VOLUME A (Title 18)

Chapter I - Rules of the Board of Social Welfare - OTDA

This part is NOT maintained by the Department of Health. The following may not be current. For information and/or copies please contact:

Office of Temporary & Disability Assistance
40 North Pearl Street
Albany, New York 12243
(518) 473-1090

Doc Status: 
Complete

SubChapter D - General Provisions - OTDA

This part is NOT maintained by the Department of Health. The following may not be current. For information and/or copies please contact:

Office of Temporary & Disability Assistance
40 North Pearl Street
Albany, New York 12243
(518) 473-1090

Doc Status: 
Complete

Part 225 - DEFINITIONS AND APPLICABILITY - OTDA

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:

Office of Temporary & Disability Assistance
40 North Pearl Street
Albany, New York 12243
(518) 473-1090
PART 225

DEFINITIONS AND APPLICABILITY

(Statutory authority: Constitution, Art. XVII, Section 2;

Executive Law, Sections 747, 750)
Sec.
225.1 Definitions
225.2 Action by board
225.3 Applicability of rules

Doc Status: 
Complete

Part 226 - PUBLIC ACCESS TO BOARD RECORDS - OTDA

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:

Office of Temporary & Disability Assistance
40 North Pearl Street
Albany, New York 12243
(518) 473-1090

PUBLIC ACCESS TO BOARD RECORDS
(Statutory authority: Constitution, Art. XVII, Section 2; Executive Law, Section 747, subd. 12 (b))

Sec.
226.1 Purpose and scope
226.2 Records access officer
226.3 (Repealed)
226.4 Location of records
226.5 Time for public inspection
226.6 General terms and conditions
226.7 Subject matter list
226.8 Fees
226.9 Denial of access to records; appeals
226.10 Public notice

 

Doc Status: 
Complete
Statutory Authority: 
Constitution, Art. XVII, Section 2; Executive Law, Section 747, subd. 12 (b)

Chapter II - Regulations of the Department of Social Services

CHAPTER II

Regulations of the Department of Social Services
PART

VOLUME A
Subchapter A General Welfare 300
Subchapter B Public Assistance 349

VOLUME B
Subchapter C Social Services 400
Subchapter D Adult-Care Facilities 485

VOLUME C
Subchapter E Medical Care 500
Subchapter F Finance; Claims for Reimbursement by Social Services

Districts 575
Subchapter G Statistics 650
Subchapter H Personnel 674
Subchapter I Acquisition of Real Property for Department Purposes 700
Subchapter J Commission for the Visually Handicapped 725
Subchapter K Standards for Office Space and Facilities 750
Subchapter L Homeless Housing and Assistance Program 800

Doc Status: 
Complete

SubChapter A - General Welfare

Doc Status: 
Complete

Article 1 - Program and organization

Doc Status: 
Complete

Part 300 - LOCAL WELFARE ADMINISTRATION - OTDA/DOL

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: Office of Temporary & Disability Assistance 40 North Pearl Street Albany, New York 12243 (518) 473-1090 OR NYS Department of Labor Counsel’s Office State Campus, Building 12 Albany, NY 12240 (518) 457-7069
PART 300

LOCAL WELFARE ADMINISTRATION

(Statutory authority: Social Services Law, Section 20, 34, 8O, 110-a,
355, 363-a; L. 1971, ch. 110, Section 53)
Sec.
300.1 Deputation to act as authorizing official
300.2 Reports of district organization and operation
300.3 Recording and internal distribution of official releases
300.5 Availability of program manuals and public issuances
300.6 Review by the State commissioner of local rules, regulations and
procedures
300.7 Coordination of services by the social services district
300.8 Local social services cooperation with department
300.9 Local flexibility incentive pilot program
300.10 Legal services on a fee-for-service
300.11 Research and demonstration projects
300.12 REPEALED

Doc Status: 
Complete

Part 301 - ADMINISTRATION OF VETERAN ASSISTANCE AND FEDERAL PROGRAMS BY VETERAN ASSISTANCE DIVISIONS OR BUREAUS OF SOCIAL SERVICES DEPARTMENTS - DVA

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: NYS Division of Veteran’s Affairs Counsel’s Office Corning Tower, Suite 2836 Empire State Plaza Albany, NY 12223 (518) 474-6114
PART 301

ADMINISTRATION OF VETERAN ASSISTANCE AND FEDERAL PROGRAMS BY VETERAN ASSISTANCE DIVISIONS OR
BUREAUS OF SOCIAL SERVICES DEPARTMENTS

(Statutory authority: Social Services Law, Sections 20, 34)
Sec.
301.1 Administration of other social services programs by veteran
assistance divisions
301.2 Definitions and conditions of eligibility for veteran assistance
301.3 Veterans and nonveterans in same household; determination of
initial and continuing responsibility
301.4 Care of war veterans and members of their families in public homes
301.5 Assistance to veterans

Doc Status: 
Complete

Part 302 - SUBMISSION AND PAYMENT OF BILLS - OTDA

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:

Office of Temporary & Disability Assistance
40 North Pearl Street
Albany, New York 12243
(518) 473-1090

PART 302 SUBMISSION AND PAYMENT OF BILLS

(Statutory authority: Constitution, art. XVII, Section 2; Social Services Law, Section 17, 20, 34, 138, 141, 153, 363-a, 409; L. 1971, ch. 110, Section 83)

Sec.

302.1 Submission of bills to social services districts for services and supplies furnished to recipients of public assistance and payment thereof 302.2 Submission of bills to social services districts for services and supplies furnished to them and payment thereof

Doc Status: 
Complete

Part 303 - PROHIBITIONS AGAINST DISCRIMINATION

Doc Status: 
Complete
Statutory Authority: 
Constitution, Art. XVII, Section 2; Social Services Law, SectionSection 17, 20, 34; L. 1971, ch. 110, Section 83

Section 303.1 - Social services district policy.

Section 303.1 Social services district policy. (a) No social services district or official shall establish or apply any policy or practice which would have the effect of discriminating against an individual because of race, color, national origin, age, sex, religion or handicap. This prohibition shall apply to all aid, care, services, benefits or privileges provided directly, or indirectly by other agencies, organizations or institutions participating under contractual or other arrangements.

(b) In the provision of public assistance, child welfare services, other care and services, no social services district or any member of its staff shall, on the basis of race, color, national origin, age, sex, religion or handicap:

(1) deny an individual any aid, care, services, other benefits or privileges provided by the district;

(2) provide any aid, care, services, other benefits or privileges to an individual which are different, or are provided in a different manner, from that provided to others;

(3) subject an individual to segregation or separate treatment in any matter related to his receipt of any aid, care, services, other benefits or privileges;

(4) restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any aid, care, services, other benefits or privileges;

(5) treat an individual differently from others in determining whether he satisfies any eligibility or other requirement or condition which individuals must meet in order to receive any aid, care, services, other benefits or privileges;

(6) deny any individual an opportunity to participate in a program through the provision of services or otherwise or afford him an opportunity to do so which is different from that afforded others under the program (including the opportunity to participate in the program as an employee where the primary objective of the program is to provide employment, including a program under which the employment is provided to reduce unemployment);

(7) make distinction in relation to use of physical facilities, intake and application procedures, caseload assignments, determination of the amount and type of aid, care, services and other benefits under the program and use thereof.

(c) No social services district or official shall establish any employment policy or practice which would have the effect of discriminating against an individual because of race, color, national origin, age, sex, religion or handicap.

 

Doc Status: 
Complete

Section 303.2 - Utilization of other organizations.

303.2 Utilization of other organizations. No social services district shall utilize, purchase or otherwise obtain assistance, care or services from any organization, institution or facility which discriminates on the basis of race, color, national origin, age, sex, religion or handicap, as set forth in section 303.1 of this Part or otherwise, nor shall it participate in any program that so discriminates.

Doc Status: 
Complete

Section 303.3 - Participants in community work and training programs.

303.3 Participants in community work and training programs. In the operation of community work and training programs and in its participation in any program under the Economic Opportunity Act, no social services district shall permit any discrimination on the basis of race, color, national origin, age, sex, religion or handicap, in the selection of participants for the program, assignment or reassignment to projects, promotions, demotions, rates and form of compensation, separate use of facilities or other treatment of participants.

Doc Status: 
Complete

Section 303.4 - Volunteers and other nonemployees of social services districts.

303.4 Volunteers and other nonemployees of social services districts. No social services district shall permit discrimination on the basis of race, color, national origin, age, sex, religion or handicap, in any program of public assistance, care or service by a nonemployee, such as a volunteer, consultant, observer, trainee, participant in an institute or member of an advisory group.

Doc Status: 
Complete

Section 303.5 - Compliance with Civil Rights Act of 1964 (as amended in 1972)

303.5 Compliance with Civil Rights Act of 1964 (as amended in 1972) and Rehabilitation Act of 1973. Applicants for or recipients of public assistance and care may not be placed in or referred to a public, private nonprofit or private proprietary facility which discriminates on the basis of race, color, national origin, age, sex, religion or handicap contrary to the requirements of titles VI and VII of the Civil Rights Act of 1964, the Rehabilitation Act of 1973, or violates either section 40 of the Civil Rights Law of the State of New York or section 296 of the Executive Law of the State of New York, nor may services be provided which would be supportive of such facility or vendor payments made thereto.

Doc Status: 
Complete

Section 303.6 - Protection of recipients from unlawful discrimination.

303.6 Protection of recipients from unlawful discrimination. (a) When a social services official or any member of his staff reports instances of discrimination against a recipient of public assistance and care based on age and employment, or race, color, national origin, age, sex, religion or handicap in the fields of employment, housing or public accommodation, which comes to his attention, he shall use the prescribed form.

(b) There shall be displayed in each local social services department and in each of its branch offices an informational poster of the State Commission for Human Rights. Staff of each local department shall be informed of their responsibilities to report instances of discrimination to the Commission for Human Rights.

Doc Status: 
Complete

Section 303.7 - Persons with AIDS or infected with HIV.

303.7 Persons with AIDS or infected with HIV. For purposes of this Part, the term handicap includes being diagnosed as having AIDS, testing positive for HIV infection, or being perceived as susceptible to AIDS or HIV infection. Such persons must be protected from discrimination in accordance with all applicable provisions of this Part.

Doc Status: 
Complete

Article 2 - Liability for Payment

ARTICLE 2
Liability for Payment
PART
310 State Charges
311 Change of Residence
312 (Reserved)
313 Mental Hygiene

Doc Status: 
Complete

Part 311 - CHANGE OF RESIDENCE - OTDA

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:

Office of Temporary & Disability Assistance

40 North Pearl Street

Albany, New York 12243

(518) 473-1090

PART 311 CHANGE OF RESIDENCE (Statutory authority: Social Services Law, Sections 20, 34, 62)

Sec. 311.1 Assistance, care and services to recipients of grants from other
States 311.2 New York State recipients who are temporarily absent from the district of administration 311.3 New York State recipients who change residence 311.4 Continuing responsibility of district of former residence

Doc Status: 
Complete

Part 313 - MENTAL HYGIENE - OMH

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: Office of Mental Health 44 Holland Avenue Albany, NY 12229 (518) 473-6945
PART 313

MENTAL HYGIENE

(Statutory authority: Social Services Law,
Sections 20, 34, 62, 131, 153 (1) (h) Mental Hygiene Law, Sections 9.47, 29.17) Sec.
313.1 General policy
313.2 Service responsibility for State-charge cases
313.3 Confidentiality

Doc Status: 
Complete

Article 3 - Office Management

Doc Status: 
Complete

Part 320 - LOCAL EQUIVALENT FORMS - OTDA & 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 320

LOCAL EQUIVALENT FORMS

(Statutory authority: Social Services Law, Sections 20, 34)
Sec.
320.1 Required forms supplied by the department
320.2 Required forms not supplied by the department
320.3 Recommended forms
320.4 Revision of required forms by the department
320.5 Withdrawal of approval or other changes

Doc Status: 
Complete

Article 4 - Audits and Reviews

Doc Status: 
Complete

Part 325 - SURVEY OF PUBLIC ASSISTANCE - OTDA

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: Office of Temporary & Disability Assistance 40 North Pearl Street Albany, New York 12243 (518) 473-1090
PART 325

SURVEY OF PUBLIC ASSISTANCE

(Statutory authority: Social Services Law, Sections 20, 34)
Sec.
325.1 Eligibility survey definition
325.2 Eligibility survey deductions

Doc Status: 
Complete

Part 326 - QUALITY CONTROL - OTDA

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:

Office of Temporary & Disability Assistance
40 North Pearl Street
Albany, New York 12243
(518) 473-1090

PART 326 QUALITY CONTROL (Statutory authority: Social Services Law, Sections 20, 34, 95, 358, 363-a)

Sec. 326.1 Basis of requirements 326.2 Selection of cases 326.3 Review of case records

Doc Status: 
Complete

Article 5 - Miscellaneous

Doc Status: 
Complete

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

Doc Status: 
Complete
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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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

Doc Status: 
Complete
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).

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

Part 341 - LOCAL ADVISORY COUNCILS

Doc Status: 
Complete
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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

Part 342 - STATE ADVISORY COUNCIL

Doc Status: 
Complete
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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

Part 343 - HEARING PROCEDURE: RESIDENTIAL CARE PROGRAMS FOR CHILDREN

Doc Status: 
Complete
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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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

Doc Status: 
Complete

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

Doc Status: 
Complete

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.

Doc Status: 
Complete

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

Doc Status: 
Complete

Part 348 - REQUIREMENTS APPLICABLE TO FRAUD CASES

Doc Status: 
Complete
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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

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.

Doc Status: 
Complete

SubChapter B - Public Assistance

Doc Status: 
Complete

Article 1 - Determination of Eligibility--General

Doc Status: 
Complete

Part 349 - GENERAL PROVISIONS

Doc Status: 
Complete
Statutory Authority: 
Social Services Law, Sections 20, 29, 34, 131, 131-k, 355

Section 349.1 - Assistance to Cuban refugees.

Section 349.1 Assistance to Cuban refugees. All provisions applicable generally to the public assistance programs shall be applicable to the Cuban refugee program. In addition, assistance under this program shall be granted only to eligible Cuban refugees as defined by Federal regulations.

Doc Status: 
Complete

Section 349.2 - Assistance for United States citizens returned from foreign

349.2 Assistance for United States citizens returned from foreign countries. All provisions applicable generally to the public assistance programs shall be applicable to the program of assistance for United States citizens returned from foreign countries.

Doc Status: 
Complete

Section 349.3 - Citizenship and Alien Status.

349.3 Citizenship and Alien Status.

(a) Definitions.

(1) a "qualified alien" is:

(i) a refugee admitted under Section 207 of the Immigration and Nationality Act;

(ii) an asylee granted asylum under Section 208 of the Immigration and Nationality Act;

(iii) a person whose deportation was withheld under Section 241(b) or 243(h) of the Immigration and Nationality Act;

(iv) a Cuban and Haitian entrant (as defined in section 501 (e) of the Refugee Education Assistance Act of 1980);

(v) an alien admitted into the United States as an Amerasian immigrant as described in Section 402(a)(2)(A)(i)(V) of the Personal Responsibility and Work Opportunity Act of 1996 (8 U.S.C. 1612(a)(2)(A));

(vi) a person lawfully admitted for permanent residence in the United States;

(vii) a person paroled into the United States under Section 212(d)(5) of the Immigration and Nationality Act for a period of at least one year;

(viii) a person granted conditional entry into the United States under Section 203(a)(7) of the Immigration and Nationality Act; and

(ix) a battered spouse and dependents meeting the criteria of Section 431(c) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.

(2) A "specially qualified alien" is:

(i) a refugee admitted under Section 207 of the Immigration and Nationality Act, for a period of five years from the date the person was admitted into the United States as a refugee;

(ii) an asylee granted status under Section 208 of the Immigration and Nationality Act, for a period of five years from the date that the asylee was granted status;

(iii) a person for whom deportation was withheld under Section 241(b) or 243(h) of the Immigration and Nationality Act, for a period of five years from the date that the deportation was withheld;

(iv) a Cuban and Haitian entrant (as defined in Section 501(e) of the Refugee Education Assistance Act of 1980) for a period of five years from the date such status was granted;

(v) an alien admitted into the United States as an Amerasian immigrant as described in Section 402 (a)(2)(A)(i)(V) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1612(a)(2)(A)) for a period of five years from the date the person was admitted into the United States;

(vi) a person lawfully admitted for permanent residence into the United States who has worked for 40 quarters as defined under Title II of the federal Social Security Act, or can be credited with such qualifying quarters exclusive of any quarter after December 31, 1996, in which such person received any federal means tested assistance, whose entry into the United States was at least five years earlier or who entered the United States prior to August 22, 1996; and

(vii) any qualified alien who is on active duty, other than duty for training, in the United States Armed Forces or who has received a discharge characterized as honorable and not on account of alienage, or the spouse or unmarried dependent child of any such alien who is also a qualified alien.

(b) Eligibility requirements.

(1) No person except a citizen or a specially qualified alien is eligible for the federal food stamp program, family assistance, safety net assistance, or services funded under Title XX of the federal social security act except as follows:

(i) A qualified alien who is not a specially qualified alien, who was a lawful resident of the United States before August 22, 1996, or who was a lawful resident of the United States on or after August 22, 1996, for five or more years is, if otherwise eligible, eligible for family assistance, safety net assistance, services pursuant to Title XX of the federal social security act but is ineligible for the federal food stamp program.

(ii) A qualified alien, who is not a specially qualified alien, who entered the United States on or after August 22, 1996, but who was a legal resident of the United States for less than five years is, if otherwise eligible, eligible for safety net assistance but is ineligible for family assistance and the federal food stamp program.

(iii) An alien whose status is not within the meaning of the term qualified alien but who is otherwise permanently residing in the United States under color of law; as such term was used on August 21, 1996, by the federal Administration for Children and Families is, if otherwise eligible, eligible for safety net assistance.

(iv) A person paroled into the United States under Section 212(d)(5) of the Immigration and Nationality Act for a period of less than one year is, if otherwise eligible, eligible to receive any State or local non-federal assistance provided under this section on the same terms as such programs are available to persons who are qualified aliens.

(v) Nothing herein precludes the receipt by an alien of community based non-cash assistance in accordance with the directions of the United States Attorney General.

(vi) Any alien, including an alien who is not a qualified A alien, is eligible for adult protective services and services and assistance relating to child protection to the extent that such person is otherwise eligible pursuant to the regulations of the Office of Temporary and Disability Assistance and the Office of Children and Family Services of the Department.

(2) An alien is eligible for additional state payments for aged, blind and disabled persons under social services law only to the extent that such person is not ineligible for federal SSI benefits due to alien status.

(3) (i) Any applicant or recipient who has been determined to be ineligible for family assistance, or safety net assistance because he or she is an alien unlawfully residing in the United States or because he or she failed to furnish evidence that he or she is lawfully residing in the United States must be immediately referred to the United States Immigration and Naturalization Service, or the nearest consulate of the country of the applicant or the recipient for such service or consulate to take appropriate action or furnish assistance.

(ii) Each social services district must report to the Office of Temporary and Disability Assistance, the name and address and other identifying information known to it with respect to any alien known to be unlawfully in the United State in the manner prescribed by such office.

 

Doc Status: 
Complete

Section 349.4 - Temporary absence.

349.4 Temporary absence. (Additional statutory authority: Social Services Law, Sections 20, 34, 320; L. 1971, ch. 110, Section 83) (a) Federally aided programs other than MA.

(1) Definition of temporary absence. For the purpose of administration of the federally aided programs, except the program of medical assistance, temporary absence shall mean any absence from the district administering the grant, during which the recipient:

(i) does not leave the United States;

(ii) does not evidence intent to establish residence elsewhere; and

(iii) complies with this subdivision and other provisions of this Title.

(2) Continuation of grant during temporary absence. The social services district's decision to continue a grant during temporary absence as defined in paragraph (1) of this subdivision shall be based upon consideration of the following factors:

(i) General requirements. (a) Evidence of intent to return to the district of administration when the purposes of his absence have been accomplished. If such temporary absence extends beyond a six-month period, the absent person shall submit affirmative evidence satisfactory to the district of administration of his continuing intention to return to the district, and that he is prevented from returning to the district because of illness or other good cause. If a recipient fails to comply with this requirement, he shall be deemed ineligible for a continuance of his grant.

(b) Continuing financial need for a grant in the same or a different amount.

(c) Continuing contact with the recipient by the district through correspondence or through use of the services of another social services agency located within or without the State.

(ii) Additional requirements. In addition to subparagraph (i) of this paragraph, the social services district shall consider the following factors when making a determination to continue a grant in the Aid to Dependent Children program. Evidence that the status of the parents has not changed so as to constitute ineligibility, that the child or minor continues to live with the parent or other specified relative, and that the welfare of the child or minor continues to be safeguarded, shall be obtained. Reconsideration of the welfare of the child or minor shall be made within 30 days of the date the agency is informed of the temporary absence, and thereafter at least once in three months.

(3) Nothing in this subdivision shall limit the continuing responsibility of a social services district for payment of costs of care provided in another social services district in New York State.

(b) Medical assistance. An individual who dwells in the State and who intends to continue to dwell in the State shall be deemed to be a resident of the State without regard to his length of residence therein. At the time an individual incurs the need for medical care, he shall be deemed to be temporarily absent, within or without the State, from the public welfare district in which he dwells if, prior to such absence, he was affirmatively dwelling in such public welfare district, has evidenced intent to return there and there is lack of affirmative evidence of his intent to establish permanent residence elsewhere.

 

Doc Status: 
Complete

Section 349.5 - Emancipated minor.

349.5 Emancipated minor. (Additional statutory authority: Social Services Law, Sections 20, 34, 320; L. 1971, ch. 110, Section 83) (a) A grant of public assistance or care may be made to an emancipated minor in his own right if he is otherwise eligible, For this purpose, emancipated minor means a person over 16 years of age who has completed his compulsory education, who is living separate and apart from his family and is not in receipt of or in need of foster care.

(b) This section shall not prevent the department from promulgating regulations authorizing direct grants of assistance to be made to minors under other circumstances in the ADC program.

