) that he did not feel Floyd’s pulse and asked the supervising officer if Floyd should be placed on his side, to which the supervising officer replied, “no.” In fact, the supervising officer kept his knee on Floyd’s neck for nearly a minute after the paramedics arrived as Floyd was motionless. Floyd died at the Hennepin County Medical Center emergency room.

While the public was outraged by the supervising officer’s disregard for Floyd’s life, what was equally troubling was that the other three officers failed to stop the supervising officer, despite Minnesota’s “Duty to Intervene” law.

Currently, California law requires that an officer intercede when present and observing another officer using force that is beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances. However, current law does not indicate universal measures used to establish that an officer has in fact interceded. This is highly subjective and leaves each law enforcement agency with the ability to decide what level of intervention was deemed appropriate. In the case of George Floyd, a lawyer for one of the accused junior officers argues that because the junior officer asked the supervising officer if they should turn Floyd on his side that was intervention.

This bill specifies that a peace officer’s “Duty to Intercede” shall include, but is not limited to, physically stopping the excessive use of force, recording the excessive force, and reporting the incident in real time to dispatch or the watch commander on duty in order to establish that officer has attempted to intervene.

AB 1022 prohibits an officer from training other officers for a three-year period if an abuse of force complaint is substantiated, disqualifies a person from holding office as a peace officer if, on three separate occasions, was found by a law enforcement agency that employs them to have either used excessive force or failed to intercede, and makes a peace officer who is present and observes another peace officer using excessive force, and willfully fails to intercede an accessory in any crime committed by the other officer during the use of excessive force.

2. Duty to Intercede

This bill makes clear the responsibilities of officers to intercede in incidents when they witness another officer using excessive force. Additionally, this bill creates new consequences for an officer who fails to intercede when another officer is using excessive force. The author seeks to define two very important concepts related to use of force by law enforcement.

Definition of Intercede

The author defines “intercede” as, including but not being limited to, “physically stopping the excessive use of force, recording the excessive force and documenting efforts to intervene, efforts to deescalate the offending officer’s excessive use of force, and confronting the offending officer about the excessive force during the use of force and, if the officer continues, reporting to dispatch or the watch commander on duty and stating the offending officer’s name, unit, location, time and situation, in order to establish a duty for that officer to intervene.”

This definition gives guidance on what constitutes intervention, but does not limit the methods by which an officer may intervene. Additionally, the definition incorporates recent common methods of dealing with use of force incidents such as employment of “de-escalation” techniques.

Replacement of the Requirement of When to Intercede

The former requirement, imposed under SB 230 (Caballero) from 2019 on what agency policies should state on the duty to intervene provided a minimum standard that “an officer intercede when present and observing another officer using force that is clearly beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances, taking into account the possibility that other officers may have additional information regarding the threat posed by a subject.”

Opponents to this legislation argue that by removing the requirement that the officer be judged as an “objectively reasonable officer” under the same circumstances the proposal is holding officers to an unfair standard. Under common legal principles, when looking to see whether any person has acted in a reasonable manner, one would examine the facts and circumstances known to the officer and look at the reasonableness through an objective lens.

This bill would instead specify that an agency policies state that an officer has a duty to intercede when present and observing another officer using excessive force.

3. Consequences for Not Interceding

This bill creates a number of negative consequences for an officer who fails to intercede when another officer is using excessive force. In addition for any regular punishment that could be applied for failure to comply with agency policy, officer would face the following consequences under this bill:

• Any peace officer who has been found by a law enforcement agency that employs them to have either used excessive force that resulted in great bodily injury or death of a member of the public or to have failed to intercede in that incident are disqualified from holding office as a peace officer or being employed as a peace officer.
• A requirement that an officer be disciplined in the same manner as the officer that committed the excessive force if they fail to intervene.
• A requirement that an officer who observes another officer using excessive force and willfully fails to intercede is an accessory in any crime committed by the other officer during the use of excessive force. That conviction could result in a misdemeanor or a felony on the officer’s record.

Accessory Criminal Liability

In addition to specifying that any department discipline that is handed out to the officer who uses excessive force must also be imposed on an officer who fails to intercede, this bill would specify that any failure to intercede that results in criminal liability by an officer who uses force faces would result in the officer who fails to intercede being criminally liable as an accessory under Penal Code, § 33. Convictions for Penal Code, § 33 can result in a misdemeanor or a felony carrying 16-months, 2, or 3 years in county jail.

4. Prohibition on Retaliation

This bill takes great effort to try and prevent an officer that must intervene under the provisions of the bill from being retaliated against by the agency that employs them, as well as fellow officers.

The bill defines “retaliation” as a “demotion, failure to promote to a higher position when warranted by merit, denial of access to training and professional development opportunities, denial of access to resourced necessary for an officer to properly perform their duties, or intimidation, harassment, or the threat of injury while on duty or off duty.”

The bill prohibits retaliation against an officer that reports a suspected violation of a law or regulation of another officer to a supervisor or other person of the law enforcement agency who has the authority to investigate the violation.

5. Argument in Support

According to Asian Americans Advancing Justice – California:

Asian Americans Advancing Justice – California (Advancing Justice – CA) writes in support of AB 1022, which establishes clear guidelines for police accountability and responsibility while demonstrating a duty to intervene and report when witnessing excessive force by another member of law enforcement.

Advancing Justice - CA, a partnership of Advancing Justice - Asian Law Caucus and Advancing Justice - Los Angeles, advocates for the civil and human rights of Asian American, Native Hawaiian, and Pacific Islander and other underserved communities to promote a fair and equitable society for all. We advocate for transformation of the criminal justice system to reduce the overreliance on our inhumane and ineffective punitive carceral system, and to reinvest these resources in addressing the root causes of crime and criminalization.

On May 25, 2020, George Floyd was arrested for allegedly using a counterfeit bill. During the arrest, the supervising officer knelt on Floyd’s neck for over eight minutes while he was handcuffed with two additional officers further restraining him. A fourth officer stood watch to ensure that the gathering crowd did not become involved. While the public was outraged by the supervising officer’s disregard for Floyd’s life, what was equally troubling was that the other three officers failed to stop the supervising officer, despite Minnesota’s “Duty to Intervene” law.

Currently, California law requires that an officer intercede when present and observing another officer using force that is beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances. However, current law does not indicate universal measures used to establish that an officer has in fact interceded. In the case of George Floyd, a lawyer for one of the accused junior officers argues that because the junior officer asked the supervising officer if they should turn Floyd on his side that was intervention.

AB 1022 incorporates additional measures the strengthen and enforce the requirement of a peace officer’s “Duty to Intercede,” including: providing certain outcomes for failure to intercede and requiring that law enforcement procedures for disclosing public records of peace officers, as specified to be made available via internet search.

