Eric Lukoff

Volume 28.1 (download PDF)

Abstract

Due process in safety net public benefit programs requires agencies to employ modern technology in providing notice that is reasonably likely to reach participants. The Supreme Court has held that due process is dependent on the time, place, and circumstances in which it operates. Scholars have further argued that due process is adaptable to changing facts and circumstances over time. Yet, mailed paper notices remain the standard in providing notice to participants in public benefit programs.

Living in poverty today looks significantly different than it did nearly fifty years ago at the time of Mathews v. Eldridge, where the Court established the balancing test for adequate notice in such programs. Low-income individuals today face more unstable housing and other stressors that affect health and mental wellbeing, all of which create more extreme constraints on their time, and which make receiving and responding to a mailed notice difficult. Individuals’ and agencies’ use of technology has also rapidly increased. By examining a sample of public benefit programs across three states, it becomes clear that the existing notice is inadequate and additional procedural safeguards are due.

Thus, given the changed circumstances, as well as the reasonable capabilities of modern government agencies, reweighing the Mathews factors today would find mailed-only notices constitutionally inadequate and demand some form of electronic notice, such as email and text message. A “reasonably available technology” test may be the appropriate new baseline for evaluating the adequacy of a chosen mode of sending notices.