SubPart 358-2 - DEFINITIONS

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Statutory Authority: 
Social Services Law, Sections 20[3][d], 22[8], 34[3][f]

Section 358-2.0 - Introduction.

Section 358-2.0 Introduction. The terms in Part 358 have the meanings set forth in this Subpart.

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Section 358-2.1 - Action taken notice.

358-2.1 Action taken notice. An action taken notice means a notice from a social services agency advising:

(a) an applicant for food stamp benefits or a recipient of food stamps at recertification of the social service agency's determination to accept or deny food stamp benefits; or

(b) a recipient of food stamp benefits, of an increase in benefits.

 

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Section 358-2.2 - Adequate notice.

358-2.2 Adequate notice. (a) Except as provided in subdivision (b) of this section, an adequate notice means a notice of action, or an adverse action notice or an action taken notice which sets forth all of the following:

(1) the action the social services agency proposes to take or is taking, and if a single notice is used for all affected assistance, benefits or services, the effect of such action, if any, on a recipient's other assistance, benefits or services. Otherwise the notice shall state that there will be a separate notice for other affected assistance, benefits or services. In addition, in the case of:

(i) a reduction of public assistance or food stamp benefits: both the dollar amount of assistance or benefits prior to the reduction and the reduced amount must be specified;

(ii) an increase in the amount of a medical assistance spenddown: the amount of the spenddown, if any, prior to the increase and the spenddown amount after the increase must be specified. In addition, such notice must include an explanation of the procedures to be followed for meeting the spenddown;

(iii) a recoupment: the total amount to be recouped and the rate of recoupment must be specified. In addition, in the case of a recoupment of a public assistance grant, the right to claim that the rate of recoupment will cause undue hardship must be specified;

(iv) an acceptance of a food stamp application:

(a) the benefit level, including variations based on changes anticipated and at the time of certification, the date of initial issuance of the authorization to participate (ATP) and the dates covering the certification/eligibility period must be specified. In addition, if the initial allotment contains benefits for both the month application and the current month, the notice must explain that the initial allotment includes more than one month's benefits, and must indicate the monthly allotment amount for the remainder of the certification period;

(b) when an application is approved on an expedited basis without verification, the notice must explain that the household must provide the verification which was postponed and any special conditions applicable to the household if a normal certification period was assigned to such household;

(v) a denial of a food stamp application: when a household is potentially categorically eligible for food stamp benefits but is denied food stamp benefits, the notice must ask the applicant to inform the social services agency if the applicant is approved to receive aid to dependent children or supplemental security income benefits;

(vi) a notice of authorization of a public assistance grant: the amount of the grant must be specified;

(vii) an increase in a public assistance grant or food stamp benefits: the new amount of the grant or benefits must be specified;

(viii) a restriction of a medical assistance authorization: the date the restriction will begin, the effect and scope of the restriction, the reason for the restriction, the right of the recipient to select a primary care provider within two weeks of the date of the notice of intent to restrict, if the social services agency provides a limited choice of providers to the recipient; the right of the social services agency to select a primary provider for the recipient, if a list of primary care providers is not provided or where the recipient fails to select a primary care provider within two weeks if the recipient is given a choice; and the right of the recipient to change providers every three months, or sooner for good cause shown; the right of the recipient to explain and present documentation, either at a conference or by submission, showing the medical necessity of the services cited in the recipient information packet; the right of the recipient to examine records maintained by the social services agency which identify medical assistance services paid for on behalf of the recipient (i.e. claim detail of recipient profile information), must be specified;

(ix) an acceptance of an application for services: the type of services to be provided, the duration of services planned, the name of the worker or unit responsible for the case and such person's telephone number, and the right of the applicant and recipient to accept or reject the services shall be specified. In addition, the notice must include a statement regarding the continuing responsibility of the recipient to report any changes in status;

(x) a determination that an applicant is eligible for the HEAP program: if Federal funds are available, the amount of benefits must be specified. If Federal funds are unavailable, a statement shall be included that HEAP benefits will be provided if sufficient Federal funds become available;

(xi) an acceptance of an application for medical assistance: the extent of coverage, including what care and services are authorized as well as any limitations, must be specified. In addition, if only part of the cost of a particular service will be allowed, such limitation must be specified. If the notice of acceptance indicates a spenddown liability, such notice must include an explanation of the procedures to be followed for meeting the spenddown;

