SubPart 358-3 - RIGHTS AND OBLIGATIONS OF APPLICANTS AND RECIPIENTS AND SPONSORS OF ALIENS

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

Section 358-3.0 - Introduction.

Section 358-3.0 Introduction. The rights and obligations of applicants and recipients and sponsors of aliens receiving food stamp benefits are governed by this Subpart.

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Section 358-3.1 - Right to a fair hearing.

358-3.1 Right to a fair hearing. (a) An applicant or recipient has the right to challenge certain determinations or actions of a social services agency or such agency's failure to act with reasonable promptness or within the time periods required by other provisions of this Title, by requesting that the department provide a fair hearing. The right to request a fair hearing cannot be limited or interfered with in any way.

(b) If you are an applicant or a recipient of assistance, benefits or services you have a right to a fair hearing if:

(1) your application has been denied by a social services agency, or you have agreed in writing that your application should be withdrawn but you feel that you were given incorrect or incomplete information about your eligibility for the covered program or service; or

(2) a social services agency has failed to:

(i) determine your eligibility for a covered program or service with reasonable promptness or within the time periods required by other provisions of this Title;

(ii) issue or adjust your cash grant;

(iii) issue or adjust your food stamp benefits; or

(iv) authorize medical care or services for you; or

(3) your public assistance, medical assistance, food stamps or services have been discontinued, suspended or reduced, or your public assistance, medical assistance or food stamps have been increased; or

(4) the method or manner or form of payment of all or part of your public assistance grant has been changed, a restricted payment is being made or is being continued or a medical assistance authorization is restricted; or

(5) you object to the payee selected for a restricted payment; or

(6) your public assistance, medical assistance, HEAP or services are inadequate;

(7) although there has been no change in the amount of your public assistance grant, medical assistance spenddown or food stamp benefits, you wish to challenge the social services agency's determination that the amount of one of the items used in the calculation of your public assistance grant, medical assistance spenddown or food stamp benefits has changed; or

(8) your request for restoration of any food stamp benefits lost less than one year prior to the request for restoration has been denied; or you do not agree with the amount of food stamp benefits restored or any other action taken by the social services agency to restore such benefits; or

(9) your food stamp benefits have been reduced, suspended or cancelled as a result of an order issued by the United States Food and Nutrition Service to reduce allotments because the requirements of states participating in the Food Stamp Program will exceed appropriations; however, in such case you have the right to a fair hearing only if you believe that your benefit level was computed incorrectly under Federal rules, or that Federal rules were misapplied or misinterpreted; or

(10) you are aggrieved by a mass change in the Food Stamp Program; or

(11) within a certification period, the amount of your food stamp benefits is inadequate and you have made the request for a fair hearing within such certification period; or

(12) your application for food stamp benefits has been denied or your food stamp benefits have been reduced or discontinued due to a determination that you are not exempt from Food Stamp Program work requirements or that you have failed to comply with work registration or employment and training requirements. You may request a fair hearing to review such determination including the determination of exemption status, the type of requirement imposed, or a social services agency's refusal to make a finding of good cause for failure to comply with such requirements if you believe that the finding of failure to comply was improper; or

(13) you are required to participate in a service, except when required to do so by court order; or

(14) you are an applicant for or a recipient of public assistance or medical assistance and you object to a social services agency determination that you are employable or to the extent of your employability; or

(15) you object to the amount deducted from your initial payment of supplemental security income as reimbursement of public assistance; or

(16) the amount you are being charged for a service has been increased and such increase is not based on a change in the fee schedule; or

(17) you disagree with the amount of a claim for the overpayment of public assistance or the over-issuance of food stamp benefits, except if the amount of such claim has already been determined, in accordance with Part 359 or Part 399 of this Title, by an administrative disqualification hearing, a waiver of an administrative disqualification hearing, a court determination or a disqualification consent agreement; or

(18) you are a recipient of medical assistance and you have reached a utilization threshold and your application for an exemption from or increase to such threshold has been denied; or

* (19) you are participating in a work-related program or activity under the Job Opportunities and Basic Skills Training (JOBS) Program or under a program authorized by section 1115 of the Social Security Act and you have a complaint regarding on-the-job working conditions or workers' compensation coverage or a complaint regarding wage rates used in calculating the hours of participation in the Community Work Experience Program; or * NB Effective until 98/08/06

* (19) you are participating in a work-related program or activity under the Job Opportunities and Basic Skills Training (JOBS) Program or under a program authorized by section 1115 of the Social Security Act and you have a complaint regarding on-the-job working conditions or workers' compensation coverage or a complaint regarding wage rates used in calculating the hours of participation in the Community Work Experience Program. * NB Effective 98/08/06

* (20) you have been denied a waiver of public assistance program requirements under section 351.2(l) of this Title or an extension of such waiver has been denied or such waiver has been terminated or modified. * NB Effective until 98/08/06

(c) As the sponsor of an alien receiving food stamp benefits and for whom there has been an over-issuance of benefits for which you are liable, you have a right to a hearing to contest the following:

(1) the determination that you were responsible for the incorrect information which was provided and which resulted in the over-issuance; and

(2) the amount of the over-issuance for which you are liable.

