abstract. This Essay explores public-benefits agencies’ increasing reliance on technology and remote services and its impact on welfare-rights litigation. The Essay argues that technology is not necessarily a solution to resource constraints at benefits agencies, and that the lack of direct regulation of new uses of technology threatens benefits access by creating legal uncertainty about benefits agencies’ obligations. However, creative impact litigation is a powerful tool for protecting program access and enforcing benefits recipients’ rights.

Introduction

When Mary Holmes went to her local public-benefits office to apply for Supplemental Nutrition Assistance Program (SNAP) benefits,1 a process that required an interview with an agency caseworker, she learned the staff were not conducting in-person interviews—instead, Ms. Holmes would have to wait for the agency’s call center to contact her for a phone interview.2 As of 2015, federal regulators had permitted her state, Missouri, to use call centers to interview SNAP applicants by phone on an unscheduled basis, instead of scheduling appointments for in-person interviews.3 When Missouri closed its public-benefits offices during the 2020 COVID-19 pandemic, the call center took on an even more central role in SNAP’s operations.4 Ms. Holmes, who used a prepaid cell phone due to her limited income, would have preferred a scheduled, in-person interview. Nevertheless, she waited, as instructed, for the agency’s call.5 When she received that call a few days later, Ms. Holmes was placed in a hold queue and told that she was number 692 in line.6

Ms. Holmes waited on hold for four hours that day—paying by the minute the entire time—but was never connected to a representative.7 Over the next month, she contacted the agency’s call center at least thirteen times, attempting to complete her interview.8 During some of those calls, she waited on hold for hours before she hung up (or ran out of minutes on her cell phone); on other occasions, the agency’s phone system disconnected Ms. Holmes before she could even enter the hold queue because there were already too many people waiting.9 A month after she submitted her application—a month during which she was hungry and had only her disability benefits to support her—the agency denied Ms. Holmes’s application, citing her failure to complete an interview.10

The Kafkaesque path of Ms. Holmes’s SNAP application would look familiar to many low-income Americans forced to navigate dysfunctional remote systems to obtain public benefits. But the legal system is only beginning to confront the access barriers caused by recent innovations in public-benefits administration like remote interviewing and online-application platforms.

The years since the COVID-19 pandemic have seen significant changes to American public-benefits programs. In the years leading up to the pandemic, public-benefits agencies were beginning to experiment with new systems and technologies such as online applications, electronic document-submission platforms, telephonic eligibility interviews, and remote hearings.11 When the pandemic necessitated the widespread closures of agencies’ physical offices, the adoption of these new technologies accelerated the development of new practices for obtaining public benefits.12 Although most public-benefits offices have now reopened, their day-to-day operations have not returned to prepandemic practices. Instead, the new practices are now firmly entrenched as the default mode of operation for public-benefits agencies.13 These changes primarily consist not of substantive changes to benefits-eligibility rules, but rather of operational changes in how social-services agencies conduct their business, primarily at the state and local level. While these changes are related to process, not substance, they have major implications for benefits access and the enforcement of benefits applicants’ and recipients’ legal rights.

Importantly, benefits applicants and recipients are facing new types of access barriers. These barriers include malfunctioning or poorly designed electronic systems, such as labyrinthine phone menus for telephonic eligibility interviews;14 lost documents in malfunctioning computer systems;15 and websites and call centers that lack accessibility features for people with disabilities or low English proficiency.16 All of these barriers can cause application delays and denials. Other barriers arise from limitations inherent to particular technologies. In telephonic fair hearings to contest terminations or denials of benefits, hearing officers struggle to make accurate credibility determinations without the benefit of in-person testimony and pro se appellants default if their prepaid cell phone runs out of minutes.17 People who lack technological literacy or internet access may find certain benefits websites and apps difficult to use.18 Indeed, some online-application platforms function poorly on mobile devices, which are the only available means of accessing the internet for many low-income individuals.19

Statutory and regulatory text do not typically reflect these new practices. To the extent the new processes are documented, they are generally addressed in subregulatory guidance and waivers, which do not give rise to enforceable rights.20 Since existing enforceable laws did not anticipate these new processes, a key challenge in current public-benefits litigation is finding ways to align new practices with established rights. Legal scholarship on public-benefits litigation has yet to consider this issue substantially.21 While scholarship has described the temporary expansions in public-benefits programs enacted in response to the pandemic22 and analyzed how the pandemic revealed weaknesses in the American safety net,23 law-review literature has not yet considered the more durable changes to U.S. public-benefits programs caused or accelerated by the pandemic.

