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