Article 5 - Miscellaneous

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Part 339 - ACCESS TO PERSONAL INFORMATION UNDER PERSONAL PRIVACY PROTECTION LAW

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Statutory Authority: 
Social Services Law, Sections 20, 34; Public Officers Law, art. 6-A

Section 339.1 - Purpose and scope.

Section 339.1 Purpose and scope. (a) It is the responsibility and the intent of the State Department of Social Services (hereinafter "department") to fully comply with the provisions of article 6-A of the Public Officers Law, the Personal Privacy Protection Law.

(b) The department shall maintain in its records only such personal information that is relevant and necessary to accomplish a purpose of the department that is required to be accomplished by statute or executive order, or to implement a program specifically authorized by law.

(c) Record, as used herein, means any item, collection or grouping of personal information about a data subject which is maintained and is retrievable by use of the name or other identifier of the data subject. The term record shall not include personal information which is not used to make any determination about the data subject if it is:

(1) a telephone book or directory used exclusively for telephone and directory information;

(2) any card catalog, book or other resource in any library;

(3) any compilation of information containing only names and addresses which is used as a mailing list;

(4) personal information required by law to be maintained and required by law to be used only for statistical research or reporting purposes;

(5) information requested by the agency which is necessary for the agency to answer unsolicited requests by the data subject for information; or

(6) correspondence files.

(d) The word record, as used herein, shall not include any item, collection or grouping of personal information consisting of Social Security Administration case materials used for the adjudication of social security disability claims under titles II and XVI of the Social Security Act which are temporarily in the custody of the department as agent of the Federal government.

(e) Personal information, as used herein, means any information concerning a data subject which, because of a name, number, symbol, mark or other identifier, can be used to identify that data subject.

(f) Personal information will be collected, whenever practicable, directly from the person to whom the information pertains (referred to herein as "data subject").

(g) The department seeks to ensure that all records pertaining to or used with respect to individuals are accurate, relevant, timely and complete.

(h) These regulations provide information regarding the procedures by which members of the public may assert rights granted by the Personal Privacy Protection Law.

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Section 339.2 - Privacy compliance officer; personal information procedures.

339.2 Privacy compliance officer; personal information procedures. (a) The director of Public Information and Communications is hereby designated privacy compliance officer and is responsible for ensuring that the department complies with the provisions of the Personal Privacy Protection Law and the regulations

herein and for coordinating the department's response to requests for records or amendment of records.

(b) The address and telephone number of the privacy compliance officer is: Department of Social Services, 40 North Pearl Street, Albany, NY 12243, (518) 474-9516.

(c) The privacy compliance officer is responsible for overseeing department procedures, by which a data subject can learn if a system of records contains any information pertaining to the data subject, including:

(1) assisting a data subject in identifying and requesting personal information, if necessary;

(2) describing the contents of systems of records orally or in writing in order to enable a data subject to learn if a system of records includes a record or personal information identifiable to a data subject requesting such record or personal information;

(3) taking one of the following actions upon locating the record sought:

(i) except as prohibited by subdivision (d) of this section, make the record available for inspection, in a printed form without codes or symbols, unless an accompanying document explaining such codes or symbols is also provided;

(ii) permit the data subject to copy information from the record; or

(iii) deny access to the record in whole or in part and explain in writing the reasons therefor;

(4) upon payment of established fees, unless such fees are exempted by section 339.11(c) of this Part, making a photocopy of the record or permitting the data subject to make a photocopy of the record;

(5) upon request, certifying that a copy of a record is a true copy; or

(6) upon request, certifying that:

(i) the department does not have possession of the record sought;

(ii) the department cannot locate the record sought after having made a diligent search; or

(iii) the information sought cannot be retrieved by use of the data subject's description thereof, or by use of the name or other identifier of the data subject without extraordinary search methods being employed by the department.

(d) The privacy compliance officer shall deny access to:

(1) personal information to which a data subject is otherwise prohibited by law from gaining access;

(2) attorney's work product or material prepared for litigation before a judicial, quasi-judicial or administrative tribunal unless disclosure is mandated by a statute, a grand jury subpoena, a subpoena issued in the course of a criminal action or proceeding, a court-ordered subpoena, a search warrant or a court order.

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Section 339.3 - Proof of identity.

339.3 Proof of identity. (a) When a request is made in person, subject to the provisions of section 339.6(a) of this Part, or when records are made available in person following a request made by mail, the department shall require appropriate identification such as a driver's license, an identifier assigned to the data subject by the department, a photograph identification or similar information that confirms that the record sought pertains to the data subject.

(b) When a request is made by mail, the department shall require verification of a signature or inclusion of an identifier generally known only by a data subject or other appropriate identification.

(c) Proof of identity shall not be required regarding a request for a record accessible to the public pursuant to article 6 of the Public Officers Law.

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Section 339.4 - Availability of records.

339.4 Availability of records. In addition to being available by mail, records shall also be made available by appointment at the main office of the department, which is located at: 40 North Pearl Street, Albany, NY 12243.

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Section 339.5 - Hours for public inspection and copying.

339.5 Hours for public inspection and copying. The department shall accept requests for records and produce records by appointment during regular business hours.

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Section 339.6 - Requests for records.

339.6 Requests for records. (a) All requests shall be made in writing.

(b) A request shall reasonably describe the record sought. Whenever possible, the data subject should supply identifying information that assists the department in locating the record sought.

(c) Requests based upon categories of information described in a notice of a system of records or a privacy impact statement shall be deemed to reasonably describe the record sought.