As a Yale Law Journal Fellow at the National Center for Law and Economic Justice (NCLEJ), I worked on several lawsuits that either directly challenged new barriers to program inaccessibility, introducing novel legal theories to argue that access barriers caused by technological changes are unlawful, or contended with these changes in the process of determining how to remedy violations of more firmly established rights. This experience gave me a front-row seat to the current trends in public-benefits program administration and the litigation that disciplines it.

Focusing on SNAP,24 this Essay argues that benefits agencies’ new technologies and operational practices threaten to replicate longstanding problems in benefits program administration and that the law has not yet adapted to these changes. Part I briefly describes the history of public-benefits litigation in the decades since welfare reform and the sources of law that are most important for SNAP litigation today. Part II analyzes several recent lawsuits that illustrate the creative strategies benefits litigators are using to address novel access barriers, as well as the difficulties of litigating benefits issues that are not contemplated by older legal frameworks. This Part argues that technology is not necessarily a solution to a lack of resources and capacity in benefits agencies. In light of this problem, Part III offers policy recommendations.

I. benefits litigation, past and present

Impact litigation on behalf of public-benefits recipients blossomed in the 1960s, when a well-organized, participant-led welfare-rights movement joined forces with ambitious, creative lawyers to advocate for welfare recipients.25 These lawyers’ efforts culminated in the landmark Supreme Court case Goldberg v. Kelly. Goldberg held that welfare benefits are a form of property protected by the Due Process Clause and thus cannot be cut off without a pretermination hearing.26 But this Goldberg era was short-lived: the 1970s saw the beginning of a period of retrenchment at the Supreme Court, during which an increasingly conservative Court cabined its progressive decisions in benefits law and declined to adopt benefits advocates’ more ambitious legal theories.27 Concurrently, the welfare-rights movement began to fizzle out.28 Welfare litigation nevertheless continued at a steady pace through the 1970s and 1980s.29

Goldberg-era benefits litigation focused on cash welfare, especially the Aid to Families with Dependent Children program (AFDC). In 1996, however, Congress replaced AFDC with the Temporary Assistance for Needy Families (TANF) block grant.30 Whereas AFDC was an entitlement program with federally established eligibility standards and procedures, TANF provides states with a fixed amount of funding and significant leeway on how to use it, including for purposes other than providing cash welfare directly to families.31 Because TANF lacked the significant federally enforceable rights of its predecessor, many of the previous pathways for benefits litigation were cut off.32

But while the welfare-rights movement33 and “welfare as we know it”34 may be dead, welfare-rights litigation is not. After welfare reform in the 1990s, public-benefits litigators largely shifted their focus from cash welfare, which was no longer an entitlement at the federal level, to SNAP and Medicaid.35 SNAP and Medicaid issues continue to be substantially litigated today in both federal and state courts. Additionally, some states continue to structure state-level cash-welfare programs as entitlements, which allows litigation of related issues in state courts or at the federal level via a pendent state-law claim or federal due-process claim.36

Perhaps the greatest current challenge to SNAP and Medicaid benefits litigation is legal-services attorneys’ limited litigation capacity.37 Beginning in the 1970s, Congress decreased overall federal funding levels for legal-services attorneys and imposed increasingly stringent limits on the activities of lawyers receiving federal funding through the Legal Services Corporation (LSC) to represent low-income litigants.38 Most significantly for benefits litigators, Congress barred LSC-funded attorneys from bringing class-action lawsuits.39 Class actions are a crucial pathway for systemic change in benefits programs because it is impractical for low-income benefits recipients and their often under-resourced nonprofit lawyers to bring large numbers of individual lawsuits.40 Despite these restrictions, some LSC-funded organizations have devised ways to bring impact litigation, generally relying on organizational plaintiffs and doctrinal mootness exceptions to move their cases forward and secure systemic relief without the benefit of a class action.41 However, many organizations receiving LSC funding—like most organizations that represent benefits recipients—now focus on providing direct services and do not bring impact litigation. As a result, enforcement of welfare recipients’ rights depends heavily on the small number of organizations that do not rely on LSC funding and can therefore bring impact litigation with fewer constraints.