Doc Status: 
Complete

Section 349.6 - Utilization of employee group health benefits as a condition of

349.6 Utilization of employee group health benefits as a condition of eligibility. (Additional statutory authority: Social Services Law, Sections 20, 34, 131-p, 363-a, 366, 367-a) As a condition of eligibility or continued eligibility, any applicant or recipient of home relief or aid to dependent children who is or becomes employed and whose employer provides group health insurance benefits, including benefits for a spouse and dependent children of such applicant or recipient, shall apply for and utilize such benefits.

(a) Such applicant or recipient may also be required to apply for and utilize benefits provided by former employers.

(b) For those households who have more than one employer offering group health insurance benefits the agency may determine which employer offers the most comprehensive and/or substantial coverage and the applicant or recipient shall be required to apply for or continue and utilize the policy selected by the social services district.

Doc Status: 
Complete

Part 350 - APPLICATION

Doc Status: 
Complete
Statutory Authority: 
Social Services Law, Sections 20, 34

Section 350.1 - Definitions.

Section 350.1 Definitions. (a) Applicant. An applicant is a person who has, directly or by a representative, expressed, in writing on the State-prescribed form, to a social services official a desire to receive assistance and/or care or to have his eligibility considered. In ADC, the relative with whom a child is living or will live is the applicant in the child's behalf.

(b) Application. An application is an action by which a person indicates, in writing on the State-prescribed form, his desire either to receive assistance and/or care or to have his eligibility considered by a social services official. Such action shall be considered an application even though the applicant subsequently withdraws the application or proves, upon investigation, to be ineligible.

(c) Inquiry. An inquiry is any request for information.

(d) Public assistance. For purposes of this Title, aid to dependent children (ADC) refers to family assistance (FA), home relief (HR) refers to safety net assistance (SNA) and public assistance refers to family assistance, safety net assistance, and veteran assistance.

Doc Status: 
Complete

Section 350.2 - Authorization of grant.

350.2 Authorization of grant. (a) Assistance to an eligible person is granted by a social services official on the basis of an authorization prepared on the State-prescribed form. Such an authorization shall contain all pertinent information as to the status of the case and the amount of the authorized grants of assistance and shall be effective for a period of time coinciding with periods of eligibility determinations and redeterminations and shall be made not less frequently than:

(1) by the end of the third calendar month of the acceptance of an application for all new and reopened cases under the programs of Aid to Dependent Children and Aid to Dependent Children with an unemployed parent (ADC and ADC-U), as well as all Home Relief (including singles);

(2) by the sixth month after such certification for ADC and HR cases;

(3) every three months for ADC-U cases; and

(4) as needed in excess of the minimum where there is a predictable change in need or circumstances.

(b) Authorizations shall be numbered and filed in the agency and made available to auditors as required.

Doc Status: 
Complete

Section 350.3 - General.

350.3 General. (a) Any person has the right to make application for that form of public assistance or care that he believes will meet his needs. The applicant himself, any adult member of his family, or any person acting in his behalf, including relative, friend, other agency or institution shall have the right to make application.

(b) All applications shall be processed promptly. The date of application shall be the date of receipt by the social services official of a signed completed application on the State-prescribed form. While documentation is required for the determination of eligibility it shall not be a prerequisite to filing an application.

(c) A personal interview with the applicant or a designated representative is required in all cases to establish eligibility for public assistance. Interviews must ordinarily be scheduled within seven working days, except when there is indication of emergency need, in which case the interview must be held at once.

Doc Status: 
Complete

Section 350.4 - Use of the application form.

350.4 Use of the application form. (a) The State-prescribed form must be completed:

(1) For each individual adult case and for each family case by category.

(2) When a child is transferred from foster care to HR or ADC unless the HR or ADC grantee is already in receipt of assistance in the program under which the child's needs are to be met.

(3) When there is a permanent change in grantee in an ADC case.

(4) When the assistance or care is to be given by a different district.

(5) In the event of a reapplication more than 30 days following a case closing. For cases closed but reopened within 30 days, the requirements of Part 351 of this Article shall not be waived.

(6) For a new ADC-foster care case, in the event responsibility for care and placement of a child in foster care shall have been explicitly imposed on the social services official by court order.

(b) The State-prescribed form is not required to be completed under the following circumstances: For a person continuously in receipt of some form of assistance or care from the same district, the application form completed at the time of original application will suffice. Transfers or reclassifications except as required under subdivision (a) of this section need not be confirmed by completion of a new State-prescribed form. When a case has been denied, reapplication within 30 days does not require a new State-prescribed form.

(c) Signatures required. Signatures on the State-prescribed form are required as follows:

(1) In family applications, both the husband and wife shall sign. In situations where the man in the family is not married to the mother, both the mother and the man, if he is to be included in the grant, shall sign the application form.

(2) Where the case involves a single parent family, the head of the household shall sign.

(3) Where the case involves a single individual, such individual shall sign.

(4) In any case where the applicant, whose signature is required, is incapable of signing the application because of physical incapabilities, or mental incompetency, the application shall be signed on behalf of such person by his authorized representative.

Doc Status: 
Complete

Section 350.5 - Notification.

350.5 Notification. Department regulations governing notification of the district's decision shall be followed whenever a request for assistance or care, including a request for transfer and reclassification, is accepted or denied.

Doc Status: 
Complete

Section 350.6 - Statistical reports.

350.6 Statistical reports. Every request for assistance or care, including requests for transfers and reclassifications, shall be recorded and the disposition statistically reported in accordance with the instructions of the department.

Doc Status: 
Complete

Section 350.7 - Responsibility of a social services district at the time of application interview

350.7 Responsibility of a social services district at the time of application interview. At the time of the application interview the social services district shall inform the applicant of:

(a) the eligibility requirements of the program under which he is applying for assistance or care;

(b) his responsibility for reporting all facts material to a proper determination of eligibility;

(c) the joint responsibility of the local department and the applicant for exploring all facts concerning eligibility, needs and resources, and the applicant's responsibility for securing, wherever possible, records or documents to support his statements;

(d) the kinds of verification needed;

(e) the fact that any investigation essential to the determination of eligibility will be undertaken;

(f) his responsibility for notifying the local department immediately of all changes in circumstances; and

(g) the availability of assistance and/or service under some other program, either public or private, if the applicant appears eligible therefor.

Doc Status: 
Complete

Part 351 - INVESTIGATION AND ELIGIBILITY

Doc Status: 
Complete
Statutory Authority: 
Social Services Law, Sections 17(b), 20(3)(d), 34(3)(f), 131, 131-t, 134-a, 139-a(3), 153, 158, 355(3)

Section 351.1 - Investigation.

Section 351.1 Investigation. (a) Definition. Investigation is a continuous process which is concerned with all aspects of eligibility for public assistance or care from the period of initial application to case closing. Investigation means the collection, verification, recording and evaluation of factual information on the basis of which a determination is made of eligibility and degree of need, or of ineligibility, for any form of public assistance or care.

(b) Responsibility for furnishing information. (1) The social services official shall:

(i) provide applicants and recipients, and others who may inquire, with clear and detailed information concerning programs of public assistance, eligibility requirements therefor, methods of investigation and benefits available under such programs; and

(ii) inform each applicant and recipient, at the time of application and subsequently, of such person's initial and continuing responsibilities to furnish the information described in paragraph (2) of this subdivision.

(2) Each applicant and recipient must, as a condition of eligibility:

(i) provide accurate, complete and current information on his or her needs and resources as well as the whereabouts and circumstances of responsible relatives;

(ii) furnish evidence to provide verification of those factors which affect eligibility and the amount of entitlement, including:

(a) identity;

(b) residence;

(c) family composition;

(d) rent payment or cost of shelter;

(e) income from any source;

(f) savings or other resources; and

(g) lawful residence in the United States, if the recipient is an alien;

(iii) apply for and utilize any benefits or resources that will reduce or eliminate the need for public assistance or care; and

(iv) make a timely report to the district of any changes in his or her needs and resources. A report will be considered timely if made within 10 days of the changes except as provided in section 352.30(d)(4) of this Title. A report to a social services district concerning changes in income will be considered timely if made within the time frames specified in section 351.24(d) of this Part.

(c) Responsibility for prompt determination of eligibility. Upon receipt of an application for assistance, the social services official shall conduct an investigation and secure, record and evaluate the findings thereof in order to:

(1) promptly determine eligibility or ineligibility for public assistance;

(2) determine the type of public assistance or care, including food stamps required, and authorize such assistance;

(d) Constitutional and statutory rights of applicants and recipients. Any investigation or reinvestigation of eligibility shall be conducted in a manner that will not result in practices that violate an applicant's or recipient's constitutional rights. An applicant or recipient shall be permitted to appear with an attorney or other representative at any interview or conference with a representative of a social services district, whenever such interview or conference relates to questions of eligibility for public assistance and care, or the amount to which the person interviewed is or was entitled.

Doc Status: 
Complete

Section 351.2 - Aspects of investigation and eligibility.

351.2 Aspects of investigation and eligibility. (a) Identity. The applicant or recipient must furnish verification of his or her identity, as a condition of eligibility, at the time of application or recertification for public assistance or care. Any member of a household eighteen years of age or older and the head of a household who is receiving or applying for safety net assistance or emergency safety net assistance, public institutional care for adults, family assistance or emergency assistance to needy families with children, is, when requested to do so by the social services district, required to establish his or her identity by means of finger images to be used in the automated finger imaging system authorized in Part 384 of this Title. No household can receive safety net assistance, emergency safety net assistance, public institutional care for adults, family assistance or emergency assistance to needy families with children if any member of the household, eighteen years of age or older, or the head of the household, refuses to allow his or her finger images to be obtained for use in the automated finger imaging system. Any such household's application must be denied or, if the household is participating in the program, benefits must be discontinued. Persons applying for or receiving benefits under the food stamp program or food stamp assistance program must also allow their finger images to be obtained in accordance with section 387.9 and 388.8 of this Title.

(b) Residence and cost of shelter. Place of residence and rent payment or other shelter costs of the applicant or recipient shall be verified.

(c) Family composition. For each member of the household for whom an application for assistance is made the following information must be furnished: name; date and place of birth; relationship to other members of the household; veteran status; activity status; marital status if 16 years of age or over; if any person is pregnant, the anticipated date of delivery; and if the applicant is employed, the expenses incident to such employment. For each members of the household not applying for assistance, the name and relationship to those applying for assistance shall be furnished. In addition, each member of the household for whom an application for assistance is made or any other individual whose needs are considered in determining the amount of assistance must apply for and must furnish a social security number as a condition of the household's eligibility for public assistance.

(d) Need. Consideration shall be given to individual and family requirements for all items of need and any changes in such requirement for need in accordance with department regulations.

(e) Resources. Resources include individual or family financial assets, income from employment, eligibility for or receipt of benefits, and the services and social resources available through family relationships and community programs. Resources shall be explored, verified and evaluated, as to their immediate and/or potential availability to remove or reduce the need for public assistance. All resources shall be evaluated according to their equity value. Equity value means fair market value less encumbrances (legal debts).

(1) Financial resources. Each financial asset or resource immediately or potentially available to the applicant or recipient shall be identified and shall be explored to determine its nature, equity value, form and availability. Each such resource shall be evaluated and a decision reached in regard to its utilization. Such resources include, but are not limited to: employability, earnings, work-related benefits, pensions, health insurance, small business, real and personal property, securities, cash on hand, bank accounts, insurance, trust funds, estate settlements, servicemen's benefits, income in kind, contributions from relatives and friends, support orders, and any other benefits or interest in real or personal property. To obtain information on RSDI payments, each local social services department shall, in accordance with the instructions of the State Department of Social Services, submit input to the beneficiary data exchange (BENDEX) system.

(2) Relatives. (i) There shall be reviewed with the applicant the whereabouts of any legally responsible relatives. Unless proof of death of each legally responsible relative is shown, there shall be referred to the local child support enforcement unit, on a form prescribed therefor, as much information as can be obtained on each such legally responsible relative. A referral in writing shall also be made to the local law enforcement official. The referral to the local child support enforcement unit shall be within two working days of furnishing aid.

(ii) When the applicant for or the recipient of public assistance or care is an unmarried mother and surrender of the child to the social services official for the purpose of adoption is under consideration, or the child has been surrendered to the social services official for the purpose of adoption, referral to the local child support enforcement unit may be deferred for a period of 90 days after the birth of the child.

(iii) When the applicant for or recipient of public assistance is pregnant with, or is the parent of, and residing with, an out-of-wedlock child and surrender of the child to the social services official for purpose of adoption is not under consideration, referral in writing must be made to the local child support enforcement unit within two days of furnishing assistance.

(iv) When an applicant for or recipient of public assistance willfully fails or refuses to cooperate by furnishing information or aid to the local child support enforcement unit in establishing a support obligation, enforcing a support order or establishing paternity, the social services official shall not provide or continue to provide assistance or care for such applicant or recipient for so long as such cooperation is withheld. Such person's needs shall be excluded from consideration and the needs of the remaining family members shall be met in accordance with department regulations in the form of protective payments.

(f) Categorical eligibility factors. The special eligibility requirements of aid to the aged, blind and disabled (AABD), aid to dependent children (ADC), and emergency assistance to needy families with children

(EAF) shall be considered whenever there is a possibility that eligibility for one of these categories exists. When eligibility or presumptive eligibility is evident, full utilization of these categories shall be made. Where veteran assistance (VA) is administered, eligibility for this type of assistance shall be considered, if eligibility for a Federal category does not exist. Adult institutional care shall be considered when care in such a facility is required and eligibility for a federally aided category does not exist.

(g) Residence. Information obtained shall be sufficient to establish that:

(1) the applicant or recipient is residing or found within the social services district on the date of application, except in cases of temporary absence or continuing responsibility under subdivision (5) of section 62 of the Social Services Law;

(2) where applicable, another social services district is responsible for reimbursing the costs of institutional care; and

(3) where indicated, the State is responsible for reimbursing the full costs of assistance or care.

(h) An applicant or recipient who is an alien shall furnish evidence to verify that he is lawfully residing in the United States.

(i) Requirements for alcoholism and substance abuse screening, assessment and rehabilitation services.

(l) Screening and assessment.

(i) Investigation of eligibility for public assistance must include a screening for alcohol and/or substance abuse of all heads of households and of all adult household members, using a standardized screening instrument developed by the Office of Alcoholism and Substance Abuse Services in consultation with the office. Such screening will be performed at the time of application and periodically thereafter, unless the recipient is actively participating in alcoholism and/or substance abuse treatment in accordance with the provisions of this subdivision, but no more frequently than every six months, unless the district has reason to believe that an applicant or recipient is abusing or dependent on alcohol and/or drugs.

(ii) When the screening process indicates that there is reason to believe that an applicant or recipient is abusing or dependent on alcohol or drugs, or there is other evidence that an applicant or recipient is abusing or dependent on alcohol or drugs, the local district must require the applicant or recipient to undergo a formal alcohol or substance abuse assessment, which may include drug testing, to be performed by an alcohol and/or substance abuse professional credentialed by the Office of Alcoholism and Substance Abuse Services. The assessment may be performed directly by the district or pursuant to contract with the district.

(iii) If the formal assessment determines that the applicant or recipient is unable to work by reason of his or her need for treatment for alcohol or substance abuse, the social services official must refer the individual to an appropriate alcoholism and/or substance abuse treatment program.

(iv) To be considered an appropriate treatment program, the treatment program must:

(a) be licensed or certified by the Office of Alcoholism and Substance Abuse Services or operated by the United States Department of Veterans Affairs and be determined by the social services official to meet the rehabilitation needs of the individual, in accordance with standards developed by the Office of Alcoholism and Substance Abuse Services;

(b) develop a treatment plan for the individual which includes an expected date of availability for work related activities and provide a copy of such plan to the local district responsible for payment, in a manner consistent with 41 CFR Part 2;

(c) provide at a minimum of every three months, a treatment progress report for each recipient of public assistance to the local district responsible for payment of public assistance benefits; and

(d) request approval by the local district responsible for payment of public assistance benefits prior to changing an individual's level of treatment care.

(v) If the local district is responsible for payment of treatment, the district can require in-district treatment, provided an appropriate treatment program is available. When residential treatment is appropriate for a single custodial parent, the social services official must make diligent efforts to refer the parent to a program that would allow the family to remain intact for the duration of the treatment.

(vi) A person who fails to participate in the screening or in the assessment is ineligible for public assistance. Other members of a household which includes a person who has failed to participate in the screening or assessment must, if otherwise eligible, receive public assistance only through non-cash safety net assistance.

(vii) If a person required to participate in treatment pursuant to this subdivision fails to consent to disclosure of necessary treatment information by the treatment program to the social services district, or subsequently revokes such consent, such person will be ineligible for public assistance. Other members of the household which includes such person will, if otherwise eligible, receive public assistance only through non-cash safety net assistance.

(2) Rehabilitation services.

(i) A person referred to, or participating in, a treatment program pursuant to paragraph (1) of this subdivision, and the household in which he or she resides will receive non-cash safety net assistance while the person is participating in such treatment program, if the household is otherwise eligible for public assistance. If a person referred to treatment cannot participate in that treatment because treatment is not presently available, that person and the household in which he or she resides will receive non-cash safety net assistance if the household is otherwise eligible for public assistance.

(ii) Local districts are required to monitor treatment progress at a minimum of every three months.

(iii) If an applicant for or recipient of public assistance is required to participate in an appropriate rehabilitation program and fails to participate in such program without good cause or leaves such program prior to completion of the program without good cause, or if an applicant or recipient has been suspended from the receipt of social security disability benefits or supplemental security income benefits by reason of noncompliance with requirements of the Federal social security administration for treatment for substance abuse or alcohol abuse, the person must be disqualified from receiving public assistance for the time periods set forth below. Failure to participate in such program is defined as failure to comply with the established treatment plan including scheduled treatment sessions. The applicant or recipient is required to document compliance with the treatment plan. The question of whether the applicant or recipient has completed the program will be determined solely by using the guidelines and rules of the rehabilitation program.

(a) For the first failure to participate in or complete the program or to comply with the requirements of the Federal social security administration, until the failure ceases or for 45 days, whichever period of time is longer.

(b) For the second such failure, until the failure ceases or for 120 days, whichever period of time is longer.

(c) For the third and subsequent failures, the person is disqualified until the failure ceases or for 180 days, whichever period is longer.

The household in which the person resides will continue to receive non-cash safety net assistance, if otherwise eligible.

(iv) The applicant or recipient must be considered to have good cause for failing to participate or failing to complete a rehabilitation program when:

(a) the local district, the facility and the applicant or recipient agree that the applicant or recipient is in need of a different program than the one to which he or she was referred or which he or she is attending and the applicant or recipient has enrolled in a rehabilitation program which the local district has determined appropriate; or

(b) a verified unforeseen circumstance occurs that is beyond the applicant's or recipient's control such as illness or a death in the family.

(v) Persons disqualified from receiving public assistance pursuant to subparagraph (iii) of this paragraph who would otherwise be eligible for public assistance and who return to required treatment prior to the end of the disqualification period and are receiving care in an Office of Alcoholism and Substance Abuse certified congregate care Level II facility, as defined in section 352.8 of this Title or United States Veterans Hospital residential treatment program, are eligible for non-cash safety net assistance.

(vi) If a recipient required to participate in an appropriate treatment program receives a personal needs allowance, such allowance must be made as a restricted payment to the treatment program and must be a conditional payment. If such recipient leaves the treatment program prior to completion of the program, any accumulated personal needs allowance must be considered an overpayment and returned to the local district which provided the personal needs allowance.

(3) For purposes of this subdivision, an adult is any individual in the household who is 18 years of age or over who is applying for or in receipt of public assistance, except an individual 18 years of age who is a full time student regularly attending a secondary school, or in the equivalent level of vocational or technical training.

(j) An applicant for ADC who is determined to be employable and who is assigned to job search activities, must, as a condition of eligibility of the filing unit, actively seek employment and provide verification of doing so. Compliance with this requirement shall be determined by the standards for job search set forth in section 385.7 of this Title.

(k) Ineligible individuals. In addition to any other individual who is ineligible for public assistance, the following individuals are also ineligible for such assistance:

(1) any individual under the age of 18 who is not married and has a minor child 12 weeks of age or more in his or her care and who has not successfully completed a high school education or its equivalent if such individual does not participate in educational activities directed toward the attainment of a high school diploma or its equivalent or an alternative educational or training program directly related to employment and approved by the social services district. Local districts must not determine any person ineligible under this paragraph during any period of time in which enrollment in required educational activities is not available. Nothing prohibits a social services district from requiring any person to work toward attaining a secondary school diploma or its equivalent unless such individual has been determined by a medical, psychiatric or other appropriate professional to lack the requisite capacity to complete successfully such a course of study;

(2) any individual during the ten-year period that begins on the date the individual is convicted in federal or state court of having made a fraudulent statement or representation with respect to his or her place of residence in order to receive public assistance, medical assistance or food stamps simultaneously from two or more states, or supplemental security income in two or more states. This paragraph does not apply with respect to the conviction of an individual in any month beginning after the president of the United States grants a pardon with respect to the conduct which was the subject of the conviction. Such individual is also ineligible to receive benefits under the food stamp program as set forth in section 387.1 of this Title;

(3)(i) any individual who is fleeing to avoid prosection or custody or conviction under the laws of the place from which the individual flees for a crime or attempt to commit a crime which is a felony under the laws of the place from which the individual flees, or which, in the case of the state of New Jersey, is a high misdemeanor under the laws of such state; or

(ii) any individual who is violating a condition of probation or parole imposed under federal or state law. Local districts must consider a person to be violating a condition of probation or parole only if:

(a) the person is currently an absconder from probation or parole supervision and a warrant alleging such a violation is outstanding; or

(b) the person has been found by judicial determination to have violated probation or by administrative adjudication by the division of parole to have violated parole. Such person must be considered to be violating a condition of probation or parole under this paragraph only until he or she is restored to probation or parole supervision or released from custody, or until the expiration of the person's maximum period of imprisonment or supervision, whichever occurs first.

