Formal Appeals_2_3 by trinidadc

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									Formal Appeals: Public Assistance, Food Stamps, and Medicaid Appeal Procedures

INTRODUCTION

Public entitlement programs, including Public Assistance, Medicaid, Food Stamps, Supplemental Security Income, Social Security, and Medicare are secured by "due process procedures.” That is, once public entitlements are enacted into law, they are considered rights with safeguards to protect individuals from erroneous decisions by the government. When an applicant or recipient’s (A/R) application has been denied or their benefits have been or going to be discontinued, reduced, or suspended, the A/R can appeal this decision.

The Formal Advocacy section is divided into two parts: This section deals with appeals in the Public Assistance, Food Stamps and Medicaid programs. The second section deals with appeals in the Social Security Retirement and Disability Insurance and Supplemental Security Income programs. For appeals regarding the Medicare program, refer to Vol. II. - Medicare, Section K 11, Appeals Process.

A fair hearing is the first step in the appeal process in the Public Assistance, Food Stamps and Medicaid programs; it is the means by which the A/R can challenge an agency’s determination, action, or failure to act with which the A/R disagrees. However, although the fair hearing rules for applicants and recipients are very similar, they are not always the same.

Note: Throughout this material we refer to the Administrative Law Judge (ALJ) as the individual who presides over the fair hearing. NYS regulations, however, refer to such individual as the hearing officer. Since most people refer to the presiding individual as the ALJ we use this term as well.

STATUTES AND REGULATIONS

The State regulations that cover the fair hearings process for Public Assistance, Food Stamps and Medicaid are found in the New York Code of Rules and Regulations, at 18 NYCRR Part 358 and 12 NYCRR §§1300.11 and 1300.12; the State statute, Social Services Law § 22; by federal regulations found in the Code of Federal Regulations at 42 C.F.R. §§ 431.220-.246 for Medicaid, and at 7 C.F.R. § 273.15 for Food Stamps.

RIGHTS 18 NYCRR § 358-3.1 – 3.9

A Summary

A/R’s have certain rights related to fair hearings, including:

 a written notice stating the proposed action  aid continuing, if a recipient, until an adverse decision is received from the fair hearing 1. 2. 3. 4. 5. 6. 7. 8. 9.          access to their case files opportunity to have witnesses testify, as well as the right to subpoena witnesses confront and cross-examine adverse witnesses an impartial proceeding and impartial decision maker a written decision representation reimbursement for carfare for the appellant, their representatives and witnesses reimbursement for child care expenses an interpreter

Some of these rights are explained in more detail below.

Notice of Intent Defined: 18 NYCRR §§ 358-2.1, -2.2, -2.3, -2.11, -2.15, -2.23.

Requirements: 18 NYCRR § 358-3.3

A notice must be sent to an A/R advising of any action HRA intends to take or has taken, such as the acceptance, denial, discontinuance, suspension, change in, reduction of or method of payment of public assistance, food stamps or Medicaid, or a determination of employability. Because a Notice of Decision is usually called a Notice of Intent, we will refer to it that way.

There are two basic notices: an adequate notice and a timely notice. All notices must be adequate, but not all notices must be timely.

Adequate Notice 18 NYCRR § 358-2.2

For a notice to be adequate, it must provide enough data to enable the A/R to mount a defense or to raise meaningful objections. OTDA regulations require that for a written notice to be adequate it must set forth the following:

 the action the City proposes  if the application is accepted, the amount of benefits that will be issued  If benefits are being increased, the amount of the new benefits  if benefits are being reduced, the dollar amount of benefits before and after reduction 5.  if there is a recoupment, the recoupment rate and the right to claim undue hardship 6.  the effective date of the action (except in the case of initial denial) 7.  the specific reasons for the action 8.  the specific statutes and/or regulations which are the basis for the action 9.  the right to request a conference and a fair hearing 10.  the procedure for requesting a conference or fair hearing, including contact information and time limits 11.  an explanation that the conference and the fair hearings are not the same 12.  an explanation that only a request for a fair hearing results in an aid continuing directive 1. 2. 3. 4.

1.  the potential liability to repay continued or reinstated assistance, if the appellant requested aid continuing and lost the fair hearing 2.  the right to present oral and written evidence at the fair hearing 3.  the right to representation, if the individual has a representative 4.  the right to bring witnesses to the fair hearing and to question witnesses at the fair hearing 5.  the right to review the case record and to obtain, at no cost, copies of documents which the City will present into evidence at the fair hearing or any other documents necessary for the preparation of the fair hearing 6.  information about the availability of community legal services to assist at the conference or fair hearing

Evaluation of a Notice

Upon receiving the notice, evaluate the adequacy by asking the following questions:

1. 2. 3. 4. 5. 6. 7. 8. 9.

 Is the reason for the proposed action clear, detailed and specific?  Is the stated reason a valid basis for the proposed action?  Is the relevant regulation cited for the proposed action?  Is the notice proposing an adverse food stamp action? (in these cases, a separate state-prescribed notice must be sent)  If the proposed action is a financial determination, is a budget computation attached?  Are the current and proposed amounts of Public Assistance and/or Food Stamps listed?  If the proposed action is a recoupment, does it state the amount of the recoupment?  If a recoupment, does it contain an explanation of the specific procedures to be followed and the recipient’s right to claim undue hardship if the money is returned?  Is there an explanation of the A/R’s right to a fair hearing and a right to aid continuing?