(d) As a relative or friend of a deceased person, you have a right to a fair hearing if you have paid for the burial arrangements of such deceased person and your claim for reimbursement made pursuant to section 141 of the Social Services Law is denied by the local social services agency.

(e) As a recipient of food stamp benefits, you do not have the right to a fair hearing to challenge the following:

(1) the placement of your household on an alternate issuance system whereby you must personally pickup your food stamp authorization to participate (ATP) or food stamp coupons; or

(2) the length of time that your household is required to participate in an alternate issuance system; or

(3) an adverse decision in an administrative disqualification hearing; or

(4) a disqualification penalty imposed after you have waived your rights to an administrative disqualification hearing.

(f) As an applicant or recipient you do not have the right to a fair hearing in all situations. For example, you do not have a right in the following situations:

(1) the department has discontinued payment to the medical facility in which you are or had been residing because the facility has been decertified from participation in the Medical Assistance Program; or

(2) your physician has ordered a change in the level of care being provided to you; or

(3) a utilization review committee has ordered a higher level of care; or

(4) the sole issue involving your receipt of medical assistance is a Federal or State law requiring an automatic change which adversely affects some or all recipients; or

(5) you are complaining about the amount of any lien taken by a social services agency; or

(6) a local social services agency has demanded restitution, in accordance with the provisions of section 104 or 106-b of the Social Services Law, of public assistance paid, other than by a reduction of the public assistance grant; or

(7) you are complaining about the amount of a child support payment which is passed through to you; or

(8) your services have been discontinued as a result of a court order, or the court order which required the provision of services has expired; or

(9) you are a member of a class of public assistance recipients for whom either State or Federal law requires an automatic grant adjustment, unless the reason for your appeal is the incorrect computation of your grant; or

(10) you are a foster family care services recipient, a foster family caregiver, or a respite caregiver pursuant to section 505.29 of this Title, and a sponsoring agency terminates the foster family caregiver's or respite care-giver's authority to provide foster family care services or a social services district or the department terminates its contract with a sponsoring agency.

(g) If you are an institutionalized spouse or a community spouse, as defined in section 360-4.10 of this Title, and a determination has been made on an application for Medical Assistance for the institutionalized spouse, you have a right to a fair hearing to challenge:

(1) the amount of the community spouse monthly income allowance; and/or

(2) the amount of monthly income determined to be otherwise available to the community spouse; and/or

(3) the amount of resources attributed to the community spouse or to the institutionalized spouse; and/or

(4) the amount of the community spouse resource allowance.

(h) You have a right to a fair hearing if you are a resident of a tier II facility and you have been involuntarily discharged from the shelter after having requested and participated in a hearing, held by the facility or by the social services district in which the facility is located, to determine whether you should be involuntarily discharged. If you do not request and participate in such a hearing you do not have a right to a fair hearing.

 

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Section 358-3.2 - Right to priority in hearing and determination.

358-3.2 Right to priority in hearing and determination. Priority in scheduling of your hearing and determination will be provided when:

(a) you are an applicant for emergency assistance to needy families with children, emergency assistance to aged, blind or disabled persons or emergency home relief and you are appealing the denial of such benefits; or

(b) your circumstances warrant priority in scheduling and your hearing is being scheduled because you have:

(1) no food; or

(2) no shelter, or your shelter is imminently about to be lost or terminated; or

(3) an inadequate or inappropriate emergency shelter placement; or

(4) an eviction/dispossess notice; or

(5) no fuel for heat during the cold weather period; or

(6) a utility disconnect scheduled for a specific date; or

(7) a utility shut-off; or

(8) need for rental security deposit, broker's fee and/or first month's rent, if necessary to obtain permanent housing, and failure to expedite processing will lead to loss of such housing; or

(9) urgent need for medical care, services or supplies; or

(10) a denial or discontinuance of or inadequate personal care services; or

(11) a denial or discontinuance of or inadequate adult protective services; or

(12) been involuntarily discharged from a tier II facility as defined in Part 900 of this Title and you requested and participated in a hearing, held by the facility or by the social services district in which the facility is located, to determine whether you should be involuntarily discharged, or

(13) any other problem which is determined, in the Department's discretion, to be an appropriate subject for priority processing and which presents a crisis situation or a threat to your health and safety or that of your family; or

(c) you are requesting a fair hearing concerning your food stamp benefits and your household is planning to move away from the local social services district before the fair hearing decision would normally be issued; or

(d) you have been denied assistance under the aid to dependent children program for yourself or your dependent child because:

(1) you are under the age 18;

(2) you have never married;

(3) you either reside with and provide care for your dependent child or are pregnant;

(4) you are not residing in a place of residence maintained as a home by your parent, legal guardian or other adult relative or in an adultsupervised supportive living arrangement; and

(5) you have alleged that your physical or emotional health or safety or that of your dependent child would be jeopardized if you or such child lived in the same residence with your parent or legal guardian and an investigation conducted in accordance with section 424 of the Social Services Law did not support your allegation.