Current SNAP litigation generally relies on two primary sources of law: durable due-process principles first established during the heyday of the welfare-rights movement42 and applied in new contexts today,43 and statutory rights that continue to be fleshed out through litigation.44

SNAP benefits, like most public benefits, are provided through a cooperative-federalism model where the federal government establishes and funds benefits programs but delegates their administration to the states.45 Some states further delegate operations to county-level benefits agencies.46 The federal government pays for one hundred percent of SNAP benefits and at least fifty percent of states’ administrative costs, but state employees handle the day-to-day work of reviewing benefits applications, making eligibility determinations, and dispersing benefits.47 States must comply with federal laws and regulations as a condition of receiving funding, but federal law typically allows states some flexibility in certain aspects of program administration.48 The U.S. Department of Agriculture’s Food and Nutrition Service (FNS) is the federal agency responsible for supervising state SNAP programs and promulgating regulations to implement SNAP’s statutory requirements.49

SNAP recipients’ due-process claims are enabled by the principle that some public benefits, including SNAP, are a form of “property” that may not be taken away without due process of law.50 For a property interest to exist, the state or federal statutes and regulations that govern a benefits program must create an entitlement to benefits for all persons who meet objectively defined eligibility criteria.51 When this feature is present, benefits applicants and recipients possess a protected property interest in those benefits.52 As a result, benefits may not be denied or terminated without notice and an opportunity to be heard.53 Due process also requires benefits programs to be administered fairly and nonarbitrarily, using ascertainable standards.54

The other key source of law for SNAP litigation is the federal statutory scheme that governs the program. Courts have ruled that several statutory provisions are privately enforceable via 42 U.S.C. § 1983.55 Numerous courts have found that 7 U.S.C. §§ 2020(e)(3) and (e)(9), which impose time limits for the processing of SNAP applications, are privately enforceable.56 Other provisions found to be privately enforceable include 7 U.S.C. §§ 2014(a), which provides that all households who meet the eligibility requirements for SNAP must receive assistance;57 2020(e)(10), which requires fair hearings to be available to aggrieved households;58 and 2020(e)(2)(B)(i), which requires agencies to provide “timely, accurate, and fair service” to SNAP applicants and recipients.59 State SNAP agencies must comply with federal SNAP regulations as well as federal statutes. 60 But a statutory hook is generally required for litigation, as a regulation standing alone cannot confer a cause of action, though regulations may shed light on the proper construction of an otherwise enforceable statute.61

State law may also confer legal rights or a cause of action,62 though state-run welfare programs and state implementation of federal programs vary widely.63

II. case studies

Today, many of the most pressing issues for public-benefits recipients follow from benefits agencies’ increasing reliance on technology to conduct business remotely. As a fellow at NCLEJ, I worked on several lawsuits that sought to protect benefits recipients’ rights as agency practices evolved. In this Part, I analyze three such cases: Holmes v. Knodell, which challenged wrongful SNAP denials caused by Missouri’s reliance on an overloaded and inaccessible call center;64 Reynolds v. Giuliani, in which enforcement of a longstanding injunction protecting access to emergency benefits in New York City contended with legal uncertainty caused by major changes in agency operations;65 and Salem v. Guinn, which confronted serious delays in New York State’s system of administrative hearings for benefits recipients, delays that exist despite the state’s recent move to remote hearings that are intended to be more efficient.66 These cases reveal downsides to benefits agencies’ increased reliance on technology and remote operations—pitfalls that sometimes parallel much older problems in benefits administration—and demonstrate the urgent need for more targeted, thoughtful regulation of these new practices. They also show, however, that litigants can still make headway in improving benefits programs by creatively leveraging the big-picture rights protected under existing law.

A. Holmes v. Knodell: On-Demand Interviewing and Fundamental Fairness

Today’s benefits litigants face the major challenge of demonstrating how access barriers caused by new technologies and systems can give rise to cognizable legal claims under an outdated statutory and regulatory framework. The Holmes v. Knodell litigation, which I worked on during my fellowship, illustrates this issue.