When a Notice of Intent is Inadequate

If a notice does not meet all the requirements listed above, the A/R may challenge the adequacy of notice as a violation of due process. Notices are often inadequate, and while court suits have been won to remedy this problem, the Human Resource Administration (HRA), the agency that administers Public Assistance, Food Stamps and Medicaid, is slow to amend its ways. OTDA has made distinctions between omissions that are insignificant and those that cause harm to the A/R. The general test is how and to what degree has the applicant recipient been harmed or prejudiced by the omission. The issue of the notice’s adequacy, therefore, is considered on a case-by-case basis during the fair hearing before the ALJ.

Advocates recommend the A/R report any inadequacies to the Job Center (JC). If reported during a conference, the center is more likely to resolve the case at that level. However, if not successful at this level, pursue the issue at the fair hearing and have the ALJ make a ruling. See below, Procedures, City’s Presentation.

Timely Notice 18 NYCRR § 358-2.23

HRA must provide a timely notice when it intends to discontinue, reduce, restrict or suspend a recipient’s benefits. A notice is timely if it is “mailed at least 10 days before the date upon which the proposed action is to become effective.”

If the notice is postmarked or dated less than 10 days from the effective date, then it does not meet the timeliness requirement and any action taken by HRA relevant to the notice is illegal. If the notice is not timely, HRA will still take the action if the recipient does not inform the center of the error. It is best to schedule a conference and a fair hearing promptly when a recipient receives an untimely notice.

There are many reasons why a notice does not have to be timely, such as when HRA to accept or deny an application; to increase a recipient’s public assistance grant; although there is no change in their benefit amount; to change the manner of payment of a recipient’s child care; and when it determines that the recipient is employable; the recipient is receiving assistance from another state or agency.

Applications

HRA does not have to provide a timely notice when accepting or denying an application; however, it must provide the applicant with a notice of acceptance or denial within strict time frames from the date of application, as follows:

1. 2. 3. 4. 5. 6.

     

30 days for Family Assistance applicants of public assistance 45 days for Safety Net Assistance applicants of public assistance 30 days for pregnant women for Medicaid 45 days for ADC, single/childless couples, and aged categories of Medicaid 90 days for the disabled category of Medicaid 30 days for Food Stamps

Aid Continuing 18 NYCRR §§ 358-2.5-3.6

When recipients request a fair hearing to challenge a notice of intent, they have the right to aid continuing; that is, the right to have their benefits continued unchanged until OTDA issues an adverse decision. The recipient should include a request for aid continuing as part of the fair hearing request before the effective date of the proposed action indicated on the Notice of Intent. While it is OTDA’s usual practice to issue aidcontinuing benefits to any eligible recipient who requests a fair hearing before the effective date of action, whether they expressly ask for it or not, it is always good practice to make such a request.

Recipients are not entitled to aid continuing with respect to:

7.  Public Assistance where OTDA has determined that the sole issue is one of State or federal law or policy, or change in State or federal law and not one of incorrect grant computation. 1.  Medicaid assistance or services where OTDA has determined that the sole issue is one of State or federal law or policy.

2.  Medicaid when a recipient has been determined presumptively eligible for medical assistance and subsequently been denied eligibility for medical assistance. 3.  Medicaid, if a recipient in a hospital, not receiving chronic care services and the recipient is in short-term hospitalization and a utilization review committee determines that such level of care is no longer required. 4.  Work related childcare supportive services provided to enable the recipient to participate in JOBS activities. 5.  Public Assistance, Medicaid, or services when HRA determines to discontinue the recipient’s benefit because they are receiving concurrent benefits in the same social services district or another social district within the State.

Failure to Provide Aid Continuing

If the recipient requested aid continuing within the appropriate time frames, and nevertheless benefits stop, HRA must restore the benefits. If HRA ignores the State’s directive to provide aid continuing, contact OTDA at (800) 342-3334. Recipients should also make a complaint to the Fair Hearing & Conciliation Unit in the local Job Center and provide a copy of the Acknowledgment of Fair Hearing Request or Notice of Fair Hearing, which documents the aid-continuing directive.

Recipients should also seek relief through the existing court order in Morel v. Giuliani, which requires OTDA to issue aid-continuing directives within 72 hours of receipt of a request for a fair hearing on Public Assistance or Food Stamp issues. Contact The Welfare Law Center at (212) 633-6967 for further information.

Late Receipt of Notice of Intent

When a recipient receives a notice late, that is, with less than ten days within which to request a fair hearing with aid continuing, they can still request aid continuing. The individual should save the envelope as proof of mailing and request a fair hearing within ten days of the postmark date of the notice. In this instance, contact OTDA’s fair hearing unit in Albany at (800) 342-3334 to request aid continuing.

Non-Receipt of Notice of Intent

When recipients do not receive a notice at all and find out about HRA’s action after such action has taken place, they may also be entitled to aid continuing. The individual should immediately call for a fair hearing and request aid continuing.

Losing the Fair Hearing

If recipients receive aid continuing and lose the fair hearing, they may have to repay any Public Assistance or Food Stamps received during this period of time to which they were not entitled. Also, they may have to repay any medical expenses incurred under Medicaid.

Representation
18 NYCRR § 358-3.4(e)

Anyone requesting a fair hearing has the right to have a representative of their choice assist them in presenting their case. The representative may be a lawyer, paralegal, community advocate, friend or relative. If they have a representative who is not a lawyer, they must present a written authorization of representation to the ALJ on the day of the hearing. An attorney’s employee have the attorney’s written authorization stating that such person is an employee and present this to the ALJ on the day of the hearing. Advocates can also request that a copy of all fair hearing dates and decisions sent to the A/R be sent to the advocate as well.