A person considered to be violating a condition of probation or parole under this paragraph includes a person who is violating a condition of probation or parole imposed under federal law. For purposes of this paragraph, probation or parole includes conditional release, wherever applicable; or

(4) Any individual who is a minor child who has been or is expected to be absent from the home of his or her parent or other caretaker relative for a consecutive period of 45 days or more without good cause. In addition, no assistance may be given to any parent or other caretaker relative who fails to notify the social services district of the absence of the minor child within five days after it becomes clear to the parent or relative that the child will be absent for a consecutive period of 45 days or more. Good cause includes absence for placement in foster care if the goal set forth in the child service plan under sections 428.6 and 428.7 of this Title is the return of the child to a member of the household, visits to friends or relatives, attendance at school, attendance at camp or hospitalization; if it is in the best interests of the child to return home and return is expected within a reasonable time. A parent or caretaker relative who fails to comply with the provisions of this paragraph is ineligible for public assistance for a period of 30 days for each whole or partial calendar month during which the child was absent from the home before the social services district was notified of the absence.

* (l) Requirements for domestic violence screening, assessment, and referral for services, public assistance program waivers.

(1) Definitions.

(i) For purposes of this subdivision, victim of domestic violence means an individual who has been subjected to:

(a) physical acts that resulted in, or could result in, physical injury to the individual;

(b) sexual abuse;

(c) sexual activity involving a dependent child;

(d) being forced as the caretaker relative of a dependent child to engage in nonconsensual sexual acts or activities;

(e) threats of, or attempts at, physical or sexual abuse;

(f) mental abuse; or

(g) neglect or the deprivation of medical care; and

(h) such act or acts have or are alleged to have been committed by a family or household member.

(ii) For the purposes of subparagraph(i) of this subdivision, family or household members mean the following persons:

(a) persons related by blood or marriage;

(b) persons legally married to one another;

(c) persons formerly married to one another regardless of whether they still reside in the same household;

(d) persons who have a child in common regardless of whether such persons are married or have lived together at any time;

(e) unrelated persons who are continually or at regular intervals living in the same household or who have in the past continually or at regular intervals lived in the same household;

(f) unrelated persons who have had intimate or continuous social contact with one another and who have access to one another's household; or

(g) any other persons referenced in section 459-a(2) of the Social Services Law.

(2) Domestic violence liaison.

(i) Responsibilities. Domestic violence liaisons are responsible for the following tasks:

(a) assessing the credibility of the applicant/recipient's assertion of domestic violence based upon information and corroborating evidence;

(b) assessing the safety of the victim and the victim's dependents and their need for services and support;

(c) informing a victim of domestic violence referred to the liaison about domestic violence and the options for protection, services and other supports;

(d) informing a victim of domestic violence referred to the liaison about the rights and responsibilities with respect to obtaining waivers of public assistance program requirements;

(e) gathering facts regarding the extent to which domestic violence is a barrier to the victim of such violence meeting public assistance program requirements including employment requirements and the need for obtaining waivers of such requirements;

(f) determining the need for waivers where compliance with public assistance program requirements would place the victim and/or the victim's children at greater risk of harm or make it more difficult to escape from the abuse, and making recommendations for granting waivers or granting waivers of public assistance program requirements;

(g) periodically reassessing the individual's domestic violence circumstances and modifying, terminating or extending the public assistance program waiver(s);

(h) maintaining a list of, at a minimum, available domestic violence services and maintaining a relationship with the providers of the services including, but not limited to domestic violence service providers, key court personnel and the local domestic violence coalition, where applicable;

(i) coordinating activities with other case managers and examiners within the social services district; and

(j) facilitating emergency safety planning for victims of domestic violence in a crisis situation, as necessary.

(ii) Qualifications. Social services districts must give a strong preference to relevant advocacy or counseling experience in determining whether someone should be designated a domestic violence liaison. Domestic violence liaisons must meet the following minimum job qualifications:

(a) be a caseworker, or

(1) possess a bachelor's degree, or

(2) have one year of domestic violence advocacy or domestic violence counseling experience with an approved domestic violence program, or

(3) have two years of relevant advocacy or domestic violence counseling experience; and

(b) complete a course of training for domestic violence liaisons sponsored by the Office of Temporary and Disability Assistance (Office); and

(c) possess good communication, listening and assessment skills and the ability to work positively in a team setting.

(iii) If a social services district chooses to contract for the domestic violence liaison position(s), it must comply with the following requirements:

(a) the agency employing the liaison(s) must be an approved residential program for victims of domestic violence pursuant to Part 452, 453, 454, or 455 of this Title and/or a non-residential program for victims of domestic violence pursuant to Part 462 of this Title;

(b) if it is not feasible for the assessment function to be carried out at the offices of the social services district, the district must make provision for ensuring that individuals can go to the alternative location, that their safety will be ensured and that their confidentiality will be maintained. The district must make this information available to the Office when requested;

(c) the liaison must maintain regular contact with appropriate social services district staff, including providing the district with data pertaining to public assistance program waivers; and

(d) the agency employing the liaison and the district must provide each other with necessary training so that the agency and district can optimally fulfill their obligations under this subdivision.

(3) Universal notification. Social services districts must notify all public assistance applicants and recipients of the procedures for protecting themselves from domestic violence and the availability of domestic violence services. Such notification will be done by using the universal notification handout, developed by the Office in consultation with the Office for the Prevention of Domestic Violence and statewide domestic violence advocacy groups.

(4) Screening and referral to liaisons.

(i) Social services districts must inquire of all public assistance applicants and recipients regarding the existence of any domestic violence committed against the applicant or recipient. Such inquiry will be done by using the universal screening form developed by the Office in consultation with the Office for the Prevention of Domestic Violence and statewide domestic violence advocacy groups.

(ii) Social services districts must advise clients that responding to questions concerning the existence of domestic violence is voluntary and that any response will remain confidential; provided, however, that information regarding suspected maltreatment or abuse of children will be reported to the Statewide Central Register of Child Abuse and Maltreatment.

(iii) Social services districts must make the screening form available for voluntary client completion, in writing, at the application and recertification interview. However, the district must accommodate clients who wish to provide this screening information verbally when completion is not possible due to literacy problems. The district must also accommodate clients who wish to provide this screening information at another time when completion is not initially possible due to risk of danger to themselves, for example due to the presence of the batterer at the time of the initial screening. The district must provide the screening form to any individual who at any time is identified as a victim of domestic violence, or otherwise requests such screening.

(iv) When an individual indicates the presence of domestic violence by providing an affirmative response on the screening form, the district must refer that individual to a domestic violence liaison as soon as practicable and prior to any other assessment.

(5) Assessment of credibility.

(i) The domestic violence liaison must, as soon as practicable, assess the credibility of a positively screened individual's assertion of domestic violence based upon all relevant information including, but not limited to: an order of protection; court, medical, criminal, child protective services, social services, psychological, or law enforcement records; presence in a domestic violence shelter; a signed statement by a domestic violence counselor or other counselor or other corroborating evidence.

(ii) Such assessment must be based upon the relevant information and corroborating evidence, but must in the absence of other sufficient evidence include, at a minimum, a sworn statement by the individual alleging the abuse.

(6) Services referral and waiver assessment. If the domestic violence liaison determines that the allegation of domestic violence is credible, the domestic violence liaison must, as soon as practicable:

(i) inform the individual of services related to domestic violence, which are available to the individual on a voluntary basis;

(ii) conduct an assessment to determine if and to what extent domestic violence is a barrier to compliance with public assistance program requirements or to employment;

(iii) assess the need for temporary waivers of such program requirements;

(iv) recommend or grant any necessary waivers in coordination with social services district staff who are charged with the implementation of such waivers and/or the administration of public assistance program requirements; and

(v) inform social services district staff responsible for the administration of public assistance requirements of the final determination or recommendation with respect to waivers.

(7) Waivers.

(i) Waivers are a temporary suspension of public assistance program requirements including, but not limited to, residency rules, child support and paternity cooperation requirements, alcohol and substance abuse screening and referral requirements, employment and training requirements, and learnfare. Any such waivers must be consistent with federal law.

(ii) The granting of a waiver does not affect the amount of the grant or the budgeting of income for the applicant or recipient.

(iii) Waivers will be granted in cases where compliance with public assistance program requirements would make it more difficult for the individual or the individual's children to escape from domestic violence or subject them to further risk of domestic violence. Such waivers must be for an initial period of not less than four months. All such waivers will be subject to on-going review of the individual's circumstances by the domestic violence liaison and may be extended, modified or terminated based on such review at any time, including the time covered by the initial four month waiver period.

(iv) In considering the extension of waivers, the domestic violence liaison must consider the totality of the individual's case circumstances. However, unwillingness on the part of the individual to engage in any options, steps or activities that might assist the individual in terms of safety or self-sufficiency may affect the individual's credibility.

(v) Waivers may be granted permitting the receipt of Family Assistance benefits by individuals who have already received benefits for sixty months and who would not be required to participate in work or training activities, pursuant to the regulations of the Department of Labor, because of an independently verified physical or mental impairment resulting from domestic violence that is anticipated to last for three months or longer, or if the individual is unable to work because of the need to care for a dependent child who is disabled as a result of domestic violence.

(vi) An individual may decline a waiver or terminate an existing waiver at any time without penalty.
(8) Alien eligibility and deeming.

(i) Under Immigration and Naturalization Services (INS) rules, certain battered aliens not otherwise considered qualified aliens for public assistance eligibility purposes can petition INS and be granted qualified alien status thereby entitling them to receive benefits. Aliens so qualified will be issued a "Notice of Prima Facie Case" by INS.

(ii) Social services districts must exempt such battered aliens from alien deeming requirements in accordance with section 352.33 (c) of this Title. *NB Effective until 98/08/06

Doc Status: 
Complete

Section 351.3 - Required approval of facility.

351.3 Required approval of facility. Insofar as practicable, assistance and care for a needy person shall be provided in his own home, or in an approved facility suitable to the needs of the person in accordance with department regulations relating thereto.

Doc Status: 
Complete

Section 351.4 - Front end detection system (FEDS) referrals.

351.4 Front end detection system (FEDS) referrals. The appropriate social services eligibility worker must refer applicants for assistance to the social services district's FEDS investigative unit in accordance with criteria set forth in the district's approved FEDS plan submitted to the Department in accordance with Part 348 of this Title. Any referrals to the FEDS investigative unit must not delay the eligibility determination process beyond the time frames established by the Social Services Law or this Title.

Doc Status: 
Complete

Section 351.5 - Sources of information.

351.5 Sources of information. (a) Primary sources. The applicant, recipient, members of his/her household and public records must be relied upon as primary sources of information. Information received from applicants, recipients, and members of the household must be verified. The applicant or recipient is required, wherever possible, to provide such verification by documentation. If the applicant or recipient has previously verified necessary information which is not subject to change and the social services district possesses documentation of such verification in its files, the applicant or recipient is not required to resubmit verification of such information; provided, however, that such documentation may be required in connection with any State quality control review of social services district programs. When an applicant or recipient establishes that he/she has made reasonable efforts to obtain information or verification from a third party (other than a third party who is required to be in the filing unit, or whose income is used in determining eligibility or an individual living in the household) and the third party fails or refuses to provide the information or verification or seeks to impose a charge or fee for providing the information to the applicant or recipient, the social services official must pay such fee or must assist the applicant or recipient in obtaining the information or verification from the third party or by other means as may be necessary.

(b) Secondary and collateral sources and collateral investigation. Secondary or collateral sources of information are relatives outside the immediate family group, and other persons, agencies or resources. Collateral investigation means the collection of additional information through contacts with secondary sources such as relatives, employers, banks, insurance companies, school personnel, social agencies, and other appropriate individuals and organizations.

Doc Status: 
Complete

Section 351.6 - Verification.

351.6 Verification. Verification of data, which are pertinent to the determination of initial and continuing eligibility or the amount of the assistance grant, is an essential element of this investigation.

(a) Documents, personal observation, personal and collateral interviews and contacts, reports, correspondence and conferences are means of verification.

(b) When information is sought from collateral sources other than public records because the applicant or recipient cannot provide verification, there shall be a clear interpretation to the applicant, recipient or legally responsible relatives of what information is desired, why it is needed and how it will be used.

(c) Verification of information with respect to legally responsible relatives from collateral sources shall be made only with the knowledge and consent of such relatives, after first giving them the opportunity to provide verification of their income, resources and expenses by other means.

(1) In the event that a legally responsible relative residing outside the applicant's or recipient's household fails or refuses to cooperate in providing necessary information about his financial circumstances, such refusal shall not be a ground for denying or discontinuing assistance. Such refusal shall be referred to the law enforcement officer in accordance with department regulations.

(2) In the event that a legally responsible relative residing in the applicant's or recipient's household fails or refuses to cooperate in providing necessary information about his financial circumstances, such refusal shall be a ground for denying or discontinuing assistance to the persons for whom he is legally responsible.

Doc Status: 
Complete

Section 351.7 - Supervisory review and approval.

351.7 Supervisory review and approval. The findings of the investigation together with the recommendations for case action shall be reviewed and approved by the supervisor. Supervisory approval shall be indicated by a dated signature in the case record. Supervisory approval shall be based upon review of all available information pertaining to eligibility and the amount of entitlement. It shall include approval of decisions to deny public assistance as well as decisions to change a grant or to refer an applicant or recipient for services.

Doc Status: 
Complete

Section 351.8 - Decision on initial eligibility and payment of assistance

351.8 Decision on initial eligibility and payment of assistance grants. (a) Decision on initial eligibility is the conclusion or determination reached at any point in the application process. Such decision, as approved on supervisory review, shall constitute the decision of the social services official. The decision shall be one of the following:

(1) Accepted for assistance. This means that eligibility has been fully established through investigation or that emergency need and presumptive eligibility has been established and authorization for assistance has been made and approved by the social services official.

(2) Not accepted for assistance. Applications are denied and not accepted for assistance when:

(i) In the course of the application interview the information given by the applicant establishes, without the need for further investigation, that he is ineligible.

(ii) Ineligibility is determined in the course of or upon completion of the investigation, or if the applicant refuses to comply with any requirement essential to the determination of eligibility.

(3) Terminations without decision. No decision is required when:

(i) an application is withdrawn by the applicant; or

(ii) the social services official documents that the applicant has died, cannot be located, or has left the district prior to the completion of the investigation.

(b) The decision to accept or deny the application must be made within 30 days from the date of application for Aid to Dependent Children (ADC) and within 45 days from the date of application for Home Relief (HR), except where the applicant requests additional time or where difficulties in verification lead to an unusual delay, or for other reasons beyond the social services official's control. The applicant must be notified in writing of the decision in accordance with department regulations. The reason for the delay in deciding whether to accept or deny an application for ADC or HR must be recorded in the case record and communicated to the applicant. The applicant must be notified of the availability of assistance to meet emergency circumstances or to prevent eviction.

(c) (1) When eligibility has been established, the application shall be accepted for assistance pending the development of potential resources, i.e., support from relatives, adjustment of insurance, or eligibility for benefits. It shall be the responsibility of the social services official to fully explore and develop all such resources.

(2) The amount of the initial grant of regularly recurring financial assistance for ADC must be computed starting with the date of establishment of eligibility or the 30th day after the date of application, whichever is earlier. The amount of the initial grant of regularly recurring financial assistance for HR must be computed starting with the 45th day after the date of application. In determining the amount of the initial grant, the monthly budget deficit must be prorated to reflect the number of days in the month in which there was initial coverage. Paid rent must be treated as income for purposes of determining the monthly budget deficit under this paragraph, except when such rent is paid using income already being budgeted. This paragraph will not be construed as limiting the obligation of the agency to make payments pursuant to subsequent paragraphs of this subdivision.

(3) For ADC cases, the first payment must be authorized no later than 30 days from the date of application. State reimbursement will not be made for payments made to HR recipients for periods prior to 45 days from the date of application unless such payments are required to meet emergency circumstances or to prevent eviction. Emergency circumstances include situations in which the applicant or the applicant's household has no food and is not eligible for food stamps; has no shelter; has no fuel for heating during the cold weather period; has a utility disconnect notice and utilities have been scheduled to be disconnected within 72 hours of receipt of such notice, or utilities have been disconnected; or lacks items necessary to meet the health and safety needs of the applicant or the applicant's household, and there are no resources, including family and community resources, available to meet the emergency circumstances. Notwithstanding any other provisions of this Title, social services districts are not required to provide HR to any person otherwise eligible if State reimbursement is not available in accordance with the provisions of the Social Services Law.

(4) When eligibility has not been established but immediate need is determined to exist, an emergency or predetermination grant of assistance shall be made in accordance with department regulations.

(5) (i) A child who is born to a recipient of public assistance is eligible for such assistance from the date of his/her birth, provided verification of the birth is received by the appropriate social services official:

(a) within six months of the birth of the child; or

(b) by the recipient's first scheduled recertification interview after the birth of the child; whichever is later.

(ii) The failure to present verification of a child's birth to a social services official in accordance with the provisions of subparagraph (i) of this paragraph will result in such child becoming eligible for public assistance beginning on the date that verification of the birth is provided to such official.

Doc Status: 
Complete

Section 351.9 - Concurrent benefits prohibited.

351.9 Concurrent benefits prohibited. (a) Definitions. For purposes of this section:

(1) Benefits means public assistance grants or any other grants or benefits provided in accordance with the Social Services Law or in accordance with other provisions of this Title. Such benefits include home relief, aid to dependent children or other public assistance cash grants which are provided to cover basic needs.

(2) Concurrent benefits means benefits paid from a public assistance program more than once or from more than one public assistance program, or any other programs or activities for which the department is responsible, which are provided during the same time period to meet the same needs of the same individual. Medical assistance, energy assistance, food stamp assistance or other assistance provided to individuals who have been determined to be eligible for a public assistance cash grant will not be considered concurrent benefits. Aid to dependent children may be considered concurrent benefits when provided to meet the needs of home relief recipients; medical assistance based upon eligibility for home relief may be considered concurrent benefits when provided to meet the needs of recipients of federally funded aid to dependent children.

(3) Individual includes a public assistance recipient or a recipient of benefits from any other programs or activities for which the department is responsible, any legally responsible relative of such recipient and any other adult payee for such recipient.

(b) No individual may receive concurrent benefits unless a social services official, in accordance with the policies or directions of the department, specifically has determined that such duplication of benefits is necessary and appropriate due to specific case circumstances which are stated in the case record.

(c) If a social services official learns that an individual is applying improperly for or receiving benefits when such individual is also receiving, or has been approved to receive, concurrent benefits in that social services district, or in another social services district, state, territory or commonwealth, then the social services official must deny the benefits for which the individual, legally responsible relative or payee is applying, or must discontinue any concurrent benefits being provided for such individual.

(d) A determination that an individual is receiving or applying for concurrent benefits must be based on information which establishes with reasonable certainty that the same individual is receiving or applying for assistance to meet the same needs in the same or separate subdivisions of that social services district, or in another social services district, state, territory or commonwealth. Information used to identify an individual with reasonable certainty includes, but is not limited to:

(1) finger images;

(2) photographic images;

(3) official identification documents; and

(4) governmental or public records containing verifiable biological or demographic information unique to particular individuals.

(e) A social services official discovering or investigating the application for or receipt of concurrent benefits must notify any other social services entity which has authorized payment for benefits which are concurrent and inform such social services entity of the existence of the concurrent cases and of the action that the referring social services official has taken or plans to take. A social services official that has been notified that concurrent benefits are being claimed or paid, must, after an investigation, take any necessary action to assure that only appropriate social services benefits are being provided to any individual identified as receiving concurrent benefits.

(f) Subject to the provisions of sections 358-3.3(g), 358-3.6(a) (2)

(vi) and 358-3.6(c) (2) (iii) of this Title, individuals whose benefits are being discontinued are entitled to aid continuing as defined in section 358-2.5 of this Title for only one open case in the State during the time period in which concurrent benefits are denied or terminated. Social services officials must make determinations to discontinue or deny benefits to individuals applying for or receiving concurrent benefits by issuing, to the extent permitted by Part 358 of this Title, only adequate notices that do not afford to such individuals any right to receive aid continuing as defined in section 358-2.5 of this Title for more than one open case at one time in the State.

Doc Status: 
Complete

Section 351.10 - Identification and referral of adolescents to case management

351.10 Identification and referral of adolescents to case management activities. A pregnant or parenting adolescent who is receiving public assistance or is a payee of such benefits on behalf of his or her child(ren) must be identified and referred to the appropriate unit or agency for case management activities as described in Part 361 of this Title.

Doc Status: 
Complete

Section 351.12 - Learnfare.

351.12 Learnfare. (a) Subject to the implementation schedule set forth in section 131-y of the Social Services Law, social services districts are required to establish a learnfare program. The purpose of the learnfare program is to prevent children from dropping out of school and to improve the attendance of children in school.

(b) Social services districts must provide every applicant for and recipient of public assistance whose household includes a child enrolled in school in grades one through six with written notification that their child will be subject to the learnfare program. The notice must be provided at the time of application for public assistance and at the beginning of the school year. The notice must inform the applicant or recipient of the attendance requirements of the learnfare program, the consequences of a child's failure to meet such requirements and the rights of the child and parent or guardian in the learnfare program. That portion of the notice that sets forth the consequences of a child's failure to meet the requirements of the learnfare program must be printed in bold face type.

(c) In order to implement the learnfare program, social services districts participating in the program are required, in cooperation with school districts, to develop a plan setting forth arrangements with schools for obtaining attendance reports, providing school-based counseling services and encouraging parental intervention and cooperation with the school to encourage attendance. The plans must include protection for the confidentiality of the identities of students subject to the provisions of this section, consistent with the provisions of section 136 of the Social Services Law, and must provide for the designation of one school administrator to administer the learnfare program in each school. The plans must be submitted to the Office of Temporary and Disability Assistance and approved by appropriate staff of the office prior to implementation of the learnfare program in a social services district. Any amendments that a district proposes to make to its plan must be approved by the office before the amended plan is implemented. All plans submitted to the office pursuant to this section must be submitted in time to meet the implementation schedule set forth in section 13l-y of the Social Services Law.