(d) Within five business days of the receipt of a written request, the department shall provide access to the record; deny access in writing explaining the reasons therefor; or acknowledge the receipt of the request in writing, stating the approximate date when the request will be granted or denied, which date shall not exceed 30 days from the date of the acknowledgment.

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Section 339.7 - Amendment of records.

339.7 Amendment of records. Within 30 business days of a written request from a data subject for correction or amendment of a record or personal information that is reasonably described and that pertains to the data subject, the agency shall:

(a) make the amendment or correction in whole or in part and inform the data subject that, on request, such correction or amendment will be provided to any person or governmental unit to which the record or personal information has been or is disclosed pursuant to paragraphs

(d), (i) or (1) of subdivision 1 of section 96 of the Public Officers Law; or

(b) inform the data subject in writing of its refusal to correct or amend the record, including the reasons therefor.

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Section 339.8 - Denial of request for a record or amendment or correction.

339.8 Denial of request for a record or amendment or correction. (a) Denial of a request for records or for amendment or correction of a record or personal information shall:

(1) be in writing, explaining the reasons therefor;

(2) identify the person to whom an appeal may be directed; and

(3) explain the procedure for pursuing such appeal.

(b) A failure to grant or deny access to records within five business days of the receipt of a request or within 30 days of an acknowledgment of the receipt of a request, or a failure to respond to a request for amendment or correction of a record within 30 business days of receipt of such a request, shall be construed as a denial that may be appealed.

(c) Any such denial may be appealed in writing to the privacy compliance appeals officer who shall be the general counsel or one designated by him to act on his behalf. Appeals shall be directed to: General Counsel, Department of Social Services, 40 North Pearl Street, Albany, NY 12243.

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Section 339.9 - Appeal of denial.

339.9 Appeal of denial. (a) Any person denied access to a record or denied a request to amend or correct a record or personal information, may within 30 business days of such denial appeal such denial in writing to the privacy compliance appeals officer designated in section 339.8 of this Part.

(b) The time for deciding an appeal shall commence upon receipt of an appeal

that identifies:

(1) the date and location of a request for a record or amendment or correction of a record or personal information;

(2) the record that is the subject of the appeal; and

(3) the name and return address of the appellant.

(c) Within seven business days of an appeal of a denial of access, or within 30 business days of an appeal concerning a denial of a request for correction or amendment, the person determining such appeal shall:

(1) provide access to or correct or amend the record or personal information or cause such to be done; or

(2) fully explain in writing the factual and/or statutory reasons for further denial and inform the data subject of the right to seek judicial review of such determination pursuant to article 78 of the Civil Practice Law and Rules by authority of section 97 of the Public Officers Law.

(d) If, on appeal, a record or personal information is corrected or amended, the data subject shall be informed that, on request, the correction or amendment will be provided to any person or governmental unit to which the record or personal information has been or is disclosed pursuant to paragraph (d), (i), or (1) of subdivision 1 of section 96 of the Public Officers Law.

(e) The department shall immediately forward to the Committee on Open Government a copy of any appeal made pursuant to this Part, upon receipt, the determination thereof and the reasons therefor at the time of such determination.

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Section 339.10 - Statement of disagreement by data subject.

339.10 Statement of disagreement by data subject. (a) If correction or amendment of a record or personal information is denied in whole or in part upon appeal, the determination rendered pursuant to the appeal shall inform the data subject of the right to:

(1) file with the department a statement of reasonable length setting forth the data subject's reasons for disagreement with the determination;

(2) request that such a statement of disagreement be provided to any person or governmental unit to which the record has been or is disclosed pursuant to paragraph (d), (i), or (1) of subdivision 1 of section 96 of the Public Officers Law.

(b) Upon receipt of a statement of disagreement from a data subject, the department shall:

(1) clearly note any portions of the record that are disputed; and

(2) attach the data subject's statement as part of the record.

(c) When providing a data subject's statement of disagreement to a person or governmental unit in conjunction with a disclosure made pursuant to paragraph (d), (i) or (1) of subdivision 1 of section 96 of the Public Officers Law, the department may also include a concise statement of its reasons for not making the requested amendment or correction.

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Section 339.11 - Fees.

339.11 Fees. (a) Unless otherwise prescribed by statute, there shall be no fee charged for:

(1) inspection of records;

(2) search for records; or

(3) any certification pursuant to this Part.

(b) Unless otherwise prescribed by statute or subdivision (c) of this section, copies of records shall be provided:

(1) at a rate of 25 cents per photocopy up to 9 x 14 inches; or

(2) upon payment of the actual cost of reproduction, if the record or personal information cannot be photocopied. The actual cost of reproduction shall be based upon the average unit cost for copying a record, excluding fixed costs of the department, such as operator salaries and overhead.

(c) There shall be no fee for providing copies of records when the data subject is a person applying for or receiving public assistance or care or food stamp assistance.

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Part 340 - PUBLIC ACCESS TO DEPARTMENT RECORDS UNDER FREEDOM OF INFORMATION LAW

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Statutory Authority: 
Social Services Law, Sections 20, 34

Section 340.1 - General.

Section 340.1 General. The department shall use the procedures in this Part in providing public access to information under the Freedom of Information Law (Public Officers Law, sections 84-90).

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Section 340.2 - Definitions.

340.2 Definitions. As used in this section:

(a) Business days means each regular business day of the State of New York, excluding weekends and legal holidays.

(b) Department records means all records produced, filed or first kept or promulgated after September 1, 1974.

(c) Subject-matter list means a reasonably detailed current list, by subject matter, of all department records whether or not available under the Freedom of Information Law.

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Section 340.3 - Records access officer.