Interpreters

A/R who do not speak English or who are hearing impaired have the right to have an interpreter at the fair hearing. Request an interpreter at the time of requesting a fair hearing. Spanish-speaking and Russian-speaking interpreters are generally available without any prior notice, but whenever possible, should be requested in advance.

Reimbursement for Carfare and Child Care Expenses
18 NYCRR § 358-5.1

An A/R is entitled to receive the necessary transportation expenses to and from the fair hearing for themselves as well as for their representatives and witnesses, and payment for necessary child care costs.

At the conclusion of the fair hearing, the A/R should be directed to the office at the fair hearing site that provides reimbursement for transportation. Upon presentation of the fair hearing notice, the A/R (and any witnesses and representative) will receive reimbursement in the form of a Metro Card.

A/R should request reimbursement for childcare expenses at the time of requesting a fair hearing and at the fair hearing. The agency representative will give the A/R a form to take to the Job Center to obtain reimbursement of child care expenses, bring this notice and a letter from the childcare provider verifying fees to the local JC to receive reimbursement.

REQUESTING A FAIR HEARING
18 NYCRR § 358-3.5

Reasons

There are numerous reasons why an A/R might request a fair hearing to challenge an HRA determination, an action, or a failure to act. Some of the more common reasons are:

6.  An application has been denied 7.  Benefits have been discontinued, suspended, or reduced 8.  A sanction has been imposed 9.  The method by which the benefits have been issued has changed or been restricted 10.  The amount of benefits being issued is wrong 11.  No action has been taken on an application or a request to change the amount of benefits issued or the manner of issuance 12.  An incorrect determination of employability has been made 13.  The amount deducted from the initial SSI payment is in error 14.  The number of hours required to participate in a work program is wrong 15.  The level of medical assistance has been incorrectly changed 16.  The amount of the child support pass through is wrong 17.  The amount of a lien is wrong.

How to Request

By Fax: New York State Office of Temporary and Disability Assistance Office of Administrative Hearings (518) 473-6735

By Telephone: New York State Office of Temporary and Disability Assistance Office of Administrative Hearings

(800) 342-3334

In Person: New York State Office of Temporary and Disability Assistance Office of Administrative Hearings 14 Boerum Place Brooklyn, NY -OrNew York State Office of Temporary and Disability Assistance Office of Administrative Hearings 330 West 34th Street, 3rd floor New York, NY

By Mail: New York State Office of Temporary and Disability Assistance Office of Administrative Hearings P.O. Box 1930 Albany, NY 12201-1930

Online: To request a fair hearing you may submit a request online using the OTDA online hearing request form at the following Website:

https://www.otda.state.ny.us/oah/default.asp – to request a hearing online, to download fair hearing request forms, to request compliance with fair hearing decisions.

Or, you may print out and complete the Fair Hearing Request Form and send via fax or mail to the address indicated above. Be sure to fax or postmark on or before the effective date of the intended action to preserve any aid-continuing rights.

Advocacy Tip: If a recipient is entitled to aid-continuing, the best method of asking for the fair hearing to ensure no break in benefits is to request a fair hearing in person, by telephone, or by fax. A fair hearing should be requested immediately; do wait until the day before the effective date of the notice. A fair hearing should not be requested by mail unless no other method is available.

Listing the Reasons
When making the request for a fair hearing, be sure to give all the reasons for the request. Hearings are limited to the issue(s) requested. The issue(s) should be described as broadly as possible. A photocopy of the notice being challenged should be included with the request, so there will be no misunderstanding what the issue(s) is. If the request is made by telephone, many notices can be viewed by OTDA on its computer screens. If the issue(s) for the denial was not included in the notice, contact HRA to verify the reason(s) for the intended action. If HRA cannot provide one, state this in the request. If the request is by telephone and the notice can be viewed by OTDA, request that a copy of the notice be faxed to you.

If the A/R requests some action from HRA and it has not acted on the request, the A/R can request a fair hearing. The A/R should state clearly what they requested, when they requested it, and what HRA has or has not done about the request.

OTDA translates the identified issue(s) into a numeric computer code, which does not always precisely match the description of issues the A/R wants to address. Since there are hundreds of issue codes, the request should be as specific as possible. If OTDA has

misidentified the issue on the Acknowledgement of Fair Hearing Request, the individual should contact OTDA immediately to change the record.

If the A/R wants to add additional issue(s) to the fair hearing request, the A/R should call OTDA immediately and try to have the issue(s) added. If the request is too late, a second fair hearing should be requested, which sometimes can be combined with the first fair hearing depending on the issue and the time.

Time Frames
The A/R must request a fair hearing within certain time frames. A fair hearing must be requested within 60 days of the date on the Notice of Intent (90 days for food stamp decisions and 10 days to contest employability status). If the last day to request a hearing falls on a weekend or holiday, a hearing request postmarked or received on the day after the weekend or holiday is timely.

If the A/R misses the deadline, reexamine the notice. If the notice is inadequate, then the time to request the fair hearing cannot start until the proper notice is received. The notice must be so inadequate that the A/R has been harmed or prejudiced in order to remedy this situation. This could include notices being sent to the wrong address, an alleged infraction with the wrong date, etc. Even if the A/R does not make the request timely in a timely manner, OTDA will always schedule the fair hearing. In addition, HRA or OTDA will not always raise the issue that a fair hearing request is untimely during the fair hearing process.

Receiving Notice of a Fair Hearing

It usually takes about two weeks before an individual receives the Acknowledgment of Fair Hearing Request, that OTDA has received the request for a fair hearing. The notice will indicate the issue(s) identified in the fair hearing request and whether the State is issuing an aid-continuing directive to HRA. If such notice is not received within two weeks, call OTDA at (800) 342-3334 or visit OTDA at 14 Boerum Place in Brooklyn or 330 West 34th Street in Manhattan to inquire about the status of the request. If the

acknowledgment does not include all of the issues or misidentifies them, call OTDA at the above number and ask the State to correct the list of issues.

