Last June, the Mills Administration wanted to give people on welfare new and recent-model cars for pennies on the dollar. In December, the day after MPBP put in a public documents request, DHHS killed the program. Here’s what we have discovered was going on behind the scenes.
During the spring and summer of 2020, under the cover of the pandemic, the political appointees at DHHS tried to rush through the rules and contracts for the “Working Cars for Working Families” program, which would have used $6 million of the Temporary Assistance for Needy Families welfare money to buy cars and then give the cars and their titles to people on welfare who had only paid about $600 into the program.
The Working Cars for Working Families program had been authorized in the 2018–2019 state budget but not implemented under the LePage Administration. Its exceptionally vague statutory language allowed the Mills Administration to design the entire program in rulemaking, but the law only authorized the program through June 30, 2022.
This time last year, MPBP led an effort—with your help—to expose this program. Last October, DHHS awarded the contract for the program’s management. This contract was contingent on the adoption of the final rule. Under state law, DHHS was required to post the final rule and their responses to the comments from the public.
After waiting two more months and not seeing that final rule, MPBP submitted a public records request to the Attorney General’s Office under the state’s Freedom of Access Act on December 2, 2020, to uncover was happening with the program. Final rules have to be signed off by the attorneys assigned to DHHS before they can be issued. MPBP received more than a thousand pages of documents from the Attorney General’s Office in March.
It is clear from the email exchanges included in those files that the initial review of the rules by the attorneys in the spring of 2020 was not very thorough, because after the public comments were submitted, the attorneys agreed with many of the problems raised by commenters.
DHHS is required to send a draft of its reply to the public comments to the Attorney General’s Office for review. In those documents, DHHS defended itself and made very few changes, repeatedly stating, “There was no change [to the rule] as a result of this comment.”
When the attorneys’ received DHHS’s rationale and this response, as can be seen in the document titled, “2. PDF Rule Review_Redacted_Part1_Redactedv2,” they pushed back on DHHS’s overreach.
DHHS continued to argue with their own lawyers about what they had the authority to do, including implementing multi-million dollar programs without legislative approval and beyond the scope of the laws passed by the Legislature.
When their attorneys told DHHS that the program had to end on June 30, 2022, DHHS responded it didn’t have to: “While the requirement in 22 M.R.S. § 3769‐F does expire July 1, 2022, the Department has the authority to operate the program with or without the rule requiring it.”
Not only did the attorneys tell the department that they must comply with the law passed by the Legislature—that the program could not extend beyond June 30, 2022—but the legal team also confirmed many of the problems raised in the public comments:
“Concerns about vagueness: as set forth in more detail below and attached, many provisions in the rule are vague, and it is hard to tell exactly how this program is supposed to work. Rules govern not only the people who may be eligible for benefits, but also DHHS as an agency, and other parties affected by the regulation; here, the rule generally seems to avoid any restrictions on DHHS. There are numerous eligibility requirements, but no description or definition of what, exactly is being provided in terms of services by this program. The rule does not reference the involvement of a vendor that will administer the program. The “Funding Contingencies” provisions should be removed. Too much discretion is reserved for DHHS (ie – there are few objective criteria or factors that would bind DHHS’s determinations), making challenges via litigation highly likely, where it would be difficult to defend DHHS decision making based on this rule language. We made suggestions where we could, but as it stands it is difficult to tell how, exactly, the program is supposed to work.”
After months of these back and forth reviews and disagreements, on December 3, coincidently the day after MPBP requested the documents, a staff person in DHHS’s commissioner’s office left a voicemail telling their attorney in the Attorney General’s Office that DHHS was going to end the welfare car program.
But that decision caused other complications, because DHHS and their lawyers had concerns that because the contract had been awarded, they might be sued.
So four DHHS staff members from the commissioner’s office, including two deputy commissioners, met with their lawyers on December 7 to get their story straight. The notes from this meeting reveal that DHHS had already spent the money that the Legislature authorized for the program; DHHS told the lawyer per the lawyers notes: “those $$ were spent on other things. So that $ is gone.”
What does this trail of documents tell the Maine people?
Maine People Before Politics and hundreds of Mainers were correct to raise concerns about this program. Attorneys verified and echoed the problems we pointed out. One attorney noted during a meeting on November 23: “At very least the rule and the contract should not conflict. . . . The current rule is so unclear/vague. Can’t tell services, eligibility, requirements.”
DHHS and the Mills Administration were prepared to defy the 2017 law passed by the Legislature: not only to continue the vague and unenforceable program past its end date, but also to spend different money than the money the Legislature set aside. Indeed, DHHS had already spent that money on something else.
We have posted just a few of the documents from the more than one thousand pages we received in our records request below.
2. PDF Rule Review_Redacted_Part1_Redactedv2.pdf (DHHS’s Initial Responses to the Public Comments)
12.7.2020 – HM notes WCFWF prep for potential litigation
12.11.2020 HM notes – prep for potential litigation WCFWF
H5. 11-13-2020 Additional potential problem WC4WF
Halliday Moncure – 11.17.2020 812 am draft rule review
Halliday Moncure – 11.23.2020 – HM notes tc with Dan Cohen, Liz Ray re OAG review