340.3 Records access officer. The records access officer, who shall be the departmental public information officer, shall be responsible for providing access to department records in response to requests therefor by any member of the public, to the extent required by the Freedom of Information Law. In carrying out this responsibility, the records access officer shall:

(a) compile and maintain the subject-matter list;

(b) receive requests for identifiable records;

(c) determine whether a request sufficiently identifies a record; and, if not, so notify the person making the request and make reasonable efforts to assist him in identifying the records, if necessary;

(d) if the request is for a record or records contained in files maintained by him, determine whether the requested record is required by law to be made available; and, if so, comply with the request directly, upon payment of any fees required under this Part;

(e) if the request is for a record contained in files maintained by another division or office within the department, determine in consultation with officials of that division or office whether the requested record is required by law to be made available; and, if so, assure that the request is complied with, upon payment of or offer to pay any fees required under this Part;

(f) if the request is denied in whole or in part, provide the person making the request with written notification of that decision and the reasons therefor;

(g) certify, when a record cannot be located, that:

(1) the department is not the legal custodian for such records; or

(2) after diligent search, the record cannot be found;

(h) provide advice and consultation, on request, to records access officers of social services districts with respect to those districts' responsibilities for providing access to records under the Freedom of Information Law; and

(i) maintain a complete and accurate accounting of each request for department records, the persons to whom the request was referred, the responses to the request, and the amount of any fees collected in connection therewith.

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Section 340.4 - Time and place for inspection.

340.4 Time and place for inspection. Requests for public access to records shall be accepted and records made available for inspection and copying between the hours of 8:30 a.m. and 5 p.m., on business days, at 40 North Pearl Street, Albany, NY, or at such other place as is mutually agreeable.

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Section 340.5 - Subject-matter list.

340.5 Subject-matter list. (a) A subject-matter list shall be available for public inspection and copying. The list shall be sufficiently detailed to permit the requester to identify the fine category of the records sought.

(b) The subject-matter list shall be revised and updated not less than semi-annually and the date of the most recent revision shall appear on the first page.

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Section 340.6 - Requests for public access to records; procedure.

340.6 Requests for public access to records; procedure. (a) Manner of making requests.

(1) A request for access to department records may be made by mall, in person or by telephone.

(2) The person making a request for access to records shall, to the best of his ability, supply information regarding dates, titles, file designations, or other information which may help identify the records.

(b) Manner of responding to records. (1) Except under extraordinary circumstances, the records access officer shall transmit a response to a request for records within five business days after his receipt of the request, regardless of the manner in which the request was made. If, because of extraordinary circumstances, more than five business days are required to transmit a response to a request, acknowledgment of receipt of the request shall be transmitted within five business days after the request is received. The acknowledgment shall state the reason for delay and estimate the date when a reply will be made.

(2) A response shall state that the request for access or copies is granted or denied, or that the department is not the legal custodian of the record requested or that the record cannot be found. The response shall be in writing in all cases except where an oral request is granted.

(3) In complying with requests for copies of those records required by law to be made available, the records access officer shall make available upon payment of or offer to pay any fees required under this Part, one copy of the record requested, and, if the person making the request demonstrates good cause for needing additional copies and has no means of reproducing the record, a reasonable number of additional copies. Upon request, the records access officer shall certify that a transcript of a record which cannot be readily

photocopied is a true copy of that record. A photocopy of a record shall be deemed to be a true copy thereof.

(4) Records shall be inspected in the presence of the records access officer, and shall not be removed from the office where they are kept without that officer's permission.

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Section 340.7 - Fees.

340.7 Fees. (a) There shall be a charge of 25 cents per photocopy page for all records which can be photocopied. However, the commissioner in his discretion may waive the collection of such a fee on any request for copies of 10 or less pages.

(b) For a record which cannot be readily photocopied, there shall be a charge equal to the amount of the actual cost of making a transcript thereof.

(c) There shall be no fee charged for inspection of records, search for records, or for any certification under this Part.

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Section 340.8 - Denial of access to records.

340.8 Denial of access to records. (a) Denial of access to records shall be in writing, stating the reason or reasons therefor and advising the person making the request of his right to appeal to the appeals officer, who shall be the departmental general counsel.

(b) Failure to provide records or to acknowledge receipt of a request therefor within the time specified in section 340.6(b) of this Part shall be deemed a denial of access for purposes of section 340.9 of this Part; provided, however, that if the request is acknowledged or the records are provided prior to the time an appeal is initiated, such a failure shall not be deemed a denial.

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Section 340.9 - Appeals.

340.9 Appeals. (a) Any person whose request for department records has been denied may appeal to the appeals officer designated by the State Commissioner of Social Services, who shall decide all appeals from denial of access to records in accordance with the provisions of the Freedom of Information Law.

(b) All appeals shall be in writing, addressed to the appeals officer, and mailed or submitted to him within 3O business days after the receipt of denial of access to the requested records, or within 40 business days after the request is made, if no response to the request has been received. Each such appeal shall contain at least the following information:

(1) the date or dates on which each such record was requested and the manner in which each was made;

(2) the record or records to which access was denied;

(3) whether the denial of access was:

(i) in writing, and if so, the date thereof; or

(ii) by failure to provide records, or to acknowledge receipt of a request therefor within the time specified in section 340.6(b) of this Part; and

(4) the date of the appeal and the name and address of the person making the appeal.

(c) Each appeal made in the manner and within the time specified in subdivision (b) of this section shall be decided by the appeals officer, who shall issue to the person making the appeal a written decision within ten business days of receipt of the appeal. The decision shall either

(1) authorize access to the requested record, or (2) deny access to the record and state the reasons for the denial, or (3) state that the department is not the legal custodian of the requested record, or that after diligent search the record cannot be found.