6. Argument in Opposition

According to PORAC:

Last year, PORAC was a part of a working group that negotiated issues that made comprehensive changes in the area of use of force. In that legislation, we created a mandate that an officer intercede when they feel another officer is using excessive force. The new law also requires an officer to report what they believe to be excessive force to the department. AB 1022 not only addresses those issues again, but redefines excessive force. Also, this legislation states that if an officer fails to intercede, that they be disciplined in the same matter as the officer who used the excessive force. Oftentimes, when an officer is not the first, or even second, person to arrive on the scene, they will observe actions being taken with a suspect without knowing what led up to the actions they are observing. For example, an officer may arrive at a scene and witness two or three officer wrestling or in a fight with a suspect on the ground. The arriving officer may not know that the suspect has a weapon, or has potentially used, or attempted to use, that weapon on the officers prior to their arrival on the scene. Without the arriving officer having full knowledge of the situation, that officer’s intercedence could be dangerous to both the officers and the public.

Finally, this bill eliminates a national standard relating to “an objectively reasonable officer” and replaces that with a level of force that is “not reasonably believed” or “reasonably perceived level of actual or threatened resistance.” These terms are not defined in the legislation and, again, change the standard negotiated with the leadership of both houses last year.

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Date of Hearing: April 23, 2019

ASSEMBLY COMMITTEE ON HUMAN SERVICES

Eloise Gómez Reyes, Chair

ABPCA Bill Id:AB 1022 (

Author:Wicks) – As Amended Ver:April 22, 2019

SUBJECT: California Anti-Hunger Response and Employment Training Act of 2019

SUMMARY: Establishes the California Anti-Hunger Response and Employment Training (CARET) Act of 2019 which requires the California Department of Social Services (CDSS) to provide state-funded food benefits through the CARET Program to certain eligible individuals who are deemed ineligible for CalFresh as a result of the able-bodied adult without dependents (ABAWD) time limit, requires CDSS to issue guidance no later than January 30, 2020, and makes the provisions of this bill operative only in the event that federal law and guidance prohibits the state from retaining individual exemption allocations, as specified. Specifically, this bill:

1. Makes Legislative findings and declarations related to hunger in California and the need to provide aid to individuals who are subject to the ABAWD time limit in response to federal efforts to reduce access to food for individuals subject to the ABAWD time limit.
2. Requires CDSS to establish the CARET program for certain individuals to receive benefits for any month in which they are deemed ineligible for CalFresh benefits or for whom CalFresh benefits have been discontinued, as a result of the federal ABAWD time limit and if the person is ineligible for an individual waiver.
3. Requires a household to receive CARET benefits in the same amount as the CalFresh benefits they would have received if the ABAWD time limit did not render an individual ineligible for CalFresh benefits.
4. Deems a CARET program recipient as eligible for the same CalFresh Employment and Training (CFET) benefits, as specified, for which they would have been eligible were they not deemed ineligible for CalFresh benefits due to the ABAWD time limit.
5. Allows a CFET provider serving a CARET recipient to receive the same reimbursement for the cost of allowable CFET services that the provider would receive for a CalFresh recipient.
6. Requires CARET benefits be delivered through a state-administered and state-funded electronic benefits transfer (EBT) system, subject to the standards enumerated in current law.
7. Allows the state-funded EBT system to be used to issue other state-funded food assistance benefits.
8. Makes operative the provisions of this bill only in the event that federal law and guidance prohibit the state from retaining individual exemption allocations for use in a later month, as defined in federal regulations.
9. Requires CDSS, in consultation with the Office of Systems Integration and relevant stakeholders, as specified, to develop and issue guidance to maximize the use of individual waivers available under federal law and guidance related to the federal Supplemental Nutrition Assistance Program (SNAP).
10. Permits the guidance to include redistribution of individual waivers between counties if necessary to maximize the use of the waivers to prevent hunger among persons subject to the ABAWD time limit.
11. Requires the guidance be issued no later than January 30, 2020, and remain operative until the CARET program, as defined by the provisions of this bill, is operative.

EXISTING LAW:

1. Establishes SNAP under federal law pursuant to the Food Stamp Act of 1964 and establishes, in California statute, the CalFresh program to administer the provision of federal SNAP benefits to families and individuals meeting certain criteria, as specified. (7 United States Code Section 2011 et seq., Welfare and Institutions Code [WIC] Section 18900 et seq.)
2. Establishes the EBT Act, and defines the EBT system as the program designed to provide benefits to those eligible to receive public assistance benefits such as CalWORKs and CalFresh. (42 U.S.C. 601 et seq., WIC 10065 et seq.)
3. Places a number of requirements on the EBT system, including, but not limited to, requirements that the system: be designed, to the maximum extent feasible, to be compatible with EBT systems in other states; provide reasonable access to benefits to recipients who demonstrate an inability to use an EBT card because of disability, language, lack of access, or other barrier; and, have a 24-hour per day toll-free telephone hotline for the reporting of lost or stolen cards that will provide recipients, at no additional cost to the recipient, with information on how to have the card and personal identification number replaced, among others. (WIC 10072)
4. Establishes the SNAP time limit for an ABAWD, which states that an individual is limited to receive SNAP for up to three months within a three year period, unless the individual has met certain work participation requirements, as specified. (7 Code of Federal Regulations [CFR] Section 273.24)
5. Requires CDSS to annually, to the extent permitted by federal law, seek a federal SNAP waiver to the three-month limit in a three-year period of CalFresh benefits for an ABAWD, unless that participant has met the work participation requirement. (WIC 18926)
6. Allows a state agency to provide an exemption from the 3-month time limit for covered individuals, and specifies that exemptions do not count towards a state agency’s allocation if they are provided to an individual who is otherwise exempt from the time limit during that month. (7 CFR 273.24(g)(2))
7. Allows a state agency, for each fiscal year, to provide a number of exemptions such that the average monthly number of exemptions in effect during that fiscal year does not exceed 15% of the number of covered individuals in the state, as estimated by the Food and Nutrition Service (FNS), as specified. (7 CFR 273.24(g)(3))
8. Prohibits state agencies from discriminating against any covered individual for reasons of age, race, color, sex, disability, religious creed, national origin, or political beliefs. (7 CFR 273.24(g)(4))
9. Stipulates that FNS, in the event that a state agency does not use all of its exemptions by the end of the fiscal year, will increase the estimated number of exemptions allocated to the state agency for the subsequent fiscal year by the remaining balance. (7 CFR 273.24(i))
10. Establishes within CalFresh the federal SNAP Employment and Training (E&T) program to assist members of CalFresh households in gaining skills, training, work, or experience that will increase their ability to obtain regular employment. (7 CFR 273.7, WIC 18926.5)
11. Requires a county to screen CalFresh work registrants to determine whether they will participate in, or be deferred from, CFET. Further, allows a CalFresh work registrant to request to enroll in CFET as a voluntary participant. (WIC 18926.5(b))
12. Requires an individual be deferred from a mandatory placement in CFET if they reside in a federally determined work surplus area or if they are subject to the ABAWD time limit. (WIC 18926.5(b))