About three to four weeks after requesting a fair hearing, the individual will receive a Notice of Fair Hearing identifying the place, date and time of the hearing. The notice must be mailed at least ten calendar days prior to the hearing date, except for emergency fair hearings. If received in less than ten days, the individual is entitled to have the hearing adjourned - see A/R Adjournment below. If the A/R does not receive the notice within four weeks, he/she should contact OTDA as described above.

OTDA has established a telephone service that allows the individual to obtain information about their request and subsequent developments in the fair hearing process. This service is the Interactive Voice Response (IVR) system. Individuals can find out if a fair hearing has been scheduled, if a decision has been issued, or where a fair hearing will be held. Call (800) 342-3334 and enter the fair hearing number found on the Acknowledgment of Fair Hearing Request and the Notice of Fair Hearing.

SPECIAL FAIR HEARINGS

Homebound Cases See Varshavsky v. Parales, 608 N.Y.S.2d 184 (1st Dept. 1994)

Anyone who, because of mental or physical disabilities, cannot travel to or participate in a hearing at the regular fair hearing location without substantial hardship or medical detriment, can request a homebound hearing. Verification of a health problem from a doctor, medical social worker or a nurse should accompany the fair hearing request or sent shortly thereafter. Before a homebound fair hearing can be scheduled, an A/R must first choose one of the following:

18.  a representative hearing - the A/R sends a representative (family member, friend or attorney) to the hearing, but does not go personally 19.  a paper hearing which is decided based on a written statement/documents the A/R sends

20.  a telephone hearing

If the A/R wins this hearing, a written decision is issued to that effect. If the ALJ determines that their decision would not be fully favorable to A/R, the ALJ will not issue a written decision. Instead, OTDA will schedule a home hearing automatically. Aid continuing would be maintained, if originally requested.

Advocacy Tip: OTDA has very few ALJ’s assigned to hear homebound cases. As a result, it is common to wait for a year or more for a home fair hearing. This can work to the A/R advantage, if they are receiving aid continuing. However, if the A/R loses the hearing, the A/R may be responsible for repaying any funds received during this period of time.

Emergency Fair Hearings 18 NYCRR § 358-3.2 and 358-5.2

Under special emergency circumstances, fair hearing requests can be processed expeditiously. For example, the A/R has no cash, no food, no shelter, an eviction is imminent, utilities are shut-off, or an emergency assistance grant has been denied. For a complete list, see 18 N.Y.C.R.R. § 358-3.2.

If an emergency exists, be sure to state the need for an emergency fair hearing. OTDA’s decision to expedite the scheduling of an emergency fair hearing request is made on a case-by-case basis. To request an emergency fair hearing call (800) 205-0110, or go in person, as indicated above, and the individual should be given the hearing date and time at the time of their call. It can take as few as ten days from the request for a fair hearing to the fair hearing decision.

PREPARING FOR THE FAIR HEARING

Relevant Documents

It is essential that all the facts relevant to the issue are known and if possible, documented, to present at the fair hearing. All relevant documents (notice, letters, appointments) which the A/R received from HRA should be reviewed and taken to the hearing, along with other documentation needed to prove the case (lease, birth certificate, bank statements, letter from employer, etc). In addition, A/Rs and/or their representative should arrange to examine the case record and obtain the evidence packet from the HRA, both of which are explained below.

Case Record 18 NYCRR § 358-3.7(b)(1)

An A/R and his/her representative have the right to examine the contents of the entire case record at any time, even if the A/R has not requested a fair hearing. The A/R has the right to obtain free copies of the documents in the case record. OTDA’s regulations define case record as “all written material concerning an A/R, including the application form, the case history, budget and authorization forms, medical, resource and financial records.” 18 NYCRR § 354.1(a). Furthermore, an A/R and/or his/her representative have the right to obtain free copies of any additional document(s) they identify and request for purposes of preparing for the fair hearing. The broad language of OTDA’s regulations arguably covers other documents such as agency policy memos or underlying supporting documents not kept in the case record.

Request to Review a Case Record

An A/R can request access to his/her case record by contacting the FH&C Unit in the A/R’s Job Center. It is best to make this request by telephone. Recent changes to HRA’s notices give misinformation about how to review a case record by stating the appellant should contact the Division of Fair Hearings, located at 14 Boerum Place in Brooklyn, however, this is where an appellant can request the evidence packet, not the case record, see below. Therefore, the FH&C Unit in the A/R’s center should be contacted.

Advocacy Tip: HRA may attempt to circumvent its duty to provide the case record before the hearing by claiming the A/R only has the right to examine that part of the case record that exists in a particular office or is only entitled to that part of the case record relevant to the issue(s) for which the fair hearing was requested. Both of these arguments are contrary to law. The A/R has the right to review the entire case record at any time.
Presentation of Case Records at Fair Hearings

According to OTDA’s regulations and the Stipulations and Orders in Rodriguez v. Blum and Annunziata v. Blum (for Medicaid) HRA’s representative must present the recipient’s complete relevant case record at the fair hearing and HRA must withdraw its Notice of Intent if it appears at the fair hearing without the “relevant case record” where the issue involves reduction, dis- continuance or restriction of PA and Medicaid. For years HRA has withdrawn when it failed to produce a case record. However, HRA currently argues it only has to present the documents (an evidence packet) it has decided are relevant at the fair hearing and should not have to withdraw.