(d) The appeals officer shall immediately forward to the Committee on Open Government, a copy of each appeal and the determination thereon.

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Section 340.10 - Names, addresses and telephone numbers of department officials.

340.10 Names, addresses and telephone numbers of department officials. The names, business addresses, and telephone numbers of the records access officer, and the appeals officer shall be made available to any person requesting such information by telephone from the department's main office or in writing addressed to the Department of Social Services, 40 North Pearl Street, Albany, NY.

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Section 340.11 - Trade secrets received in conjunction with procurement and

340.11 Trade secrets received in conjunction with procurement and contract monitoring activities. (a) The records access officer of the department shall be responsible for the custody, inspection and study of records actually or potentially containing trade secrets submitted by actual and potential contractual agents of the department, to which access may be denied pursuant to paragraphs (c) and (d) of subdivision 2 of section 87 of the Public Officers Law and for monitoring inquiries relating to trade secrets.

(b) (1) Records believed to contain trade secrets shall be subject to general access only by employees or officials or others acting as agents of the department who need such records in connection with the evaluation of a contract bid proposal issued by the department or performed in conjunction with such contract bid proposal. Records likely to contain trade secrets may also be given to other departmental employees, upon the approval of the records access officer, to the degree necessary for such departmental employees to discharge their duties to the department.

(2) The department or official shall not use the information for any purpose other than evaluating a contract bid submitted to the department except as otherwise specified in the department's procurement of contractual documents or upon approval of the records access officer as set forth in paragraph (1) of this subdivision.

(3) Records containing trade secrets shall be stored in a place reasonably secure from access by unauthorized persons, given the department's operating needs.

(4) The department or official shall instruct all personnel who will have access to the records as to the confidential nature of the records and the requirements of sections 87 and 89 of the Public Officers Law.

(c) This section and subdivision five of section 89 of the Public Officers Law shall apply to submission of information to the department in connection with a contract bid. Notwithstanding the above, the department, as part of a proposal procedure, may require waiver by the vendor of the provisions of subdivision five of section 89 of the Public Officers Law and the publication of any information submitted by the vendor.

(d) Notwithstanding the above, the department shall have the right to disclose all material submitted by a party awarded a contract in a competitive procurement to the degree such material was reviewed as a material portion of the contractor's submission, upon approval by the State Comptroller of the contract governing the procurement.

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Section 340.12 - Severability.

340.12 Severability. If any provision of this Part or the application thereof to any person or circumstance is adjudged invalid by a court of competent jurisdiction, that judgment shall not affect or impair the validity of the other provisions of this Part or the application thereof to other persons and circumstances.

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Part 341 - LOCAL ADVISORY COUNCILS

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Statutory Authority: 
Social Services Law, Sections 20, 34

Section 341.1 - Council structure and function.

Section 341.1 Council structure and function. (a) The social services district shall establish an advisory council in accordance with the requirements of this Part and department guidelines.

(b) The commissioner of the social services district shall appoint the members of the advisory council.

(c) The advisory council shall consist of a minimum of 20 members, subject to such exceptions as the State Commissioner of Social Services may in his discretion permit, and shall be composed of the following classes of persons:

(1) recipients of public assistance (including SSI and food stamps), medical assistance and services-at least 25 percent;

(2) providers of social services, medical services and domiciliary care (other than employees of the State or local departments of social services); and

(3) members of the general public (including but not limited to representatives of professional social work associations, schools of social work, labor organizations, public interest groups, client advocates, community organizations and the business and financial community).

(d) The advisory council shall be involved, in an advisory capacity only, in policy development, program planning and program evaluation carried on by the social services district with respect to public assistance, medical assistance and services.

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Section 341.2 - Administrative requirements.

341.2 Administrative requirements. (a) The commissioner of the social services district shall have administrative responsibility for organization of meetings of the advisory council on a regular basis and for activities associated therewith including preparation of agendas, minutes and reports.

(b) Members of the advisory council shall receive no compensation for their services but the commissioner of the social services district is authorized to reimburse necessary expenses incurred by members of the advisory council in the performance of activities directly related to the functioning of the advisory council under this Part for travel, meals, loss of wages and child care in accordance with department requirements.

(c) Expenditures made by the commissioner of the social services district for administrative activities associated with operation of the advisory council and for reimbursement of approved expenses incurred by members of the advisory council in the performance of permitted activities shall, if approved by the department, be subject to reimbursement by the State at the rate of 50 percent of the amount expended less any Federal financial participation.

(d) The social services district shall submit to the department such reports on the activities of the advisory council as the department may from time to time direct.

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Part 342 - STATE ADVISORY COUNCIL

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Statutory Authority: 
Social Services Law, Sections 20, 34

Section 342.1 - Council function.

Section 342.1 Council function. The State Commissioner of Social Services will appoint a State advisory council to advise him from time to time regarding programs of public assistance and care.

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Section 342.2 - Administrative provisions.

342.2 Administrative provisions. (a) The State Commissioner of Social Services will exercise responsibility for organization of meetings of the State advisory council and for activities associated therewith including preparation of agendas, minutes and reports.

(b) Members of the State advisory council shall receive no compensation for their services but may be reimbursed for necessary expenses incurred by them in the performance of activities directly related to the functioning of the State advisory council for travel, meals, loss of wages and child care in accordance with department requirements.

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Part 343 - HEARING PROCEDURE: RESIDENTIAL CARE PROGRAMS FOR CHILDREN

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Statutory Authority: 
Social Services Law, Sections 20, 34, 460, 461-b

Section 343.1 - Definitions.