FISCAL EFFECT: Unknown

COMMENTS:

CalFresh: SNAP provides food access to low-income individuals who meet certain eligibility criteria; in California, this program is known as CalFresh. CalFresh benefits are entirely federally funded, and administration at the federal level lies with the United States Department of Agriculture (USDA). The USDA is tasked with setting specific eligibility requirements for SNAP programs across the country, as well as gross and net income tests, work requirements, and other documentation requirements. Currently, the maximum allowable gross income is 200% of the Federal Poverty Level (FPL), although households with elderly members or members with disabilities are not subject to gross income criteria, but must have a net monthly income at or below 100% of the FPL. In California, CalFresh is administered at the local level by county human services agencies, with federal, state, and county governments sharing the costs of program administration. Benefits are made available to recipients on an EBT card, which is an automated teller machine (ATM)-like card that allows an individual to purchase food at point-of-sale devices in stores. Nearly 4 million individuals in California receive CalFresh benefits; on average, an individual receives approximately $135 per month in benefits. The maximum grant amount for a household size of one is $192 as of October 1, 2018, and until September 30, 2019.

Able-bodied adults without dependents (ABAWDs): Receipt of SNAP benefits is contingent upon an individual meeting certain eligibility criteria, except in instances when they are exempt due to age, having a disability, or another specific reason. ABAWDs, are individuals between 18 and 49 years old who have no dependents and do not have a disability, and are subject to a specific time limit; specifically, they may only receive SNAP for three months in a three year time period if they do not meet specific work requirements. Federal rules require ABAWDs to work at least 80 hours per month or comply with a workfare program, or participate in a SNAP Employment Training Program (CFET in California). State law requires CDSS to annually seek an exemption to federal ABAWD time limits, and federal rules allow a county or an entire state to be approved for a waiver to the ABAWD time limit if it meets federally established criteria related to high unemployment or a lack of sufficient jobs. On August 31, 2018, California’s statewide waiver expired and on September 1, 2018, California implemented the ABAWD time limit in San Francisco, San Mateo, and Santa Clara counties. California’s remaining 55 counties will remain under the ABAWD time limit waiver through August 31, 2019; however, it is unclear as to whether other counties, particularly Alameda and Contra Costa, will be required, upon expiration of the waiver, to implement the ABAWD time limit. As of April 1, 2019, only six states have a statewide ABAWD time limit waiver, 30 states, including California, have partial time limit waivers, and 17 states have no waiver.

CalFresh Employment and Training (CFET): The CFET program (known as SNAP E&T at the federal level) was created in 1985 and aids CalFresh recipients in gaining the skills and experience necessary to enter the workforce. Federal law requires each state to operate an employment and training program, and each year CDSS is required to submit its CFET program plan to the USDA FNS for approval. Operation of a CFET program is optional for California counties, and currently, 37 counties operate a CFET program. In 2011, SB 43 (Liu), Chapter 507, Statutes of 2011, required all counties in California that operate a CFET program to implement the program as voluntary for all participants who reside in an area that is federally determined to be a labor surplus area (meaning an area in which unemployment is higher than the national average). It should be noted that only individuals who receive CalFresh can participate in CFET such that ABAWDs (who are ineligible for CalFresh and subject to the time limit) are unable to receive the employment and training services that may be necessary to aid them in obtaining the employment they need to achieve self-sufficiency. The provisions of this bill would require that CARET recipients receive the same CFET benefits that they would have been eligible for were they not deemed ineligible for CalFresh.

15% exemptions: In addition to a statewide waiver, the USDA also allows for individual, personal waivers to be given to eligible individuals on a case-by-case basis. These exemptions, referred to as “15% exemptions,” allow states to extend CalFresh benefits to ABAWDs for one full month. A state may only accrue 15% exemptions if it is deemed ineligible for a statewide waiver of the ABAWD time limit, and in April 2018, California was notified by FNS that it had 866,894 available exemptions. All County Information Notice (ACIN) I-72-18 states that 15% exemptions are only available to individuals who are at risk of losing federal SNAP benefits due to not satisfying the work requirement, although 15% exemptions cannot be granted when an individual is subject to a CalFresh sanction (which can occur when an individual is non-compliant with certain work requirements).

The number of exemptions allotted is calculated as 15% of the eligible ABAWD population in the areas that are not subject to the statewide waiver (currently, San Francisco, Santa Clara, and San Mateo counties). For example, according to California’s CFET Plan, CDSS estimates that during the Federal Fiscal Year (FFY) 2019, there will be approximately 700,302 ABAWDs in the state; of those, 665,642 live in areas covered by the USDA waiver. CDSS anticipates that 25,942 individuals in San Francisco, Santa Clara, and San Mateo counties will be exempted from the time limit under the 15% exemption allowance, meaning that, during FFY 2019, 8,706 individuals will be subject to the ABAWD time limit.

SNAP rule change proposal: On February 1, 2019, FNS published Proposed Rule RIN 0584-AE57, which proposes to amend the regulatory standards by which the USDA evaluates a state’s ability to request waivers to the ABAWD time limit, as well as end the unlimited carryover of ABAWD 15% exemptions. Specifically, the rule will impose strict work requirements of 20 hours per week on adults who do not currently have jobs and have been unable to find work. In its description of the rule change, the USDA states that “The proposed rule would encourage broader application of the statutory ABAWD work requirement, consistent with the Administration’s focus on fostering self-sufficiency.” In an April 10, 2019, letter to USDA Secretary Sonny Perdue, members of the California State Assembly stated that:

“This proposed rule would severely hamper our state’s efforts to connect Californians to the workforce and preserve their health and well-being. We strongly believe in supporting the health and well-being of individuals, and we know that food stability is a key component in ensuring full participation in the workforce. Nearly 75% of recipients are at work within the year that they claim benefits; however, employment can be seasonal and hours can be limited, revealing the challenges many individuals encounter in seeking and retaining employment. If implemented in its current form, the Proposed Rule would negatively affect CalFresh participants and their communities, and would result in significant financial losses for the state’s retail and agricultural industries. For these reasons, we urge you to withdraw the Proposed Rule.”