 

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Section 358-3.3 - Notice requirements.

358-3.3 Notice requirements. (a) Public assistance, medical assistance and services: notice of action.

* (1) Action to discontinue, suspend, reduce, restrict; changes in manner of payment for employment-related and JOBS-related child care services; changes in the manner of payment for transitional child care; denial of an extension of a waiver of public assistance program requirements or termination or modification of such waiver. Except as set forth in subdivision (d) of this section, you have the right to timely and adequate notice when a social services agency proposes to: * NB Effective until 98/08/06

* (1) Action to discontinue, suspend, reduce, restrict; changes in manner of payment for employment and JOBS-related child care services; changes in the manner of payment for transitional child care. Except as set forth in subdivision (d) of this section, you have a right to timely and adequate notice when a social services agency proposes to: * NB Effective 98/08/06

(i) take any action to discontinue, suspend, or reduce your public assistance grant, medical assistance authorization or services; or

(ii) change the manner or method or form of payment of your public assistance grant; or

(iii) restrict your medical assistance authorization; or

(iv) make changes in the manner of payment for your employment-related and JOBS-related child care and other supportive services provided to enable you to participate in JOBS activities pursuant to Part 385 of this Title and such change results in the discontinuance, suspension, reduction or termination of benefits, or forces you the make changes in child care arrangements; or

* (v) make changes in the manner of payment for your transitional child care and such changes result in the discontinuance, suspension, reduction or termination of benefits, or force you to change child care arrangements; or * NB Effective until 98/08/06

* (v) make changes in the manner of payment for your transitional child care and such changes result in the discontinuance, suspension, reduction or termination of benefits, or force you to change child care arrangements. * NB Effective 98/08/06

* (vi) deny an extension of a waiver of public assistance program requirements under section 351.2(l) of this Title or or such waiver has been terminated or modified. * NB Effective until 98/08/06

* (2) Action to accept, deny, increase or make change in calculation; denial of utilization threshold exemption or increase application; employability determination; changes in the manner of payment for employment-related and JOBS-related child care services; changes in the manner of payment for transitional child care; denial of a waiver of public assistance program requirements. You have a right to adequate notice when a social services agency: * NB Effective until 98/08/06

* (2) Action to accept, deny, increase or make change in calculation; denial of utilization threshold exemption or increase application; employability determination; changes in manner of payment for employment and JOBS-related child care services; changes in the manner of payment for transitional child care. You have a right to adequate notice when a social services agency: * NB Effective 98/08/06

(i) accepts or denies your application for public assistance, medical assistance or services; or

(ii) increases your public assistance grant; or

(iii) determines to change the amount of one of the items used in the calculation of your public assistance grant or medical assistance spenddown although there is no change in the amount of your public assistance grant or medical assistance spenddown; or

(iv) denies an application for an exemption form or an increase of a medical assistance utilization threshold and you have reached the utilization threshold; or

(v) changes the manner of payment for your employment and JOBS-related child care provided to enable you as a recipient of public assistance to participate in JOBS activities pursuant to Part 385 of this Title except as provided in subparagraph (1) (v) of this subdivision; or

(vi) changes the manner of payment for your transitional child care except as provided in subparagraph (1) (iv) of this subdivision; or

* (vii) determines that you are employed and you are an applicant for or recipient of public assistance or medical assistance; or * NB Effective until 98/08/06

* (vii) determines that you are employable and you are an applicant for or recipient of public assistance or medical assistance. * NB Effective 98/08/06

* (viii) denies a waiver of public assistance program requirements under section 351.2(l) of this Title. * NB Effective until 98/08/06

(3) Action based on a change in State or Federal law requiring automatic public assistance grant adjustments for classes of recipients. When you are a member of a class of public assistance recipients for whom changes in either State or Federal law require automatic grant adjustments, you are entitled to timely notice of such grant adjustment. This notice will be adequate if it includes those items listed in section 358-2.2(b) of this Part.

(b) Food stamps. (1) Action to discontinue, reduce or recoup: action notice. Except as set forth in subdivision (e) of this section, when a social services agency proposes to take any action to discontinue or reduce your food stamp benefits you have the right to timely and adequate notice.

(2) Action to accept, deny, increase, change in calculation: adverse action taken notice. When a social services agency accepts or denies your application for food stamp benefits or increases your food stamp benefits, or changes the amount of one of the items used in the calculation of your food stamp benefits although there is no change in the amount of your food stamp benefits, you have the right to adequate notice.