Facing the threat of a Rodriguez/Annunziata Food Stamps lawsuit, OTDA has issued an Informational Letter, 87 INF-37, to reverse HRA’s determinations to reduce or discontinue Food Stamps when a case record is not present at the fair hearing.

Evidence Packet

A "fair hearing evidence packet” is the documentation HRA intends to submit at the hearing to support its intended action. An evidence packet is not the same as the case record, even though HRA often tries to pass off the evidence packet as the case record. Evidence packets must contain a detailed history, copies of relevant WMS screen printouts, other documentation relevant to the action taken, and copies of NYCWAY Case Notes.

Under Rivera v. Bane, Index No. 45305-92 (Sup. Court, New York County), HRA must provide a recipient and his/her representative with a copy of the documents it intends to introduce into evidence and any documents the recipient and/or his/her representative might specifically request from the case record, which are known as the specifically identified documents (SID). Such requests are made through the Centralized Rivera Office (CRO) by telephone, mail, fax, or in person. Rivera applies to fair hearings involving a reduction, discontinuance or adequacy of Public Assistance, Food Stamps and Medicaid. To request the evidence packet:

For Public Assistance and Food Stamps: City of New York Human Resources Administration, Division of Fair Hearings 14 Boerum Place, 6th floor Brooklyn, NY 11201 (718) 722-5012; (718) 722-5018 (fax)

For Medicaid: City of New York Human Resources Administration, Division of Fair Hearings 330 West 34th Street New York, NY 10001 (212) 630-0996; (212) 630-9897 (fax)

CRO staff will complete the Rivera Request Receipt (W-186) form when an appellant picks up the requested documents in person. The appellant will sign the form indicating he/she has picked up the requested documents. CRO staff will complete the Rivera Request Response (W-186A) form when mailing the evidence packet to the appellant, which is a cover letter indicating the information included in the packet and the reason why some requested information may not have been included. When the request for the evidence packet is made in-person or via the phone, CRO staff will complete the Rivera Request Intake form (W-186B), as proof of request. In addition, appellants may want to make a note of the telephone number called, name of the person spoken to and the date of the request. When a request is received via postal mail or fax there is no need to fill out this form because the written request is sufficient proof of the request.

If the request for an evidence packet is “made” (when HRA receives the request by telephone, fax or mail) 7 or more business days before the fair hearing date, HRA should mail the evidence packet within 5 business days after the request is made. If the request for the evidence packet is “made” 5 or 6 days before the fair hearing date, HRA should provide the evidence packet at the fair hearing. If HRA fails to comply, it should withdraw its notice.

If the recipient or the representative requests specifically identified documents (i.e., documents in the case record but not part of the evidence packet) more than 5 business days before the hearing date, HRA should mail the documents before the hearing. If the request is made less than 5 business days before the fair hearing date, HRA should produce the documents at the fair hearing. If HRA fails to comply, the ALJ can allow the recipient a brief recess to review the documents, adjourn the fair hearing, direct HRA to withdraw its notice, or take other appropriate action.

OTDA changed the regulation upon which the Rivera Judgment was based and these new regulations are in effect outside NYC. The Rivera provisions, explained above, will end in NYC on February 22, 2007, unless extended by the court or the attorneys involved in the case. The new regulations are similar to the Rivera provisions. Under the amended regulation, if and when it goes into effect in NYC, the agency must provide a recipient and his/her representative with a copy of the documents it intends to introduce into evidence at the hearing and any documents the representative might have specifically requested from the case record "within a reasonable time" before the date of the hearing. If the request is made less than 5 business days before the hearing the agency must provide copies no later than at the hearing. If a request to mail the documents is made,

HRA need only mail them within a reasonable time from the date of the request. If there is insufficient time for the documents to be mailed and received before the date of the hearing the documents can be presented at the hearing instead of being mailed. This regulation also provides that HRA can adjourn the fair hearing to obtain the evidence packet rather than withdraw.

Witnesses

Preparing the Witnesses

An A/R may bring witnesses to support his/her case. An A/R or his/her representative should prepare witnesses by reviewing the facts and discussing questions that may be asked. The HRA representative will be allowed the opportunity to cross-examine A/R, as well as their witnesses. Witnesses, as well as an A/R, should give direct answers and not volunteer information that was not requested. If the questions stray from the stated issues, point this out to the ALJ. If the A/R objects to a question that the HRA representative asks, wait until the ALJ has made a ruling. Inform the witnesses to answer only the question the HRA representative asks, as well as not to answer any question they do not understand until the question has been clarified.

PROCEDURES AT FAIR HEARINGS 18 NYCRR § 358-5.1-5.11

Overview

Public Assistance and Food Stamps hearings in NYC are held at 14 Boerum Place in Brooklyn. If it is a Medicaid only case, it is generally held at 330 W. 34th Street in Manhattan. Usually there are three people at the hearing: the A/R, the Administrative Law Judge (ALJ) and the HRA representative. A recording is made of the entire fair hearing using telephone equipment connected to recording devices in OTDA’s Albany offices. The fair hearing record consists of the statements and testimony that is recorded,

any documents that are given to the ALJ during the hearing (whether or not admitted into evidence), the ALJ’s notes, and the fair hearing decision. Only statements made on the record, and the documents in evidence, may be considered when the decision is made. If the hearing is lost and later appealed, the Court is often limited to considering statements, testimony and documents that are in the record. If the ALJ refuses to accept a document into evidence, the ALJ still must make the document part of the fair hearing record.