(xii) a disqualification of a food stamp household, or a member of such household for failure to comply with food stamp registration or work requirements: the particular act of non-compliance, the proposed period of disqualification and that the household or individual may reapply in order to resume participation in the food stamp program at the end of the disqualification period as well as information about avoiding or ending the disqualification, must be specified;

(xiii) a notice of action taken in the food stamp program when a member of the applicant household has without good cause failed to comply with work registration requirements: the particular act of noncompliance, the proposed period of disqualification, that the individual or household may reapply in order to participate at the end of the disqualification period as well as information about ending the disqualification, must be specified; and

(xiv) a disqualification of a household from the food stamp program based upon the voluntary termination of employment by the head of household: the proposed period of disqualification, the household's right to reapply in order to resume participation at the end of the disqualification period as well as information about ending the disqualification, must be specified.

(2) except in the case of a denial, the effective date of the action;

(3) except in the case of an acceptance of an application for a covered program or service, the specific reasons for the action;

(4) the specific laws and/or regulations upon which the action is based;

(5) the applicant's or recipient's right to request an agency conference and fair hearing;

(6) the procedure for requesting an agency conference or fair hearing, including an address and telephone number where a request for a fair hearing may be made and the time limits within which the request for a fair hearing must be made;

(7) an explanation that a request for a conference is not a request for a fair hearing and that a separate request for a fair hearing must be made. Furthermore, that a request for a conference does not entitle one to aid continuing, and that a right to aid continuing only arises pursuant to a request for a fair hearing;

(8) when the agency action or proposed action is a reduction, discontinuance, restriction or suspension of public assistance, medical assistance, food stamp benefits or services, the circumstances under which public assistance, medical assistance, food stamp benefits or services will be continued or reinstated until the fair hearing decision is issued; that a fair hearing must be requested separately from a conference; and a statement that when only an agency conference is requested and there is no specific request for a fair hearing, there is no right to continued public assistance, medical assistance, food stamp benefits or services; and that participation in an agency conference does not affect the right to request a fair hearing;

(9) the right of the applicant or recipient to review the applicant's or recipient's case record and to obtain copies of documents which the agency will present into evidence at the hearing and other documents necessary for the applicant or recipient to prepare for the fair hearing at no cost. The notice must contain an address and telephone number where the applicant or recipient can obtain additional information about: the applicant's or recipient's case; how to request a fair hearing; access to the case file; and/or obtaining copies of documents;

(10) the right to representation by legal counsel, a relative, friend or other person or to represent oneself, and the right to bring witnesses to the fair hearing and to question witnesses at the hearing;

(11) the right to present written and oral evidence at the hearing;

(12) the liability, if any, to repay continued or reinstated assistance and benefits, if the recipient loses the fair hearing;

(13) information concerning the availability of community legal services to assist an applicant or recipient at the conference and fair hearing; and

(14) a copy of the budget or the basis for the computation, in instances where the social services agency's determination is based upon a budget computation. This subdivision does not apply to actions taken involving HEAP benefits.

(15) when an action concerning medical assistance is based on a change in law, a statement of the circumstances under which a hearing may be obtained and assistance continued. Such statement must advise the recipient that although the recipient has the right to have a hearing scheduled, the hearing officer at the hearing may determine that the recipient did not have a right to a hearing or continuation of assistance if the sole issue is a Federal or State law requiring an automatic change adversely affecting some or all medical assistance recipients.

(b) Where an automatic public assistance grant adjustment is required for a class of recipients because of a change in either State or Federal law, the notice provided to a member of such class will be adequate if it includes:

(1) a statement of the intended action;

(2) the reasons for such intended action;

(3) a statement of the specific change in the law requiring such action;

(4) a statement of the circumstances under which a hearing may be obtained and assistance continued. Such statement must advise the recipient that although the recipient has the right to have a hearing scheduled, the hearing officer at the hearing may determine that the recipient did not have a right to a hearing or continuation of assistance unless the reason for the appeal is the incorrect computation of the grant; and

(5) the liability, if any, to repay continued or reinstated assistance, if the recipient loses the fair hearing.

 

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Section 358-2.3 - Adverse action notice.