(3) Expiration notice. (i) Before or at the beginning of the last month of your household's current certification period for food stamp benefits, you have a right to an expiration notice as defined in section 358-2.11 of this Part; however, if your household was recertified for both public assistance and food stamps prior to the last month of the food stamp certification period, an expiration notice is not required.

(ii) For households with certification periods longer than one or two months the notice of expiration must be sent by the social services agency so that your household receives it no earlier than the first day of the second to the last month of the certification period and no later than one day before the last month of the certification period.

(iii) Households certified for one month only, or initially certified for two months during the month following the month of application, must be sent the expiration notice at the time of certification.

(c) Home Energy Assistance Program (HEAP). When a social services agency accepts or denies your application for HEAP benefits or determines that you are eligible for HEAP benefits but Federal funds are unavailable, you have a right to adequate notice.

(d) Public assistance and medical assistance programs: exceptions to timely notice requirements. (1) As a recipient of either public assistance or medical assistance you have the right to adequate notice sent no later than the effective date of the proposed action when:

(i) the social services agency has factual information confirming the death of a recipient or the payee of an aid to dependent children case, and there is reliable information that no relative is available to serve as a new payee; or

(ii) the social services agency has received a clear written statement signed by you which includes information that requires the social services agency to discontinue or reduce your public assistance or medical assistance and you have indicated in such statement that you understand that such action will be taken as a result of supplying such information; or

(iii) the social services agency has received a clear written statement from you indicating that you no longer wish to receive public assistance or medical assistance; or

(iv) the agency has reliable information that you have been admitted or committed to an institution or prison which renders you ineligible for assistance or services under the Social Services Law; or

(v) your whereabouts are unknown and mail addressed to you by the social services agency has been returned by the post office with an indication that there is no known forwarding address. However, public assistance or medical assistance will be given to you if the social services agency is made aware of your whereabouts during the period covered by the returned public assistance check or medical assistance authorization; or

(vi) you have been accepted for public assistance or medical assistance in another local social services district, state, territory or commonwealth, and that acceptance has been verified by the social services district previously providing you with such assistance.

(2) As a recipient of public assistance, you have the right to adequate notice sent no later than the date of the proposed action when the following actions affect your public assistance grant:

(i) you have been placed for long-term care in a skilled nursing home, intermediate care facility or hospital; or

(ii) a child has been removed from your home as a result of a judicial determination, or voluntarily placed in foster care by the child's legal guardian; or

(iii) a special allowance granted for a specific period has been terminated and you had been informed in writing at the time that you were first granted the special allowance that the allowance would automatically terminate at the end of the specified period; or

(iv) the social services agency has determined to accept your application for public assistance or has determined to increase your assistance;

(v) the social services agency action results from information you furnished in a quarterly report required by section 351.24 of this Title;

(vi) you are a recipient of home relief and you have been determined eligible for supplemental security income and the social services agency has made a determination that the amount of supplemental security income makes you no longer eligible for home relief.

(3) As a recipient of medical assistance, you have the right to adequate notice if you are in a general hospital, not receiving chronic care services and a utilization review committee has determined that your medical assistance payment should be reduced or discontinued.

(e) Food Stamp Program: exemption from notice requirements or timely notice requirements. (1) You are not entitled to an individual adverse action notice when:

(i) a mass change is initiated by the department which affects all food stamp households or significant portions thereof; or

(ii) based on reliable information, the social services agency determines that all members of your household have died or that the household has moved from the social services district or will not be residing in the social services district and will be unable therefore to obtain its next food stamp allotment from such district; or

(iii) your certification period has expired, you were previously informed of the expiration, and you have not reapplied for benefits; or

(iv) your household has been receiving an increased food stamp allotment to restore lost benefits, the restoration is complete, and the household was previously notified in writing of the date when the increased food stamp allotment would terminate; or

(v) your household's allotment of food stamp benefits varies from month to month within the certification period to take into account changes which were anticipated at the time of certification, and the household was notified that the food stamp allotment would vary at the time of certification; or

(vi) your household applied jointly for public assistance and food stamp benefits and has been receiving food stamp benefits pending the approval of the public assistance grant and was notified at the time of food stamp certification that food stamp benefits would be reduced upon approval of the public assistance grant; or

(vii) a household member is disqualified from the Food Stamp Program for an intentional program violation in accordance with Part 399 of this Title or the food stamp benefits of the remaining household members are reduced or terminated to reflect the disqualification of that household member; or

(viii) the social services agency has elected to assign a longer certification period to your household which was certified on an expedited basis and for which verification was postponed. The household must have received written notice that in order to receive benefits past the month of application the household must provide the verification which was initially postponed and the social services agency may act on the verified information without further notice; or

(ix) a social services agency has converted your household from cash repayment of an intentional program violation claim or an inadvertent household error to benefit reduction, as a result of the household's failure to make an agreed upon cash repayment; or

(x) you are a resident of a treatment center or group living arrangement which is determined to be ineligible for food stamp benefits because the facility has either lost its certification from the appropriate State agency/agencies or lost its status as an authorized representative due to its disqualification by the Federal Food and Nutrition Service as a retailer. However, residents of group living arrangements applying on their own behalf may remain eligible to participate in the Food Stamp Program; or

(xi) your household voluntarily requests, in writing or in the presence of an agency employee, that its food stamp benefits be terminated. If the household does not provide a written request, the social services agency must send the household a letter confirming the voluntary withdrawal.