The ALJ should begin the hearing by explaining the issues, how the hearing will be conducted, and the rights of the parties. If all the issues are not stated, make sure all other reasons are stated at this time and present the A/R’s original written request for proof, if necessary. If additional reasons are added at this point, the ALJ may not allow it. The A/R may request another fair hearing with the ALJ at this time; however, this second hearing must also fall within the originally established time limits. Also, if there were aid continuing violations, inform the ALJ, who can order HRA to provide retroactive and prospective benefits to the recipient. It is important that the A/R appear at the fair hearing office in a timely manner. If he/she does not arrive by 11 AM for a morning hearing and 3 PM for an afternoon hearing, or fails to attend the hearing, OTDA will consider the fair hearing request abandoned and the A/R will automatically lose his/her appeal, as well as his/her aid continuing, if in receipt of such benefits. In such instances, fair hearings can be rescheduled when:

21.  The A/R is able to show good cause (see below, Adjournments, for definition); the A/R should speak to one of the workers in the adjournment office at the fair hearing location or call (877) 209-1134, or write OTDA within 15 days of the scheduled date at, P.O. Box 1930, Albany, New York, 12201, or

22.  The A/R is able to establish they did not receive the Notice of Hearing prior to the hearing; the A/R should be able to reschedule a hearing within 45 days after the scheduled hearing date.

Burden of Proof

The burden of proof rests upon the party who must persuade the ALJ that the proposed action or proceeding is legal. Thus, when HRA proposes to change benefits by discontinuing, reducing, restricting or suspending benefits, the burden of proof rests on HRA and the HRA representative should present its side first. This is important because

if the HRA representative is unprepared to go first, the recipient may win the fair hearing without doing anything. When the ALJ attempts to have the recipient go first when it is HRA’s obligation, the recipient should object and make a statement to that effect. If the ALJ insists, ask to speak to a supervisor. On the other hand, when the applicant is challenging a denial of benefits, the ALJ may properly ask the applicant to go first because the burden of proof in that situation is on the applicant.

HRA’s Presentation

At the fair hearing, it is the responsibility of the HRA representative to appear with a copy of the Notice of Intent. The ALJ must review the sufficiency of the notice to assess whether it complies with OTDA’s regulations and due process. If the notice is inadequate, the ALJ must decide whether any inadequacy results in harm to the A/R. If the ALJ decides there is harm, the ALJ can declare the notice defective and rule for the A/R. If the ALJ rules that the notice is inadequate, but does not create serious harm to the A/R, the ALJ is likely to continue with the fair hearing. It is usually best to continue with the A/R claim as if the notice were adequate using the fact of its inadequacy as grounds for an appeal to the next level, if the initial procedures fail to remedy the situation for the A/R.

If the HRA representative fails to present the Notice of Intent, it must withdraw. Often the ALJ will ask the AR for a copy when the HRA representative does not have the notice. If HRA has the burden of proof, the A/R has no obligation to provide the notice for HRA, unless the ALJ insists on having the A/R give him/her the notice.

When HRA is prepared to present its case, its representative will explain why HRA is taking the stated action. They will introduce evidence, typically documents, which support its case. It is very important to make sure that the presented documents are related to the issue on the Notice of Intent. For example, a Notice of Intent may state the recipient failed to cooperate with HRA on February 22, 2004, but the documents the HRA representative seeks to admit relate to something that happened in March 2003. The A/R should object to HRA’s being able to admit them. This happens frequently because the Job Center uses the date it found out about the alleged failures to cooperate rather than the actual date when the violation allegedly happened.

The A/R is entitled to have copies of any document the HRA representative presents to the ALJ. If the HRA representative does not have copies for the A/R, the ALJ should make copies right after the fair hearing and give them to the A/R. If the A/R received documents under Rivera, the HRA representative should be precluded from presenting any documents that were not sent in response to the Rivera the request.

Applicant/Recipient’s Objections

A/R’s may make objections during the fair hearing. This includes objecting to any evidence that is not relevant to their case, that is, evidence or testimony that has nothing to do with the issue(s) identified for the fair hearing. A/R’s should also object to any evidence that is not clear or reliable. For example, reports that are not signed, not dated, contradictory, incomplete, or in any way, defective. In addition, while ALJ’s typically accept hearsay evidence (a statement from outside the fair hearing offered as proof of the matter that the statement asserts) as part of the fair hearing record, A/R’s should object to any testimony a City representative attempts to present as if they have personal knowledge of the issue. Finally, objections should be made when the HRA representative attempts to give their own opinions in the testimony.

Presentation of the Applicant/Recipient

A/R’s may cross-examine the HRA representative and any witnesses HRA may bring. After questioning the HRA representative, the A/R can present his/her side. The A/R or his/her representative can make an opening statement that sets out the facts of the A/R’s case. Tell the A/R’s story with dates and times as accurately as possible. Give the ALJ and the HRA representative copies of all the documents and letters that supports the A/R’s case. If there is something inaccurate in the case record that the HRA representative has produced, refer to the particular paper and inform the ALJ. If possible, have a copy of the statutes, regulations or court decisions that apply to the A/R’s issues. Before the hearing closes the A/R or his/her representative can make a closing statement. It should summarize the arguments, point out the inconsistencies of HRA’s case, and explain how the law requires a decision in the A/R’s favor.

Non-Receipt of a Mailing from HRA

If the A/R did not comply with a program requirement because he/she did not receive a Notice of Intent, a letter, or appointment notice, the A/R should testify to this effect at the fair hearing. The ALJ must hear the issue of whether the individual received notice. While the HRA representative is unable to testify that a person actually did receive notice, they will attempt to prove HRA sent a written notice by introducing a copy of it and an affidavit describing HRA’s mailing policy. The ALJ will weigh the evidence, once the HRA representative has offered some proof of mailing. If the A/R is successful and the ALJ agrees a notice was not mailed or received, HRA must withdraw its notice. However, it is unusual for the ALJ to find in favor of the A/R on this issue. If the ALJ does find in favor of the A/R, HRA may resend the notice, initiating the intended action once again.