358-2.3 Adverse action notice. Adverse action notice means a notice from a social services agency advising a recipient of food stamp benefits of its determination to discontinue, reduce, or suspend such recipient's food stamp benefits, within the food stamp certification period.

 

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Section 358-2.4 - Agency conference.

358-2.4 Agency conference. Agency conference means an informal meeting at which an applicant or recipient may have any decision of a social services agency concerning the applicant's or recipient's public assistance, medical assistance, food stamp benefits, HEAP or services reviewed or may have any other aspect of the applicant's or recipient's case reviewed by an employee of that agency who has the authority to change the decision with which the applicant or recipient disagrees.

 

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Section 358-2.5 - Aid continuing.

358-2.5 Aid continuing. Aid continuing means the right to have public assistance, medical assistance, food stamp benefits or services continued unchanged until the fair hearing decision is issued.

 

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Section 358-2.6 - Appellant.

358-2.6 Appellant. Appellant means the party for whom the fair hearing is requested.

 

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Section 358-2.7 - Applicant.

358-2.7 Applicant. Applicant means a person who has applied for public assistance, medical assistance, HEAP, food stamp benefits, or a service.

 

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Section 358-2.8 - Commissioner.

358-2.8 Commissioner. Commissioner means the New York State Commissioner of Social Services or the commissioner's designee.

 

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Section 358-2.9 - Covered programs or services.

358-2.9 Covered programs or services. Covered programs or services means one or more of the following: aid to dependent children, home relief, medical assistance, emergency assistance to aged, blind or disabled persons, emergency assistance to needy families with children, food stamps, HEAP, and any services funded through the New York State Department of Social Services as defined in section 358-2.20 of this Subpart.

 

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Section 358-2.10 - Department.

358-2.10 Department. Department means the New York State Department of Social Services.

 

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Section 358-2.11 - Expiration notice.

358-2.11 Expiration notice. Expiration notice means a notice sent by a social services agency which advises a household in receipt of food stamp benefits that its certification period is due to expire. The expiration notice must contain:

(a) the consequences of failure to comply with the expiration notice;

(b) the date the current certification period ends;

(c) the date by which the recipient's household must reapply to receive uninterrupted benefits;

(d) the date of any scheduled interview, and a statement that the recipient is responsible for rescheduling a missed interview;

(e) the number of days the recipient has for submitting missing verification after the interview or after the recertification form is received by the local social services district if no interview is required;

(f) the specific regulation upon which the action is based;

(g) the household's right to request an application for food stamp benefits and the obligation of the local social services district to accept the application, provided that the application is signed and contains a legible name and address;

(h) the address where the application must be filed;

(i) the household's right to apply for food stamp benefits by mail or through an authorized representative;

(j) information that any household consisting only of supplemental security income (SSI) applicants or recipients is entitled to apply for food stamp recertification at any office of the Social Security Administration (SSA);

(k) the household's right to a fair hearing;

(l) the procedure for requesting an agency conference or fair hearing, including an address and telephone number where a request for a fair hearing may be made and the time limits within which the request for a fair hearing must be made;

(m) the right of the recipient to review the recipient's case record. The notice must contain an address and telephone number where the recipient can obtain additional information about the recipient's case; how to request a fair hearing; access to the case file; and/or obtaining copies of documents;

(n) the right to representation by legal counsel, a relative, friend or other person or to represent oneself, and the right to bring witnesses to the fair hearing and to question witnesses at the hearing; and

(o) the right to present written and oral evidence at the hearing.

 

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Section 358-2.12 - Fair hearing.

358-2.12 Fair hearing. Fair hearing means a formal procedure provided by the department upon a request made for an applicant or recipient to determine whether an action taken or failure to act by a social services agency was correct.

 

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Section 358-2.13 - Hearing officer.

358-2.13 Hearing officer. Hearing officer means an attorney who is employed by the department and designated and authorized by the commissioner to preside at hearings.

 

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Section 358-2.14 - Mass change in the Food Stamp Program.

358-2.14 Mass change in the Food Stamp Program. Mass change in the Food Stamp Program means changes initiated by the Federal government or the department which affect all food stamp households or a significant portion of all food stamp households. Mass changes may include, but are not limited to, adjustments to income eligibility standards, shelter and dependent care deductions; the thrifty food plan and the standard deduction; annual and seasonal adjustments to social security, supplemental security income and other Federal benefits.