(2) Mass changes. (i) When the Federal government initiates an adjustment to eligibility standards, allotments or deductions and the State initiates adjustments to utility standards, you are not entitled to a notice of adverse action.

(ii) When the department initiates a mass change in food stamp eligibility or benefit levels simultaneously for the entire caseload or that portion of the caseload that is affected, or by conducting individual desk reviews in place of the mass change, no later than the date your household is scheduled to receive the benefits which have been changed, you shall be informed of the following:

(a) the general nature of the change;

(b) examples of the effect the changes will have on household allotments;

(c) the month in which the change will take effect;

(d) the right to a fair hearing;

(e) the right to continued benefits and under what circumstances benefits will be continued, pending issuance of the fair hearing decision. You will be informed that at the hearing, the hearing officer may determine to end your continuation of benefits if it is determined that the issue being contested is not based on improper computation of benefits or misapplication or misinterpretation of Federal law or regulation;

(f) general information on whom to contact for additional information; and

(g) the liability the household will incur for any over-issued benefits if the fair hearing decision is adverse.

(3) As a recipient of food stamp benefits you have the right to an adequate notice sent no later than the date of the proposed action when the social services agency action results from information you furnished on a quarterly report, or because you failed to return a quarterly report required by Section 387.17(d) of this Title.

(f) Involuntary discharges from tier II facilities. As a resident of a tier II facility you have a right to adequate notice when you have been involuntarily discharged from a tier II facility as set forth in section 900.8 of this Title and you have requested and participated in a hearing, held by the facility or by the social services district in which the facility is located, to determine whether you should be involuntarily discharged. Such notice must be on a form mandated by the department, which meets the requirements for adequate notice as set forth in section 358-2.2 of this Part.

(g) Concurrent benefits. For the purposes of this subdivision, the term "benefits" has the same meaning as that used in section 351.9 of this Title and "concurrent benefits" has the same meaning as that used in section 351.9 of this Title.

(1) Denial of benefits. You have the right to an adequate notice when a social services official determines to deny you benefits on the grounds that you are receiving or have been accepted to receive a concurrent benefit in that social services district or in another social services district, state, territory or commonwealth.

(2) Discontinuance of benefits - Timely and adequate notice. You have the right to timely and adequate notice when:

(i) a social services official determines to discontinue your benefits because you are receiving concurrent benefits in that social services district and in another state, territory or commonwealth, but you are not receiving concurrent benefits from social services districts solely within the State; or

(ii) a social services official determines to discontinue your benefits because you are receiving benefits in that social services district and all concurrent benefits in that district and in any other social services district in the state have been discontinued and no aid continuing has been granted under section 358-3.6 of the Part for any such discontinuances.

(3) Discontinuance of benefits - Exception to timely notice. Notwithstanding any other provision of this section, you have a right to adequate notice sent no later than the effective date of the proposed action when a social services official determines to discontinue your benefits because you are receiving concurrent benefits in the same social services district or in another social services district within the State.

 

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Section 358-3.4 - Rights in the fair hearing process.

358-3.4 Rights in the fair hearing process. As an appellant you have the right:

(a) to the continuation or reinstatement of your public assistance, medical assistance authorization, food stamp benefits or services until the issuance of a decision in your fair hearing, to the extent authorized by section 358-3.6 of this Subpart. You have the right to request that your assistance, benefits or services not be continued or reinstated until the fair hearing decision is issued;

(b) to examine your case record and to receive copies of documents in your case record which you need to prepare for the fair hearing, upon your request, to the extent authorized by and within the time periods set forth in section 358-3.7 of this Subpart;

(c) to examine and receive copies of all documents and records which will be submitted into evidence at the fair hearing by a social services agency, upon your request, to the extent authorized by and within the time periods set forth in section 358-3.7 of this Subpart;

(d) to the rescheduling (adjournment) of your hearing, to the extent authorized by section 358-5.3 of this Part;

(e) to be represented by an attorney or other representative at any conference and hearing, or to represent yourself;

(f) to have an interpreter at any fair hearing, at no charge to you, if you do not speak English or if you are deaf. You should advise the department prior to the date of the fair hearing if you will need an interpreter;

(g) to appear and participate at your conference and fair hearing, to explain your situation, to offer documents, to ask questions of witnesses, to offer evidence in opposition to the evidence presented by the social services agency and to examine any documents offered by the social services agency;

(h) to bring witnesses to present written and oral evidence at any conference or fair hearing;

(i) at your request to the social services agency, to receive necessary transportation or transportation expenses to and from the fair hearing for yourself and your representatives and witnesses and to receive payment for your necessary child care costs and for any other necessary costs and expenditures related to your fair hearing;

(j) to have the fair hearing held at a time and place convenient to you as far as practicable, taking into account circumstances such as your physical inability to travel to the regular hearing location;

(k) to request removal of a hearing officer in accordance with section 358-5.6 of this Part; and

(l) to seek review by a court if the decision is not in your favor.