Section 343.1 Definitions. (a) Commissioner means the commissioner of the State Department of Social Services.

(b) Department means the State Department of Social Services.

(c) Hearing means the administrative review procedure by which the department determines to take administrative action regarding a residential care program for children pursuant to section 460-d(4), 460-d(5), 460-d(6) or 460-d(8) of the Social Services Law or the administrative procedure by which a determination under section 343.2(b) of this Part is reviewed.

(d) Expedited hearing means the administrative review procedure by which a person, agency or facility is afforded an opportunity to be heard after the department finds, pursuant to section 460-d(8) of the Social Services Law, that the person, agency or facility is causing, engaging in or maintaining a condition or activity which constitutes a danger to the physical or mental health of the residents of a residential care program for children subject to the inspection and supervision of the department and issues an order to discontinue such dangerous condition or activity or take certain action immediately or within a specified period of less than 3O days.

(e) Facility means an establishment providing residential care and services to children which is subject to the inspection and supervision provisions of article 7 of the Social Services Law.

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Section 343.2 - General.

343.2 General. (a) No operating certificate will be revoked, suspended, modified or limited without a hearing held in accordance with the procedures established in this Part, except that an operating certificate may, nevertheless, be temporarily suspended or limited without a hearing for a period not in excess of 30 days upon written notice to the facility following a finding by the department that the public health, or an individual's health, safety or welfare, are in imminent danger.

(b) Upon the denial of an application for an initial operating certificate, or an application for renewal of an operating certificate, the applicant shall have the right to a hearing to review the denial.

(c) The department shall extend the duration of an operating certificate for a temporary period as may be appropriate when the period of validity of an operating certificate terminates during the course of a hearing to revoke, suspend or limit an operating certificate and until the hearing decision is issued. If a hearing is requested to review the denial of an application to renew an operating certificate, the department shall extend the duration of the operating certificate until either the hearing decision is issued, the hearing request is withdrawn or the appellant defaults the hearing.

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Section 343.3 - Notice of hearing.

343.3 Notice of hearing. (a) A notice of hearing for those actions described in section 343.2(a) of this Part shall be served in person or by certified mail addressed to the operator of the facility, at least 30 days prior to the date of the hearing.

(b) A notice of hearing for those actions described in section 343.2(b) of this Part must be served in person or by certified mail addressed to the appellant at least 30 days prior to the date of the hearing.

(c) For a hearing held to revoke, suspend, modify or limit an operating certificate, the notice must specify the time and place of the hearing, the proposed action and the charges which are the basis for the proposed action. The charges must specify the statutes, rules and regulations, or other applicable requirements of law with which the facility failed to comply and must include a brief statement of the facts pertaining to such noncompliance.

(d) For a hearing held to review the denial of an original operating certificate, or the denial of an application to renew an operating certificate, the notice shall specify the time and place of the hearing and the charges which are the basis for the denial. The charges shall specify the statutes, rules and regulations, or other applicable requirements of law upon which the denial was based and shall include a brief statement of the facts pertaining to the denial.

(e) The notice of hearing must also inform the operator of the facility, or the applicant for an initial operating certificate:

(1) of its opportunity to present evidence and argument on issues of fact or law at the hearing;

(2) of its right to be represented by an attorney-at-law or other representative of its choice;

(3) of the method by which adjournments may be requested for good cause; and

(4) that its operating certificate will be extended during the course of a hearing and pending the hearing decision.

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Section 343.4 - Answer.

343.4 Answer. The operator of a facility or the applicant for an operating certificate may file an answer to the allegations contained in a notice of hearing. The answer must be in writing and must be filed with the department not less than five business days prior to the date of hearing.

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Section 343.5 - Expedited hearings, procedure.

343.5 Expedited hearings, procedure. (a) Whenever the commissioner, or his or her designee, after investigation, finds that any person, agency or facility which operates a residential care program for children is causing, engaging in or maintaining a condition or activity which constitutes a danger to the physical or mental health of the residents such residential care program, and that it therefore appears to be prejudicial to the interests of such residents to delay action for 30 days until an opportunity for a hearing can be provided, the commissioner or his or her designee must order the person, agency or facility by written notice, setting forth the basis for such finding, to discontinue such dangerous condition or activity or take certain action immediately or within a specified period of less than 30 days.

(b) The operator of a facility may file an answer to the allegations contained in a notice of hearing. The answer shall be in writing and shall be filed with the department within 10 days after the notice is mailed to the facility.

(c) Either upon receipt of the answer, or upon the expiration of the 10-day period provided for in subdivision (b) of this section, the department shall schedule a hearing to be held in accordance with the procedure in this Part, except that the hearing shall scheduled within 30 days of the issuance of the order as provided for in subdivision (a) of this section.

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Section 343.6 - Joinder.

343.6 Joinder. (a) The department shall have the power to combine into a single proceeding the assessment of civil penalties and the suspension, revocation or limitation of an operating certificate, upon proper notice in accord with the provisions of this Part.

(b) The department shall have the right to join in one proceeding all those respondents if there is asserted against them jointly, severally or in the alternative any violation arising out of the same transaction or occurrence, and if there is any question of law or fact common to all respondents which will arise in the proceeding.

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Section 343.7 - Pleadings, depositions and discovery.

343.7 Pleadings, depositions and discovery. (a) The pleadings in an enforcement action shall consist of the notice of hearing and answer.