Meachem v. Wing challenges the OTDA’s policy and practice of accepting without question HRA’s claim that it mailed a particular notice and not providing recipient’s with the opportunity to establish that the notice was not mailed or was not received. For further information, call Ricky Blum at the Legal Aid Society at (212) 577-3648 or Ian Feldman at the Legal Aid Society, at (718) 991-4758 x 248.

ALJ’s Closing Statement

The ALJ should make a short closing statement at the conclusion of the fair hearing, but will not state the final decision. The ALJ will send the entire hearing record, as well as a recommendation of the outcome to the Commissioner of the State OTDA, who will review the hearing record and issue the written decision.

ADJOURNMENT 18 NYCRR § 358-5.1-4

An adjournment is a suspension of a fair hearing until a later date. A/R’s can adjourn upon showing “good cause”, which the State’s regulations define as:

1.  illness 2.  inability to travel

3. 4. 5. 6. 7.

 inability to find child care  inability of the A/R’s representative to be present on the scheduled date  the need to subpoena a witness  the need to examine documents HRA has produced  the need for more time to prepare for the haring, the need for more time to find a representative

OTDA is required to mail a Notice of Fair Hearing at least ten days prior to the hearing date. If it fails to do so and the A/R is unable to attend on the scheduled date, the A/R is entitled to have the hearing adjourned.

Adjournment can be requested as early as possible on the date of the hearing or before the date of the hearing by calling (877) 209-1134 or use the OTDA adjournment form, located on the Greater Upstate Law Projects Website at http://www.wnylc.net/onlineresources/otda_forms.asp. An adjournment can also be requested during the hearing. A new fair hearing date will be mailed out about three weeks later.

WITHDRAWALS 18 NYCRR § 358-5.4

Applicant/Recipient Withdrawals

The A/R can cancel a fair hearing request by signing the withdrawal statement reproduced on the fair hearing notice or any written statement of withdrawal and mailing it back to OTDA as indicated, or they can withdraw their request in person at the fair hearing by informing the ALJ on the record, who will usually ask the individual to sign the withdrawal statement, or by informing HRA that the hearing request is being withdrawn. There is rarely a good reason to withdraw a request, unless HRA has granted all the A/R’s requests and implemented the remedies. Keep in mind that if the A/R does withdraw, and was in receipt of aid-continuing benefits, OTDA will terminate the aidcontinuing benefits.

HRA Withdrawals

HRA may withdraw its notice on or before the date of the fair hearing. A withdrawal means that HRA agrees to refrain from taking the intended action and agrees to restore or issue the benefits that may be due to the A/R. Generally, HRA only withdraws when it intends to reduce or discontinue or suspend benefits and not for application denials. However, if benefits are due and have not been issued, it is wise to attend the fair hearing and inform the ALJ of what HRA promised to do. In most cases, an HRA withdrawal is a victory, however, there is nothing to prevent HRA from taking the same action at a later date.

When HRA decides to withdraw at the fair hearing, make sure to make a clear record of the withdrawal. If the withdrawal came in a case where aid was not continued, the HRA representative should state on the record that the local agency will issue retroactive benefits, preferably in a specific amount and the specific date the benefits were improperly stopped or reduced. If HRA does withdraw, the A/R should obtain proof of the HRA’s withdrawal from the ALJ, form M186f. HRA should take action within five business days. If HRA fails to take the action as promised, the A/R should call the contact person on the form. HRA is obliged to process this form if the A/R brings it to the center.

NOTICE OF FAIR HEARING DECISION

Receiving Notice

State law requires the State to issue a fair hearing decision and the City to comply with the decision within 90 days of the appellant’s request for the fair hearing. The State & the City have interpreted this 90-day rule to mean the State has 60 days to issue a decision and the City has 30 days from receipt of the decision to comply. OTDA will send a copy of the fair hearing decision to the appellant, the appellant’s representative, and HRA’s main office, which in turn mails a copy of the decision to the appellant’s Job Center. If the appellant does not receive a decision from the State within the 60-day time frame, he/she should call OTDA Office of Administrative Hearings at (800) 342-3334 or (518) 474-8781 (same line) to find out the status of his/her fair hearing. These time frames hold as long as the appellant has not delayed the process through an adjournment.

Winning the Hearing 18NYCRR § 358-6.4

If an A/R receives a decision that states, "the determination of the HRA is reversed,” and gives specific instructions to do what the A/R asked for at the fair hearing, he/she has won the hearing.

HRA Compliance

If the A/R has won a fair hearing, the Job Center should comply with the decision within 30 days of receiving it. For Food Stamp cases, the local center has 60 days from the fair hearing request to affect an increase in benefits. These time limits are extended when the A/R has requested an adjournment. If no action is taken within these time frames, take the following steps:

Public Assistance/Food Stamps: Take a copy of the decision to the FH&C unit of the JC. The FH&C unit should ensure the center complies with a decision. If there is difficulty, speak to a supervisor at the local center, going through the chain of command, see Vol. II - Public Assistance section, I1, Telephone Numbers and Local Offices. Also, call OTDA’s compliance unit, at (518) 474-8781 to register this complaint, and to ask it to direct that assistance be restored.