(d) (1) A child enrolled in grades one through six who is receiving public assistance must attend school. If a child subject to the provisions of this section accumulates at least three unexcused absences in any academic quarter, without good cause, the child must be referred to counseling services in the school. The social services district, or the school district if so provided for in the plan, must initiate a conference with the child's parent or other head of household to notify him or her that the child is being referred to counseling and the reason for the referral. If the social services district determines that such services are either not available or not appropriate, the services may be provided directly by the social services district or by other government agencies or not-for-profit or other available community providers.

(2) Any counseling provided pursuant to paragraph (1) of this subdivision must include, but is not limited to, an appropriate discussion of the expectations of the school regarding attendance requirements, the consequences of the child's unexcused absences from school, and a review of the child's home and school environment to determine whether that environment may have caused the child's unexcused absences. After the counseling is completed, the social services district or the school district must prepare an intervention plan that will address the needs of the child to ensure that there are no more unexcused absences.

(e) If a child subject to the provisions of this section has accumulated five or more unexcused absences from school during an academic quarter without good cause, the social services district must withhold $60 from the child's household's public assistance grant for three consecutive months. The amount withheld from the household's grant must be returned to the household if, in the following academic quarter, the child has no unexcused absences. If the grant reduction was the result of absences in the last academic quarter of the school year, the plan described in subdivision (c) of this section may provide options for a child to use in order to receive restoration of amounts withheld including, but not limited to, attendance in summer school. The payment of any withheld amounts must be disregarded in determining eligibility for and the amount of benefits in the month such benefits are restored and the following month.

(f) A child has good cause for an unexcused absence from school when unsafe or unsanitary conditions at the school present a threat to the child's physical or emotional health, safety or welfare or other circumstances exist that justify absenteeism pursuant to the rules of the local school district or, if a statewide standard for the determination of such absences has been promulgated pursuant to the Education Law, such statewide standard will govern. If a child is suspended from school, the suspension will be treated as an excused absence for the purpose of this section.

(g) As a condition of eligibility for public assistance, the parent or guardian of a child in grades one through six must consent to the release of any school attendance records necessary for the conduct of the learnfare program. Such parent or guardian also must cooperate in providing the social services district with the child's report card or other information necessary to establish the child's school attendance record.

(h) Prior to imposing any fiscal sanction pursuant to this section, a social services district must provide the household with timely notice of its intention to impose such a sanction and inform the household of its right to request a hearing pursuant to Part 358 of this Title.

(i) For purposes of this section, the learnfare administrator is required to determine whether a child's absence from school is authorized or unauthorized.

Doc Status: 
Complete

Section 351.20 - Determination of continuing eligibility.

CONTINUING ELIGIBILITY

351.20 Determination of continuing eligibility. (a) Continuing eligibility for public assistance shall be established by investigation and documentation at specified intervals and the process shall be known as recertification, which shall include a reevaluation and reconsideration of all variable factors of need and other factors of eligibility.

(b) In connection with periodic redetermination of eligibility, the social services district shall:

(1) require that the recipient complete the State-prescribed form and submit appropriate supporting data;

(2) determine the need for additional information from the recipient and/or collateral sources;

(3) interview the recipient in a face-to-face interview, in order to verify factors of eligibility, including those related to:

(i) identity of recipient;

(ii) domicile of recipient;

(iii) family composition;

(iv) rent payment or cost of housing;

(v) income from any source;

(vi) savings or other resources;

(vii) lawful residence in the United States, if the recipient is an alien;

(4) make appropriate collateral investigation, as required, where the recipient is unable to secure documentation of the above factors and any additional factors of eligibility as required to establish continued eligibility;

(5) evaluate all the factual information gathered as to its completeness, relevancy and consistency;

(6) identify the factors of eligibility subject to change which call for prompt review of continuing eligibility; and

(7) advise the recipient of his continuing responsibility to keep the agency informed of changes in his circumstances.

Doc Status: 
Complete

Section 351.21 - Required contacts and investigation.

351.21 Required contacts and investigation. (a) Contacts with recipients and collateral sources shall include face-to-face contacts, correspondence, reports on resources, eligibility mailouts and other documentation. Contacts with or concerning recipients shall be made as frequently as individual need, change in circumstances or the proper administration of assistance or care may require.

(b) All variable factors of need and eligibility shall be reconsidered, reevaluated and verified at least once in every:

(1) three months, in cases of Aid to Dependent Children when eligibility is based on the unemployment of a parent; and

(2) six months, in cases of Aid to Dependent Children when eligibility is not based on the unemployment of a parent and in cases of Home Relief.

(c) The social services district shall use the State-prescribed form in the recertification process and shall require:

(1) a face-to-face interview with the recipient for each recertification; and

(2) a face-to-face interview by the end of the third calendar month following the month of acceptance for all new and reopened ADC and HR cases.

(d) The recipient shall appear at the face-to-face interviews, and shall present appropriate documentation as required to substantiate both categorical and financial eligibility. If because of age, handicap or other verifiable limiting condition, the recipient is unable to appear for a face-to-face interview or requires the use of an interpreter for the deaf, the district shall make appropriate arrangement to accommodate the client. The client shall notify the district of special needs or requirements as soon as the notice to appear is received and give the reason for such special needs or requirements.

(e) In addition to personal interviews and correspondence with the recipient, there shall be contact, as the circumstances of the individual case may require, with appropriate persons and agencies to secure verification of data which is essential to establish eligibility for public assistance and which the recipient is unable to secure.

(f) Contacts with recipients and with collateral sources of information shall be directed toward consideration of all variable factors of eligibility.

(1) Financial need. Identity of the recipient and his individual circumstances shall be reviewed and verified as indicated in relation to changes in the household, in living arrangements, in income and in allowance schedules, in order to determine those items of need that should be added, deleted or changed in amount.

(2) Financial resources. Current availability and use of financial resources shall be reconsidered and verified in relation to fluctuations in value or income, or the initiation or termination of rights to benefits.

(3) Employment, employability and training for employment. The employment, potential employability, availability for employment, or need for training or retraining shall be reviewed and established for each person 16 years of age or over.

(4) Relatives. Changes in circumstances, which affect the ability or willingness of relatives to financially assist the recipient, shall be reviewed. If a legally responsible relative is failing to support according to ability and/or court order, referral for appropriate legal action shall be made.

(5) Special categorical requirements. There shall be review of factors of categorical eligibility which are subject to change, such as further impairment, recovery or improvement in the condition of an incapacitated parent, return of an absent parent, termination of eligibility of children because of age or leaving school, and obtaining employment. In review of a Home Relief case, entitlement to assistance under a federally aided category shall be considered.

(6) Health. Changes in health conditions shall be considered with respect to continuing eligibility and required services.

(7) Services. There shall be a review of the need for services and appropriate referral made therefor.

Doc Status: 
Complete

Section 351.22 - Action to be taken upon failure to appear at face-to-face

351.22 Action to be taken upon failure to appear at face-to-face interviews, or upon determination of ineligibility or of change in degree of need. (a) In all programs of public assistance, there shall be face-to-face recertification interviews, and contacts as needed in excess of the minimum required by department regulations shall be made in cases where there is indication of change in need or resources.

(b) Failure to appear at the face-to-face interviews. If a recipient fails to appear without good cause, the social services official shall send a 10-day notice of proposed discontinuance of assistance on a form required by the department.

(1) If the recipient does not respond within this 10-day period, the case shall be closed as of the end of the 10-day period. Any request for assistance made after a case is closed shall be considered a new application.

(2) If the recipient appears for a face to-face interview during the 10-day notice period, an interview shall be arranged. If it is determined that he is eligible for continued assistance, the 10-day notice of proposed discontinuance shall be nullified.

(c) Eligibility mailout process. (1) Social services districts which use eligibility mailout questionnaires must develop plans outlining the eligibility mailout process which is to be used, consistent with the provisions of paragraph (2) of this subdivision. Such plans must be submitted to and approved by this department before a social services district's mailout process can be implemented. Concurrently with the submission of the plan, or anytime thereafter, a social services district may request, and the department may approve, a waiver of the provisions set forth in subparagraphs (i) and (ii) of paragraph (2) of this subdivision. The department may rescind the approval of any eligibility mailout plan or suspend such process when circumstances make such action appropriate.

(2) (i) If a recipient fails to respond to an eligibility mailout questionnaire within the time period described in the questionnaire, the social services official must send another eligibility mailout questionnaire with a 10-day notice of proposed discontinuance of assistance on the State prescribed form.

(ii) If the recipient does not respond to the eligibility mailout questionnaire within the 10-day period, the case must be closed at the end of the 10-day period. Any request for assistance made after a case is closed must be considered a new application.

(iii) If the recipient responds to the eligibility mailout questionnaire during the 10-day notice period, the 10-day notice of proposed discontinuance must be nullified.

(d) Failure to cooperate with a quality control review. When a head of household refuses without good cause to cooperate in a quality control review conducted in accordance with Part 326 of this Title, the entire household is ineligible for public assistance until the head of household cooperates with the review. Good cause includes circumstances beyond the head of household's control, such as, but not limited to, illness of the head of household, illness of another household member requiring the presence of the head of the household, or a household emergency.

(e) When a social services district receives indication of ineligibility or of change in degree of need, action shall be taken to review these situations as they occur. An investigation shall be initiated promptly and completed within 30 days.

(f) When a social services district verifies ineligibility or a change which results in a decrease in need, it shall immediately initiate action to reduce the grant for the appropriate payment month and to notify the recipient of the proposed change in his assistance grant in accordance with department regulations. When the verified data indicates an increase in need, action shall be taken immediately to increase the grants for the next payment period possible under the existing payment procedure. An appropriate entry shall be made in the case record of any such change in grant, and the basis for it. Such reduction or increase in grant involves a reauthorization for a continuing grant in a different amount, while a discontinued grant may involve the following action:

(1) Case closed. This is a final terminal action, signifying that the case is no longer eligible for financial assistance in that public assistance program. Such action is also taken when the case is transferred or reclassified to another category of public assistance.

(2) The case must be closed when the recipient fails to pick up public assistance benefits from an electronic payment file transfer outlet for two consecutive months.

Doc Status: 
Complete

Section 351.23 - Notification of change in grant.

351.23 Notification of change in grant. (a) The recipient must be notified of any change in grant in accordance with this Title.

(b) The recipient must be notified of the right to a fair hearing in accordance with Part 358 of this Title whenever there is a proposed reduction in, or discontinuance of, or increase in, the grant.

Doc Status: 
Complete

Section 351.24 - Mandatory reporting.

351.24 Mandatory reporting. (a) The following definitions are used in this Part:

(1) Quarterly reporting refers to a procedure for obtaining information concerning the incomes and circumstances of certain public assistance recipients through semi-annual recertifications and semi-annual mailed reports. Quarterly reporting is a modified system of monthly reporting in which written reports are made at semi-annual intervals and public assistance grants are calculated prospectively.

(2) Authorization period means the six-month period for which public assistance benefits are authorized pursuant to sections 350.2(a) (2) and 350.2(a) (4) of this Title following a recertification pursuant to section 351.21(b) (2) of this Title. Each authorization period is divided into two payment quarters.

(3) Quarterly report means a form upon which a recipient reports income for the most recent four weeks in a three-month period and household circumstances for that three-month period.

(4) Report quarter means the three-month period covered by a quarterly report.

(5) Process month means the month in which information contained in a quarterly report or obtained during a recertification is reviewed. With respect to information obtained from a quarterly report, the process month is the third month of an authorization period. With respect to information obtained at recertification, the process month is the last month of the authorization period.

(6) Payment quarter means the three-month period after the process month.

(b) A public assistance household must submit a quarterly report form to the social services district in the first process month following recertification when:

(1) any member of the public assistance case has earned income; or

(2) another member of the household, whose income must be applied in determining the amount of the benefit, has earned income.

(c) The quarterly report form must contain the following information:

(1) report quarter income, household composition and other circumstances relevant in determining the amount of assistance; and

(2) any changes in income, resources, or other relevant circumstances affecting eligibility for or the amount of benefits which the household expects to occur in the current or future months.

(d) The quarterly reporting process does not relieve recipients of their responsibility to report changes in income, resources or family composition in a timely manner. Recipients must report the receipt of new or increased income no later than 10 days after the receipt of the income. A report of such income made more than 10 days after receipt is not timely, but a report made more than 10 days prior to the end of the month is timely with respect to the next month and any succeeding month.

(e) (1) Quarterly report forms must be provided to recipients in sufficient time for recipients to return completed reports to the social services districts by the tenth day of the process month.

(2) A quarterly report is considered complete when the recipient has:

(i) answered all questions;

(ii) provided verification of all reported income; and

(iii) signed and dated the report on or after, but not before, the last day of the report quarter.

(f) Failure to submit a completed report. If a recipient fails, without good cause, to return a completed quarterly report by the tenth day of the process month, the social services district must send a timely and adequate notice of discontinuance with a copy of any quarterly report which was returned as incomplete or with a second quarterly report form if no report was returned.

(g) If the recipient responds to the discontinuance notice and submits a completed report before the effective date of the discontinuance, the social services district must accept the completed quarterly report and void the notice of discontinuance.

(h) (Repealed)

Doc Status: 
Complete

Section 351.25 - Proration of benefits at time of case closing or reduction of

351.25 Proration of benefits at time of case closing or reduction of benefits. When a case is closed or benefits are reduced, the public assistance grant must be prorated so that only those benefits to which the recipient is entitled, if any, are provided beyond the date of discontinuance or reduction. Any benefits that have been provided for a period in which the recipient was no longer eligible for benefits or was eligible for lesser benefits must be recovered in accordance with section 352.31(d) of this Title.

Doc Status: 
Complete

Section 351.26 - Good Cause.

Section 351.26. Good Cause. (a) An applicant for a recipient of public assistance is exempt from complying with any requirement concerning eligibility for public assistance if the applicant or recipient establishes that good cause exists for failing to comply with the requirement. Except where otherwise specifically set forth in any provision of this Title, good cause for failure to comply with an eligibility requirement exists when:

(i) the applicant or recipient has a physical or mental condition which prevents compliance;

(ii) the applicant's or recipient's failure to comply is directly attributable to social services district error; or

(iii) other extenuating circumstances, beyond the control of the applicant or recipient, exist which prevent the applicant or recipient from being reasonably expected to comply with an eligibility requirement.

(b) The applicant or recipient is responsible for notifying the social services district of the reasons for failing to comply with an eligiblity requirement and for furnishing evidence to support any claim of good cause. The social services district must review the information and evidence provided and make a determination of whether the information and evidence supports a finding of good cause.

 

Doc Status: 
Complete

Section 351.27 Reserved

Reserved

Section 351.28 - Home visits.

351.28 Home visits. (a) A visit to the home of an applicant for or recipient of Aid to Dependent Children (ADC) or Home Relief (HR) may be conducted by an official of the social services district as part of an investigation into eligibility or continuing eligibility for such assistance. The visit may be conducted with advance notice that a visit may take place, or without advance notice in the circumstances described in subdivision (b) of this section. A home visit must ordinarily be conducted only during the normal business hours of the social services district or during daylight hours, unless the circumstances of the applicant or recipient make such time impractical. The social services official conducting such visit must properly identify himself or herself.

(b) A visit to the home of an applicant for or a recipient of ADC or HR by an official of the social services district may be conducted without advance notice to the applicant or recipient when the district has information that is inconsistent with or fails to support pertinent information reported by the applicant or recipient during the eligibility or redetermination of eligibility process, when the applicant or recipient fails to provide information pertinent to the eligibility or redetermination of eligibility process that he or she would reasonably be expected to provide or when it appears that information provided by the applicant or recipient during the eligibility or redetermination of eligibility process is false. Examples of such circumstances include, but are not limited to: where the landlord does not verify the household composition or provides information which is inconsistent with the information in the application; where the household's stated expenses exceed the stated income or the current grant without a reasonable explanation; where there is no information concerning a parent who is alleged to be absent from the home or the information is inconsistent with the information in the application; where the application is inconsistent with prior case information in the district's possession; or where the application contains inconsistent information that would affect eligibility for ADC or HR.

(c) Consent by the applicant or recipient to a visit must not be considered to be permission to search the premises. The official may question the applicant or recipient about people or objects in plain view on the premises.

(d) Failure by the applicant to cooperate during an unscheduled visit or to permit such visit is not a basis for a discontinuance or denial of assistance. An official conducting an unscheduled visit must not indicate or lead the applicant or recipient to believe that failure to cooperate or to permit the visit will be a basis for denying or discontinuing benefits.

 

Doc Status: 
Complete

Part 352 - STANDARDS OF ASSISTANCE - OTDA

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies of Part 352 please contact: Office of Temporary & Disability Assistance 40 North Pearl Street Albany, New York 12243 (518) 473-1090
PART 352

STANDARDS OF ASSISTANCE

(Statutory authority: Social Services Law, Sections 20, 34, 106-b, 131,
131-a, 131-j, 131-p, 143-c, 157, 158, 350, 355, 358, L.
1953, ch. 562; L. 1971, ch.110, Section 83)
Sec.
352.1 Standard of need for determining eligibility
352.2 Allowances and grants for persons who constitute or are members
of a family household
352.3 Rent allowances
352.4 Shelter costs for applicant/recipient-owned property
352.5 Fuel-for-heating allowance
352.6 Miscellaneous shelter allowances and grants
352.7 Allowances and grants for other items of need
352.8 Standard of assistance and allowances for persons not living in
their own homes; cost of residence for families living in shel
ters for families
352.9 Purchase of services
352.10 Payment of life insurance premiums
352.11 Advance allowances
352.12 Income and benefits as related to employment
352.13 Income and benefits related to military service
352.14 Contributions from relatives
352.15 Support pass-through payments
352.16 Exemption of income and resources-general policy
352.17 Definition and computation of earned income
352.18 Limitation on gross income
352.19 Expenses incident to employment
352.20 Exemption of earned income
352.21 Individual development accounts
352.22 Noncountable income and resources
352.23 Utilization of resources--general policy
352.24 (Reserved)
352.25 Net income from assigned assets
352.26 Life insurance
352.27 Real property
352.28 (Reserved)
352.29 Budgeting--the budgetary method
352.30 Persons included in the budget
352.31 Estimate of need and application of income
352.32 Calculating the budget
352.33 Deeming of sponsor's income and resources
352.34 Welfare of public assistance recipients
352.35 Eligibility for temporary housing assistance for homeless persons Volume: A Statutory Authority: (Statutory authority: Social Services Law, Sections 20, 34, 106-b, 131, 131-a, 131-j, 131-p, 143-c, 157, 158, 350, 355, 358, L. 1953, ch. 562; L. 1971, ch.110, Section 83)

Doc Status: 
Complete
Effective Date: 
Tuesday, February 12, 2002

Part 353 - RECOVERY OF INTERIM ASSISTANCE - OTDA

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: Office of Temporary & Disability Assistance 40 North Pearl Street Albany, New York 12243 (518) 473-1090
PART 353

RECOVERY OF INTERIM ASSISTANCE

(Statutory authority: Social Services Law,
Sections 20 (3)(d), 34 (3)(f), 158, 211)
Sec.
353.1 Introduction and applicability
353.2 Interim assistance to SSI applicants and recipients

Doc Status: 
Complete

Part 354 - CASE RECORDING

Doc Status: 
Complete
Statutory Authority: 
Social Services Law, Sections 20, 34

Section 354.1 - General.

Section 354.1 General. (a) Definition of case record. Case record means all written material concerning an applicant or recipient, including the application form, the case history, budget and authorization forms, medical, resource and financial records.

(b) Maintenance of case record. A case record shall be maintained for each application and for each case of public assistance in order to provide a systematic record of interviews with the applicant or recipient and with other sources of information. The information obtained through social investigation shall be entered promptly on required forms

(or approved local equivalents) and/or recorded in the social case history.

 

Doc Status: 
Complete

Section 354.2 - Content of case records purpose and use.

354.2 Content of case records purpose and use. The case record shall present a clear and accurate account of the district's provision of assistance and care, and of the services provided either directly or by referral to other community programs. The evidence in the case record shall be used to:

(a) substantiate the determination of initial and continuing eligibility, or ineligibility, for assistance or care;

(b) document compliance with requirements pertaining to the fiscal and accounting aspects of the use of public funds;

(c) validate the supervisory review and written approval of case action by the social services official or by his authorized representative;

(d) insure continuity and consistency of service and planning in accordance with individual need regardless of changes in district staff;

(e) evaluate the situation in connection with appeals or reapplication.

 

Doc Status: 
Complete

Section 354.3 - Case activity control.

354.3 Case activity control. Each district shall establish and maintain supervisory control of required interviews with recipients, periodic redetermination of eligibility, periodic reauthorizations of assistance, issuance of notices to recipients, and shall record the completion of such action. There shall be maintained, easily available to the social service staff, a current, cumulative record of assistance authorized.

 

Doc Status: 
Complete

Part 355 - INFORMATION PAMPHLETS; NOTIFICATION OF DECISIONS

Doc Status: 
Complete
Statutory Authority: 
Social Services Law, Sections 20, 34

Section 355.1 - Responsibility of social services agency to provide

Section 355.1 Responsibility of social services agency to provide information to applicants and recipients. (a) Each local social services department shall give information concerning the following to every person who inquires about or applies for public assistance or care:

(1) the eligibility requirements for public assistance or care;

(2) the legal responsibility of the applicant or recipient to give the social services official complete information about his property, his earnings, his relatives, and any other resources which might affect his eligibility;

(3) the method of computing a public assistance grant or determining eligibility for care;

(4) the right to complain to the State department when dissatisfied with the local decision, and the right to appeal to the department and request a fair hearing;

(5) the right to appeal and to request a fair hearing is also extended to an applicant for home relief whose application is denied under the provisions of section 139-a of the Social Services Law; and

(6) the prohibition against discrimination on the basis of race, color, religion, national origin, age, sex, handicap or marital status under State and Federal law.

(b) In order to fully comply with the provisions of 45 CFR Part 84, which was issued to effectuate section 504 of the Rehabilitation Act of 1973, each district must provide information in a manner that is accessible to blind or deaf applicants or recipients.