Holmes challenged SNAP denials resulting from Missouri’s reliance on a dysfunctional, understaffed call center to conduct SNAP eligibility interviews.67 Federal regulations require SNAP applicants to complete an interview with a state-agency caseworker before they can be deemed eligible to receive benefits.68 The regulations require state SNAP agencies to schedule an interview appointment for each applicant household.69 Interviews may be conducted by telephone, though telephone interviews still must be scheduled for a specific time.70 The federal statutes governing SNAP do not require interviews or set forth standards or procedures for interviews; the interview requirement exists only in regulations.71

Although SNAP regulations provide detailed standards for interviews, FNS has granted numerous regulatory waivers that permit states to deviate from the customary interview procedures set out in the regulations.72 Missouri has been granted one such waiver, formally called an “unscheduled interview waiver” but often referred to as an “on-demand waiver.”73 Missouri’s waiver permits the state to operate a system of “on-demand interviews” where applicants are directed to call into a centralized call center at a time of their choice to complete an interview instead of being scheduled for an individual interview appointment.74 Numerous other states have received some form of an on-demand waiver.75 Indeed, FNS guidance explicitly encourages states to consider on-demand interviewing.76 Nevertheless, FNS has failed to establish any performance standards for on-demand interviewing (such as limits on applicant hold times), either by regulation or in subregulatory guidance.77

While on-demand interviewing could, in theory, improve access to SNAP by giving prospective applicants the flexibility to complete an interview at a convenient time,78 in practice, operational challenges undermine these potential benefits. For example, Missouri’s SNAP call center is plagued by long wait times and often drops calls when call volume strains the call center’s capacity.79 The state agency’s computer system is programmed to deny SNAP applications automatically on the thirtieth day after application submission if an interview has not been completed, without any procedure in place to verify whether the household has attempted to call for an interview.80 As a result, huge numbers of SNAP applicants—including many who satisfy the program’s substantive eligibility requirements—are denied for failure to interview, even if they have called numerous times and waited on hold for hours.81

Because federal SNAP statutes do not even address interviews and there are no binding standards for on-demand interviews, advocates faced the challenge of shaping the state’s egregious failures into a legally cognizable claim.82 Ultimately, the Holmes plaintiffs pegged their claims to two statutory provisions that establish fundamental principles for the administration of SNAP: 7 U.S.C. § 2014(a), which provides that assistance under SNAP “be furnished to all eligible households who make application for such participation,” and 7 U.S.C. § 2020(e)(2)(B)(i), which requires state agencies to provide “accurate[] and fair service.”83 The plaintiffs argued that Missouri’s practice of denying SNAP applications based solely on an applicant’s inability to get through on the overloaded phone lines to complete an interview violated the state’s obligations to provide benefits to all eligible applicants and to provide accurate and fair service.84 The plaintiffs also argued that the state’s practices violated the Due Process Clause, both because they created a substantial risk that eligible applicants would be erroneously deprived of benefits and because they led the state to make eligibility determinations based on the arbitrary criterion of whether an applicant could successfully get through to the call center.85

The plaintiffs ultimately won summary judgment on all claims in an order that substantially adopted their theories of liability.86 The court wrote:

Defendant’s reliance on an inadequate automated system and understaffed offices to provide interviews . . . violates Defendant’s obligation under SNAP and Defendant’s on-demand waiver. Defendant’s automatic denials of eligible applicants based on an automated system constitutes a wrongful denial of benefits. Defendant is required to provide benefits to all eligible applicants and must ensure that it has a system that allows for this to happen. Here, an alarming number of eligible applicants are denied based on Defendant’s failure to make timely interviews available. When applicants who are otherwise eligible for benefits are denied those benefits for failure to interview, due to no fault of their own, Defendant has violated its obligations under the law.87

The court further held that the state had violated the plaintiffs’ due-process rights, agreeing with the plaintiffs’ arguments that the state’s practices created an unacceptably high risk of erroneous deprivation of their strong private interest in subsistence benefits and amounted to arbitrary agency action.88