In Piron v. Wing, HRA agreed that it must comply with a Public Assistance fair hearing decision within 30 days of receiving the decision. Advocates may be able to force HRA to comply with a decision by eliciting the help of Piron counsel. For further information, contact the Welfare Law Center at (212) 633-6967, Northern Manhattan Improvement Corporation for Manhattan and Queens cases, at (212) 822-8300, or the Legal Aid Society at (718) 991-4758 x 248.

Medicaid: Take a copy of the decision to the Medicaid Fair Hearing Compliance Unit at 330 West 34th Street in Manhattan, to ensure compliance.

In addition, A/R’s can go to http://www.otda.state.ny.us/oah/forms.asp to request compliance with a fair hearing decision.

Unfavorable Decisions 18 NYCRR § 358-6.

If the A/R receives a decision that states, "the local agency is correct" the A/R has lost the case. A/R’s can appeal adverse decisions in New York State Supreme Court. Appeals, “Article 78 Proceedings,” must be filed within four months of the date of the unfavorable decision. It is advisable, at this level, to obtain an attorney. Contact Legal Aid Society or Legal Services (see Legal Services section).

When deciding whether to appeal, it is helpful to review the hearing record. To obtain a copy of the hearing record (there is no charge), including a copy of the hearing’s recording (with an authorization if you did not represent the A/R at the hearing) fax a request to:

Supervisor of Transcripts New York State Office of Temporary and Disability Assistance Office of Administrative Hearings P.O. Box 1930 Albany, NY 12201-1930 (518) 473-6735

The hearing record will be mailed to the party that requested it.

In addition to appealing unfavorable decisions, it is also possible to request a reopening or review of decisions that contain errors of law or fact, i.e., if the ALJ did not follow the laws listed in 18 NYCRR § 358, or if the ALJ made a decision relying on a belief that was false. In this situation, the decision of the ALJ will be reviewed according to the fair hearing record. Write a letter to:

Russell Hanks Deputy General Counsel for Fair Hearings New York State Office of Temporary and Disability Assistance Office of Administrative Hearings P.O. Box 1930 Albany, NY 12201-1930

Keep in mind that a request for reopening does not automatically extend the time to appeal, thus, it is important to keep the time frames for an appeal in mind when exercising this option.

FORMER RECIPIENT’S RIGHT TO FAIR HEARINGS (18 NYCRR§ 358 –2.18, 358 – 3.1)

OTDA’s regulations now permit former Public Assistance and Food Stamps recipients to have a fair hearing to challenge prior overpayments HRA is claiming. The subject of the hearing would be whether there was an overpayment and the amount involved. If the former recipient requests a fair hearing within ten days before the effective date of action, no collection activity can be started before the fair hearing decision is issued. If the former recipient calls for a fair hearing after the ten days, but within the 60 day limit, and wins the hearing, any money collected above the amount owed must be returned to the individual.

MANDATORY DISPUTE RESOLUTION
A “Mandatory Dispute Resolution” (MDR) is a pre-hearing conference in which Public Assistance recipients who have requested a fair hearing appear at the JC to discuss the appeal. When an individual requests a fair hearing, the JC will notify the individual when the MDR appointment has been scheduled. The individual is not required to attend the MDR appointment in order for the MDR supervisor to resolve the issue. However, if he/she fails to appear without “good cause”, the hearing officer at the fair hearing may consider his/her failure to appear when evaluating the appellant’s credibility in deciding whether to believe his/her testimony concerning the issue for which s/he requested the hearing. In determining whether “good cause” exists the hearing officer must consider the facts, circumstances and information submitted by the individual.

If the individual is present at the MDR interview, he/she is allowed to submit documentation at the appointment to verify or support his/her position. If the issue is decided in the individual’s favor, the MDR supervisor must complete and sign the Mandatory Dispute Resolution Action Taken form, which indicates HRA’s decision not to proceed with the actions noted in the Notice of Intent. The individual should sign this as well and receive a copy of the form. If the corrective action has not been implemented by the date of the fair hearing, the individual should attend the fair hearing. On the other hand, if the issue is not decided in the individual’s favor at the MDR interview, the MDR supervisor must provide documentation supporting the appropriateness of the adverse action to the individual. However, if at this point the individual is willing to comply with HRA’s requests/regulations in order for HRA to withdraw its Notice of Intent, s/he will be asked to sign the Mandatory Dispute Resolution Action Taken form and if signed, will receive a copy of the form. Be aware that if an individual signs this form, s/he waives his/her right to a hearing. If the individual is not willing to sign the Mandatory Dispute Resolution Action Taken form, s/he has the right to present his/her case at the fair hearing, as well as the right to present evidence supporting his/her case that was not previously submitted at the MDR interview.

GRIEVANCE

When a City worker mistreats, misinforms, refuses to comply with the law or engages in misconduct of any kind, the A/R has the right to file a grievance.

Grievances should be mailed to any of the address below:

Burton Blaustein, Deputy Commissioner, NYC HRA, Family Independence Administration 180 Water Street New York, NY 10038 (212) 331-4641 or 43

Once the complaint has been filed contact Iris Bailey at HRA’s Office of Constituent Affairs at (212) 331-46423 to make sure the problem is effectively resolved.

RESOURCES AND INFORMATION

A Fair Hearing Bank, a joint project of the Greater Upstate Law Project (GULP) and the Western New York Law Center, with the assistance of the Office of Administrative Hearings (OAH), maintains over 1,000 fair hearing decisions. When preparing for a fair hearing it is important to know how prior fair hearings on the same issue were decided because OAH must follow the rules established in its past decisions to insure equal justice to those affected by fair hearing decisions. Go to http://www.wnylc.net/onlineresources.


								
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