 

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Section 358-3.5 - Requests for a fair hearing.

358-3.5 Requests for a fair hearing. (a) A fair hearing may be requested in writing, by telephone, or in person.

(b) (1) A request for a fair hearing must be made within 60 days after the social services agency's determination, action, or failure to act about which you are complaining except as provided in paragraphs (2) and

(3) of this subdivision for fair hearings relating to food stamp benefits, and paragraph (4) relating to HEAP benefits and paragraph (5) relating to involuntary discharges from tier II facilities. Where the social services agency's action is based on a change in State or Federal law requiring automatic public assistance grant adjustments for classes of recipients, a request for a fair hearing must be made within 60 days after the changed grant becomes available to you.

(2) A request for a fair hearing to complain about any action by the social services agency affecting your food stamp benefits, including a loss of food stamp benefits, must be made within 90 days after the determination, action or failure to act about which you are complaining. Action includes a denial of a request for restoration of any benefits lost more than 90 days but less than one year prior to the request for restoration. Where the social services agency's action is the result of a mass change, a request for a fair hearing must be made within 90 days after the changed level of benefits become available to you.

(3) A request for a fair hearing to dispute the current level of food stamp benefits granted to your household must be made during the food stamp certification period.

(4) A request for a fair hearing to review the denial of, the failure to act on an application for, or to dispute the adequacy of HEAP benefits must be requested no later than 60 days after the mailing of the notice; however, in no event may a hearing request be made more than 105 days after the district terminates the receipt of applications for the program year.

(5) A request for a fair hearing to review the involuntary discharge of a resident from a tier II facility after the resident has requested and participated in a hearing, held by the facility or social services district in which the facility is located, must be made no later than 30 days after the decision of the facility or social services district is rendered.

(6) If the last day for requesting a fair hearing falls on a weekend or holiday, a hearing request postmarked or received by the department on the day after the weekend or holiday will be considered as timely received.

 

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Section 358-3.6 - Right to aid continuing.

358-3.6 Right to aid continuing. In certain situations, you have the right to have your public assistance, medical assistance, food stamp benefits, and services continued unchanged until your fair hearing decision is issued. The department will determine whether you are entitled to aid continuing and advise the appropriate social services agency and you of its decision.

(a) Public assistance, medical assistance and services. For public assistance, medical assistance and services, the right to aid continuing exists as follows:

(1) (i) Except as provided in paragraph (2) of this subdivision, where the social services agency is required to give you timely notice before it can take any action in your case, you have the right to aid continuing for your public assistance and medical assistance and services until the fair hearing decision is issued if you request a fair hearing before the effective date of a proposed action as contained in the notice of action. In the Medical Assistance Program, if you have been receiving assistance based on a spenddown of excess income, the right to aid continuing includes the right to have your spenddown liability continue unchanged.

(ii) If your assistance or services have been reduced or discontinued, restricted or suspended by the social services agency and you requested a hearing by the effective date contained in the notice, your assistance or services must be restored by the social services agency as soon as possible but no later than five business days after notification from the department that you were entitled to have your public assistance, medical assistance or services continue uninterrupted pursuant to this paragraph.

(iii) In cases where the action is an automatic public assistance grant adjustment based on a change in State or Federal law, the effective date for determining the right to continued public assistance, medical assistance and food stamps will be deemed to be 10 days after the date the changed grant becomes available to you.

(iv) If the effective date of the proposed action falls on a weekend or holiday, a hearing request postmarked or received by the department on the day after the weekend or holiday will be considered timely for the purposes of aid continuing.

(2) There is no right to aid continuing of:

(i) public assistance where the department has determined that the sole issue is one of State or Federal law or policy, or change in State of Federal law and not one of incorrect grant computation; or

(ii) medical assistance or services where the department has determined that the sole issue is one of State or Federal law or policy; or

(iii) medical assistance when you have been determined presumptively eligible for medical assistance and have subsequently been denied eligibility for medical assistance; or

(iv) medical assistance if you are a recipient in a general hospital, not receiving chronic care services, and you are in short-term hospitalization and a utilization review committee determines that such level of care is no longer required; or

(v) employment-related and JOBS-related child care and supportive services provided to enable you to participate in JOBS activities pursuant to Part 385 of this Title; or

(vi) public assistance, medical assistance or services when the social services official determines to discontinue your benefits because you are receiving concurrent benefits as described in section 351.9 of this Title in the same social services district or in another social services district within the State.