(c) Social services districts must provide all applicants for and recipients of public assistance whose households include a child(ren) five years of age or younger with information and a schedule regarding age-appropriate immunizations. Districts must also provide such applicants and recipients with information about eligibility for free vaccinations for children.

 

Doc Status: 
Complete

Section 355.2 - Informational pamphlets.

355.2 Informational pamphlets. (a) General. To provide information about public assistance and care, each local department shall promptly give a copy of the appropriate informational pamphlet to each person who inquires or applies.

(b) Fair hearings. Information about fair hearings shall be given to applicants for and recipients of assistance under the following conditions and at the following times:

(1) at the time of application;

(2) upon denial of application or notification of intent to reduce or discontinue assistance;

(3) upon receipt of a complaint about or appeal of the local department's determination;

(4) upon receipt of a complaint concerning the alleged inadequacy of a grant;

(5) at the time of transfer or reclassification to another program administered by the same local department; and

(6) at the time of an increase in assistance.

(c) Public distribution. Pamphlets shall be made available to community agencies and to individuals in any way which will increase public understanding of the public-assistance programs and fair-hearing process.

 

Doc Status: 
Complete

Section 355.3 - Notification of local department decisions--all programs except

355.3 Notification of local department decisions--all programs except SSI and MA. (a) Notification to applicants. Each applicant for ADC, ADC-U, ADC-FC, EAF, EAA, HR or VA shall be notified in writing of the local department decision on his application. Each applicant for institutional care for adults shall be notified either in writing or in an interview of the local department decision on his application.

(1) Notification of acceptance. (i) When an application is accepted for ADC, ADC-U, ADC-FC, EAF, EAA, HR or VA and a grant is to be made to the applicant, the letter of notification shall state the amount of the grant and the date the check may be expected; contain information on the program and on the right of appeal; and include an explanation of the budget on which the grant was based.

(ii) When an application is accepted for care in a congregate care facility, the applicant shall be notified by letter or interview that the care has been approved and the controlling conditions including any plans for partial payment or repayment under which such care is approved.

(2) Notification of denial. (i) When an application for ADC, ADC-U, ADC-FC, EAF, EAA, HR or VA is denied, the letter of notification shall state adequately and clearly the reasons for denial. The letter shall include a statement informing the applicant of his right of appeal to and a hearing before the State department.

(ii) When an application for care in a congregate care facility is denied, the notification, whether by letter or interview, shall state adequately and clearly the reasons for the denial. A notice, where appropriate, shall also be sent to the facility giving care and to a person requesting assistance or care in behalf of the applicant.

(iii) When an application for HR is denied under the provisions of section 139-a of the Social Services Law, the letter of notification shall state clearly the reasons for denial and shall include a statement informing the applicant of his right of appeal to and a hearing before the State department.

(iv) When an applicant is found to be in need but not to meet the special eligibility requirements of a Federal category he shall be informed of this fact in order that he may apply for the form of assistance for which eligible. Similarly when an applicant for a noncategorical program of assistance is found to meet the special eligibility requirements of a Federal category he shall be informed of this fact in order that he may apply for the special form of assistance.

(3) Withdrawal of application. When an application is withdrawn, the reasons therefor shall be recorded in the case record. The applicant may be notified of the termination of his application in order to confirm the local department's understanding of his decision to withdraw his application.

(b) Notification to recipients. Each recipient of ADC, ADC-U, ADC-FC, EAF, EAA, HR or VA shall be notified in writing of any change in the grant or care, or of the discontinuance of the grant or care. Each recipient of care in a congregate care facility shall be notified either in writing or in an interview of any change in the grant or care, including the form or manner of payment, or the discontinuance of the grant or care.

(1) Notification of change in grant or care. (i) When a change in the grant or the care approved is made for a recipient of ADC, ADC-U, ADCFC, EAF, EAA, HR or VA, the letter of notification shall state the nature of the change including the amount of the new cash grant where appropriate, the effective date, the reason for the change and give assurance of an opportunity to discuss the change. The recipient shall be notified of his right of appeal and fair hearing and given a pamphlet or appropriate information.

(ii) When any changes occur which effect the conditions under which continued care is approved for recipients of care in a congregate care facility a notice of such change shall be given to both the recipient and the facility providing care.

(2) Notification of discontinuance of grant or care. (i) When discontinuance of a grant or care occurs, the recipient of ADC, ADC-U, ADC-FC, EAF, EAA, HR or VA shall receive a written notification which states the effective date, the reason therefor, the appropriate information or pamphlet and the opportunity to discuss the discontinuance. He shall be informed of his right of appeal and fair hearing and given a pamphlet or appropriate information.

(ii) Each recipient of care in a congregate care facility shall be notified of the discontinuance of care at public expense and the reasons therefor. A facility giving care shall be notified of the discontinuance and the effective date thereof.

 

Doc Status: 
Complete

Section 355.4 - Notification of local department decisions--SSI and MA.

355.4 Notification of local department decisions--SSI and MA. (a) Each applicant for social services who is an applicant for or recipient of supplemental security income or medical assistance shall be notified in writing of the decision on his application.

(b) When an application for services is denied, the letter of notification shall state adequately and clearly the reasons for the denial.

 

Doc Status: 
Complete

Section 355.5 - Transfers and reclassifications.

355.5 Transfers and reclassifications. All of the above listed procedures covering notification of agency decision shall be observed for persons actively in receipt of assistance or care when transferred or reclassified to another program. The notification should include statements covering the programs involved and the reason for the change, right of complaint or appeal if dissatisfied with the new action, and reference to and enclosure of an appropriate informational pamphlet.

 

Doc Status: 
Complete

Part 356 - INQUIRIES AND COMPLAINTS

Doc Status: 
Complete
Statutory Authority: 
Social Services Law, Sections 20, 34

Section 356.1 - Definitions.

Section 356.1 Definitions. (a) Inquiry. An inquiry is any request for information that does not constitute an application for public assistance or care and that does not come within the definition of a complaint as defined in subdivision (b) of this section.

(b) Complaint. A complaint is any written or oral communication made to a social services district or the department by or on behalf of an applicant for or recipient of public assistance or care, other than a complaint for which there is a right to a fair hearing, or a communication from any other source directed or referred to the social services district or the department alleging, directly or indirectly, dissatisfaction with:

(1) the action or failure to act in a particular case;

(2) the manner in which a social services district generally handles its cases;

(3) the social services districts' facilities and services, or the manner in which it generally conducts its business;

(4) other facilities or services (public or private) employed by a social services district for providing care and services for its clients; or

(5) any other aspect of social services administration not mentioned in this section.

 

Doc Status: 
Complete

Section 356.2 - Handling of inquiries.

356.2 Handling of inquiries. (a) Every inquiry received by a social services district or the department shall be promptly answered. If the information requested is not available, the inquiry shall be acknowledged and referred to the appropriate source for reply. Whenever appropriate, informational pamphlets shall be utilized.

(b) Requests from other agencies, within or without the State, for information requiring field investigation shall receive an immediate acknowledgment followed by a reasonably timed report of findings. The instructions published in the Public Welfare Directory shall be followed.

 

Doc Status: 
Complete

Section 356.3 - Handling of complaints.

356.3 Handling of complaints. (a) Every complaint received shall be promptly acknowledged. If received by mail, acknowledgment may be either by letter or a home visit by a staff member. In acknowledging a complaint, the writer shall be informed that the letter or interview is in response to the communication.

(b) The substance of the complaint shall be reviewed and analyzed in relation to the case history or other office records in order to relate the social services district's knowledge of the past situation to the present problem as the complainant sees it and to determine the validity of the complaint.

(c) The social services district shall be responsible for reviewing its own activity and for making such additional investigation as may be necessary in order to determine what appropriate action is required.

(d) When a complaint has been referred by another agency and a report requested, the local social services department shall render such report with due regard to the confidential nature of social services records.

(e) When a complaint has been referred by the department to a social services district, a report shall be submitted within 20 days of the date of such request and shall cover fully all matters pertaining to the complaint. If the time limit cannot be met, an interim report shall be sent. The final report shall include:

(1) a statement that the complainant was informed the contact resulted from the complaint;

(2) facts in possession of the social services district and any additional information requested by the department or essential to its understanding of the case; and

(3) any action taken by the social services district and whether the complainant is satisfied with the explanation provided him.

 

Doc Status: 
Complete

Part 357 - CONFIDENTIAL NATURE OF RECORDS

Doc Status: 
Complete
Statutory Authority: 
Social Services Law, Sections 20, 34

Section 357.1 - Nature of information to be safeguarded.

Section 357.1 Nature of information to be safeguarded. (a) Information to be safeguarded includes names and addresses of applicants, recipients, and their relatives, including lists thereof; information contained in applications and correspondence; reports of investigations; reports of medical examination, diagnostic tests and treatment, including reports on whether an applicant or recipient has had an HIV related test or has been diagnosed as having AIDS, HIV infection or an HIV related illness; resource information; financial statements; and record of agency evaluation of such information. This applies to all information secured by the agency whether or not it is contained in the written record.

(b) For purposes of this Part: (1) "AIDS" means acquired immune deficiency syndrome, as may be defined from time to time by the Centers for Disease Control of the united States Public Health Service.

(2) "HIV infection" means infection with the human immunodeficiency virus or any other related virus identified as a probable causative agent of AIDS.

(3) "HIV related illness" means any illness that may result from or may be associated with HIV infection.

(4) HIV related test means any laboratory test or series of tests for any virus, antibody, antigen or etiologic agent whatsoever thought to cause or to indicate the presence of AIDS.

 

Doc Status: 
Complete

Section 357.2 - Prohibition against disclosure of information.

357.2 Prohibition against disclosure of information. (a) Officers and employees of social services districts shall not reveal information obtained in the course of administering public assistance for purposes other than those directly connected with the administration of public assistance, except for the name, address and the amount received by or expended for a recipient of public assistance when the appropriating body or social services official has authorized their disclosure to an agency or person deemed entitled to it pursuant to section 136 of the Social Services Law.

(b) Any release of information pursuant to this section which would reveal that a person has been the subject of an HIV related test, or has HIV infection, HIV related illness or AIDS, is subject to the provisions of section 2782 of the Public Health Law. In accordance with such section, confidential HIV related information relating to a recipient of a health or social service as defined in section 2780 of the Public Health Law, may be disclosed to authorized employees of the department or of social services districts when reasonably necessary for such employees to supervise, monitor, administer or provide such service and such employees would, in the ordinary course of business, have access to records relating to the care of, treatment of or provision of a health or social service to such recipient.

(c) Each social services official shall designate the person, or persons, within the agency with authority to disclose information.

 

Doc Status: 
Complete

Section 357.3 - Basis for disclosure of information.

357.3 Basis for disclosure of information. (a) Safeguards in disclosing information. Information shall be released to another agency or person only when the public welfare official providing such data is assured that:

(1) the confidential character of the information will be maintained;

(2) the information will be used for the purposes for which it is made available, such purposes to be reasonably related to the purposes of the public welfare program and the function of the inquiring agency; and

(3) the information will not be used for commercial or political purposes.

(b) Disclosure of medical information. (1) Upon the transfer of a foster child to the care of another authorized agency, the former agency must provide to the receiving agency the child's comprehensive health history, both physical and mental, to the extent it is available.

(2) To the extent they are available, the comprehensive health history of the child and of his or her biological parents and the health care needs of the child must be provided by an authorized agency to foster parents at the time of the child's placement in foster care. In all cases, information identifying the biological parents must be removed from the comprehensive medical history.

(3) To the extent it is available, the comprehensive health history, both physical and mental, of a child legally freed for adoption and of his or her biological parents must be provided by an authorized agency to the child's prospective adoptive parent(s). Prospective adoptive parent means an individual who meets criteria as defined in section 421.16 of this Title and who has indicated an interest in adopting a particular child, and for whom the authorized agency has begun the placement agreement process in accordance with section 421.18 of this Title. In the case of finalized adoptions, such information must be provided upon request to the child's adoptive parents. In all cases, information identifying the biological parents must be removed from the comprehensive health history.

(4) To the extent it is available, the comprehensive health history, both physical and mental, of a child in foster care and of his or her biological parents must be provided by an authorized agency to such child when discharged to his or her own care.

(5) To the extent it is available, the comprehensive health history of a child in foster care must be provided to the child's parents or guardian when the child is discharged to their care, except that confidential HIV-related information must not be disclosed without a written release from the child if the child has the capacity to consent as defined in section 360-8.1(a)(8) of this Title and in article 27-F of the Public Health Law. The conditions for the written release authorizing such disclosure are described in section 360-8.1(g) of this Title and in article 27-F of the Public Health Law.

(6) To the extent it is available, the comprehensive health history, both physical and mental, of any adopted former foster child and of his or her biological parents must be provided by an authorized agency to the adopted former foster child upon request. In all cases, information identifying the biological parents must be removed from the comprehensive health history.

(7) For the purposes of this subdivision, the comprehensive health history must include, but is not limited to, conditions or diseases believed to be hereditary, where known; drugs or medication taken during pregnancy by the child's biological mother, where known; immunizations received by the child while in foster care and prior to placement in care, where known; medications dispensed to the child while in care and prior to placement in care, where known; allergies the child is known to have exhibited while in care and prior to placement in care, where known; diagnostic tests, including developmental or psychological tests and evaluations given to the child while in care and prior to placement in care, where known, and their results, laboratory tests for HIV, where known, and their results; and any follow-up treatment provided to the child prior to placement in care, where known, or provided to the child while in care, or still needed by the child.

(c) Disclosure to applicant, recipient, or person acting in his behalf. (1) The case record shall be available for examination at any reasonable time by the applicant or recipient or his authorized representative upon reasonable notice to the local district. The only exceptions to access are:

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

(ii) those materials being maintained separate from public assistance files for purposes of criminal prosecution and referral to the district attorney's office; and

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

(2) Information may be released to a person, a public official, or another social agency from whom the applicant or recipient has requested a particular service when it may properly be assumed that the client has requested the inquirer to act in his behalf and when such information is related to the particular service requested.

(d) Disclosure to relatives and other legally responsible persons.

(1) To the extent available and upon request, an authorized agency must provide a relative or other legally responsible person with whom a child is placed, or to whom a child is discharged or released, by the family court pursuant to section 1017 or 1054 of the Family Court Act, but who is not a foster parent for the child, with the same background information regarding the child as is provided to a foster parent with whom a child is placed. Such information, as available, must include the child's medical history and any other information which is provided to a foster parent as necessary for the child's health, safety and welfare pursuant to this section, section 443.3 of this Title, and any other applicable regulations of the department. However, if the child's medical history includes confidential HIV-related information, such information must not be provided to the relative or other legally responsible person without a written release from:

(i) the child, if the child has capacity to consent as defined in section 360-8.1(a)(8) of this Title and in article 27-F of the Public Health Law; or

(ii) a person authorized to consent to health care for the child, if the child lacks capacity to consent.

(2) A social services district is required, under section 132 of the Social Services Law, to investigate the ability and willingness of relatives, and the liability of legally responsible relatives, to contribute to the support of an applicant for or recipient of public assistance or care. In regard to these investigations, such a relative is a person considered entitled, under section 136 of the Social Services Law, to necessary and appropriate information regarding the applicant or recipient. Information concerning the applicant's or recipient's needs and basic circumstances may be disclosed to such a relative to the extent necessary to discuss contributions of support from that relative. However, confidential HIV-related information may not be disclosed to such a relative without a written release from:

(i) the applicant or recipient, if the applicant or recipient has capacity to consent as defined in section 360-8.1(a)(8) of this Title and in article 27-F of the Public Health Law; or

(ii) from a person authorized to consent to health care for the applicant or recipient, if the applicant or recipient lacks capacity to consent.

(3) The social services district or other authorized agency must, in writing, inform the relative or other legally responsible person receiving information under this subdivision, of the confidential nature of the information and of any restrictions against redisclosure of such information. In the case of confidential HIV-related information, the warning statement against redisclosure set forth in section 360-8.1(h) of this Title and in article 27-F of the Public Health Law must be provided to the person receiving confidential HIV-related information.

(4) The term confidential HIV-related information is defined in section 360.8-1(a)(5) of this Title and in article 27-F of the Public Health Law. The conditions for the written release authorizing disclosure of such information are set forth in section 360-8.1(g) of this Title and in article 27-F of the Public Health Law.

(e) Disclosure to Federal, State or local official. (1) Information may be disclosed to any properly constituted authority. This includes a legislative body or committee upon proper legislative order, an administrative board charged with investigating or appraising the operation of public welfare, law enforcement officers, grand juries, probation and parole officers, government auditors, and members of public welfare boards, as well as the administrative staff of public welfare agencies.

(2) Information may be released to a selective service board when such information is necessary in order that the board may arrive at a valid and consistent decision regarding dependency. (3) A social services official must disclose to a federal, state or local law enforcement officer, upon request of the officer, the current address of any recipient of family assistance, or safety net assistance if the duties of the officer include the location or apprehension of the recipient and the officer furnishes the social services official with the name of the recipient and notifies the agency that such recipient is fleeing to avoid prosecution, custody or confinement after conviction, under the laws of the place from which the recipient is fleeing for a crime or an attempt to commit a crime which is a felony under the laws of the place from which the recipient is fleeing, or which, in the case of the state of New Jersey, is a high misdemeanor under the laws of that state, or is violating a condition of probation or parole imposed under a federal or state law or has information that is necessary for the officer to conduct his or her official duties. In a request for disclosure pursuant to this paragraph, such law enforcement officer must endeavor to include identifying information to help ensure that the social services official discloses only the address of the person sought and not the address of a person with the same or similar name.

(4) Nothing in this Part precludes a social services official from reporting to an appropriate agency or official, including law enforcement agencies or officials, known or suspected instances of physical or mental injury, sexual abuse or exploitation, sexual contact with a minor or negligent treatment or maltreatment of a child of which the social services official becomes aware of in the administration of public assistance and care.

(5) Nothing in this Part precludes a social services official from communicating with the federal immigration and naturalization service regarding the immigration status of any individual.

(f) Disclosure upon subpoena by court. (1) When a public assistance record is subpoenaed by court, the public welfare agency shall immediately consult its legal counsel before producing any record or revealing any information or giving any testimony.

(2) When the subpoena is for a purpose directly related to the administration of public assistance or protection of the child, the agency before complying with the subpoena shall endeavor to get in touch with the client whose record is involved or his attorney and secure permission to reveal the contents of the record which relate to the administration of public assistance.

(3) In the event that the subpoena is for a purpose not directly related to the administration of public assistance or the protection of a child, the agency shall plead, in support of its request to withhold information, that the Social Security Act, the Social Services Law and the regulations of the State Department of Social Services prohibit disclosure of confidential information contained in records and files, including names of clients. The agency will be governed by the final order of the court after this plea is made.

(g) Disclosure to bona fide news disseminating firm. The written assurance required by section 136 of the Social Services Law that the names and addresses of applicants and recipients of assistance shall not be published, shall be obtained by the public welfare official before allowing examination of records of disbursements by that bona fide news disseminating firm.

(h) Disclosure of confidential HIV related information.

(1) Notwithstanding any other provision of any law or regulation, confidential HIV related information concerning persons claiming disability benefits under the provisions of titles II and XVI of the Social Security Act may be disclosed to persons employed by or acting on behalf of the department's office of disability determinations engaged in the conduct of processing such claims on the basis of a general medical release in the form approved by the Social Security Administration of the United States Department of Health and Human Services. The employees and agents of the office of disability determinations, including providers of clinical laboratory services, consultative medical examinations or claimant-related medical information, to the extent they have acted in accordance with department procedures and instructions, will be held harmless and indemnified by the department for any liability for the disclosure or redisclosure of any HIV related information when such information is solicited by or provided to the office of disability determination.

(2) All medical information, including confidential HIV related information, solicited by or provided to the office of disability determinations for the purpose of determining a person's disability will be treated as confidential and this information must not be disclosed except as prescribed by the regulations of the Secretary of the United States Department of Health and Human Services.

(3) The term confidential HIV related information is defined in section 360-8.1 of this Title.

* (i) Disclosure of domestic violence related information.

(1) Information with respect to victims of domestic violence collected as a result of procedures for domestic violence screening, assessment, referrals and waivers pursuant to Part 351 of this Title shall not be released to any outside party or parties or other government agencies unless the information is required to be disclosed by law, or unless authorized in writing by the public assistance applicant or recipient.

(2) Employees of the Office, social services district or any agency providing domestic violence liaison services, consistent with applicable statute and regulation, may have access to client identifiable information maintained by a domestic violence liaison or by the welfare management system only when the employees' specific job responsibilities cannot be accomplished without access to client identifiable information.

(3) Each social service district and agency providing domestic violence liaison services, with access to the welfare management system, must develop and implement policies and practices to ensure the maintenance of confidential individual information. * NB Effective until 98/08/06

 

Doc Status: 
Complete

Section 357.4 - Prohibition against improper use of lists of applicants and

357.4 Prohibition against improper use of lists of applicants and recipients. (Additional statutory authority: Social Services Law, Sections 136, 258, 320) All material sent to applicants and recipients of public assistance, including material enclosed in envelopes containing checks, must be directly related to the administration of the public assistance programs and shall not have political implications.

 

Doc Status: 
Complete

Section 357.5 - Procedures for safeguarding information maintained by the New

357.5 Procedures for safeguarding information maintained by the New York State Department of Social Services, local social services districts and other authorized agencies. (a) Records containing individually identifiable information shall be marked "confidential" and kept in locked files or in rooms that are locked when the records are not in use.

(b) When in use, records shall be maintained in such a manner as to prevent exposure of individual identifiable information to anyone other than the authorized party directly utilizing the case record.

(c) No records shall be taken from the place of business without prior authorization by appropriate supervisory staff of the New York State Department of Social Services, the local social services district or other authorized agency.

(d) No records shall be taken home by agency staff except upon prior authorization by appropriate supervisory staff in order to perform a function which requires the possession of the records outside of the agency and where return of the records to the agency at the close of business would result in an undue burden to the staff. In those cases where records are taken home by staff, the records are to be maintained in a secure location and are not to be disclosed to anyone other than those expressly authorized by statute or regulation. The records are to be returned to the agency by staff on the following business day.