A similar letter written by members of the California State Senate dated April 9, 2019, stated that:

“Currently, most of California is under a waiver of the existing ABAWD rule because of heightened unemployment rates in 55 counties. Imposing harsher limitations on the people who live in these counties will further erode the likelihood of ABAWDs finding work, as food stability is key to an individual’s ability to find and maintain work. The Proposed Rule assumes ABAWDs are unemployed or underemployed as a result of lack of motivation. However, the USDA ignores the barriers to employment that many low-income childless adults are facing, including physical and mental health limitations. We are concerned that without the state flexibility that currently exists, individuals of color will be disproportionately affected by this rule change.”

Need for this bill: The provisions of this bill seek to ensure that individuals subject to the federal ABAWD time limit are not left without some form of food benefits, particularly in light of the proposed rule change at the federal level, which, if adopted, will affect California’s ability to provide federally-funded 15% exemptions to ABAWDs. This bill provides a state-funded benefit to provide food supports to those individuals by requiring CDSS to create the CARET program, and requiring individuals who are subject to the ABAWD time limit and who are ineligible for a 15% exemption to receive benefits through the CARET program. It should be noted that the provisions of this bill will become operative only in the event that federal law and guidance prohibit the state from retaining 15% exemptions allocated for use in a later month. In other words, the provisions of this bill would become operative only in the event that the federal government adopts the proposed rule change to eliminate California’s ability to provide 15% exemptions to ABAWDs.

According to the author, “Access to food is critical to the health of our communities and allows people to be job-ready. The loss of CalFresh eligibility and benefits increases hunger and poverty, which never makes any person better able to prepare for work, to secure a job, or to succeed at their place of employment. This bill provides support to individuals who would lose CalFresh eligibility and helps ensure that they are supported to persevere during hard times. Providing this support is a necessary step that keeps California strong by ensuring we protect this highly vulnerable population and making sure that everyone is fed.”

Recommended committee amendments: In order to make clear the population that would be eligible to receive benefits through the CARET program, to clarify that CARET benefits are state-funded, and to allow sufficient time for development of guidelines, committee staff recommends the following amendments:

RELATED AND PRIOR LEGISLATION:

AB 1229 (Wicks) of 2019 requires CDSS to issue guidance to county human services departments that requires counties to, among other things, establish a self-initiated workfare program for former foster youth that will enable them to meet the ABAWD work requirement. AB 1229 is scheduled to be heard in the Assembly Higher Education Committee on April 23, 2019.

H.R. 1276 (Adams) of 2017 would have exempted ABAWDs from SNAP work requirements if the individuals is not offered a position in a SNAP E&T program. H.R. 1276 was referred to the House Subcommittee on Nutrition.

AB 563 (Arambula), Chapter 343, Statutes of 2017, included ABAWDs among the individuals who are deferred from mandatory participation in CFET programs.

SB 43 (Liu), Chapter 507, Statutes of 2011, required counties that offer CalFresh E&T to make participation voluntary instead of mandatory, and required counties to screen work registrants to determine whether they will participate in, or be deferred from, a CFET program.

H.R. 2100 (de la Garza), P.L. 99-198, 1985, created the Food Security Act of 1985 which created the Food Stamp Employment & Training Program, now known as SNAP E&T.

REGISTERED SUPPORT / OPPOSITION:

Support

Alameda County Community Food Bank (Sponsor)
California Association of Food Banks (Sponsor)
Food Bank of Contra Costa and Solano (Sponsor)
Public Interest Law Project (Sponsor)
Western Center on Law & Poverty, Inc. (Sponsor)
Bay Area Legal Aid
Berkeley Food Network
California Catholic Conference
California Food and Farming Network
California Food Policy Advocates
Coalition of California Welfare Rights Organizations
Contra Costa Family Economic Security Partnership 
Ecology Center (Berkeley)
Educate. Advocate.
Ensuring Opportunity Campaign to End Poverty in Contra Costa County
Feeding San Diego
Hunger Action Los Angeles Inc.
Indivisible East Bay
Los Angeles Community Action Network
Rise Together
Rubicon Programs
Sacramento Food Bank & Family Services
San Francisco-Marin Food Bank
Second Harvest Food Bank of Santa Clara & San Mateo Counties
Second Harvest Food Bank of Santa Cruz County
St. Anthony's
St. Jerome Catholic Church
The Unity Council
Yolo Food Bank

Two Private Citizens

Opposition

None on file

Analysis Prepared by: Kelsy Castillo / HUM. S. / (916) 319-2089

SENATE COMMITTEE ON HUMAN SERVICES

Senator Hurtado, Chair

2019 - 2020 Regular

Subject: California Antihunger Response and Employment Training Act of 2019

SUMMARY

This bill requires the California Department of Social Services (CDSS) to establish the California Antihunger Response and Employment Training (CARET) program to provide benefits to a person who has been determined ineligible for CalFresh benefits, or for whom CalFresh benefits have been discontinued as a result of the able-bodied adults without dependents (ABAWD) time limit, as specified. The bill makes a CARET program recipient eligible for CalFresh Employment and Training (CFET) program benefits, as specified. The bill also stipulates that its provision would take effect only if federal law and guidance prohibit the state from retaining 15 percent exemptions to the ABAWD time limit for use in a later month.

ABSTRACT

Existing Law:

1. Establishes under federal regulations the Supplemental Nutrition Assistance Program (SNAP) to promote the general welfare and to safeguard the health and wellbeing of the nation’s population by raising the levels of nutrition among low-income households. (7 CFR 271.1 et seq.)
2. Establishes eligibility criteria for SNAP benefits to include participation in SNAP Education and Training (E&T) among other criteria. (7 CFR 273.7)
3. Establishes, under federal law, eligibility requirements for receipt of SNAP benefits, including gross income at 130 percent of the federal poverty level and net income that is at or below 100 percent of the federal poverty level and is determined to be a substantial limiting factor in permitting a recipient to obtain a more nutritious diet, as specified. (7 CFR 273.9)
4. Establishes the SNAP time limit for ABAWDs, which states that an individual is limited to receive SNAP for up to three months within a three year period, unless the individual has met certain work participation requirements, as specified. (7 CFR 273.24)
5. Permits the United States Department of Agriculture to waive the applicability of the 3-month time limit for ABAWDs if the unemployment rate for the county in which the ABAWD resides is 10 percent or higher. (7 CFR 273.24 (6)(o))
6. Allows a state agency to provide an exemption from the 3-month time limit for covered individuals, and specifies that exemptions do not count towards a state agency’s allocation if they are provided to an individual who is otherwise exempt from the time limit during that month. (7 CFR 273.24(g)(2))
7. Allows a state agency, for each fiscal year, to provide a number of exemptions such that the average monthly number of exemptions in effect during that fiscal year does not exceed 15 percent of the number of covered individuals in the state, as estimated by the Food and Nutrition Service (FNS), as specified. (7 CFR 273.24(g)(3))
8. Prohibits state agencies from discriminating against any covered individual for reasons of age, race, color, sex, disability, religious creed, national origin, or political beliefs. (7 CFR 273.24(g)(4))
9. Stipulates that FNS, in the event that a state agency does not use all of its exemptions by the end of the fiscal year, will increase the estimated number of exemptions allocated to the state agency for the subsequent fiscal year by the remaining balance. (7 CFR 273.24(i))
10. Defines in federal statute approved activities under the E&T program including education, as specified, participation in a Workforce Investment Act program, and other activities. (7 USC 2015(e)(3)(B))
11. Establishes in California statute the CalFresh program to administer the provisions of federal SNAP benefits to low-income families and individuals meeting specified criteria. (WIC 18900 et seq.)
12. Requires CDSS annually, to the extent permitted by federal law, to seek a federal SNAP waiver to the three-month limit in a three-year period of CalFresh benefits for an ABAWD, unless that participant has met the work participation requirement. (WIC 18926)
13. Establishes the CFET program to assist members of CalFresh households in gaining skills, training, work, or experience that will increase their ability to obtain regular employment. (WIC 18926.5)
14. Requires a county that participates in the CFET program to screen CalFresh applicants to determine whether they will participate in, or be deferred from CFET. Requires an individual to be deferred from a mandatory placement in CFET if he or she satisfies any of the specified work criteria in federal regulations, resides in a federally determined work surplus area, is a veteran who has been honorably discharged from the United States Armed Forces, is a victim of domestic violence, or is subject to the ABAWD time limit. (WIC 18926.5 (b)(1))
15. Defines deferred to have the same definition as exempt for purposes of CFET. (WIC 18926.5 (b(2))
16. Establishes the Electronic Benefit Transfer (EBT) Act, and defines the EBT system as the program designed to provide benefits to those eligible to receive public assistance benefits such as CalWORKs and CalFresh, as specified. (WIC 10065 et seq.)

This Bill:

Provides that the act   shall be known, and may be referred to, as the California Antihunger Response and Employment Training Act of 2019.

1. Makes a series of uncodified Legislative findings and declarations regarding food insecurity in California and SNAP, known as CalFresh in California. Specifically, makes findings regarding a provision of 2018 Farm Bill that will reduce the number of individual waivers available for people who will lose benefits as a result of the ABAWD time limit and proposed regulations that would further reduce protections to low-income, out-of-work, and underemployed people subject to the time limit. States that California will provide funding to serve low-income, out-of-work, underemployed, and job-seeking Californians who are impacted by this ill-conceived federal law.
2. Requires CDSS to establish the CARET program for persons who have been determined ineligible for CalFresh benefits, or for whom CalFresh benefits have been discontinued as a result of the federal ABAWD time limit, and who is ineligible for an individual waiver.
3. Requires that the person shall receive CARET benefits in the same amount as the CalFresh benefits they would have received if the ABAWD time limit did not make them ineligible.
4. Requires a CARET program recipient to also be eligible for the same CFET program benefits that the recipient would have been eligible for if the ABAWD time limit did not make the recipient ineligible for CalFresh benefits.
5. Requires a CFET provider serving a CARET recipient to be eligible to draw down a state-funded reimbursement in the same amount that the provider would have been eligible to receive for allowable CFET services for a CalFresh recipient.
6. Requires that benefits shall be issued through a state-administered and state-funded ETB system that is subject to standards established in existing law, as specified.
7. Permits the EBT system used to issue CARET benefits to also be used to issue other state-funded food assistance benefits.
8. Stipulates that the provision of the bill apply only if federal law and guidance prohibit the state from retaining 15 percent exemptions to the ABAWD time limit for use in a later month.
9. Requires CDSS to issue guidance to maximize the use of individual waivers available under federal law and guidance relating to the federal SNAP.
10. Requires CDSS to develop the guidance in consultation with the Office of Systems Integration, county human services agencies, public benefit recipient advocates, representatives of public benefit caseworkers, and other relevant stakeholders.
11. Permits that the guidance may include redistribution of individual waivers between counties if necessary to maximize the use of the waivers to prevent hunger among persons subject to the federal able-bodied adult without dependents time limit.
12. Requires that the guidance shall be issued no later than April 1, 2020, and shall remain operative until the CARET program is operative.

FISCAL IMPACT

According to a May 8, 2019 analysis prepared by the Assembly Appropriations Committee, this bill would likely have the following fiscal impact:

1. Significant costs to CDSS, likely in the low millions of dollars general fund (GF) to establish and administer this new program.
2. Unknown, but likely significant, automation costs for programming and system changes to accommodate the new eligibility requirements.
3. Unknown state-mandated local costs to counties to administer benefits through the CARET program. These costs are potentially reimbursable by the state, subject to a determination by the Commission on State Mandates.

BACKGROUND AND DISCUSSION

Purpose of the Bill:

This bill creates a new state-funded food assistance benefit for individuals who would be made ineligible for federally funded benefits due to a proposed federal rule change. According to the author, “access to food is critical to the health of our communities and allows people to be job-ready. The loss of CalFresh eligibility and benefits increases hunger and poverty, which never makes any person better able to prepare for work, to secure a job, or to succeed at their place of employment…Providing this support is a necessary step that keeps California strong by ensuring we protect this highly vulnerable population and making sure that everyone is fed.”

CalFresh

CalFresh, California’s version of the federal SNAP program, provides monthly food benefits to qualified low-income individuals and families to assist them with purchasing the food they need to maintain adequate nutrition levels. With about 4 million Californian’s receiving this benefit, CalFresh is the largest nutrition assistance program in California.  It is administered by CDSS at the state level and California’s 58 counties are responsible for administering CalFresh at the local level. The program issues monthly benefits on Electronic Benefit Transfer (EBT) cards, which may be used to purchase food (and seeds or plants that grow food for human consumption) at any grocery store or famers’ market that accepts EBT cards.

CalFresh benefits are 100 percent federally funded and national income eligibility standards and benefit levels are established by the federal government For most households in California, monthly gross income must be at or below 200 percent of FPL ($3,463 for a family of three) in order to be eligible for CalFresh. Household net income must be at or below 100 percent of FPL. The benefit amount that a household receives is dependent on household circumstances such as size, countable income, and monthly expenses, such as housing and utilities. The average CalFresh household received about $253 a month for Fiscal Year 2017-2018 and the average CalFresh benefit per person was about $126 per month. Currently, the maximum benefit for a household of one is $192 a month.