(b) Neither formal discovery procedures nor formal procedures for bills of particulars shall apply. However, upon application of a facility, a more definite and detailed statement shall be furnished whenever the hearing officer finds that the statement of charges does not adequately apprise the facility of such charges. Any statement furnished shall be deemed, in all respects, to be part of the original notice of hearing. The hearing officer may grant additional time to respond to the notice of hearing when a motion for a more definite and detailed statement has been granted.

(c) Disclosure of evidence by deposition of a party to the hearing or the officer, director, member, agent or employee of a party, prior to the hearing shall not be permitted, except where the hearing officer determines that special circumstances, as set forth in section 3101(a)(3) of the New York Civil Practice Law and Rules, require the taking of testimony by deposition.

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Section 343.8 - Hearing officer.

343.8 Hearing officer. (a) The hearing must be conducted by a hearing officer who is an attorney employed by the department for that purpose, and has not been involved in any way with the action in question. The hearing officer has all the powers conferred by law and regulations of the department to administer oaths, issue subpoenas, require the attendance of witnesses and the production of records, rule upon requests for adjournment, rule upon objections to the introduction of evidence and to otherwise regulate the hearing, preserve requirements of due process and effectuate the purpose and provisions of applicable law.

(b) A party to a hearing may make a request to a hearing officer that the hearing officer remove himself or herself from presiding at the hearing.

(1) The grounds for removing a hearing officer are that such hearing officer has:

(i) previously dealt in any way with the substance of the matter which is the subject of the hearing except in the capacity of hearing officer; or

(ii) any interest in the matter, financial or otherwise, direct or indirect, which will impair the independent judgment of the hearing officer; or

(iii) displayed bias or partiality to any party to the hearing.

(2) The hearing officer may independently determine to remove himself or herself from presiding at a hearing on the grounds set forth in paragraph (1) of this subdivision.

(3) The request for removal made by a party must:

(i) be made in good faith; and

(ii) be made at the hearing in writing or orally record; and

(iii) describe in detail the grounds for requesting that the hearing officer be removed.

(4) Upon receipt of a request for removal, the hearing officer must determine on the record whether to remove himself or herself from the hearing.

(5) If the hearing officer determines not to remove himself or herself from presiding at the hearing, the hearing officer must advise the party requesting removal that the hearing will continue but the request for removal will automatically be reviewed by the general counsel or the general counsel's designee.

(6) The determination of the hearing officer not to remove himself or herself will be reviewed by the general counsel or the general counsel's designee. Such review will include review of written documents submitted by the parties and the transcript of the hearing.

(7) The general counsel or the general counsel's designee must issue a written determination of whether the hearing officer should be removed from presiding at the hearing within 15 business days of the close of the hearing.

(8) The written determination of the general counsel or the general counsel's designee will be made part of the record.

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Section 343.9 - Who may be present at hearing; authorization of representative.

343.9 Who may be present at hearing; authorization of representative.

(a) The respondent operator of a facility, its representative or representatives, counsel or other representatives of the department, witnesses of both parties and any person who may be called by the hearing officer may be present at the hearing, together with such other persons as may be admitted by the hearing officer in his or her discretion. Upon his or her own motion, or upon the motion of either party, the hearing officer may exclude potential witnesses and those who have given prior testimony from the hearing during the testimony of other witnesses.

(b) An individual, other than an attorney, representing a facility shall have an appropriate written authorization signed by the proprietor of the facility or by an officer, member or director of an operator of a facility when the operator is not a natural person.

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Section 343.10 - Conduct of hearing-rights of parties.

343.10 Conduct of hearing-rights of parties. (a) The hearing officer shall preside and shall make all procedural rulings. He shall make an opening statement describing the nature of the proceedings, the issues and the manner in which the hearing will be conducted.

(b) The rules of evidence as applied in a court of law shall not apply, except that privileges recognized by law will be given effect. The hearing officer may exclude testimony or other evidence which is irrelevant or unduly repetitious.

(c) All testimony shall be given under oath or affirmation.

(d) The facility shall be entitled to be represented by an attorneyat-law or other representative of its choice, to have witnesses give testimony and to otherwise present relevant and material evidence in its behalf, to cross-examine witnesses and to examine any document or item offered into evidence.

(e) The hearing shall be recorded verbatim. On request made upon the department by any party to a hearing, within a reasonable time after hearing, the department shall prepare the record together with any transcript of proceedings and shall furnish a copy of the record and transcript or any part thereof to any party as requested. The department is authorized to charge not more than its cost for the preparation and/or the rate specified in contract between the department and a contractor if the transcript is prepared by a private contractor.

(f) The hearing may be adjourned only for good cause by the hearing officer on his own motion or at the request of either party.

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Section 343.11 - The record.

343.11 The record. (a) The record shall include:

(1) all notices, pleadings and intermediate rulings;

(2) the transcript or recording of the hearing;

(3) exhibits received into evidence;

(4) matters officially noticed;

(5) questions and offers of proof, objections thereto and rulings thereon;

(6) proposed findings and exceptions, if any;

(7) any report rendered by the hearing officer; and

(8) any request for disqualification of a hearing officer.

(b) After the hearing has been concluded, the hearing officer shall submit a report containing findings of fact and conclusions of law and a recommended decision. Findings of fact shall be based exclusively on the record of the hearing.

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Section 343.12 - Examination of the record after hearing.

343.12 Examination of the record after hearing. Upon reasonable notice to the department, the record of the hearing may be examined by any party to the hearing at the department's offices during regular business hours.

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Section 343.13 - Decision after hearing.

343.13 Decision after hearing. (a) The hearing decision shall be made and issued by the commissioner or by a member of his or her staff designated by him or her to consider and make such decisions and shall be based exclusively on the record of the hearing. The decision shall be in writing and shall describe the issues, recite the relevant facts, the pertinent provisions of law and department regulations, make appropriate findings, determine the issues, state reasons for the determination and, when appropriate, direct specific action.