(e) Records shall be transmitted from one location to another in sealed envelopes stamped "confidential," and a receipt shall be obtained documenting delivery of said records.

(f) Interviews with clients shall be conducted at a location and in a manner which maximizes privacy.

(g) Employees of the New York State Department of Social Services, the local social services district or the other authorized agency, consistent with applicable statute and regulation, shall have access to individual identifiable information only where the employee's specific job responsibilities cannot be accomplished without access to individual identifiable information.

 

Doc Status: 
Complete

Section 357.6 - Confidentiality policy and procedures manual.

357.6 Confidentiality policy and procedures manual. The New York State Department of Social Services, local social services districts, and other authorized agencies shall disseminate to staff a policy and procedures manual establishing and describing:

(a) responsibilities of staff to safeguard information pursuant to statute, regulation and policy;

(b) procedures for properly informing clients of records collection, access, utilization and dissemination;

(c) policies and practices relating to the safeguarding of confidential information by the agency;

(d) procedures relating to employee access to information; and

(e) disciplinary actions for violations of confidentiality statutes, regulations and policies.

 

Doc Status: 
Complete

Part 358 - FAIR HEARINGS

FAIR HEARINGS: AID TO DEPENDENT CHILDREN, HOME RELIEF,
MEDICAL ASSISTANCE, EMERGENCY ASSISTANCE TO AGED, BLIND
OR DISABLED PERSONS, EMERGENCY ASSISTANCE TO NEEDY
FAMILIES WITH CHILDREN, FOOD STAMPS, FOOD ASSISTANCE,
HOME ENERGY ASSISTANCE AND SERVICES:

Doc Status: 
Complete
Statutory Authority: 
Social Services Law, Sections 20, 22, 34(3)(f); L. 1971, ch. 110, Section 83

SubPart 358-1 - SCOPE AND EFFECTIVE DATE

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

Section 358-1.1 - General.

Section 358-1.1 General. These regulations govern the fair hearing process and establish the rights and obligations of applicants, recipients, and social services agencies when an applicant or recipient seeks review of a social services agency action or determination regarding that individual's assistance or benefits under public assistance programs, medical assistance, food stamp, food assistance and the home energy assistance (HEAP) programs and under various service programs as defined in section 358-2.20 of this Part.

Doc Status: 
Complete

Section 358-1.2 - Applicant/recipient.

358-1.2 Applicant/recipient. For applicants and recipients, these regulations govern the following:

(a) Notice. These regulations set forth what information you are entitled to receive if you have been accepted for or denied public assistance, medical assistance, HEAP, food stamp benefits or services or if there is to be a discontinuance, reduction, or suspension in the public assistance, medical assistance, food stamp benefits or services which you are receiving or if there is an increase in the public assistance, medical assistance or food stamp benefits you are receiving or if there is to be a change in the calculation of such assistance or benefits or if you are involuntarily discharged from a tier II facility as defined in Part 900 of this Title.

(b) Timing. These regulations set forth the time periods within which you are obligated to request a fair hearing and/or conference if your application for public assistance, medical assistance, HEAP, food stamp benefits or services is not acted upon in a timely manner, or if you have been denied public assistance, medical assistance, food stamp benefits or services or if there is to be a discontinuance, reduction, or suspension in the public assistance, medical assistance, food stamp benefits or services you are receiving, or if there is an increase in the public assistance, medical assistance or food stamp benefits you are receiving, or if there is to be a change in the calculation of such assistance or benefits; or if you are told that you have received an over-issuance of food stamp benefits.

(c) Procedures. These regulations set forth what you are required to do to have an action of a social services agency reviewed when you are denied public assistance, medical assistance, food stamp benefits, HEAP or services, or when there is a discontinuance, reduction, or suspension in the public assistance, medical assistance, food stamp benefits or services which you are receiving, or when there is an increase in the public assistance, medical assistance or food stamps which you are receiving, or if you are involuntarily discharged from a tier II facility as defined in Part 900 of this Title, or if the social services agency has not acted in a timely manner or if there is a change in the calculation of such assistance or benefits, or if you are told that you have received an over-issuance of food stamp benefits; how to ask for a conference and fair hearing; how to exercise your right to have your public assistance, medical assistance, food stamp benefits or services continued until a hearing decision is issued; how to request another hearing date if you are unable to attend the fair hearing on the day it is scheduled to be held; how to get an interpreter if you do not speak English or if you are deaf; and who you may bring to a conference, or fair hearing.

(d) Decision. These regulations set forth what you should do if your local department of social services does not comply with your fair hearing decision.

 

Doc Status: 
Complete

Section 358-1.3 - Social services agencies.

358-1.3 Social services agencies. For social services agencies, these regulations govern the following:

(a) notices to be sent to applicants and recipients of covered programs or services;

(b) agency conferences;

(c) information and documents to be provided to applicants/recipients, or their representatives, who have requested a fair hearing;

(d) the fair hearing process; and

(e) compliance with fair hearing decisions.

 

Doc Status: 
Complete

Section 358-1.4 - Effective date.

358-1.4 Effective date. (a) The provisions of this Part are effective January 15, 1989; however, provisions requiring that recipients be notified of increases in food stamp benefits are not effective until June 1, 1989.

(b) Except as provided in subdivision (c) of this section, social services agencies are required to utilize notices which meet the requirements of this Part no later than June 1,1989.

(c) (1) Notices used in the HEAP program are required to meet the requirements of this Part commencing with the 1989/90 HEAP program year.

(2) Automated notices currently in use by social services districts must conform to the requirements of this Part no later than October 1, 1989.

 

Doc Status: 
Complete

SubPart 358-2 - DEFINITIONS

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

Section 358-2.0 - Introduction.

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

Doc Status: 
Complete

Section 358-2.1 - Action taken notice.

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

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

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

 

Doc Status: 
Complete

Section 358-2.2 - Adequate notice.

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

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

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

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

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

(iv) an acceptance of a food stamp application:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) a statement of the intended action;

(2) the reasons for such intended action;

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

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

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

 

Doc Status: 
Complete

Section 358-2.3 - Adverse action notice.

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

 

Doc Status: 
Complete

Section 358-2.4 - Agency conference.

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

 

Doc Status: 
Complete

Section 358-2.5 - Aid continuing.

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

 

Doc Status: 
Complete

Section 358-2.6 - Appellant.

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

 

Doc Status: 
Complete

Section 358-2.7 - Applicant.

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

 

Doc Status: 
Complete

Section 358-2.8 - Commissioner.

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

 

Doc Status: 
Complete

Section 358-2.9 - Covered programs or services.

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

 

Doc Status: 
Complete

Section 358-2.10 - Department.

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

 

Doc Status: 
Complete

Section 358-2.11 - Expiration notice.

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

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

(b) the date the current certification period ends;

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Doc Status: 
Complete

Section 358-2.12 - Fair hearing.

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

 

Doc Status: 
Complete

Section 358-2.13 - Hearing officer.

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

 

Doc Status: 
Complete

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

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

 

Doc Status: 
Complete

Section 358-2.15 - Notice of action.

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

 

Doc Status: 
Complete

Section 358-2.16 - Parties to a fair hearing.

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

 

Doc Status: 
Complete

Section 358-2.17 - Public assistance.

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

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

 

Doc Status: 
Complete

Section 358-2.18 - Recipient.

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

 

Doc Status: 
Complete

Section 358-2.19 - Restricted payment.

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

 

Doc Status: 
Complete

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

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

 

Doc Status: 
Complete

Section 358-2.21 - Social services agency.

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

 

Doc Status: 
Complete

Section 358-2.22 - Social services district.

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

 

Doc Status: 
Complete

Section 358-2.23 - Timely notice.

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

 

Doc Status: 
Complete

Section 358-2.24 - Title.

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

 

Doc Status: 
Complete

Section 358-2.25 - Witness.

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

 

Doc Status: 
Complete

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

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

 

Doc Status: 
Complete

Section 358-2.27 - Food Stamps.

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

 

Doc Status: 
Complete

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

Doc Status: 
Complete
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.

Doc Status: 
Complete

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.

 

Doc Status: 
Complete

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.

 

Doc Status: 
Complete

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.

 

Doc Status: 
Complete

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.

 

Doc Status: 
Complete

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.

 

Doc Status: 
Complete

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.

 

Doc Status: 
Complete
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.

 

Doc Status: 
Complete

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.

 

Doc Status: 
Complete

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.

 

Doc Status: 
Complete

SubPart 358-4 - RIGHTS AND OBLIGATIONS OF SOCIAL SERVICES AGENCIES

Doc Status: 
Complete
Statutory Authority: 
Social Services Law, Sections 20(3)(d), 22(8), 34(3)(f)

Section 358-4.0 - Introduction.

Section 358-4.0 Introduction. The rights and obligations of social services agencies are governed by this Subpart.

Doc Status: 
Complete

Section 358-4.1 - Proposed actions.

358-4.1 Proposed actions. (a) A social services agency proposing to approve, deny, discontinue, suspend, or reduce a public assistance grant, medical assistance authorization, food stamp benefits, or services, or to increase a public assistance grant or food stamp benefits or a medical assistance spenddown, or to change the amount of one of the items used in the calculation of a public assistance grant, food stamp benefits or a medical assistance spenddown, or to accept or deny an application for HEAP benefits, or to discharge a resident of a tier II facility involuntarily as defined in Part 900 of this Title, must review or cause to be reviewed the intended action to determine whether the intended action is correct on the basis of the available evidence included in the applicant's or recipient's case record.

(b) Where it is determined that the intended action is correct after review, the social services agency must send to the applicant/recipient a notice which meets the requirements of section 358-3.3 of this Part.

 

Doc Status: 
Complete

Section 358-4.2 - Prehearing responsibilities.

358-4.2 Prehearing responsibilities. (a) When requested, the social services agency must provide assistance to applicants and recipients in making a request for a fair hearing.

(b) (1) Upon notification by the department that a fair hearing has been requested and that the appellant's public assistance, medical assistance, food stamp benefits, or services must be continued or reinstated in accordance with section 358-3.6 of this Part until the fair hearing decision is issued, the social services agency, except as provided in section 358-3.6(b) and (c) (6) of this Part, must take immediate action to assure that the appellant's public assistance, medical assistance, food stamp benefits and services continue unchanged until the fair hearing decision is issued.

(2) Upon receipt of such notification, if public assistance, medical assistance, food stamp benefits or services already have been discontinued, reduced, restricted or suspended, the social services agency must take whatever action is necessary to restore the appellant's public assistance, medical assistance, food stamp benefits or services to their previous level. Such action must be taken as soon as possible but no later than five business days from notification that appellant's public assistance, medical assistance, food stamp benefits or services must continue or be reinstated.

(c) Upon oral or written request, including request by telephone, the social services agency must provide to the appellant and the appellant's authorized representative copies of the documents to be presented at the fair hearing. Such copies must be provided at a reasonable time before the date of the hearing. If the request for copies of documents is made less than five business days before the hearing, the social services agency must provide the appellant and the appellant's authorized representative such copies no later than at the time of the hearing. Such documents must be provided without charge and must be provided to the appellant and the appellant's authorized representative by mail within a reasonable time from the date of the request if the appellant or the appellant's authorized representative request that such documents be mailed; 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.

(d) Upon oral or written request, including request by telephone, the social services agency must provide to the appellant and the appellant's authorized representative copies of any documents from appellant's case file which the appellant or the appellant's authorized representative identifies and requests for purposes of hearing preparation. Such copies must be provided at a reasonable time before the date of the hearing. If the request for copies of documents is made less than five business days before the hearing, the social services agency must provide the appellant and the appellant's authorized representative such copies no later than at the time of the hearing. Such documents must be provided without charge and must be provided to the appellant and the appellant's authorized representative by mail within a reasonable time from the date of the request if the appellant or the appellant's authorized representative request that such documents be mailed; 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.

(e) The social services agency must encourage the use of agency conferences to settle disputes and complaints concerning actions regarding an applicant's or recipient's public assistance, medical assistance, food stamp benefits, HEAP benefits or services so as to eliminate the need to hold fair hearings wherever the dispute can be resolved by scrutiny of documents and/or thorough investigation.

(f) The social services agency must hold agency conferences when such conference is requested as provided for in section 358-3.8 of this Part. The conference may not be used to inhibit the appellant's right to a fair hearing. Agency conferences must be scheduled before the date of the fair hearing. If the appellant is contesting a denial of expedited participation in the Food Stamp Program, the conference must be scheduled within two business days of the conference request, unless the appellant requests a later date.

(g) The social services agency must bring the necessary information and documentation to any agency conference, including a telephone conference, to explain the reason for the agency determination and to provide a meaningful opportunity to resolve the problem.

(h) Except for telephone agency conferences approved pursuant to subdivision (i) of this section, a representative of the social services agency must appear with the case record at the agency conference. Such representative must have reviewed the case and must have the authority to make binding decisions on behalf of the social services agency, including the authority to withdraw the intended action.

(i) Social services agencies may provide telephone conferences upon prior approval of the Office of Administrative Hearings of the department. The Office of Administrative Hearings may approve such requests in its discretion, where holding an in-person conference is not feasible.

(j) The social services agency must send copies of all correspondence relating to the conference and fair hearing to the authorized representative of the appellant.

 

Doc Status: 
Complete

Section 358-4.3 - Responsibilities and rights in the fair hearing process.

358-4.3 Responsibilities and rights in the fair hearing process. (a) The social services agency must provide complete copies of its documentary evidence to the hearing officer at the fair hearing and also to the appellant or appellant's authorized representative, where such documents were not provided previously to the appellant's authorized representative in accordance with sections 358-3.7 and 358-4.2(c) of this Part. Such documents must be provided without charge.

(b) Except as provided in subdivision (c) of this section, a representative of the social services agency must appear at the hearing along with the case record and a written summary of the case. Such representative must:

(1) have reviewed the case; and

(2) be prepared to present evidence in support of the action, including:

(i) the case number;

(ii) the applicable category or categories or type of public assistance or care, medical assistance, food stamp benefits or services involved;

(iii) the names, addresses, relationships and ages of persons affected;

(iv) the determination regarding which the hearing request was made;

(v) a brief description of the facts, evidence and reasons supporting such determination, including identification of the specific provisions of law, department regulations and approved local policies which support the action;

(vi) the relevant budget or budgets prepared by the social services agency for the appellant or the household of such appellant, including printouts of relevant budgets produced on the Welfare Management System

(WMS); and

(vii) a copy of the applicable action taken notice, adverse action notice, expiration notice or notice of action, including an notices produced on the Client Notices System when that system is operational.

(3) have the authority to make binding decisions at the hearing on behalf of the social services agency, including the authority to withdraw the action or otherwise settle the case.

(c) (1) No later than five calendar days before the hearing date, the social services agency may make application to the Office of Administrative Hearings of the department to appear at a hearing on papers only. The Office of Administrative Hearings may approve such application in its discretion where the rights of the appellant can be protected and the personal appearance of the agency is neither feasible nor necessary.

(2) Notwithstanding paragraph (1) of this subdivision, a hearing officer may require the appearance of a representative of a social services agency where such appearance is necessary to protect the due process rights of the appellant.

(d) Upon request of the appellant, the social services agency must provide necessary transportation and transportation expenses to and from the fair hearing for the appellant and appellant's representatives and witnesses and payment for appellant's necessary child care costs and for any other necessary costs and expenditures related to the fair hearing.

(e) Social services agencies have those hearing rights which appellants have as set forth in sections 358-3.4(d) (adjournment), 358-3.4(e)

(representation), 358-3.4(g) (present evidence, question witnesses, examine documents), and 358-3.4(h) (bring witnesses), and 358-3.4 (k)

(removal of hearing officer) of this Part.

 

Doc Status: 
Complete

Section 358-4.4 - Compliance with fair hearing decision.

358-4.4 Compliance with fair hearing decision. A social services agency must comply with fair hearing decisions in accordance with section 358-6.4 of this Part.

 

Doc Status: 
Complete

SubPart 358-5 - THE FAIR HEARING PROCESS

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

Section 358-5.0 - Introduction.

Section 358-5.0 Introduction. The fair hearing process is governed by this Subpart.

Doc Status: 
Complete

Section 358-5.1 - Notice of fair hearing.

358-5.1 Notice of fair hearing. (a) Except for hearings which are given priority in scheduling in accordance with section 358-5.2 of this Subpart, at least 10 calendar days prior to the date of the fair hearing, a written notice of the fair hearing will be sent by the department to the appellant, appellant's authorized representative and to the social services agency.

(b) The fair hearing notice will state the following:

(1) the date, time and place of the fair hearing and an explanation of how and when a change in the date and place of the fair hearing may be requested, and under what circumstances a hearing will be rescheduled if neither the appellant nor the appellant's representative appears at the hearing;

(2) whether public assistance, medical assistance, food stamp benefits or services must be continued unchanged;

(3) the appellant's right upon request to necessary transportation or to transportation expenses to and from the fair hearing for the appellant and the appellant's authorized representatives and witnesses and for payment of the appellant's necessary child care costs and for any other necessary costs and expenditures related to the fair hearing;

(4) the appellant's right to be represented at the fair hearing by legal counsel, a relative, friend or other person or to represent oneself, and the right to bring witnesses to the fair hearing and to question witnesses at the hearing;

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

(6) that the appellant should bring the notice of fair hearing to the hearing as well as all evidence that has a bearing on the case such as books, records and other forms of written evidence, and witnesses, if any;

(7) the appellant's right to review appellant's case record prior to and at the fair hearing;

(8) the appellant's right upon request to obtain copies of documents which the social services agency will present at the fair hearing and copies of other additional documents for the purpose of preparing for the fair hearing; and

(9) the right of a deaf or non-English speaking appellant to interpreter services at the fair hearing at no charge; and

(10) the issues which are to be the subject of the hearing.

 

Doc Status: 
Complete

Section 358-5.2 - Scheduling.

358-5.2 Scheduling. (a) The fair hearing will be held at a time and place convenient to the appellant as far as practicable. In scheduling the hearing, the department will consider such things as the physical inability of the appellant to travel to the regular hearing location.

(b) Priority scheduling. (1) Except as set forth in paragraph (4) of this subdivision, a fair hearing which is subject to priority processing pursuant to section 358-3.2 of this Part must be scheduled as soon as practicable after the request therefor is made. In determining the date for which the hearing will be scheduled, consideration must be given to the nature and urgency of the appellant's situation, including any date before which the decision must be issued to allow for meaningful resolution of the issue under review.

(2) When a hearing is requested concerning food stamp benefits and the food stamp household intends to move from the local social services district before the decision normally would be issued, priority will be given to the scheduling of the hearing, taking into account any date before which the hearing must be scheduled to allow for the appellant to receive the decision while still in the district.

(3) Except as set forth in paragraph (4) of this subdivision, after a hearing which was scheduled on a priority basis as set forth above, the decision must be issued as soon as practicable. In determining the date by which the decision will be issued, consideration must be given to the nature and urgency of the appellant's situation, including any date before which the decision must be issued to allow for meaningful resolution of the issue under review. If, at the conclusion of a hearing which was scheduled on a priority basis the hearing officer determines that the issues do not warrant continued priority processing, the hearing officer will inform the parties that the issuance of the decision will not receive priority processing.

(4) When a fair hearing is requested concerning the involuntary discharge of a resident of a tier II facility after such resident requests and participates in a hearing, held by the facility or the social services district in which the facility is located, such fair hearing must be scheduled within seven working days of the request. The decision after the fair hearing must be issued within seven working days of the date of the fair hearing.

(c) When a hearing is requested pursuant to section 358-3.1(g) of this Part or has been given priority in accordance with section 358-3.2(d) of this Part, the hearing will be held within 30 days of the request, unless delayed by, or adjourned at the request of, the appellant.

 

Doc Status: 
Complete

Section 358-5.3 - Adjourning the fair hearing.

358-5.3 Adjourning the fair hearing. (a) Upon request of either the appellant or a social services agency, the fair hearing may be rescheduled, upon a showing of good cause for requesting the delay.

(b) When in the judgment of the department or the hearing officer the parties' due process rights would best be served by adjourning the fair hearing, or if there are special circumstances which make proceeding with the case fundamentally unfair, the department or the hearing officer may reschedule the fair hearing.

(c) Requests to adjourn a fair hearing must be made in accordance with the instructions in the notice of fair hearing.

(d) If a fair hearing is adjourned based upon a request by the appellant, the time limit set forth in section 358-6.4 of this Part will be extended by the number of days the fair hearing has been postponed.

(e) If public assistance, medical assistance, food stamp benefits or services are continued in accordance with section 358-3.6 of this Part and the fair hearing is rescheduled for the reasons set forth in subdivision (a) or (b) of this section, an appellant has the right to have public assistance, medical assistance, food stamp benefits or services continued until the fair hearing decision is issued.

 

Doc Status: 
Complete

Section 358-5.4 - Withdrawal of a request for a fair hearing.

358-5.4 Withdrawal of a request for a fair hearing. (a) The department will consider a hearing request to be withdrawn under the following circumstances:

(1) the department has received a written statement from the appellant or appellant's authorized representative stating that the request for a fair hearing is withdrawn; or

(2) the appellant or appellant's authorized representative has made a statement withdrawing the request to the hearing officer on the record at the hearing.

(b) An oral statement by telephone or in person to a social services agency employee that an appellant is withdrawing a request for a fair hearing is insufficient to withdraw a fair hearing request.

 

Doc Status: 
Complete

Section 358-5.5 - Abandonment of a request for a fair hearing.

358-5.5 Abandonment of a request for a fair hearing. (a) The department will consider a fair hearing request abandoned if neither the appellant nor appellant's authorized representative appears at the fair hearing unless either the appellant or appellant's authorized representative has:

(1) contacted the department within 15 days of the scheduled date of the fair hearing to request that the fair hearing be rescheduled; and

(2) provide the department with a good cause reason for failing to appear at the fair hearing on the scheduled date; or

(3) contacted the department within 45 days of the scheduled date of the hearing and establishes that the appellant did not receive the notice of fair hearing prior to the scheduled hearing date.