Able Bodied Adults Without Dependents (ABAWDs)

According to SNAP rules, all recipients must meet work requirements unless they are exempt due to age, disability, or another specific reason. There are special rules that apply to ABAWDs, who are between 18 and 49 years of age, have no dependents and do not have a disability. ABAWDs can only receive SNAP (CalFresh) benefits for three months in three years unless they work at least 80 hours per month, participate in a qualifying education and training activity for at least 80 hours per month, or comply with a workfare program. There are an estimated 570,000 ABAWDs living in California.

State law requires CDSS to annually seek an exemption to federal ABAWD time limits, and federal rules allow a county or an entire state to be approved for a waiver to the ABAWD time limit if it meets federally established criteria related to high unemployment or a lack of sufficient jobs. During and after the “great recession,” the entire state of California was designated a work surplus area and therefore, was operating with a statewide waiver to the ABAWD rule since 2008. These waivers allow ABAWDs living within work surplus areas to receive CalFresh benefits without being subject to the time limit and without fulfilling the work requirement rule.

The statewide waiver expired on August 31, 2018, and beginning September 1, 2018, three counties (San Francisco, San Mateo and Santa Clara) lost the waiver due to low unemployment rate within those counties. Thus, these three counties have already implemented the ABAWD time-limit rules. Based on SNAP rules, CDSS has requested a waiver that, if approved, will expand implementation of the ABAWD time limit to three additional counties (Alameda, Contra Costa and Marin) in September 2019. As of April 1, 2019, only six states have a statewide ABAWD time limit waiver. Thirty states, including California, have partial time limit waivers, and 17 states have no waiver at all.

ABAWDs residing in counties that have not been granted a county-specific waiver will be required to comply with federal work requirement rules or they will be subject to the three month within three years limit on food benefits.

According to the California Center on Budget and Policy Priorities, in more than half of SNAP households, at least one working-age, non-disabled adult works and more than 80 percent of SNAP recipients work in the year before or the year after receiving SNAP. 

While many SNAP households contain working adults, ABAWDs receiving SNAP benefits are often living at or well below the federal poverty level. According to the United States Department of Agriculture (USDA), the average household income for this group is 33 percent of the federal poverty level, or about $367 per month. Also per the USDA, about 26 percent of these individuals are working low wage jobs. They earn on average about $810 per month (about 80 percent of the federal poverty level for a one-person household). Those who are working at least 20 hours per week make more, about $1,000 per month (equal to the one person poverty level), but still qualify for SNAP.^[1] Additionally, many low wage jobs do not guarantee an average of 20 hours per week, and workers’ hours often change without notice, making it difficult to meet the work requirements.

Separate from ABAWD requirements, federal law requires all non-exempt SNAP recipients to register for work. In addition, California requires work registrants to participate in job search and other work programs in order to receive SNAP. SNAP applicants and recipients cannot voluntarily quit a job. If they do, they will be ineligible for SNAP for a three month period.

Percentage Exemptions

In addition to statewide and county waivers for the ABAWD time limit, the USDA allows personal exemption of ABAWD time limit for eligible individuals on a case-by-case basis. These exemptions, which have been referred to as “15 percent exemptions,” allow states to extend CalFresh benefits to ABAWDs for one full month. The 2018 Farm Bill reduced this calculation to 12 percent. Going forward, USDA and CDSS will refer to these as the “percentage exemptions.”

CDSS issued guidance to the counties (ACIN I-72-18) indicating that 15 percent exemptions are only available to individuals who are at risk of losing federal SNAP benefits because the individual has not satisfied the work requirement. The 15 percent exemptions cannot be granted when an individual is subject to a CalFresh sanction, which can occur when an individual is non-compliant with certain work requirements.

Only states that do not qualify for a statewide waiver of the ABAWD time limit accrue percentage exemptions and the number of exemptions allotted to a state is based on the ABAWD population living in the areas not subject to the statewide waiver (currently, San Francisco, Santa Clara, and San Mateo counties). California has banked over 866,000 exemptions, each of which is equivalent to one month of CalFresh benefits. About 700,000 CalFresh recipients have been identified as potentially subject to the ABAWDs time limit (if the time limit was enforced throughout the state). Of those, about 26,000 reside in the counties that do not have a waiver and, thus, could become ineligible for CalFresh.

Because California has been operating under a statewide waiver for about ten years (thus not required to enforce the ABAWD time limit), some individuals who were identified as subject to the ABAWD time limit may now be eligible for an exemption from the rule. For example, when Ohio no longer had a statewide waiver, they found that 32.6 percent of people who had been identified as ABAWDs self-reported as having a mental or physical health limitation and almost 25 percent reported that they had children. Such circumstances could cause these individuals to be exempted from the work requirement and, thus, make them once-again eligible for SNAP.

CDSS has developed a “1, 2, 3 Approach” to serve ABAWDs, which emphasizes screening for exemptions, then engaging ABAWDs in work or other qualifying activities before applying the 15 percent exemption. It has been reported that this approach is reducing negative effects of implementing the ABAWD time limit. This 1, 2, 3 Approach has only been operational in San Francisco, Santa Clara and San Mateo counties. It is anticipated that Alameda, Contra Costa and Marin will implement next year, when the waiver for those counties are likely to be lifted.

Proposed Rule Change for ABAWDs

There have been several federal proposals to further restrict ABAWD access to SNAP benefits. Most recently, FNS announced a proposed rule (RIN 0584-AE57) that would modify the criteria used to evaluates a state’s request for waiver of the ABAWD time limit; end the unlimited carryover of 15 percent exemptions; and impose stricter work requirements of 20 hours per week on adults who do not currently have jobs and have been unable to find work. In its description of the rule change, the USDA states that “The proposed rule would encourage broader application of the statutory ABAWD work requirement, consistent with the Administration’s focus on fostering self-sufficiency.” There are concerns that the proposed rule would harm a particularly vulnerable population by cutting of their food assistance. Therefore, both the Senate and the Assembly submitted written comments in response to the proposed rule change.

In response to FNS’s request for input, members of the California State Senate submitted a letter that stated:

“Currently, most of California is under a waiver of the existing ABAWD rule because of heightened unemployment rates in 55 counties. Imposing harsher limitations on the people who live in these counties will further erode the likelihood of ABAWDs finding work, as food stability is key to an individual’s ability to find and maintain work. The Proposed Rule assumes ABAWDs are unemployed or underemployed as a result of lack of motivation. However, the USDA ignores the barriers to employment that many low-income childless adults are facing, including physical and mental health limitations. We are concerned that without the state flexibility that currently exists, individuals of color will be disproportionately affected by this rule change.”