(3) (i) Where the social services agency is required only to give you adequate notice but not timely notice and has discontinued, reduced, restricted or suspended your public assistance, medical assistance or services you have the right to have your public assistance, medical assistance or services reinstated and continued until a fair hearing decision is issued only if you request a fair hearing within 10 days of the mailing of the agency's notice of the action and if the department determines that the action on your public assistance or medical assistance benefits or services did not result from the application of or change in State or Federal law or policy. If the department determines that you are entitled to have your public assistance, medical assistance or services reinstated and continued in accordance with this paragraph, the social services agency must restore your public assistance, medical assistance or services as soon as possible but no later than five business days after being advised by the department of such determination. Notwithstanding any other provisions of this subparagraph, there is no right to reinstatement for employment-related and JOBS-related child care or supportive services provided to enable you to participate in JOBS activities pursuant to Part 385 of this Title.

(ii) If the 10th day of the mailing of the agency's notice of the action falls on a weekend or holiday, a hearing request postmarked or received by the department on the day after the weekend or holiday will be considered timely for the purposes of reinstatement pursuant to subparagraph (i) of this paragraph.

(4) (i) Where an applicant for or a recipient of public assistance or medical assistance is determined employable and a hearing is requested to contest employability within 10 days of the effective date of the agency's notice of employability, any failure to comply with employment requirements within the 10-day period or thereafter until a fair hearing decision is issued will not be considered willful noncompliance regardless of the outcome of the fair hearing.

(ii) If the 10th day after effective date of the agency's notice of the action falls on a weekend or holiday, a hearing request postmarked or received by the department on the day after the weekend or holiday will be considered to be received within 10 days of the effective date of the agency notice for purposes of subparagraph (i) of this paragraph.

(b) Public assistance, medical assistance, and services will not be continued pending the issuance of a fair hearing decision when:

(1) you have voluntarily waived your right to the continuation of such assistance, benefits or services in writing; or

(2) you do not appear at the fair hearing and do not have a good reason for not appearing; or

(3) prior to the issuance of your fair hearing decision, a social services agency proposes to take or takes an action which affects your entitlement to public assistance, medical assistance, or services, and you do not make a request for a fair hearing regarding the subsequent notice.

(c) Food stamp benefits. For food stamp households, including households in receipt of both food stamps and public assistance, the right to aid continuing exists as follows:

(1) (i) You have the right to have your food stamp benefits continue at the same level as you have been receiving until the fair hearing decision is issued only where the proposed adverse action is to take place during the certification period of your food stamp authorization and your request for a hearing is made prior to the effective date contained in a timely notice for your case closing or authorization reduction.

(ii) If your food stamp benefits have been reduced or discontinued by the social services agency and you have made a timely hearing request by the effective date contained in the notice, your food stamp benefits must be restored by the social services agency as soon as possible but no later than five business days after notification from the department that you are entitled to have your benefits continue unchanged pursuant to this paragraph.

(iii) Where the action being taken is the result of a mass change, the effective date of the action is deemed to be 10 days after the date the changed level of benefits become available to you.

(iv) If the effective date of the proposed action falls on a weekend or holiday, a hearing request postmarked or received by the department on the day after the weekend or holiday will be considered timely for the purposes of this paragraph.

(2) There is no right to aid continuing where:

(i) the department has determined that the sole issue is one of Feder al law or regulation and your claim that your benefits were improperly computed or the law or regulation was misapplied or misinterpreted is invalid; or

(ii) your food stamp benefits have been reduced, suspended or cancelled as a result of an order to reduce allotments issued by the Food and Nutrition Service because the requirements of states participating in the Food Stamp Program will exceed appropriations; or

(iii) a social services official determines to discontinue your benefits because you are receiving concurrent benefits as described in section 351.9 of this Title in the same social services district or in another social services district within the State.

(3) When food stamp benefits are reduced or terminated because you fail to make the request for a hearing within the required period stated in the notice, upon your request for a fair hearing your food stamp benefits will be reinstated if you establish that your failure to request a hearing in a timely manner was for good cause. If the department determines that you have the right to have your food stamp benefits reinstated in accordance with this paragraph, the social services agency must reinstate your food stamp benefits as soon as possible but no later than five business days after being advised by the department of such determination.

(4) When benefits are reduced or terminated due to a mass change, your benefits will be reinstated only if the issue being contested is that:

(i) food stamp eligibility or benefits were improperly computed; or

(ii) Federal law or regulation is being misapplied or misinterpreted by the department or by the social services agency.

If the department determines that you have the right to have your food stamp benefits reinstated in accordance with this paragraph, the social services agency must reinstate your food stamp benefits as soon as possible but no later than five business days after being advised by the department of such determination.

(5) If the action proposed in the notice results from a regularly scheduled recertification of your food stamp authorization, your level of participation in the Food Stamp Program will be continued at the level determined at your recertification. You do not have the right to have your level of benefits continued at the prior benefits level unless and until the fair hearing decision is issued requiring such benefit level.