(b) A copy of such decision shall be mailed to the operator of the facility and to its attorney or other designated hearing representative.

(c) In the event the decision is adverse to the operator of the facility, the copy of decision shall be sent together with a notice of the right to judicial review in accordance with the provisions of article 78 of the Civil Practice Law and Rules.

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Part 344 - INCOME WITHHOLDING FOR PERSONS NOT SERVED BY THE TITLE IV-D CHILD SUPPORT ENFORCEMENT PROGRAM - OCFS

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies please contact: www.dos.ny.gov
PART 344

INCOME WITHHOLDING FOR PERSONS NOT SERVED BY THE

TITLE IV-D CHILD SUPPORT ENFORCEMENT PROGRAM

(Statutory authority: Social Services Law
Sections 20, 34, 111-a, 111-b; ch. 170, L.1994)
Sec.
344.1 Purpose
344.2 Duties of the department
344.3 Other requirements
344.4 Employer responsibilities

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Part 345 - TAX REFUND OFFSET FOR PERSONS NOT SERVED BY THE STATE CHILD SUPPORT ENFORCEMENT PROGRAM - OCFS

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies please contact: www.dos.ny.gov
PART 345

TAX REFUND OFFSET FOR PERSONS NOT SERVED BY THE
STATE CHILD SUPPORT ENFORCEMENT PROGRAM

(Statutory authority: Social Services Law, Sections 111-m, 111-n)
Sec.
345.1 Purpose and scope
345.2 Definitions
345.3 Establishment of procedures
345.4 Application requirements
345.5 Notification to applicants
345.6 Notice to respondent
345.7 Distribution of tax refund offsets

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Part 346 - SUPPORT COLLECTION - OCFS

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies please contact: www.dos.ny.gov
PART 346

SUPPORT COLLECTION

(Statutory authority: Social Services Law, Sections 20, 34, 111-a, 111-h;
Section 34 of chapter 59 of the laws of 1993)
Sec.
346.1 Local district support collection unit
346.2 Application for services
346.3 Statement of respondent
346.4 Purchase of service agreements
346.5 Bonds
346.6 Unclaimed funds
346.7 Separation of functions
346.8 Means of payment
346.9 Tax refund offset process
346.10 Interception of lottery prizes
346.11 Article 52 Executions.
346.12 Suspension of driving privileges.

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Part 347 - ESTABLISHMENT OF PATERNITY AND ENFORCEMENT OF CHILD SUPPORT - OCFS

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies please contact: www.dos.ny.gov
PART 347

ESTABLISHMENT OF PATERNITY AND ENFORCEMENT
OF CHILD SUPPORT

(Statutory authority: Social Services Law, Sections 20, 34, 111-a)
Sec.
347.1 State office of child support enforcement
347.2 Definitions
347.3 Local district child support enforcement unit
347.4 Cooperative agreements and purchase of service agreements
347.5 Claims of good cause for refusal to cooperate
347.6 Establishment of paternity
347.7 Location of absent parents and putative fathers
347.8 Establishment of support obligations
347.9 Enforcement of support obligations and issuance of income
executions
347.10 Statewide child support standards
347.11 Cooperation with other states and social services districts
347.12 Reassessment of eligibility for assistance after receipt of
support payments
347.13 Distribution of child support payments
347.14 Reimbursement to local districts
347.15 Reimbursement to the State
347.16 Federal incentive payments
347.17 Child support services available to individuals not otherwise
eligible
347.18 Records and reports
347.19 Confidentiality of information
347.20 Title of proceedings
347.21 Allocation of statewide goal by commissioner
347.22 Failure to meet the collections goal
347.23 Request for redetermination
* 347.26 Review and adjustment of child support orders
* NB Effective until 95/10/20

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Part 348 - REQUIREMENTS APPLICABLE TO FRAUD CASES

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Statutory Authority: 
Social Services Law, Sections 20, 34

Section 348.1 - Fraud defined.

Section 348.1 Fraud defined. For the purposes of section 145 of the Social Services Law and the regulations herein, fraud shall be deemed to exist when a person knowingly obtains, or attempts to obtain, or aids or abets another person to obtain, public assistance or care to which he is not entitled by means of a false statement, deliberate concealment of a material fact or other dishonest act.

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Section 348.2 - Required district procedure.

348.2 Required district procedure. Each social services district shall take these measures designed to prevent, detect and report fraud:

(a) Establish and maintain clear and adequate policies, procedures and controls in order to effectively handle cases of suspected fraud in the administration of public assistance and care.

(b) Make an agreement with the appropriate district attorney or other prosecuting official establishing the procedures for referral to such official of all cases wherein reasonable grounds exist to believe that fraud was committed.

(c) File with the department a copy or a statement of the agreement with the prosecuting official.