Because of the lack of specific, enforceable standards for new policies like on-demand interviewing, Holmes relied on statutory and constitutional provisions that are more akin to rules of fundamental fairness.89 The core principle at the heart of the Holmes decision is that the Due Process Clause and the Food Stamp Act require a fair process where each person is evaluated on the merits using the same rules. This requires a functional system that ensures applicants who fulfill their responsibilities can trust that the agency will do the same.90 Litigation is ongoing to determine the proper scope of relief.91

Although the Holmes plaintiffs were successful, the absence of specific standards for on-demand interviewing led to significant legal uncertainty and forced the plaintiffs to rebut basic misunderstandings about the core issues at stake in the case. The state defendant repeatedly argued that it had no legal obligation to operate a call center or provide telephone interviews at all and that FNS regulators had not established a ceiling on wait times for on-demand interviews.92 While both of these arguments were factually true, they reflected a fundamental misunderstanding of the plaintiffs’ position. Plaintiffs were not seeking to create or enforce standards specific to telephone or on-demand interviews.93 Rather, their argument was grounded in the overarching principle that the state’s obligation to provide benefits to all eligible applicants existed regardless of the system use for interviewing, and that the state’s failure to fulfill that obligation was unlawful.

B. Reynolds v. Giuliani: Emergency Benefits in 2005 and 2024

Recent enforcement of a decades-old injunction also shows the challenges of addressing current SNAP access barriers with a much older legal framework. In late 2023, in Reynolds v. Giuliani, New York City benefits advocates filed a motion to hold the city in contempt of court for violating a longstanding injunction that, among other things, required the city to comply with federal requirements for the expedited processing of certain SNAP applications.94 (NCLEJ is one of the organizations representing the plaintiff class, and I worked on this contempt motion and subsequent monitoring efforts during my fellowship.) For certain extremely low-income households, federal law mandates that SNAP benefits be provided within seven days of their application, as opposed to the standard processing deadline of thirty days; the seven-day deadline is referred to as “expedited service” or “expedited processing.”95 New York City monitoring data provided to Reynolds class counsel, per the requirements of the injunction, indicated that almost half of applications eligible for expedited service were not being processed in a timely manner.96

Reynolds was an old case, originally filed in 1998 in the wake of welfare reform.97 The court ordered permanent injunctive relief in 2005.98 On its face, the legal violation at issue—untimely application processing—had no relationship to public-benefits offices’ new technology. Yet, the dramatic changes in the city’s benefits operations and use of technology between 2005 and 2024 became a central focus as the litigation to enforce the injunction progressed.

Federal regulations for expedited SNAP processing were written in an era when benefits application processes worked very differently than they do today. The regulations direct state agencies to screen applicants for eligibility for expedited service “at the time the household requests assistance.”99 State agencies are instructed to designate an employee or volunteer who “shall be responsible for screening applications as they are filed or as individuals come in to apply.”100 Since both statute and regulation require benefits be provided within seven days of application to households eligible for expedited service,101 the purpose of screening is presumably to enable agency staff to prioritize these applications when completing the other steps required to process applications, including scheduling an interview appointment.102 The screening provision—which was promulgated in 1978 and whose text has not changed since103—seems to contemplate a program where most people would apply by “com[ing] in” to a brick-and-mortar office to submit a paper application form. An agency staff member would then read each application as it came in and sort it for processing.

Indeed, when Reynolds was filed in 1998, New York City’s Human Resources Administration functioned in this way: most applicants went to an office, filled out an application onsite, and then completed an interview and received an eligibility determination that same day.104 While this process might have required spending many hours at the benefits office, that drawback was counterbalanced by the fact that the applicant could be screened and receive benefits in a single visit.

Today’s application process is more convoluted. Most prospective New York City benefits applicants begin their application online or through the agency’s mobile application. After submitting their application, the prospective applicant receives a confirmation message instructing them to call a centralized telephone line to complete an on-demand interview.105 The required screening for expedited applications under 7 C.F.R. § 273.2(i)(2) is no longer completed by a staff member. Instead, the online-application platform completes the screening automatically and then provides a different confirmation message to applicants whose answers indicate they are eligible for expedited service. Thus, most applicants do not have a chance to interact with agency staff until they call in to interview with a caseworker, nor do agency staff have reason to review applications before the interview (since they do not, for example, need to determine the correct department to send applicants to for an interview while they are waiting during an office visit).106

In addition, because New York City has an on-demand SNAP interview waiver,107 the city is no longer required to schedule interview appointments within seven days of application submission for applicants eligible for expedited service. Instead, the interview can be completed whenever the applicant calls—and manages to get through—on the phone, which may be long after the seven-day period has expired.