(6) Once your benefits are continued or reinstated, your benefits should continue without change until you receive your hearing decision unless:

(i) your certification period expires, in which case you may reapply and may be determined eligible for a new certification period; or

(ii) a change affecting your household's eligibility for food stamps or the basis of issuance of food stamp benefits occurs before your hearing decision is issued and you fail to make a request for a fair hearing regarding a subsequent notice of adverse action; or

(iii) before the hearing decision is issued a mass change occurs which affects your household's eligibility for food stamps or basis of issuance.

(d) If your public assistance grant, medical assistance or food stamp benefits are continued until a fair hearing decision is issued and you lose the fair hearing, the social services agency may recover the benefits which you should not have received. This subdivision does not apply to fair hearings to review the imposition of an employment sanction.

(e) If you are involuntarily discharged from a tier II facility after requesting and participating in a hearing, held by the facility or the social services district in which the facility is located, and you request a fair hearing to review this determination, you do not have the right to remain at the facility pending the outcome of your fair hearing.

 

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Effective Date: 
Wednesday, May 7, 2014

Section 358-3.7 - Examination of case record before the fair hearing.

358-3.7 Examination of case record before the fair hearing.

(a) (1) At any reasonable time before the date of your fair hearing and also at the fair hearing, you or your authorized representative have the right to examine the contents of your case record and all documents and records to be used by the social services agency at your fair hearing.

(2) Except as provided in paragraph (3) of this subdivision, the only exceptions to access to your case record are:

(i) those materials to which access is governed by separate statutes, such as records regarding child welfare, foster care, adoption or child abuse or neglect or any records maintained for the purposes of the Child Care Review Service; and

(ii) those materials being maintained separately from public assistance files for the purposes of criminal prosecution and referral to the district attorney's office. This exception applies only to records which are part of an active and ongoing investigatory action; and

(iii) the county attorney or county welfare attorney's files.

(3) Case records secured by the Commission for the Visually Handicapped or by a local rehabilitation agency acting on behalf of such commission will not ordinarily be made available for examination since they contain information secured from outside sources; however, particular extracts will be furnished to you or your authorized representative when provision of such information will be beneficial to you. The case record, or any part thereof, admitted as evidence in a fair hearing shall be available for review by you or your authorized representative.

(b) (1) Upon request, you have a right to be provided at a reasonable time before the date of the hearing, at no charge, with copies of all documents which the social services agency will present at the fair hearing in support of its determination. If the request for copies of documents which the social services agency will present at the hearing is made less than five business days before the hearing, the social services agency must provide you with such copies no later than at the time of the hearing. If you or your representative request that such documents be mailed, such documents must be mailed within a reasonable time from the date of the request; provided however, if there is insufficient time for such documents to be mailed and received before the scheduled date of the hearing such documents may be presented at the hearing instead of being mailed;

(2) Upon request, you have the right to be provided at a reasonable time before the date of the hearing, at no charge, with copies of any additional documents which you identify and request for purposes of preparing for your fair hearing. If the request for copies of documents is made less than five business days before the hearing, the social services agency must provide you with such copies no later than at the time of the hearing. If you or your representative request that such documents be mailed, such documents must be mailed within a reasonable time from the date of the request; provided however, if there is insufficient time for such documents to be mailed and received before the scheduled date of the hearing such documents may be presented at the hearing instead of being mailed;

(3) Your request for copies of documents pursuant to paragraphs (1) and (2) of this subdivision may at your option be made in writing, or orally, including by telephone.

(4) If the social services agency fails to comply with the requirements of this subdivision the hearing officer may adjourn the case, allow a brief recess for the appellant to review the documents, preclude the introduction of the documents where a delay would be prejudicial to the appellant, or take other appropriate action to ensure that the appellant is not harmed by the agency's failure to comply with these requirements.

 

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Section 358-3.8 - Agency conference.

358-3.8 Agency conference. (a) At any reasonable time before the date of your fair hearing, you may request that the agency schedule an agency conference before your fair hearing to review the agency decision for which you have requested the fair hearing except as provided for in subdivision (c) of this section.

(b) Even though you have not requested a fair hearing, you may request an agency conference to review any action on your case.

(c) No agency conference is required for actions involving the involuntary discharge of residents of tier II facilities.

 

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Section 358-3.9 - Authorization of representative.

358-3.9 Authorization of representative. (a) Except where impracticable to execute a written authorization, an individual or organization seeking to represent you, other than an attorney or an employee of an attorney, must have your written authorization to represent you at any conference or fair hearing and to review your case record. An employee of your attorney will be considered an authorized representative if such employee presents written authorization from your attorney or if such attorney advises the social services agency by telephone of such employee's authorization.

(b) Once a social services agency and the department have been notified that a person or organization has been authorized to represent you at your fair hearing, such representative will receive copies of all correspondence to you from the social services agency and the department relating to the conference and fair hearing.

 

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