(b) The department will restore a case to the calendar if the appellant or appellant's authorized representative has met the requirements of subdivision (a) of this section.

 

Doc Status: 
Complete

Section 358-5.6 - Hearing officer.

358-5.6 Hearing officer. (a) The hearing shall be conducted by an impartial hearing officer employed by the department, who has not been involved in any way with the action in question.

(b) To ensure a complete record at the hearing, the hearing officer must:

(1) preside over the fair hearing and regulate the conduct and course of the fair hearing, including at the hearing officer's discretion, requiring sworn testimony, and administering the necessary oaths;

(2) make an opening statement explaining the nature of the proceeding, the issues to be heard and the manner in which the fair hearing will be conducted;

(3) elicit documents and testimony, including questioning the parties and witnesses, if necessary, particularly where the appellant demonstrates difficulty or inability to question a witness; however, the hearing officer will not act as a party's representative;

(4) where the hearing officer considers independent medical assessment necessary, require that an independent medical assessment be made part of the record when the fair hearing involves medical issues such as a diagnosis, an examining physician's report, or a medical review team's decision;

(5) adjourn the fair hearing to another time on the hearing officer's own motion or on the request of either party, to the extent allowable by section 358-5.3 of this Subpart;

(6) adjourn the fair hearing when in the judgment of the hearing officer it would be prejudicial to the due process rights of the parties to go forward with the hearing on the scheduled hearing date;

(7) review and evaluate the evidence, rule on the admissibility of evidence, determine the credibility of witnesses, make findings of fact relevant to the issues of the hearing which will be binding upon the commissioner unless such person has read a complete transcript of the hearing or has listened to the electronic recording of the fair hearing;

(8) at the hearing officer's discretion, where necessary to develop a complete evidentiary record, issue subpoenas, and/or require the attendance of witnesses and the production of books and records; and

(9) prepare an official report containing the substance of what transpired at the fair hearing and including a recommended decision to the commissioner.

(c) 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.

(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 on the 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.

 

Doc Status: 
Complete

Section 358-5.7 - Who may be present at the fair hearing.

358-5.7 Who may be present at the fair hearing. The following persons may be present at a fair hearing:

(a) the appellant who has requested the fair hearing;

(b) the appellant's representative;

(c) counsel or other representatives of the social services agency;

(d) witnesses of either party and any who may be called by the hearing officer;

(e) an interpreter; and

(f) any other person admitted at the hearing officer's discretion, with the consent of the appellant.

 

Doc Status: 
Complete

Section 358-5.8 - Media admission to fair hearing.

358-5.8 Media admission to fair hearing. (a) The media may be admitted to a fair hearing where the appellant has made a specific waiver of appellant's right to confidentiality both in writing and on the record and has clearly and unequivocally confirmed on the record that the appellant desires and consents to the presence of the media. The waiver must be unqualified, complete, and made with full knowledge of the ramifications of the waiver, including that the waiver is irrevocable.

(b) Where a waiver has been secured in accordance with subdivision (a) of this section, the extent of any access to be granted to the media is to be determined at the discretion of the hearing officer. In determining the extent of such access, the hearing officer will consider the following:

(1) maintenance of proper hearing decorum;

(2) potential disruption to the proceedings;

(3) adverse effect on witnesses;

(4) impediments to the making of a proper and accurate record;

(5) the physical space and conditions of the hearing room;

(6) potential disruption to the hearing officer, including impediments to the hearing officer's ability to discharge responsibilities; and

(7) any other factor which, in the discretion of the hearing officer, is necessary to ensure the orderly and proper conduct of the hearing and the creation of a complete and accurate hearing record or which is necessary in order to protect confidential information where, confidentiality cannot be waived by the appellant.

 

Doc Status: 
Complete

Section 358-5.9 - Fair hearing procedures.

358-5.9 Fair hearing procedures. (a) At a fair hearing concerning the denial of an application for or the adequacy of public assistance, medical assistance, HEAP, food Stamp benefits or services, the appellant must establish that the agency's denial of assistance or benefits was not correct or that the appellant is eligible for a greater amount of assistance or benefits. Except, where otherwise established by law or regulation, in fair hearings concerning the discontinuance, reduction or suspension of public assistance, medical assistance, food stamp benefits or services, the social services agency must establish that its actions were correct.

(b) The fair hearing decision must be supported by and in accordance with substantial evidence.

(c) Technical rules of evidence followed by a court of law need not be applied. Irrelevant or unduly repetitious evidence and/or cross-examination may be excluded at the discretion of the hearing officer. Privileges recognized by law will be given effect.

(d) Any written record or document or part thereof to be offered as evidence may be offered in the form of a reproduction or copy where such reproduction or copy is identified satisfactorily as a complete and accurate reproduction or copy of the original material.

 

Doc Status: 
Complete

Section 358-5.10 - Consolidated fair hearings.

358-5.10 Consolidated fair hearings. (a) The department may consolidate fair hearings where two or more persons request fair hearings in which the individual issues of fact are not disputed and the sole issue in each request is an objection to:

(1) Federal or State law or regulation, or local policy; or

(2) a change in Federal or State law.

(b) Each person whose case has been consolidated with another person's case has the right to:

(1) present one's own case or have one's case presented by a representative; and

(2) withdraw from the consolidated fair hearing and have an individual fair hearing.

 

Doc Status: 
Complete

Section 358-5.11 - The hearing record.

358-5.11 The hearing record. (a) Fair hearing record. A written transcript or recording of the fair hearing testimony and exhibits, or the hearing officer's official report together with the recommended decision of the hearing officer, all papers and requests filed in the proceeding prior to the close of the fair hearing and the fair hearing decision, constitute the complete and exclusive record of the fair hearing. Where a decision without hearing is issued in accordance with section 358-6.2 of this Part, the documents submitted by the appellant and the social services agency constitute the complete and exclusive record of the fair hearing.

(b) Review of record. The exclusive record of the fair hearing is confidential; however, the exclusive record may be examined by either party or their authorized representative at the Office of Administrative Hearings, or upon request at some other location subject to the approval of the Office of Administrative Hearings.

 

Doc Status: 
Complete

SubPart 358-6 - DECISION AND COMPLIANCE

Doc Status: 
Complete
Statutory Authority: 
Social Services Law, Sections 20(3)(d), 22(8), 34(3)(f)

Section 358-6.0 - Introduction.

Section 358-6.0 Introduction. All decisions of the commissioner issued after a request for fair hearing are governed by this Subpart.

Doc Status: 
Complete

Section 358-6.1 - All decisions.

358-6.1 All decisions. (a) The fair hearing decision issued by the commissioner must be based exclusively on the fair hearing record, or in the case of a decision without hearing, on the documents submitted by the appellant and the social services agency. The decision must be in writing and must set forth the fair hearing issues, the relevant facts, and the applicable law, regulations, and approved policy, if any, upon which the decision is based. The decision must make findings of fact, determine the issues and state reasons for the determinations and when appropriate, direct specific action to be taken by the social services agency. In addition, the decision may address the violation of any provision of this Part by the social services agency, including but not limited to violations of regulations concerning notice, aid continuing and provision of documents and records and set forth appropriate relief for such violations.

(b) Upon issuance, the decision is final and binding upon social services agencies and must be complied with in accordance with section 358-6.4 of this Subpart.

(c) A copy of the decision, accompanied by written notice to the appellant of the right to judicial review except as set forth in subdivision (d) of this section, will be sent to each of the parties and to their representatives, if any. In addition, such notice will advise the appellant that the appellant or the appellant's authorized representative may request the Department's assistance in obtaining compliance with the decision.

(d) Where the decision relates to a complaint regarding on-the-job working conditions or workers' compensation coverage related to participation 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 or to wage rates used in calculating the hours of participation in the Community Work Experience Program, the decision will be accompanied by written notice that any party dissatisfied with the decision may, within 20 days of receipt of the decision, appeal to the United States Department of Labor for review of the decision.

 

Doc Status: 
Complete

Section 358-6.2 - Decision without hearing.

358-6.2 Decision without hearing. (a) Upon the commissioner's own motion or upon request of an appellant in cases in which there is no material issue of fact to be resolved, a decision may be issued without a hearing. The determination to issue a decision without a hearing rests solely within the discretion of the commissioner.

(b) A request for a decision without a hearing must be accompanied by sufficient information to enable the commissioner to ascertain whether any unresolved material issue of fact exists, and should contain a full and clear statement of the issues and of the appellant's position on these issues.

(c) When the commissioner determines that a decision without hearing is appropriate, the commissioner will send the request for a decision without hearing, or the request for a hearing, along with any supporting documents to the social services agency involved. Within 10 business days of receipt of these documents, the social services agency must forward to the commissioner, the appellant, and the appellant's representative, a response containing sufficient information to ensure resolution of the dispute.

(d) Within 10 business days of the receipt of the documents submitted by the social services agency, the appellant or authorized representative may submit comments or rebuttal to the commissioner with copies to the other parties.

(e) At any point after a request for a decision without a hearing has been made, if it appears that there is a material and unresolved issue of fact relating to the issue or issues upon which the hearing was requested, the appellant and the social services agency will be informed that a fair hearing will be scheduled upon notice to all parties.

(f) A decision without a hearing will be issued by the commissioner based upon the papers submitted in accordance with this section.

 

Doc Status: 
Complete

Section 358-6.3 - Direction relative to similar cases.

358-6.3 Direction relative to similar cases. When a fair hearing decision indicates that a social services agency has misapplied provisions of law, department regulations, or such agency's own State-approved policy, the commissioner's letter transmitting such decision to such agency may contain a direction to the agency to review other cases with similar facts for conformity with the principles and findings in the decision.

 

Doc Status: 
Complete

Section 358-6.4 - Compliance.

358-6.4 Compliance. (a) For all decisions, except those involving food stamp issues only, definitive and final administrative action must be taken promptly, but in no event more than 90 days from the date of the request for a fair hearing.

(b) (1) For all cases involving food stamp issues only the decision must be issued and the parties notified of the decision within 60 days of receipt of the request for the fair hearing by the department.

(2) If the decision will result in an increase in household food stamp benefits,social services agencies must reflect such increase in the coupon allotment within 10 days of the receipt of the hearing decision; however, the increase may occur later than 10 days after the decision if the social services agency decides to make the decision effective in the household's normal issuance cycle and the issuance will occur within 60 days from the household's request for a hearing. Decisions which result in a decrease in household benefits must be reflected on the next scheduled issuance following receipt of the fair hearing decision.

(c) Upon receipt of a complaint that a social services agency has not complied with the fair hearing decision, the department will secure compliance by whatever means is deemed necessary and appropriate under the circumstances of the case.

 

Doc Status: 
Complete

Section 358-6.5 - Compliance with direction relative to similar cases.

358-6.5 Compliance with direction relative to similar cases. When a direction has been given to a social services agency to correct a misapplication of law, department regulations or such agency's own State-approved policy in all cases similar to the one in which a decision has been issued, such social services agency must report the actions it has taken to comply with such direction to the department within 30 days after receipt of the direction. The social services agency must make such additional reports as the department may require.

 

Doc Status: 
Complete

Section 358-6.6 - Corrected decisions and reopened hearings.

358-6.6 Corrected decisions and reopened hearings. (a) Corrected decisions.

(1) The Commissioner may review an issued fair hearing decision for purposes of correcting any error found in such decision.

(2) After review, the commissioner may correct any error occurring in the production of an issued fair hearing decision including, but not limited to, typographical and spelling errors.

(3) After review, on notice to the parties, the commissioner may correct any error of law or fact which is substantiated by the fair hearing record.

(4) During the pendency of any review of an issued fair hearing decision, the original decision is binding and must be complied with by the social services agency in accordance with the provisions of section 358-6.4 of this Subpart.

(b) Reopened hearings. On notice to all parties, the commissioner may reopen a previously closed fair hearing record for purposes of completing such record. If such reopening occurs subsequent to the issuance of a fair hearing decision, the provisions of paragraph (a) (4) of this section apply.

 

Doc Status: 
Complete

Part 359 - DISQUALIFICATION FOR INTENTIONAL PROGRAM VIOLATION

Doc Status: 
Complete
Statutory Authority: 
Social Services Law, Sections 20[3][d], 34[3][f], 95, 145-c, 355[3]

Section 359.0 - Scope.

Section 359.0 Scope. This Part prescribes the processes and procedures that must be followed when a public assistance recipient is accused of intentionally violating the requirements of the public assistance programs in a fraudulent manner or a food stamp recipient is accused of intentionally violating the requirements of the food stamp program in a fraudulent manner. If such a recipient is found to have committed an intentional program violation, the recipient may be disqualified from participation in such program for the periods of time set forth in this Part.

Doc Status: 
Complete

Section 359.1 - Definitions.

359.1 Definitions. (a) Intentional program violation in the public assistance programs (public assistance-IPV) means the commission of one or more acts in violation of standards for the public assistance programs described in section 359.3(a) of this Part.

(b) Intentional program violation in the Food Stamp program (FS-IPV) means the commission of one or more acts in violation of standards for the Food Stamp program described in subdivision (c) of section 359.3 of this Part.

(c) Administrative disqualification hearing means a hearing scheduled by the office, at the request of a social services district, upon the submission by the district of sufficient documentary evidence to establish that an individual has committed one or more acts in violation of program standards described in section 359.3 of this Part.

(d) Waiver of administrative disqualification hearing means an election of an individual, in compliance with the provisions of section 359.8 of this Part, to accept the imposition of an appropriate penalty contained in section 359.9 of this Part without a hearing.

(e) Disqualification consent agreement (DCA) means a document signed by an accused individual in which an individual or any caretaker relative or head of household admits to committing an intentional program violation and consents, as described in subdivision (b) of section 359.4 of this Part, to the imposition of an appropriate disqualification penalty, as set forth in section 359.9 of this Part, without a trial.

(f) Caretaker relative means a parent or other relative, as defined in section 369.1 of this Title, with whom a child eligible for ADC is living.

(g) Head of household means a person as defined in section 387.1(t) of this Title.

(h) For the purposes of this Part, office means the Office of Temporary and Disability Assistance.

 

Doc Status: 
Complete

Section 359.2 - Applicability.

359.2 Applicability. (a) The department and social services districts have the responsibility for investigating the alleged commission of intentional program violations and ensuring that the procedures set forth in this Part are followed.

(b) Subject to the provisions of section 399.11 of this Title, any matters or procedures commenced pursuant to Part 399 prior to the effective date of this Part will be continued in accordance with the provisions of this Part as if the matter had been commenced in accordance with this Part.

(c) Administrative hearings for public assistance IPVs and FS-IPVs may be scheduled by the office, provided that not more than six years have elapsed between the month an individual committed an intentional program violation and the date on which the social services district discovered the intentional program violation, and the office determines that there is evidence to substantiate that an intentional program violation has occurred.

(d) Unless specifically granted written authorization to proceed directly on an FS-IPV by either a social services official or his or her authorized representative or the appropriate district attorney, or by any other prosecutor authorized to act on the matter, on the grounds that to do otherwise would prejudice the prosecution of an FS-IPV allegation, a social services district must initially treat the allegation as an inadvertent household error in accordance with Part 387 of this Title prior to either referring the case to the district attorney or processing the allegation for an administrative disqualification hearing. A social services district's failure to comply with the provisions of this subdivision will not affect the department's determination at a hearing conducted pursuant to this Part or a court's determination when an allegation is referred by a social services district to the appropriate district attorney or any other prosecutor for prosecution. Non-compliance with the provisions of this section will not affect the amount of any food stamp allotment reduction authorized in section 359.9(f) of this Part after a hearing decision is issued that an FS-IPV has occurred.

 

Doc Status: 
Complete

Section 359.3 - Standards.

359.3 Standards. The standards for determining whether an individual has committed an intentional program violation are:

(a) A public assistance-IPV occurs when an individual has established or maintained his or her eligibility or the eligibility of the individual's family for public assistance or has increased or prevented a reduction in the amount of public assistance by intentionally:

(1) making a false or misleading statement, or misrepresenting, concealing or withholding facts concerning the individual's eligibility for public assistance;

(2) committing any act intended to mislead, misrepresent, conceal, or withhold facts or propound a falsity concerning the individual's eligibility for public assistance; or

(3) engaging in any conduct inconsistent with the requirements of Parts 350, 351, 352, 369 or 370 of this Title.

(b) An FS-IPV occurs when an individual has intentionally:

(1) made a false or misleading statement, or misrepresented, concealed or withheld facts concerning the individual's eligibility for food stamps; or

(2) committed any act constituting a violation of the requirements of the Food Stamp program, including, but not limited to, acts constituting a fraudulent use, presentation, transfer, acquisition, receipt, possession or alteration of food stamp coupons or authorization to participate cards or any other evidence of the individual's eligibility for food stamps.

 

Doc Status: 
Complete

Section 359.4 - Referral to prosecuting authorities.

359.4 Referral to prosecuting authorities. (a) The social services district must refer a case involving a public assistance-IPV or FS-IPV in which it believes the facts warrant civil or criminal prosecution to the appropriate district attorney, or to any other prosecutor authorized to act on the matter, and not to the office for an administrative disqualification hearing. This subdivision will not apply in instances in which the social services district has received prior notification from the district attorney or other equivalent prosecutor that the amount of any overpayment or over-issuance determined by the district to exist is less than the amount which the appropriate official has deemed sufficient for prosecution, provided that the social services district has not been notified by any other prosecutor authorized to act on the matter that such prosecutor intends or desires to prosecute such matter. The office may not reverse a determination following an administrative disqualification hearing for lack of compliance with the provisions of this subdivision.

(b) Disqualification consent agreement (DCA). (1) A DCA must be in a format prescribed by the department and must include:

(i) notification to the accused individual of the consequences of signing the agreement and consenting to a disqualification penalty;

(ii) a statement for the accused individual to sign indicating that he or she understands the consequences of signing the agreement, along with a statement that any caretaker relative or head of household must also sign the agreement if the accused individual is not the caretaker relative or head of household;

(iii) a statement that signing the agreement will result in disqualification of the accused individual and reduction or discontinuance of assistance or food stamps for the disqualification period, even if the accused individual was not found guilty of civil or criminal misrepresentation or fraud;

(iv) a statement describing the disqualification period which will be imposed as a result of the accused individual's signing the agreement; and

(v) a statement that the remaining members of the household or assistance unit, if any, will be held responsible for repayment of the overpayment or over-issuance, unless the accused individual has already repaid the overpayment or over-issuance as a result of meeting the terms of any agreement with the prosecutor or any court order.

(2) When a case is referred in accordance with this section to the appropriate district attorney, or to any other prosecutor authorized to act on the matter, and is accepted for prosecution the prosecutor may choose to settle the case or a court of appropriate jurisdiction hearing the case may issue a pre-determination disposition order, such as an order adjourning the case in contemplation of dismissal, provided that full restitution is made. In such cases, the social services district may use a DCA as described in paragraph (1) of this subdivision.

(3) Social services districts which contemplate the use of DCA's must enter into written agreements with the appropriate prosecutors which give the social services districts opportunity to send advance written notification of the consequences of signing a DCA to the assistance unit or household when deferred adjudication is contemplated.

(4) If the prosecutor requests or authorizes a social services district to assist in obtaining a DCA as described in paragraph (1) of this subdivision, a copy of the DCA, together with the notification of the consequences of signing the DCA as described in subparagraph (i) of paragraph (1) of this subdivision must be provided to the accused individual at least 10 days prior to the execution of the DCA and the accused individual must be advised that he or she may obtain a legal or other authorized representative for counsel and advice prior to and at the time the DCA is executed by such accused individual.

 

Doc Status: 
Complete

Section 359.5 - Commencement of the administrative disqualification hearings

359.5 Commencement of the administrative disqualification hearings process. (a) Upon discovering and determining that an intentional program violation may have occurred, the social services district must document the determination and reach a conclusion as to whether the documented acts constitute an intentional program violation in accordance with the standards described in section 359.3 of this Part.

(b) If the social services district concludes that the documented acts resulted in an intentional program violation and that referral, in accordance with section 359.4 of this Part, to the appropriate prosecutor authorized to act on the matter, is not warranted or not possible due to the amount in issue, the social services district may process the case for an administrative disqualification hearing.

(c) If, pursuant to section 359.4 of this Part, the social services district refers an overpayment or over-issuance to the appropriate prosecutor authorized to act on the matter, and that prosecutor declines to prosecute or fails to take action on the referral within a reasonable period of time, and the social services district elects to initiate the process for an administrative disqualification hearing pursuant to this section, the social services district must formally withdraw in writing the referral to the prosecutor before referring the case to the department. Failure to present evidence of such a formal written withdrawal either in its evidentiary transmittal to the department or at the hearing may result in an administrative disqualification hearing decision adverse to the social services district.

(d) (1) If the social services district elects to process a case for an administrative disqualification hearing, it must assemble documentary evidence which the district believes is sufficient on its face to support its determination of intentional program violation and forward the evidence in the form of an evidentiary packet to the Office of Administrative Hearings, New York State Department of Social Services, with a request that the department schedule an administrative disqualification hearing.

(2) If the social services district processes a case for an administrative disqualification hearing for an FS-IPV and the factual issues arise from the same or related circumstances as a case for a public assistance-IPV, the cases must be consolidated and the social services district must submit with the evidentiary packet required by this subdivision, a statement of the particular intentional program violation(s) being alleged and the sanction sought to be imposed for each such intentional program violation being alleged.

(e) The evidentiary packet forwarded by the social services district to the department accompanying the social services district's request for an administrative disqualification hearing must have consecutively numbered pages, must be submitted in three copies for each accused individual and must include, but not be limited to, the following:

(l) the full name (including middle name), the complete address

(including county of residence), the social security number, the case number and the date of birth of the person(s) charged and against whom a disqualification penalty is sought;

(2) a list of the particular charge(s) and the individual or individuals against whom a disqualification penalty is sought, together with any statement required by paragraph (2) of subdivision (d) of this section if cases are consolidated;

(3) a summary of the evidence to be introduced;

(4) a listing of the names, titles and phone numbers of all social services district personnel and witnesses who will appear in support of the determination;

(5) an itemized list of all the exhibits included in the packet with the page number(s) on which each exhibit is found;

(6) copies of all documents to be used in support of the social services district's determination;

(7) information as to when and where the original evidence exhibits submitted in the case may be reviewed;

(8) information as to the availability of free legal services; and

(9) a statement indicating whether the individual previously has been determined to have committed an intentional program violation by either a court of competent jurisdiction or an administrative disqualification hearing decision or whether the individual previously has waived attendance at an administrative disqualification hearing or previously has signed a DCA. If the person previously has been determined to have committed an intentional program violation or previously has waived attendance at an administrative disqualification hearing or previously has signed a DCA, supporting documentation of such facts must be included in the evidentiary packet.