These changes in New York City’s SNAP benefit application process were at the heart of the Reynolds case. The parties did not agree on what the city’s obligations were or how to measure the city’s compliance in the new world of online applications and on-demand interviewing. The central issue was whether the city agency had any legal obligations to individuals whose applications indicated that they were eligible for expedited service but who had not yet completed an interview.108 More specifically, as in Holmes, the parties disputed whether the agency’s obligation to process applications within a set time frame included an obligation to ensure that applicants had sufficient opportunity to complete an on-demand interview within that time frame.109

In 2005, these questions had been irrelevant. Nearly all applicants completed both their application and their interview in person during a single office visit. Access to interviews was taken for granted.110 The expedited-service rules, written with office operations in mind, mapped easily onto the agency’s practices. But in 2024, the process has been divided into discrete steps that applicants complete largely independently instead of with the guidance of office staff—an online application, followed by an on-demand interview where the onus is on the applicant to call in and wait for someone to pick up.111

In Reynolds, these changes mattered: the plaintiffs contended that long hold times prevented many applicants from completing an interview despite their diligent efforts, while other applicants did not know to call within the seven-day window because the online application did not clearly inform them that they could get benefits on an expedited basis.112 The city insisted that applicants who were eligible for expedited service on the face of their applications but who did not interview within seven days should not be considered in determinations of the city’s rate of timely performance.113 The plaintiffs, on the other hand, argued that the city’s obligation to provide expedited service included an obligation to ensure that applicants were able to access an interview within the seven-day processing time frame.114 In order to evaluate the extent of existing barriers, they sought data on telephone wait times and the number of applicants who were eligible for expedited service but did not interview within seven days.115

The parties ultimately negotiated a corrective-action plan and settled the contempt motion,116 forestalling the need for the court to rule on the proper interpretation of the expedited-service requirements. However, the interaction between on-demand interviewing and expedited-service requirements was a consistent sticking point in several court appearances because of the lack of clarity as to the city’s legal obligations in this new system.

C. Salem v. Guinn: The False Promise of Efficiency

The recently filed case of Salem v. Guinn, which I worked on developing and filing during my fellowship at NCLEJ, provides another illustration of why technology and remote operations should not be seen as a panacea for under-resourced benefits agencies. Salem challenges unlawful delays and inadequate notice in New York’s statewide system of administrative “fair hearings” for aggrieved benefits applicants and recipients.117 Despite unambiguous regulatory timelines requiring the prompt resolution of administrative fair hearings, New York had a backlog of over fifty thousand hearings overdue for decision when Salem was filed, including thousands of hearings with multiyear delays.118 These delays deprive many individuals of benefits for extended periods of time and saddle others with unconscionable debts as a result of benefits received while waiting for a hearing that they ultimately lose.119

At the same time, New York operates its fair-hearing system under a “demonstration project” in which almost all hearings are conducted via telephone or video.120 This policy began in March 2020 as a social-distancing measure121 and has been extended at least through March 2025.122 Ironically, the state agency has previously justified its continued use of the remote-hearing system by stating that the policy is expected to improve timeliness.123 More recent agency communications have retreated from this justification somewhat, stating only that the demonstration project aims to evaluate whether remote hearings do, in fact, improve timeliness.124 Public-benefits advocates who represent appellants at these fair hearings have identified a number of due-process concerns arising from the state’s near-exclusive reliance on remote hearings. These concerns include the difficulty of making credibility determinations over the phone and, for appellants with limited English proficiency, the challenge of understanding the presentation of documentary evidence without an interpreter in the room to point out and explain documents.125

Salem does not explicitly address concerns about remote hearings; the timeliness requirements it seeks to enforce are applicable to all hearings, regardless of format.126 And the specific reasons for New York’s fair-hearing delays are currently largely unknown. However, the confluence of these delays with the ongoing remote-hearing demonstration project shows that reliance on technology has not compensated for the resource constraints or performance issues causing the state’s untimeliness. To be sure, it is possible that timeliness might be even worse if most hearings were taking place in person. But it is clear that the state’s apparent hope that the move to remote hearings would ensure timely performance was unduly optimistic. Any efficiencies or cost savings to the state have not resulted in a better experience for appellants.