In a similar letter, members of the California State Assembly wrote that:

“This proposed rule would severely hamper our state’s efforts to connect Californians to the workforce and preserve their health and well-being. We strongly believe in supporting the health and well-being of individuals, and we know that food stability is a key component in ensuring full participation in the workforce. Nearly 75% of recipients are at work within the year that they claim benefits; however, employment can be seasonal and hours can be limited, revealing the challenges many individuals encounter in seeking and retaining employment. If implemented in its current form, the Proposed Rule would negatively affect CalFresh participants and their communities, and would result in significant financial losses for the state’s retail and agricultural industries. For these reasons, we urge you to withdraw the Proposed Rule.”

CalFresh Employment and Training Program (CFET)

In 1985, the Food Security Act created the Food Stamp E&T Program, now known nationally as SNAP E&T, for the purpose of helping SNAP recipients to gain the skills and experience needed to enter the workforce and reduce dependency on public benefits. All states are required by federal law to offer SNAP E&T. In California, this program is called CFET.

While it is mandatory for California to have an E&T program, counties have the discretion as to whether or not they choose to have one. Currently, 37 of California counties operate CFET programs. Counties that operate a CFET program are required to make the program voluntary for all participants who reside in a federally determined work surplus area, meaning an area in which unemployment is higher than the national average. ABAWDs can satisfy work requirements by participating in CFET.

Only individuals who receive CalFresh can participate in CFET. Therefore, people who are ineligible for CalFresh due to the ABAWD time limit are ineligible for employment and training services. This bill would make CARET recipients eligible to receive the same CFET benefits that they would have been eligible for were they not deemed ineligible for CalFresh.

Related/Prior Legislation:

AB 1229 (Wicks, 2019) requires CDSS to issue guidance to county human services departments that requires counties to, among other things, establish a self-initiated workfare program for former foster youth that will enable them to meet the ABAWD work requirement. AB 1229 is scheduled to be heard in this committee on June 24, 2019.

H.R. 1276 (Adams, 2017) would have exempted ABAWDs from SNAP work requirements if the individuals is not offered a position in a SNAP E&T program. H.R. 1276 was referred to the House Subcommittee on Nutrition.

AB 563 (Arambula, Chapter 343, Statutes of 2017) included ABAWDs among the individuals who are deferred from mandatory participation in CFET programs.

SB 43 (Liu, Chapter 507, Statutes of 2011) required counties that offer CFET to make participation voluntary instead of mandatory, and required counties to screen work registrants to determine whether they will participate in, or be deferred from, a CFET program.

COMMENTS

This bill creates a new state-funded benefit that would provide food assistance to individuals who have been cut off from federal food assistance due to non-compliance with federal work requirements. This new CARET program would provide food assistance, equal to the amount the recipient would have received via SNAP, if the recipient had continued to be eligible for SNAP.

The author is pursuing this bill in anticipation of a proposed federal rule change, which, if adopted, will eliminate California’s ability to extend SNAP benefits to ABAWDs whose time limit has expired via federally authorized percentage exemptions. This provision of the bill would become operative only in the event that the federal government adopts the proposed rule change to eliminate states’ ability to provide 15 percent exemptions to ABAWDs.

In order to clarify that the CARET program would only be available to people for whom the ABAWD time limit caused them to no longer be eligible for CalFresh and conform to federal reference to percentage exemptions, the committee suggests the following amendment:

Amendment 1:

On page 4, line 22

(b) A person who has been determined ineligible for CalFresh benefits, or for whom CalFresh benefits have been discontinued as a result of the federal able-bodied adult without dependents (ABAWD) time limit, and who is ineligible for an individual waiver percentage exemption, shall receive benefits under the CARET program.

Amendment 2:

On page 4, line 18

18946. (a) The State Department of Social Services shall establish the California Antihunger Response and Employment Training (CARET) program for persons described in subdivision (b).

(b) A person who has been determined ineligible for CalFresh benefits, or for whom CalFresh benefits have been discontinued as a result of the federal able-bodied adult without dependents (ABAWD) time limit, and who is ineligible for an individual waiver, shall receive benefits under the CARET program.

(c) The person described in section (b) shall receive CARET benefits in the same amount as the CalFresh benefits they would have received if the ABAWD time limit did not make them ineligible.

Amendment 3:

On page 5, line 15

(a) The State Department of Social Services shall issue guidance to maximize the use of individual waivers percentage exemptions available under federal law and guidance relating to the federal Supplemental Nutrition Assistance Program.

Amendment 4:

On page 5, line 23:

(c) The guidance may include redistribution of individual waivers percentage exemptions between counties if necessary to maximize the use of the waivers percentage exemptions to prevent hunger among persons subject to the federal able-bodied adult without dependents time limit.

PRIOR VOTES

POSITIONS

Support:

Western Center on Law & Poverty, Inc.; Alameda County Community Food Bank; Public Interest Law Project; California Association of Food Banks; Food Bank of Contra Costa and Solano (Sponsors)

California Food and Farming Network

Coalition of California Welfare Rights Organizations

Contra Costa Family Economic Security Partnership (FESP)

Feeding San Diego

Food Bank of Contra Costa and Solano

Hunger Advocacy Network

Jewish Vocational & Career Counseling Service

Los Angeles Regional Food Bank

Redwood Empire Food Bank

Rise Together

Sacramento Food Bank & Family Services

San Francisco-Marin Food Bank

Second Harvest Food Bank of Santa Clara & San Mateo Counties

Second Harvest Food Bank of Santa Cruz County

Oppose:

None received

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1. https://fns-prod.azureedge.net/sites/default/files/snap/nondisabled-adults.pdf ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 1022

Author:(Wicks)

As Amended Ver:April 25, 2019

Majority vote

SUMMARY:

Establishes the California Anti-Hunger Response and Employment Training (CARET) Act of 2019 which requires the California Department of Social Services (CDSS) to provide state-funded food benefits through the CARET program to certain eligible individuals, to be made operative only in the event that federal law and guidance prohibit the state from retaining individual exemption allocations, as specified.

Major Provisions

1. Requires CDSS to establish the CARET program for individuals who are deemed ineligible for CalFresh benefits, or for whom CalFresh benefits have been discontinued as a result of the federal able-bodied adults without dependents (ABAWD) time limit and who are ineligible for an individual waiver to receive benefits, as specified.
2. Requires a person to receive CARET benefits in the same amount as the CalFresh benefits they would have received were it not for the ABAWD time limit rendering them ineligible.
3. Deems a CARET program recipient as eligible for the same CalFresh Employment and Training (CFET) benefits, as specified, for which they would have been eligible were they not deemed ineligible for CalFresh benefits due to the ABAWD time limit.
4. Allows a CFET provider serving a CARET recipient to receive a state-funded reimbursement in the same amount that the provider would have been eligible to receive for allowable CFET services for a CalFresh recipient.
5. Requires CARET benefits be delivered through a state-administered and state-funded electronic benefits transfer (EBT) system, as specified, and, further, allows the state-funded EBT system to be used to issue other state-funded food assistance benefits.
6. Makes operative the provisions of this bill establishing the CARET program only in the event that federal law and guidance prohibit the state from retaining individual exemption allocations for use in a later month, as defined in specified federal regulations.
7. Requires CDSS, in consultation with the Office of Systems Integration and relevant stakeholders, as specified, to develop and issue guidance no later than April 1, 2020, related to the use of individual waivers, as specified, and remain operative until the CARET program is operative.
8. Permits the guidance to include redistribution of individual waivers between counties, if necessary and as specified.