(f) Upon receipt of a social services district's request for a hearing and accompanying evidentiary packet, the department will review the packet to determine if it contains sufficient documentary evidence to substantiate that an individual has committed one or more intentional program violations in accordance with the standards described in section 359.3 of this Part. The department also will determine whether the evidentiary packet satisfies the provisions of subdivision (e) of this section.

(g) If the department's review of the evidentiary packet indicates that there is either insufficient documentary evidence to establish that an intentional program violation was committed or that the packet does not comply with the provisions of subdivision (e) of this section, the department will return the packet to the social services district and not schedule a hearing.

 

Doc Status: 
Complete

Section 359.6 - Notification of administrative disqualification hearing.

359.6 Notification of administrative disqualification hearing. (a) Following a determination that the evidentiary packet is sufficient, the department must schedule an administrative disqualification hearing. The notice of administrative disqualification hearing which notifies the accused individual of the scheduled hearing must be mailed by first class mail, or provided by any other reliable method, to the accused individual.

(b) The hearing will be held at a time and place convenient to the accused as far as practicable, taking into account circumstances such as physical inability to travel to a regular hearing location.

(c) When it mails the notice of administrative disqualification hearing to the accused individual, the department must mail to the social services district which requested the hearing a notification of the time, date and place of the hearing by regular mail.

(d) Notice of administrative disqualification hearing. A written notice must be provided by the department to an individual alleged to have committed an intentional program violation in accordance with the standards described in section 359.3 of this Part. This notice must be provided to the individual at least 30 days prior to the date of the administrative disqualification hearing. The notice must include:

(1) the date, time, and place of the hearing;

(2) the charge(s) against the individual;

(3) a summary of the evidence and how and where the evidence may be examined;

(4) a statement warning that the decision will be based solely on information provided by the social services district if the individual fails to appear at the hearing;

(5) a notification that the individual or the individual's representative may have an opportunity to examine all documents and records to be used at the hearing by calling an identified telephone number and making arrangements to examine the documents and records at a specified place, provided that confidential information, such as names of individuals who have disclosed information about the public assistance unit or the nature or status of pending criminal prosecutions, cannot be released;

(6) notification of the individual's right to:

(i) an adjournment, provided that such a request is made at least 10 days in advance of the scheduled hearing date. In addition, such notification must advise the individual that if an adjournment is requested less than 10 days prior to the scheduled hearing date, the individual must demonstrate good cause for requesting the adjournment;

(ii) present the case or be represented by legal counsel or other person;

(iii) bring witnesses;

(iv) advance arguments without undue interference;

(v) question or refute any testimony or evidence;

(vi) confront and cross-examine adverse witnesses; and

(vii) submit evidence to establish all pertinent facts in the case;

(7) notification that the accused individual has the right to remain silent during the hearing process, but that inferences can be drawn from the silence of the individual;

(8) a statement that upon request, a copy of this part will be made available to the individual or his or her representative at the social services district during normal business hours;

(9) copies of the sections of this part relevant to the hearing process;

(10) a citation of the federal or State regulations governing the hearing and/or offense where appropriate;

(11) a listing of legal aid and/or legal services organizations which are available to assist in the defense of the case;

(12) a statement that the hearing does not preclude the state or federal government from prosecuting the individual for fraud in a civil or criminal court action, or from collecting an overpayment or recovering over-issuances of benefits;

(13) a statement that in order to receive a new hearing the individual or the individual's representative will have 10 days from the date of the scheduled hearing to present to the department good cause reasons for failing to appear at the hearing;

(14) a description of the penalties that can result from a determination that the individual has committed an intentional program violation and a statement of the penalty which is applicable to the individual; and

(15) an explanation that the individual may, in writing, waive his or her right to appear at an administrative disqualification hearing as provided in section 359.8 of this Part. This explanation must include:

(i) the date that the signed waiver must be received by the department and a place in which the accused individual can sign his or her name. This explanation must also include a statement that any caretaker relative or head of household must also sign the waiver if the accused individual is not the caretaker relative or head of household; the waiver statement must include an appropriately designated signature block in which such other individual can sign his or her name;

(ii) a statement of the accused individual's right to remain silent concerning the charge(s), but that inferences can be drawn from the silence of the individual, and that anything said or signed by the individual concerning the charge(s) can be used against him or her in a court of law or at an administrative hearing;

(iii) the fact that a waiver of an individual's right to appear at an administrative disqualification hearing may result in a disqualification penalty and a reduction or discontinuance of assistance or food stamp benefits for the appropriate period even if the accused individual does not admit to the facts as presented by the social services district;

(iv) an opportunity for the accused individual to specify whether or not he or she admits to the facts as presented by the social services district;

(v) the telephone number and, if possible, the name of the department employee and an employee of the social services district to contact for additional information; and

(vi) the fact that the remaining members, if any, of the household or assistance unit will be held responsible for the repayment of any overpayment or over-issuance.

 

Doc Status: 
Complete

Section 359.7 - Administrative disqualification hearings.

359.7 Administrative disqualification hearings.

(a) Following a determination that the evidentiary packet is sufficient and the scheduling of an administrative disqualification hearing, an administrative disqualification hearing will be conducted in accordance with the requirements of this section.

(b) Where factual issues arise from the same or related circumstances, a consolidated administrative disqualification hearing will be held for an FS-IPV and a public assistance-IPV. All evidence, testimony and proof relating to the consolidated cases will be presented together, but separate findings will be made with respect to each separately alleged intentional program violation.

(c) An administrative disqualification hearing scheduled pursuant to this Part will be adjourned when:

(1) the request for such adjournment is made at least 10 days in advance of the scheduled hearing date; or

(2) the request for such adjournment is made less than 10 days prior to the scheduled hearing date and the individual demonstrates good cause for requesting the adjournment.

The hearing cannot be adjourned for more than a total of 30 days.

(d) Rights in the administrative disqualification hearing process. The accused individual, or such individual's representative, must have adequate opportunity to:

(1) examine the contents of the individual's case file, and all documents and records to be used by the social services district at the hearing, at a reasonable time before the date of the hearing and during the hearing;

(2) present the case himself or herself, or with the aid of an authorized representative;

(3) bring witnesses;

(4) establish all pertinent facts and circumstances;

(5) advance any arguments without undue influence; and

(6) question or refute any testimony or evidence including the opportunity to cross-examine adverse witnesses.

(e) Conduct of an administrative disqualification hearing.

(1) The hearing officer must advise the accused individual that he or she may refuse to answer questions during the hearing.

(2) The burden of proving that an accused individual has committed an intentional program violation is on the social services district.

(3) When an individual has been convicted in a State or Federal court of a public assistance-IPV, and such conviction was based on a plea of guilty, and such conviction was based on the same set of facts which will be the subject of the administrative disqualification hearing, and such individual was not advised on the record in the court proceeding of the disqualification provisions of this Part:

(i) neither the conviction itself nor the records of the court proceeding may be used in any manner in the administrative disqualification hearing; and

(ii) the existence of the court proceeding may not be disclosed in any manner to the hearing officer by the office or social services district nor by any person acting on behalf of the office or social services district nor by any witness presented by any social services official.

(4) All provisions in Part 358 of this Title concerning the conduct of fair hearings which are not inconsistent with any of the specific provisions of this section are applicable to administrative disqualification hearings.

(f) Decision after an administrative disqualification hearing.

(1) The decision after an administrative disqualification hearing must be based exclusively on clear and convincing evidence and other material introduced at the hearing which demonstrates that an individual committed and intended to commit one or more intentional program violations.

(2) The decision after an administrative disqualification hearing must specify the reasons for the decision, identify the supporting evidence, identify the pertinent statutes or regulations and respond to reasoned arguments made by the individual or his or her representative.

(3) The department must conduct the hearing, arrive at a decision and forward the decision to the social services district for implementing action within 90 days of the date of the notice of administrative disqualification hearing. In the event of a client-requested adjournment, this time limit will be extended by the number of days the hearing was postponed.

(g) Default of an administrative disqualification hearing.

(1) If an accused individual cannot be located or fails to appear at an administrative disqualification hearing scheduled pursuant to this Part, the opportunity to appear at the hearing may be considered to be defaulted by such individual except as follows:

(i) The individual contacts the department within 30 days after the date of the hearing decision and claims good cause for failure to appear based on nonreceipt of the notice of administrative disqualification hearing or the notice of administrative disqualification hearing was returned as undeliverable. In such situations, a hearing will be scheduled at which the commission or the commissioner's designee will determine whether the individual had good cause for failing to appear at the administrative disqualification hearing. Good cause for failing to appear based on nonreceipt of the notice of administrative disqualification hearing will be deemed to exist when the individual establishes at the hearing that the failure to receive the notice of administrative disqualification hearing was not caused by the individual. If good cause for failing to appear is not established, the hearing decision will remain valid. If good cause is established, the recipient and the agency will have an opportunity to present any evidence or testimony concerning the agency's allegation that the recipient committed an intentional program violation. After consideration of such evidence and/or testimony, the prior hearing decision will be vacated and a new hearing decision will be issued; the hearing officer who originally presided at the hearing may conduct the new hearing; or

(ii) The individual contacts the department within 10 days after the date of the scheduled hearing and claims good cause for failing to appear. In such a case, a hearing will be scheduled at which the commissioner or the commissioner's designee will determine whether the recipient had good cause for failing to appear at the administrative disqualification hearing. If good cause for failing to appear is not established, the hearing decision will remain valid. If good cause is established, the recipient and the agency will have an opportunity to present any evidence or testimony concerning the agency's allegation that the recipient committed an intentional program violation. After consideration of such evidence and/or testimony, the prior hearing decision will be vacated and a new hearing decision will be issued; the hearing officer who originally presided at the hearing may conduct the new hearing.

(1) If an accused individual cannot be located or fails to appear at a hearing scheduled pursuant to this section, the opportunity to appear at the hearing may be considered to be defaulted by such individual unless the individual contacts the department within 10 days after the date of the scheduled hearing and presents good cause reasons for the failure to appear. If such reasons exist, the hearing will be rescheduled. A determination that good cause exists must be entered into the record.

(2) If the opportunity to appear at a hearing has been defaulted by the accused individual in accordance with paragraph (1) of this subdivision, the hearing must be conducted without the accused individual being present. Even though the accused individual is not present, the hearing officer is required to consider the evidence carefully and determine if an intentional program violation was committed based on clear and convincing evidence.

(h) Access to record of proceedings. The transcript or recording of testimony, exhibits, or other official reports introduced at the hearing, together with all papers and requests filed in the proceeding, and the original or a true copy of the decision after an administrative disqualification hearing must be made available to the individual or to the individual's representative at a reasonable time and place.

(i) Review of disqualification hearing decisions. A decision that an intentional program violation has been committed cannot be reversed by a subsequent fair hearing held pursuant to Part 358 of this Title. However, the disqualified individual is entitled to seek relief in a court having appropriate jurisdiction pursuant to article 78 of the Civil Practice Law and Rules. The period of disqualification may be subject to stay or other injunctive remedy ordered by such a court, but any period for which sanctions are imposed shall remain in effect, without possibility of administrative stay, unless and until the finding upon which the sanctions were imposed is subsequently reversed by a court of appropriate jurisdiction.

 

Doc Status: 
Complete

Section 359.8 - Waiver of an administrative disqualification hearing.

359.8 Waiver of an administrative disqualification hearing.

(a) An administrative disqualification hearing is waived when a waiver of administrative hearing document which is sent by the department to an individual for whom the department has scheduled an administrative disqualification hearing is properly executed by the individual or any caretaker relative or head of household, if the accused individual is not the caretaker relative or head of household, and received by the department.

(b) The department will send written notification to the social services district which had requested the hearing that it may impose the appropriate penalty contained in section 359.9 of this Part upon sending a notice of disqualification to the individual, as described in section 359.10 of this Part. A waiver of an administrative disqualification hearing must comply with the provisions of paragraph (15) of subdivision

(d) of section 359.6 of this Part.

(c) A disqualification penalty which has been imposed following a waiver of an administrative disqualification hearing cannot be changed in a subsequent fair hearing held pursuant to Part 358 of this Title. There is no right to appeal the penalty by a fair hearing.

(d) Upon timely receipt of a properly executed waiver, the department will notify the social services district in writing of the cancellation of the scheduled administrative disqualification hearing and of the social services district's responsibility to proceed with the recovery of any overpayment or over-issuance in accordance with the provisions of sections 352.31 or 387.19 of this Title.

(e) When an individual waives his or her right to appear at an administrative disqualification hearing, the disqualification and appropriate reduction or discontinuance of assistance or food stamps must result regardless of whether the individual admits or denies the charges made by the district.

 

Doc Status: 
Complete

Section 359.9 - Penalties.

359.9 Penalties.

(a) Individuals found to have committed a public assistance-IPV, either through an administrative disqualification hearing or by a court of appropriate jurisdiction, or who have signed either a waiver of right to an administrative disqualification hearing or a disqualification consent agreement, will be ineligible, individually or as a member of an assistance unit, to receive public assistance:

(1) for six months for the commission of a first public assistance-IPV; or

(2) for 12 months for the commission of a second public assistance-IPV or when the offense results in the wrongful receipt of benefits in an amount between $1,000 and $3,900; or

(3) for 18 months for the commission of a third public assistance-IPV or when the offense results in the wrongful receipt of benefits in an amount in excess of $ 3,900; or

(4) for five years for the commission of a fourth or subsequent public assistance-IPV.

Findings of the commission of intentional program violations in the ADC and HR programs prior to August 20, 1997 must be considered in determining the sanction to be imposed for a public assistance-IPV.

(b) The sanction in subdivision (a) of this section is in addition to, and not in substitution for, any other sanctions which may be provided for by law with respect to the offenses involved. However, the social services official or court official assessing penalties against a public assistance recipient for an act of fraud or misrepresentation may consider whether to impose such penalties based upon the existence of the penalties described in subdivision (a) of this section.

(c) Individuals found to have committed an FS-IPV, either through an administrative disqualification hearing or by a court of appropriate jurisdiction, or who have signed either a waiver of right to an administrative disqualification hearing or a disqualification consent agreement, will be ineligible to participate in the Food Stamp program:

(1) for one year for the commission of a first FS-IPV;

(2) for two years upon:

(i) the commission of a second FS-IPV; or

(ii) the first occasion of a finding by a Federal, State, or local court of the trading of a controlled substance for coupons; and

(3) permanently upon:

(i) the commission of a third FS-IPV; or

(ii) the second occasion of a finding by a Federal, State, or local court of the trading of a controlled substance for coupons; or

(iii) the first occasion of a finding by a Federal, State, or local court of the trading of firearms, ammunition, or explosives for coupons; or

(iv) the conviction of an offense for knowingly using, transferring, acquiring, altering or possessing food stamp coupons, authorization to participate cards or access devices in any matter not authorized by this Part if such food stamp coupons, authorization to participate cards or electronics devices have a value of $500 or more.

(d) If a court of appropriate jurisdiction determines that an individual has engaged in conduct that would constitute an intentional program violation in accordance with the standards described in section 359.3 of this Part, the social services district must impose the penalties specified in this section, except as otherwise set forth below:

(1) Notwithstanding the provisions of this section, an individual found guilty of an intentional program violation must be disqualified from the public assistance or Food Stamp program for the length of time specified by the court, if the court has imposed a disqualification period for such a violation.

(2) With respect to an FS-IPV, if a court fails to impose a disqualification period, the social services district must impose the disqualification penalties specified in subdivision (c) of this section, unless such imposition is contrary to the court order. With respect to a public assistance-IPV, if a court fails to impose a disqualification period, the social services district may impose the disqualification penalties for a public assistance-IPV as specified in subdivisions (a) and (b) of this section.

(3) If disqualification is ordered by a court, but a date for initiating the disqualification period is not specified, the social services district must initiate the disqualification period for currently eligible individuals within 45 days of the date the disqualification was ordered.

(4) If disqualification is not ordered by a court, but disqualification must be imposed as the result of a criminal or civil court determination finding that an individual has engaged in conduct that constitutes an intentional program violation, the social services district must initiate the disqualification period for currently eligible individuals within 45 days of the date of the court determination.

(5) No individual may be sanctioned for a public assistance-IPV on the basis of a conviction in a State or Federal court if that conviction is based on a plea of guilty unless the individual was advised on the record in the court proceeding that his or her conviction may serve as the basis for disqualification from receipt of public assistance benefits and in writing prior to or at the time of entry of the plea of the disqualification provisions contained in this section. An individual not so advised may, however, be subject to an administrative disqualification hearing on the same set of facts as the court proceeding, provided that neither the conviction itself nor the records of the court proceeding may be used in any manner in the administrative disqualification hearing, nor may the office or a social services district, any person acting on behalf of the office or a social services district or any witness presented by the office or a social services district, disclose the existence of the court proceeding in any manner to the hearing officer prior to the entry of the plea.

(e) The social services district must disqualify from the appropriate program(s) the individual(s) found to have committed an intentional program violation, or who have signed a waiver of right to an administrative disqualification hearing or disqualification consent agreement in cases referred for prosecution, but not the entire assistance unit or household of such individual(s), except as provided in subdivision (f) of this section.

(1) A disqualified individual is ineligible to participate in a program from which he or she is disqualified for the periods provided in this section.

(2) If an individual signs a disqualification consent agreement, the period of disqualification will begin within 45 days of the date the individual signed the disqualification consent agreement unless the disqualification consent agreement is incorporated into a court determination issued at a later date or a court determination has specified the date for initiating the disqualification period, in which event the social services district will disqualify the individual in accordance with the court order.

(3) If an individual signs a waiver of right to an administrative disqualification hearing or has been found to have committed an intentional program violation through an administrative disqualification hearing, the period of disqualification will begin with the first month which follows the date the individual receives written notification of disqualification after having been found to have committed an FS-IPV, and must begin no later than the first day of the second month which follows the date of the notice of disqualification after having been found to have committed any other intentional program violation.

(f) The remaining members of the household which contained an individual who has been found to have committed an FS-IPV must agree to make full restitution within 10 days of the date that the social services district's demand letter is mailed, or the household's monthly allotment will be reduced. If the remaining household members agree to make full restitution but fail to do so, the social services district must reduce the household's monthly food stamp allotment. Restitution must begin during the period of disqualification imposed by the social services district or a court of law. Any public assistance overpayment must be recovered in accordance with the provisions of section 352.31 of this Title.

(g) If there is a determination that a member of the household or assistance unit has committed an intentional program violation, the social services district must take immediate action to send the individual a notice of disqualification as set forth in section 359.10 of this Part.

(1) In the case of an individual who is not currently in receipt of public assistance, federally funded aid to dependent children or food stamps, the disqualification period will be postponed until after a re-application for benefits under the applicable program has been approved.

(2) Once a disqualification penalty has been imposed against a member of the household or assistance unit, the period of disqualification continues uninterrupted until completed regardless of the eligibility of the other members of the household or assistance unit. However, the disqualified member's household or assistance unit continues to be responsible for repayment of any overpayment or over-issuance which resulted from the disqualified member's intentional program violation regardless of the household's or unit's eligibility for home relief, aid to dependent children or food stamps.

(h) Social services districts must report to the department information on individuals who have been found to have committed an intentional program violation by a hearing decision or a court or who have signed a waiver of hearing or a DCA. The following data must be submitted on each individual:

(1) full name;

(2) social security number;

(3) date of birth;

(4) number of disqualification(s) (1st, 2nd, 3rd, ect.);

(5) date disqualification took effect for a current otherwise eligible individual; and

(6) length of disqualification imposed or to be imposed. This information is to be submitted no later than 20 days after the date the disqualification took effect, or would have taken effect for a currently ineligible individual, the imposition whose disqualification penalty will not be imposed until the individual becomes eligible for assistance or benefits. This information is to be updated by social services districts where appropriate.

 

Doc Status: 
Complete

Section 359.10 - Notice of disqualification.

359.10 Notice of disqualification. (a) The social services district will provide a written notice of disqualification to an individual who:

(1) has been found, after an administrative disqualification hearing, to have committed an intentional program violation;

(2) has waived his or her right to appear at an administration disqualification hearing in accordance with section 359.8 of this Part;

(3) has signed a disqualification consent agreement in which he or she admits committing an intentional program violation in accordance with section 359.4 of this Part; or

(4) has been determined by a court to have engaged in conduct that would constitute an intentional program violation in accordance with subdivision (d) of section 359.9 of this Part.

(b) A notice of disqualification must:

(1) inform the individual as to when any disqualification period will take effect and the date upon which it will end and the length of the disqualification period;

(2) inform the individual and any members of the household or assistance unit of the amount of payment or allotment, if any, that the unit will receive during the period of disqualification;

(3) in the case of an individual who is not currently in receipt of public assistance, inform the individual that the disqualification period will be postponed until after a new application for public assistance is approved;

(4) in the case of an individual who has been found after an administrative disqualification hearing to have committed an intentional program violation, inform such individual of the decision and the reason for the decision; and

(5) inform the individual to be disqualified and any members of the household or assistance unit of the right to request a fair hearing to contest:

(i) the amount of the overpayment or over-issuance, if such amount has not been established by an administrative disqualification hearing or court determination or set forth in a DCA or waiver of an administrative disqualification hearing;

(ii) the amount of the public assistance or food stamp allotment to be provided to the remaining members of the household or assistance unit during the disqualification period; and

(iii) the social services district's failure to restore the disqualified individual to the household or assistance unit at the end of the disqualification period indicated in the written notice even though the individual has requested such restoration.

 

Doc Status: 
Complete