D. Implications

While Holmes, Reynolds, and Salem all contend with problems flowing from the adoption of new technological systems, administrative burdens and procedural barriers are longstanding issues for benefits applicants and recipients. In some ways, the new technological access barriers mirror the resource constraints and indifferent (or hostile) bureaucracy that have plagued benefits programs for decades.

For example, in a 2000 rulemaking, FNS received comments objecting to a practice in some states of using first-come, first-served SNAP eligibility interviews.127 Under this system, a local agency would

establish a “quota” for the number of applicants that staff can interview during established working hours. Potential applicants will begin to line up in front of the office early in the morning in hopes of getting an interview that day. Once the number of applicants in line reaches the “quota”, the local agency will accept no more individuals for an interview.128

This system forced some households to visit the agency’s office multiple times, potentially enduring long waits each time, before they could secure an interview.129 FNS expressed disapproval of this practice, citing the barriers to participation it created for groups such as working families who could not go to the office repeatedly. Accordingly, FNS revised the proposed interview regulation to require state agencies to “schedule an interview for each applicant that is not interviewed on the day he or she submits an application.”130

Without sufficient staffing on telephone lines, the on-demand interviewing at issue in Holmes and Reynolds works in much the same way as the disfavored “quota” system. Just as applicants subject to a quota system were forced to wait for first-come, first-served interviews, applicants dealing with an on-demand interview system may have to call numerous times and endure protracted waits before they can complete an interview. While there may not be an announced interview quota, on-demand interviewing can result in a de facto quota due to the mismatch between the number of applicants instructed to call for interviews and the staff available to conduct them. Using a call center in lieu of a physical office does not make up for the resource constraints that have long plagued welfare agencies.131 For applicants, the resulting experience remains largely the same—long waits and, for many, denials based on inaccessible procedures regardless of applicants’ substantive eligibility.

Holmes, Reynolds, and Salem illustrate why technology is not the easy solution to understaffing and other operational constraints that benefits recipients and agencies might hope for. Online applications, on-demand interviewing, and telephonic fair hearings do not reduce administrative burdens—these technologies merely shift burdens from agency staff onto benefits applicants and recipients. Benefits applicants must submit their applications online on their own, without easy access to agency staff to answer questions about the application.132 They must call the agency over and over to try to secure an interview, instead of the agency creating a schedule of interview appointments that accommodates every applicant.133 They must find a private place and working telephone to complete a fair hearing.134 And they must devise a way to share their hearing evidence with the agency electronically in advance, instead of relying on agency facilities for hearings.135

For benefits agencies, these changes may seem irresistibly efficient. Too often, however, any apparent efficiency is in fact a sign of barriers to program access. In Missouri, for example, the state’s rate of timely application processing was artificially bolstered by its policy of automatically denying all applications thirty days after filing if the applicant had not managed to get through to complete an on-demand interview, when in fact many applicants had no way to complete the application requirements within thirty days due to the dysfunctional call center.136 Technological changes may simply tempt agencies to hide dysfunction by blaming applicants for being insufficiently diligent in trying to access the system.137

Challenging these barriers is made all the more difficult by SNAP’s statutory and regulatory framework, which was not designed for today’s technology. And federal regulators have so far failed to step in to remediate problems like inaccessible call centers and fair-hearing backlogs. Some states have taken FNS’s hands-off approach as permission to operate poorly. In Holmes, for example, Missouri argued that its call-center dysfunction was not unlawful because FNS had not expressed concern about its wait times or issued benchmarks for call-center performance.138 Although a federal court ultimately held the state’s practices unlawful,139 the lack of performance standards and corrective action from the federal government allowed Missouri to operate an inaccessible system for years before it was finally targeted in a lawsuit. In that lawsuit, as well as in Reynolds, the mismatch between SNAP’s legal framework and current agency operations created significant legal uncertainty about what the agency’s obligations were. These kinds of rights violations are only beginning to become legible to the legal system, even though benefits recipients can easily recognize that today’s problems represent the same kind of disrespect and neglect that has long been endemic in American public-benefits bureaucracies.