COMMENTS:

ABAWDs: ABAWDs include individuals between 18 and 49 years old who have no dependents and do not have a disability. Unless a county possesses an ABAWD time limit waiver, these individuals may only receive CalFresh for three months in a three year time period, unless they meet specific work requirements or participate in a CFET Program. On September 1, 2018, California implemented the ABAWD time limit in San Francisco, San Mateo, and Santa Clara counties; the remaining 55 counties will remain under an ABAWD time limit waiver through August 31, 2019.

CalFresh Employment and Training (CFET): The CFET program aids CalFresh recipients in gaining the skills and experience necessary to enter the workforce. The provisions of this bill would require that CARET recipients receive the same CFET benefits that they would have been eligible for were they not deemed ineligible for CalFresh.

15% exemptions: The United States Department of Agriculture (USDA) also allows for individual, personal waivers to be given to eligible individuals on a case-by-case basis; each individual waiver allows a state to extend CalFresh benefits to one ABAWD for one full month. The number of exemptions allotted is calculated as 15% of the eligible ABAWD population in the areas that are not subject to the statewide waiver (currently, San Francisco, Santa Clara, and San Mateo counties). On February 1, 2019, the USDA Food and Nutrition Service published Proposed Rule RIN 0584-AE57, which proposes to amend the regulatory standards by which the USDA evaluates a state's ability to request waivers to the ABAWD time limit, as well as end the unlimited carryover of ABAWD 15% exemptions.

Need for this bill: This bill provides a state-funded benefit to supply food supports to individuals who are ineligible for CalFresh, or who are no longer eligible because they are subject to the ABAWD time limit, and who are ineligible for a 15% exemption.

According to the Author:

"Access to food is critical to the health of our communities and allows people to be job-ready… This bill provides support to individuals who would lose CalFresh eligibility…Providing this support is a necessary step that keeps California strong by ensuring we protect this highly vulnerable population and making sure that everyone is fed."

Arguments in Support:

Supporters state that depriving individuals of food does not make it easier for someone to find work or succeed at a job, and that the provisions of this bill will fight hunger and support work opportunities for individuals who are ineligible for food aid due to inflexible and ineffective federal time limits.

Arguments in Opposition:

None on file

FISCAL COMMENTS:

According to the Assembly Appropriations Committee on May 8, 2019, this bill may result in the following costs: 1) significant costs to CDSS, likely in the low millions of dollars (General Fund [GF]) to establish and administer this new program; 2) unknown, but likely significant, automation costs for programming and system changes to accommodate the new eligibility requirements; and, 3) unknown state-mandated local costs to counties to administer benefits through the CARET program (these costs are potentially reimbursable by the state, subject to a determination by the Commission on State Mandates).

VOTES:

ASM HUMAN SERVICES: 7-1-0

YES: Reyes, Mathis, Luz Rivas, Friedman, Gipson, Maienschein, Mark Stone

NO: Choi

ASM APPROPRIATIONS: 13-3-2

YES: Gonzalez, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Maienschein, Petrie-Norris, Quirk, Robert Rivas

NO: Bigelow, Brough, Obernolte

ABS, ABST OR NV: Diep, Fong

UPDATED:

VERSION: April 25, 2019

CONSULTANT: Kelsy Castillo / HUM. S. / (916) 319-2089 FN: 0000606

Date of Hearing: May 8, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 1022

Author:(Wicks) – As Amended Ver:April 25, 2019

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill establishes the California Anti-hunger Response and Employment Training (CARET) Act of 2019 that requires the Department of Social Services (DSS) to provide state-funded food benefits through the CARET Program to certain eligible individuals deemed ineligible for CalFresh as a result of the able-bodied adult without dependents (ABAWD) time limit and who are ineligible for an individual waiver. The bill is operative only if federal law and guidance prohibit the state from retaining individual exemption allocations.

FISCAL EFFECT:

1. Significant costs to DSS, likely in the low millions of dollars (GF) to establish and administer this new program.
2. Unknown, but likely significant, automation costs for programming and system changes to accommodate the new eligibility requirements.
3. Unknown state-mandated local costs to counties to administer benefits through the CARET program. These costs are potentially reimbursable by the state, subject to a determination by the Commission on State Mandates.

COMMENTS:

1. Purpose. This bill seeks to ensure individuals subject to the federal ABAWD time limit are not left without food benefits, particularly in light of the proposed rule change at the federal level, which, if adopted, will affect California’s ability to provide federally-funded 15% exemptions to ABAWDs.
2. Background. Receipt of federal food benefits (CalFresh in California) is contingent upon an individual meeting certain eligibility criteria, except in instances when the individual is exempt due to age, having a disability or another specific reason. ABAWDs are individuals between 18 and 49 years old who have no dependents and do not have a disability. They may only receive CalFresh for three months in a three-year period if they do not meet specific work requirements. Federal rules require ABAWDs to work at least 80 hours per month or comply with a workfare program or to participate in an Employment Training Program (CFET in California).

State law requires DSS to annually seek an exemption to federal ABAWD time limits, and federal rules allow a county or an entire state to be approved for a waiver to the ABAWD time limit if the county or state meet federally established criteria related to high unemployment or a lack of sufficient jobs. On August 31, 2018, California’s statewide waiver expired and on September 1, 2018, California implemented the ABAWD time limit in San Francisco, San Mateo and Santa Clara counties.

California’s remaining 55 counties will remain under the ABAWD time limit waiver through August 31, 2019. However, it is unclear whether other counties, particularly Alameda and Contra Costa, will be required, upon expiration of the waiver, to implement the ABAWD time limit. As of April 1, 2019, only six states have a statewide ABAWD time limit waiver, 30 states, including California, have partial time limit waivers, and 17 states have no waiver.

This bill provides a food benefit for affected individuals should the state lose its federal waiver or its ability to grant individual waivers pending a proposed federal rule change.

1. Related Legislation. AB 1229 (Wicks), of this legislative session, requires DSS to issue guidance to county human services departments that requires each county to, among other things, establish a self-initiated workfare program for former foster youth that will enable them to meet the ABAWD work requirement. The bill is pending in this committee.

Analysis Prepared by: Jennifer Swenson / APPR. / (916) 319-2081