(d) Designate a person, either of administrative or supervisory responsibility or in a consultative capacity to the local district such as a welfare attorney, or establish a unit which shall consist of persons of similar responsibility, to which all cases of known or suspected fraud shall be referred, to perform the following functions:

(1) review district material referred, including any that may be legal evidence;

(2) determine whether that material indicates that reasonable grounds exist to believe that fraud was committed by the applicant or recipient and/or others;

(3) in cases of suspected fraud, when the material referred and reviewed does not indicate that reasonable grounds exist to believe that fraud was committed, but when such material is insufficient to erase suspicion of fraud, decide whether further investigation may produce evidence necessary to determine that reasonable grounds exist or erase the suspicion, and conduct the investigation;

(4) determine the existence of any mitigating facts or circumstances;

(5) promptly refer to the appropriate district attorney or other prosecuting official all cases wherein reasonable grounds exist to believe that fraud was committed, in accordance with such procedures as may be developed locally between the social services official and district attorney or other prosecuting official, which procedures may, to avoid duplication of referrals, merely require the social services department to identify cases already referred to the district attorney by the inspector general with the knowledge of that office and to transmit to the district attorney on a continuing basis, all material pertinent to the prosecution of such cases which may supplement the material already transmitted by the inspector general. Any existing mitigating facts or circumstances known to the department shall be included in the referral;

(6) maintain liaison with such appropriate district attorney or other prosecuting official and endeavor to secure reports of actions taken with respect to cases referred;

(7) promptly advise the appropriate district attorney or other prosecuting official whenever restitution, or arrangements for restitution of fraudulently received public assistance funds has been made, or is being made.

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Section 348.3 - Investigations of fraud.

348.3 Investigations of fraud. Investigations of fraud shall be promptly made, but shall be conducted by lawful means only, without infringing upon the civil rights of individuals. Under no circumstances, shall force, threat of force or false statements be used to obtain entry into a household or to obtain evidence of any nature.

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Section 348.4 - Recovery of assistance wrongfully obtained by an applicant or

348.4 Recovery of assistance wrongfully obtained by an applicant or recipient. In a case of suspected fraud which was or should have been referred by a local social services department to a district attorney or other prosecuting official pursuant to the provisions of the regulations of this department, and in which case there is evidence, in the judgment of the social services official of such local department, which clearly establishes that the applicant or recipient of public assistance and care willfully withheld from such local social services department at the time of his application for public assistance and care, or any time thereafter, information about his income or resources, and as a result of withholding such information from the local social services department, the applicant or recipient has received grants, of public assistance, or care at public expense to which he was not entitled in whole or part, the social services official shall recover the amount of the public assistance granted or the cost of care provided to the applicant or recipient to which he was not entitled in accordance with subdivision

(d) of section 352.31 of this Title.

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Section 348.5 - Records required to be maintained.

348.5 Records required to be maintained. Each local social services department shall keep a record of all cases referred to the designated person or unit for review, which record shall include:

(a) the names, case number and other identifying information;

(b) a brief description of the facts constituting the grounds for suspecting fraud;

(c) the estimated amount of overpayment;

(d) the duration of such overpayment;

(e) whether the case was referred to the appropriate district attorney or other prosecuting official:

(1) if a case is not referred, the reasons for such action shall be stated;

(2) if a case is referred, the record shall include:

(i) date of such referral;

(ii) disposition of such referral; and

(iii) the amount of any sum of money recovered.

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Section 348.6 - Reports to department.

348.6 Reports to department. Each local social services department shall report to the State Department of Social Services such information as the latter may require.

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Section 348.7 - Front end detection system (FEDS).

348.7 Front end detection system (FEDS).

(a) Each social services district must take actions to ensure the integrity of the public assistance (PA) caseload and the correctness of PA eligibility determinations and establish procedures to identify and refer for investigation potential cases of fraud, misrepresentation or questionable documentation prior to determining applicants' eligibility for PA.

(b) The procedures established by each district must not delay the determination of eligibility for PA or the provision of emergency assistance beyond the timeframes established in this Title.

(c) Each social services district must submit a plan to the department for approval, describing the procedures required by subdivision (a) of this section, in such form and at such times as the department may require. The plan must include, but need not be limited to:

(1) a description of the circumstances under which referral to the FEDS investigative unit will be made.

(i) The referral indicators must include the following circumstances:

(a) where the applicant states that the household's stated expenses exceed the stated income or the current grant without a reasonable explanation of how the applicant met those expenses;

(b) where the applicant states that the ability to meet the household's expenses in the past was the result of receiving income which was not declared to the appropriate tax authorities;

(c) where the applicant states that the ability to meet the household's expenses in the past was the result of loans or gifts received from family or friends;

(d) where the application contains information about the applicant which is inconsistent with prior case information maintained by the district; and

(e) where the applicant has a history of previous denials of applications for assistance, case closings, or overpayments or recoupments which resulted from investigations by a social services district.

(ii) The referral indicators also may include specific circumstances relating to the income/resources, residence and identity of the applicant as follows:

(a) where the applicant is self-employed but does not have adequate business records to support assertions about the applicant's finances made in the application;

(b) where the applicant has no documentation to verify his or her identity or the documentation of identity provided is questionable;

(c) where the applicant is an alien, has no documentation to substantiate his or her immigration status or the documentation of immigration status is questionable;

(d) where the applicant provides documentation or information which is inconsistent with the information contained in the application, such as when a different name is used for a signature or when an invalid social security number is used;

(e) where a post office box is used as a mailing address without a reasonable explanation;

(f) where the applicant's landlord does not verify the household's composition or provides information inconsistent with the information contained in the application;

(g) where the applicant is the primary tenant but has no utility bills in his or her name;

(h) where the application states that there are children in the household under the age of six and no birth certificates for the children are provided;

(i) where the applicant provides no information concerning an absent parent or the information provided is inconsistent with information contained in the application; or

(j) where the applicant is unsure of his or her own address.

(2) procedures to be used by income maintenance eligibility determination personnel and the FEDS investigators for receiving, monitoring and investigating referrals;

(3) timeframes within which the FEDS investigative unit must report the results of its investigation to the eligibility determination personnel; and

(4) a designation of the social services district's contact person responsible for FEDS and for the submission of FEDS reports requested by the Department from time to time.

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