 

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Section 358-2.15 - Notice of action.

358-2.15 Notice of action. Notice of action means a notice from a social services agency advising an applicant, recipient or resident of a tier II facility of any action the agency intends to take or has taken on any assistance or benefits except food stamp benefits, including the acceptance, denial, discontinuance, suspension, or reduction of public assistance, medical assistance or services, an increase in public assistance or medical assistance, a change in the amount of one of the items used in the calculation of a public assistance grant or medical assistance spenddown although there is no change in the amount of such public assistance grant or medical assistance spenddown, a change in the manner or method or form of payment of a public assistance grant, a determination that an applicant for or recipient of public assistance or medical assistance is employable, a restriction of a medical assistance authorization, and a denial or acceptance of HEAP or a determination to discharge a resident of a tier II facility involuntarily after such resident requests and participates in a hearing held by the facility or the social services district in which the facility is located.

 

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Section 358-2.16 - Parties to a fair hearing.

358-2.16 Parties to a fair hearing. Parties to a fair hearing means the person for whom a fair hearing is requested and the social services agency or agencies whose decision, action or failure to act is subject to review at the fair hearing.

 

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Section 358-2.17 - Public assistance.

*358-2.17 Public assistance. Public assistance includes aid to dependent children and home relief or the successor public assistance programs, emergency assistance to aged, blind or disabled persons, emergency assistance to needy families including special grants and benefits available pursuant to Part 352 of this Title and, for the purposes of this Part, refugee cash assistance issued in accordance with Part 373 of this Title and cash assistance under the Fish-Wilson program issued in accordance with Part 375 of this Title. * NB Effective until 98/06/27

*358-2.17 Public assistance. Public assistance includes aid to dependent children, home relief, emergency assistance to aged, blind or disabled persons, emergency assistance to needy families including special grants and benefits available pursuant to Part 352 of this Title and, for the purposes of this Part, refugee cash assistance issued in accordance with Part 373 of this Title. * NB Effective 98/06/27

 

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Section 358-2.18 - Recipient.

358-2.18 Recipient. Recipient means a person who is, or has been, receiving a covered program or service. For the purpose of this Part, recipient includes a former recipient seeking to review a determination of a social services agency and who would have a right to a hearing under section 358-3.1 of this Part if such person were a current recipient.

 

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Section 358-2.19 - Restricted payment.

358-2.19 Restricted payment. Restricted payment means one of the methods of payment described in Part 381 of this Title, including restricted money payment, indirect or vendor payment and protective payment.

 

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Section 358-2.20 - Services funded through the New York State Department of

358-2.20 Services funded through the New York State Department of Social Services. Services funded through the New York State Department of Social Services means services provided pursuant to the local social services district's consolidated services plan. Such services may include, but are not limited to day care services, preventive services for children and families and for adults, protective services for adults, homemaker services, housekeeper/chore services and information and referral services.

 

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Section 358-2.21 - Social services agency.

358-2.21 Social services agency. Social services agency means the State, county, city, town official or town agency, social services district or HEAP certifying agency responsible for making the determination or for the failure to act, which is the subject of review at the fair hearing.

 

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Section 358-2.22 - Social services district.

358-2.22 Social services district. Social services district means the county department of social services or the New York City Department of Social Services.

 

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Section 358-2.23 - Timely notice.

358-2.23 Timely notice. Timely notice means a notice which is mailed at least 10 days before the date upon which the proposed action is to become effective.

 

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Section 358-2.24 - Title.

358-2.24 Title. Title means Title 18 of the New York State Official Compilation of Codes, Rules and Regulations (NYCRR) also referred to as the regulations of the Department of Social Services.

 

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Section 358-2.25 - Witness.

358-2.25 Witness. Witness means a person, other than the applicant, recipient, or the representative thereof, who presents testimony and/or documentary evidence at a fair hearing.

 

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Section 358-2.26 - Resident of a tier II facility.

358-2.26 Resident of a tier II facility. Resident of a tier II facility means a family or family member residing in a tier II facility as defined in Part 900 of this Title.

 

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Section 358-2.27 - Food Stamps.

358-2.27 Food Stamps. Whenever the term "food stamps" is used in this Part it means food stamps under the Food Stamp Program and food assistance under the Food Assistance Program as set forth in Part 388 of this Title.

 

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