III. recommendations

To maintain the integrity of benefits programs, benefits agencies must look to technology not as a cost-cutting measure,140 but as a tool to improve program access. While the flexibility of remote applications, interviews, and hearings can have real value for many applicants, these technologies can make it more difficult for others to navigate benefits programs. Those who struggle most are often those most in need—particularly vulnerable applicants who require additional application assistance, such as an applicant with a disability that affects their ability to process information or an unhoused applicant who cannot easily safeguard important documents. Tools like online applications and on-demand interviewing should be an additional option, not the only option. Policymakers should more deeply consider the implications of slicing up benefits-application processes into discrete steps that applicants may or must complete entirely from home.

Furthermore, even the most technologically savvy agency still needs sufficient staffing to ensure that applicants and recipients can get assistance when they need it and to reliably complete essential tasks that cannot legally be automated, such as interviewing.141 Agencies must be thoughtful about their staffing needs and must not assume that technology is a solution to workforce problems.

On-demand interviewing deserves particular attention from federal regulators. On-demand interviews are likely here to stay, as they are popular among states142 and have the potential to make interviews more convenient for some applicants. However, without clear performance standards and protections for applicants—such as maximum average hold times and a prohibition on automatic denials for failure to interview when there are indications of access barriers that make interviewing difficult—on-demand interviews frustrate program access. Holmes proved that litigation to challenge these problems is viable. But clear regulatory standards for on-demand interviewing would put benefits litigation and nonlitigation advocacy on firmer footing in a variety of ways. Such standards would provide advocates with greater leverage in administrative advocacy with state agencies. Regulatory standards also often come with requirements for state agencies to collect and report data, which can help advocates monitor problems and potentially provide the factual showing needed for litigation. Individual benefits applicants and recipients could enforce the standards in fair hearings—for example, by arguing that their application should not have been denied for failure to interview because the agency’s average hold time was above the regulatory maximum. And, although regulations are not directly privately enforceable in federal court, they can support viable legal claims by informing the scope of a statutory right or creating a property interest that triggers due-process protections. In light of capacity constraints among benefits litigators, however, clear regulatory standards should be coupled with strong administrative enforcement by FNS.

Conclusion

Despite the legal retrenchment since the height of the welfare-rights movement, benefits litigation remains a dynamic field that continues to evolve to protect benefits recipients’ rights as agency practices change. Maintaining program access amid technological change has been one of the most important goals of benefits litigation in recent years. Practices like on-demand interviewing and remote hearings have created problems that are at once old and new. Procedural barriers to benefits access caused by a lack of investment in benefits programs and disregard for recipients’ rights are longstanding issues, but agencies’ newfound reliance on technology and remote operations have given these barriers a new form. Faced with the lack of action at the federal level to create specific, enforceable standards for the use of new technologies in benefits programs, benefits litigators have devised creative legal theories to show how technology-related access barriers violate central principles of benefits law. More policy action is needed to streamline such enforcement efforts, remove legal uncertainty, and open more pathways for nonlitigation advocacy. Nevertheless, in the face of this uncertainty, longstanding precedents in benefits law and core statutory protections retain their vitality, putting benefits litigators at the forefront of efforts to protect recipients’ rights.

Staff Attorney (Government Benefits), Legal Aid Society, Queens, NY; former Yale Law Journal Fellow, National Center for Law and Economic Justice (NCLEJ). I am deeply grateful to my NCLEJ supervisors and colleagues, especially Saima Akhtar, Katharine Deabler-Meadows, and Sara Lunden, and co-counsel at the Empire Justice Center, Legal Aid Society, Legal Services of Eastern Missouri, New York Legal Assistance Group, and Stinson LLP for sharing their deep knowledge of benefits litigation and fighting to protect the safety net. This Essay benefited greatly from these colleagues’ wisdom and insight.